Dean’s nuclear option: Why it didn’t happen on health care

Dean's nuclear option: Why it didn't happen on health care
MinnPost photo illustration by Corey Anderson

When Howard Dean lost patience with the Senate health care debate last week and urged the Dems to “kill the bill,” he also suggested that they start over and use the reconciliation process under which bills can be passed with a simple 51-vote majority.

Senate Democrats announced over the weekend that they had clinched an agreement on a health care bill, but the deal frustrated liberals because of what they had to give up. Obviously a lot of provisions that liberals favor could get 51 votes but not the 60-vote supermajority necessary to break a filibuster. A reconciliation bill cannot be filibustered. Just as obviously, there has to be a catch, or several catches. Otherwise, why isn’t this done routinely whenever the need for 60 votes is blocking the wishes of a simple majority? I finally decided to find out about the catches and will bore you with them below.

Cutting to the chase, there is a way the Dems could ram health care through the Senate using reconciliation, but it would run roughshod over Senate rules and traditions and would likely set off a period of total political warfare. If you are thinking back to the “nuclear option” episode of 2005, you are thinking right. Decide for yourself whether the health care bill is worth going nuclear. But I am informed by Majority Leader Harry Reid’s spokester that that option has been considered and was ruled out. The nuclear option is “not an option,” Reid spokester (and Minnesota native) Jim Manley says.

The reconciliation process grew out of the 1970s overhaul of Congressional budgeting procedures. Late in the budget process, a reconciliation bill is adopted to make final adjustments in taxes and spending in order to balance the budget or at least hit the deficit and debt targets that Congress has set. In its simplest and purest form, it would add revenue or cut spending so that, based on the most up-to-date projections, the deficit will stay on target. By Senate rule, a reconciliation act cannot be filibustered.

So, at various times, presidents and majority leaders have tried to use the reconciliation process to get around a filibuster and sometimes have done so in ways that didn’t exactly help balance the budget. In 1993, President Bill Clinton wanted to use reconciliation to pass — surprise — his version of health care reform (you remember, the version that never actually came to a vote). On that round, Sen. Robert Byrd objected that reconciliation wasn’t intended for that kind of big policy change, which went well beyond budget issues, and he pushed through a rule, known ever since as the Byrd Rule, which sets criteria for what can and can’t be done through reconciliation. The application of the six criteria to specific cases is not a simple matter and leaves a lot of room for interpretation. (The six criteria are laid out in this wiki-piece.)

The big Bush tax cuts of 2001 and 2003 passed on reconciliation and those were, in a sense, the opposite of budget balancing measures, but by that time Republicans had changed the reconciliation rules to allow actions that were fundamentally about taxes and spending even if they weren’t directly designed for deficit reduction.

(In fact, if you have ever wondered — I have — why the Bush tax cuts were set to expire after 10 years, it was done to square the tax cut bills with the requirements of reconciliation and the Byrd Rule. And that technicality is about to have a big impact, since the tax cuts are set to expire on 1/1/2011. This is not something the Repubs can filibuster. If the Senate can’t agree on a tax bill next year, the rates will automatically return to the Clinton-era levels. That’s a big digression for this post, but keep your eye on that one in late 2010.)

Where was I?
Oh yeah, the unfilibusterable health care bill. The health care bill has a lot of budgetary impact and some of its provisions (let’s say, for example, the tax credits that will help individuals afford health insurance) would probably be ruled acceptable matters for a reconciliation bill. But other provisions, that are quite central to the whole deal (let’s say, for example, the proposal that insurance companies be banned from denying coverage to those with pre-existing conditions) are fundamentally regulatory and would very likely be ruled by the Senate parliamentarian to be inappropriate for a reconciliation bill.

The bill has a lot of balances built into it. (For example, it is often said that if you were to lose the individual mandate requiring the uninsured to buy insurance, the rest of the bill would be ruinous to the health insurance industry.)

Manley sent me a long list of the potential disadvantages of trying to pass the health care bill via reconciliation. In summary, there is likelihood that key provisions would be ruled out on parliamentary grounds, there is a danger that the maneuver would cause some conservative Democrats in the House to turn against the bill (the Blue Dogs have a general objection to using reconciliation this way), and the opportunities for further delay are many, as the Republicans could challenge the provisions of the enormous bill one by one on Byrd Rule grounds.

The new nuclear option
I’m convinced that the disadvantages to using reconciliation are big — if the Byrd Rule is treated with respect. But what if it isn’t?

Steve Smith (political scientist/Congress-watcher based in Minnesota and Washington University) tells me that the ruling on Byrd Rule questions would be made by the presiding officer of the Senate with the advice of the Senate parliamentarian. The Parliamentarian is the expert, and the presiding officer is expected — but not required — to follow his advice. The presiding officer is the vice president whenever he chooses to show up and preside. A ruling of the presiding officer can be appealed to the floor of the Senate but can be upheld by a simple majority.

In other words, if Vice President Joe Biden and let’s say the 51 most liberal members of the Dem caucus were to decide in advance that they were willing to play hardball, they could could overrule and sustain all Byrd rule challenges and presumably pass a stronger, more pro-choice, more robust public option, etc. version of the bill.

If they did, there would still be the chance they would create a bill that couldn’t pass the House. There would certainly be a political outcry that the Dems had decided to trash the rules. Smith said he could imagine that the parliamentarian would resign, which would be embarrassing and add to the outcry.

