And if that’s not enough evidence that he doesn’t have the votes, Democrats are talking about using a variant of the nuclear option to prevent a filibuster. Fox News reports that Democrats are talking about using reconciliation to pass health care reform. Reconciliation is a parliamentary maneuver that allows a budget to pass the Senate with only a majority vote. Under the Byrd Rule, reconciliation does not apply to non-budget legislation. The Byrd Rule barred it from being used to pass health care reform in 1993, and it still bars it today. Nevertheless, Democrats may try, and with control of the chamber, they can do whatever they want.
Why do I liken this to the nuclear option? Here’s how I see this playing out. To satisfy the Byrd Rule, Democrats would have to strip out all non-budget items, including individual and employer mandates, and the government insurance scheme. The bill that would be left over isn’t what the Democrats want. So, the chair (Harry Reid) rules that the full bill is permitted under reconciliation, Byrd Rule notwithstanding. After a point of order, the chair’s ruling is sustained by a majority vote (without the support of Republicans, moderate Democrats, or Robert Byrd). That’s precisely the nuclear option.
Democrats would be making a huge mistake to carry out this strategy. The spectacle of the Democrats breaking the Senate rules to pass a controversial bill the the public doesn’t even want will cost them dearly at the polls. But with so many true-believers in the Democratic caucus, they may decide it’s worth it.