How Pelosi will game the Stupak 12

In order to get a reconciliation bill with the fixes they demand to the Senate floor, Stupak and his pro-life colleagues must first vote to pass the original Senate health care bill — including the abortion language they oppose. Only after this bill is passed in the House can the chamber then take up a reconciliation bill and send it to the Senate for its approval.

That’s where the “Byrd rule” comes in. Designed to protect the rights of the minority, the Byrd rule allows any Senator to raise a point of order demanding that “extraneous” (non-budgetary) provisions be removed. According to former Senate parliamentarian Bob Dove, “If a ‘Byrd Rule’ point of order against a provision is sustained, the provision is stricken from the bill….Appealing the rule of the chair requires 3/5 vote of duly elected and sworn Senators (60 votes).” (This process is known colloquially in the Senate as a “Byrd bath” and the dropped provisions are known as “Byrd droppings.”)

Republicans intend to raise points of order against the reconciliation package. They believe it is virtually certain that the Senate parliamentarian would find any abortion deal Pelosi makes with pro-life House Democrats to be “extraneous” (there is no reasonable way to argue the provision is primarily budgetary). So any abortion deal with Stupak and his allies would be struck from the bill.

That might only be the beginning of the bill’s unraveling. To pass health care, Pelosi will have to cut all sorts of deals in a reconciliation bill to bring along conservative “blue dog” Democrats. Using the Byrd rule, Republicans will proceed to pick apart every element of these deals Pelosi makes, piece by piece. It is unclear which provisions would survive scrutiny under the Byrd rule. But each time a point of order is sustained, it requires 60 votes to overturn that ruling — which means Senate Republicans have the votes necessary block key elements of the reconciliation package.

If this happens, the amended reconciliation bill would go back to the House , where Stupak and others would then likely oppose it. Reconciliation would be dead.

Marc Thiessen
3/5/10