Though for now the health care reform bill seems to be thoroughly beaten into the ground and going no where fast, I feel that there are a few problems that still need to be addressed with the whole process — the possibility of budget reconciliation and the new Republican loophole to that process.

First is the process of using budget reconciliation to pass either the entire health care reform bill or piecemeal changes to be added to the Senate version in the House (if the House were to bite the bullet and pass the Senate bill as is). The Hill notes that Senator Kent Conrad (D-N.D.) has publicly endorsed the idea of using reconciliation when previously — before Republican Scott Brown’s win in Massachusetts — he had opposed the use of the procedure. Senator Arlen Spector (R D-P.A.) has urged a similar course, urging the House to pass the Senate bill to be coupled with a set of changes passed by reconciliation in the Senate. With several powerful Democrats in the Senate toying with the idea of reconciliation, the parliamentary tool could gain traction as a real possibility, and successfully resuscitate the languid health care bill.

The use of budget reconciliation, however, would be a procedural disaster and ruinous in terms of setting new and heated partisan precedent — not to mention destroying any integrity the Senate has left. The Republicans should know very well about this, as should the Democrats. Reconciliation procedure was warped once before, by the Republican controlled Senate in 1996, opening the reconciliation procedure to more than just budgetary deficit reduction. Reconciliation was opened to any provision impacting a budgetary issue. The rule change by Republicans in 1996 has allowed for Democrats to have the ability to even consider this option today.

So Democrats, take heed. The use of reconciliation to pass the more controversial measures of health care reform could have long and lasting repercussions. This process could be used by a Republican majority in the future to pass equally controversial provisions, all under the guise of being budgetary issues.

On the Republican side of reconciliation there is perhaps the opportunity to set a very powerful and reasonable precedent. According to The Hill:

Republicans say they have found a loophole in the budget reconciliation process that could allow them to offer an indefinite number of amendments.

Though it has never been done, Sen. Jim DeMint (R-S.C.) says he’s prepared to test the Senate’s stamina to block the Democrats from using the process to expedite changes to the healthcare bill.
Experts on Senate procedural rules, from both parties, note that such a filibuster is possible. While reconciliation rules limit debate to 20 hours, senators lack similar constraints on amendments and could conceivably continue offering them until 60 members agree to cut the process off.

This action, if used, could set a long term precedent to be used by Senators seeking fiscal sanity. Lavish budgetary measures could be quashed if 41 Senators could be mustered to resist them. There is one pitfall, however, in that a minority of Senators could use the “amendment filibuster” to essentially hold hostage actual deficit reducing measures in order to force the funding of programs that might otherwise be cut.

When it comes to precedent, we can never be too careful. Long term repercussions can be hard to see, especially when one looks so short term as Republicans did in 1996 and as Democrats are now. Despite the need for caution and prudence, when the chance to set precedent that would allow for greater scrutiny and prudence to be used in the budget process, I say jump at the opportunity.