Avoiding the health reform "Byrdbath"

Sheesh. President Obama is having enough trouble at the moment getting one health care reform bill passed. Why would some Obama strategists suggest, as was reported last week, that the reform plan be divvied up into two bills?

First, some background. As hope for a bipartisan bill fades, some Democrats are increasingly open to using the special legislative process known as "reconciliation." If you'll remember from last week's quiz, if a budget-related bill moves through Congress using the reconciliation process, then it can't be filibustered in the Senate. This means it needs only a simple majority vote to pass.

It's not as simple as it sounds. (C'mon. This is the government we're talking about.) To use reconciliation, Democrats must follow rules contained in the Congressional Budget Act of 1974. The key points are summarized in a terrific primer prepared by the Center on Budget and Policy Priorities:

• A "reconciliation directive" must be included in the budget resolution Congress uses as its fiscal roadmap for a given year (under this year's resolution, which was approved in the spring, reconciliation can be used to pass health care reform if no agreement is reached by October 15).


• All bill provisions must be budget-related. This means that any Senator may invoke the "Byrd rule" (named for West Virginia Senator Robert Byrd) and ask the Senate parliamentarian to strip a non-budget related provision from the bill (or, in Senate lingo, to give it a "Byrdbath"). If that happens, then at least 60 Senators must agree to add the provision back to the bill. (While Democrats nominally have a 60-vote majority, the ill health of Senator Byrd and Senator Kennedy (among other things) make actually getting 60 votes problematic.)

Many provisions in a comprehensive reform bill are vulnerable to the Byrdbath maneuver. To take one example, what does a ban on insurance pre-existing conditions have to do with the federal budget? The danger is that if too many of these provisions get stripped from the bill, comprehensive reform is gone.

So, the proposed two-bill strategy is one way to avoid the threat of the Byrdbath. One bill, which follows the regular legislative rules, contains the non-budget related aspects of the package. (The theory is that these provisions are less controversial and can survive a filibuster threat.)

A second bill, which uses the reconciliation process, contains budget-related provisions (tax increases, spending cuts, etc..). Where would the public option fall? In the reconciliation bill, at least according to some Democratic policy experts.

Will it work? I don't know, but if you thought a bipartisanship approach was tricky....