Procedural Clarification: Reconciliation Does Not Require 60 Votes

SenateChamberDuring yesterday’s YouTube interview, President Obama said that “[i]t is my greatest hope that we can get [health care reform] done, not just a year from now but soon” but explained that reform legislation has stalled in Congress because “you’ve got to have 60 votes for everything.” Similarly, Politico’s Live Pulse blog reported that Lawrence O’Donnell, the Democratic Senate Finance Committee staff director during the ’93-’94 health care debate, claimed that “a reconciliation bill won’t work” since “when people talk about its 51-vote threshold they’re forgetting that is just the final vote. Every day the bill is on the floor it will face 60-vote procedural hurdles.”

But if the House passes the Senate bill alongside a package of changes through reconciliation, the Senate does not have to muster another 60 vote super-majority. The Wonk Room spoke to former Senate parliamentarian Robert Dove, who clarified that nothing in the reconciliation process requires 60 votes. Here is how it works:

1) House and Senate budget committees must include a “reconciliation directive” in the budget resolution. (They did.)

2) The Senate Finance and health committees send the changes to the Senate Budget Committee. The House Ways and Means, Education and Labor and Energy and Commerce Committees report their changes to the House Budget Committee. There are no time limits on markups and Republicans can bombard the committee with amendments.

3) The Budget Committees incorporate the changes into an omnibus budget reconciliation bill, but cannot accept any amendments. “Under the budget resolution, each committee’s portion of the bill must lead to a net reduction of the deficit of at least $1 billion over five years.”

4) The bills then move to the floor. In the House, “the House Rules Committee can waive all points of order against a bill, if backed up by a simple majority vote of the House.” In the Senate, any grouping of 41 senators can knock out any provision in the reported bill that violate the Byrd rules. A provision that (a) has no budgetary impact (b) increases the deficit by any amount over a 5 year or 10 year period, (c) increases the deficit by more than $10 billion in any one year before 2014 unless fully offset over a five-year period, or (d) makes any change to title II of the Social Security Act can be stricken from the package.

Debate in the Senate on any reconciliation measure is limited to 20 hours (and 10 hours on a conference report) and amendments must be germane and not include extraneous matter. However, at the conclusion of the 20 hours of debate, “Senators can still offer an unlimited number of amendments, which must then be voted on immediately, without debate.” “All of those amendments must meet each of the Budget Act and Byrd Rule restrictions that the base bill met, or they would require 60 votes, not 51 votes, for adoption. In addition, amendments must be germane to the bill.”

5) If the House and Senate bills are approved, they are sent to a conference of House and Senate negotiators to be melded into a single piece of legislation. That final conference report is then approved by both chambers and signed by the president.

Dove stressed that the reconciliation process was messy and explained that Republicans can exploit quorum calls, offer numerous amendments and insist that their amendments be read in full. In other words, they can delay the process, but if Democrats stick together, they can’t derail it.