There’s a lot of talk about the Senate rules right now. Without their 60-vote supermajority, Democrats want to use reconciliation to pass a health care bill. The problem is that under Senate rules reconciliation can be used for budget items only. That means no individual mandate, no requirement that insurers ignore pre-existing conditions, etc. Any bill that comes through reconciliation will be a ghost of what the Democrats want. (Keith Hennessey looks at the possibilities here.)
Or will it? What all this analysis ignores is the fact that the Democrats can change the rules any time they want. Yes, it’s true that it takes a 2/3 supermajority to change the rules officially, but the majority has a sleazier tactic at its disposal: it can simply ignore them.
Here’s how it works. The chair rules that the Byrd rule (that’s the rule governing reconciliation) doesn’t apply to the health care bill. This is clearly false, but it doesn’t matter. A ruling from the chair is sustained by a simple majority. Done. (There’s a bit of parliamentary maneuvering that is required, but in the end it takes a majority.)
In fact, they needn’t be so narrow about it. They can simply rule that cutting off debate requires only 51 votes. This is what Republicans proposed to do in 2005 in regards to judicial nominations. It is also what the Democrats did in 1975 to lower the majority required to end a filibuster from 67 to 60 votes. (At the time, Democrats had 62 votes.)
In short, although it takes 67 votes to change the rules, it only takes 51 votes to break them. The Democrats can pass health care reform if they choose. There would certainly be public outrage if they did (not just over the bill, but over the flagrant disregard of the Senate’s rules), but Democrats might decide it’s worth it.