Republicans who complained about it would have a problem, since they threatened to do pretty much the same thing in ’05 by using Vice President Dick Cheney’s authority as presiding officer to adopt an imaginary new rule that confirmation of judicial nominees could not be filibustered. On the other hand, they didn’t do it in the end. Among the reasons they didn’t (and presumably among the reasons that Reid considers it not be an option in the health care-Byrd Rule case) is that it would be considered an escalation to a new even higher level of partisan warfare and lead to whatever retaliation the aggrieved side could dream up. That’s why it was called the nuclear option. Once you’ve declared nuclear war, the last vestiges of civilized conduct are out the door.

So what think? If you were in charge, would you do it?

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Comments (26)

  1. Submitted by steven gray on 12/21/2009 - 08:36 am.

    If any piece of legislation deserves the ‘nuclear option’ this would be it. On the other hand, just like the GOP would have regretted invoking the nuclear option when they lost their majority, the Dems would regret it after the inevitable losses after midterms.

  2. Submitted by Peder DeFor on 12/21/2009 - 09:19 am.

    I much prefer that large items like this be handled as openly and without gimmicks as possible. And that goes for when either party is in charge. Besides why use reconciliation when Senators votes are so cheap?

  3. Submitted by Brian David on 12/21/2009 - 09:54 am.

    I find it frustrating that the political calculus for these issues always focuses on whether or not the conservative groups within the Democratic party will go along. There are more progressives in the party, yet the White House and Reid seem to only want to make those groups grovel.

    The 60 vote threshold required for defeating a filibuster is itself a bizarre quirk of Senate rules, and it is fundamentally undemocratic. It should be removed, even though I fully understand that this means a lot of bills I don’t like will get passed in the future. The balance of power we enjoy in America is meant to be maintained by having three branches of government, not by strange procedural rules in one house of Congress.

  4. Submitted by Paul Udstrand on 12/21/2009 - 11:16 am.

    I wouldn’t do it for this bill, but I’d do to get a single payer system.

    The problem with this bill is at the end of the day it really isn’t going to solve the problem, American’s will still not be getting affordable universal health care. I wouldn’t go nuclear on behalf of a bait and switch like this, what they’ve done is bail out the health care industry, they haven’t built a health care system.

    On the other hand, if you were looking a national health care system, simply expanding medicare to everyone, and raising the revenue to pay for it, I say nuke em. The Republicans would have no more success explaining why affordable universal health care is a bad idea than they have had explaining why social security and unemployment insurance are a bad idea. A grateful nation would easily reelect Obama and grow the ranks of progressives who championed real reform.

  5. Submitted by Sheila Ehrich on 12/21/2009 - 12:08 pm.

    I agree with the nay sayers, but am also as frustrated as they that this bill, especially when reconcilled with the House bill won’t do a whole lot to change anything.

    Also, Eric, you are so good at this: Who are the Senate and House Parlimentarians? Is it a patronage job? And what, if any, specific qualifications or background do they need for this job?


  6. Submitted by Howard Miller on 12/21/2009 - 12:12 pm.

    I agree with Brian David on eliminating the filibuster. Like any tool, it has good and bad use; the bad uses seem to outweigh the good uses though.

    Even more important though, we need to find a way to balance free speech with some sort of leveling restraints on money given to politicians – when millionaires can buy access that the rest of us can’t, when Big Pharma can own the votes of the Liebermans and Baucus’ of the world for current and future cash considerations, we’ve lost control of our Republic. I think we’re there now. It was a mistake to equate campaign cash spending with protected political speech

  7. Submitted by Charley Underwood on 12/21/2009 - 12:16 pm.

    I completely agree with those who find this bill completely undeserving of the “nuclear option.”

    As it now stands, this bill is merely another government subsidy for big insurance and big pharma. Why would ANYONE support it? It does nothing to make healthcare more affordable or more accessible. It accomplishes none of the goals of healthcare reform. Let it fail and start over with the single-payer bill that would actually create meaningful reform.

  8. Submitted by Michael Zalar on 12/21/2009 - 12:42 pm.

    I wonder what would happen if the leadership allowed the opponents of the bill to filibuster. Would they truely go on forever, or might one or two eventually give in after 500 hours, or 1000 hours and vote for cloture?
    Might be interesting to find out some day.

  9. Submitted by Michael Fleming on 12/21/2009 - 01:02 pm.

    To be clear, I don’t think Eric (or Howard Dean) are talking about using Nuclear to pass the CURRENT bill, but rather the question is whether to go Nuclear to pass a Public Option version of the bill (or even, as one commenter above suggests, going nuclear to pass full-bore single payor). Certainly nobody is thinking to use reconciliation to pass the current version of the bill.

  10. Submitted by Eric Ferguson on 12/21/2009 - 01:57 pm.

    There’s no point in going nuclear now that the bill has come this far. Though it’s far short of what we need, it’s a lot of progress. Let’s leave the nuclear options and all out partisan warfare, which frankly we’re close to already, for after the 2010 elections when presumably the Republican minority will be larger, and there will be no hop of passing any major legislation, health care or otherwise. That would be the time to blow apart the rules.

    Meanwhile, I remind the commenters saying the bill should be chucked that the history of health care reform shows there are roughly 15 years between serious attempts, and they all fail for the same reasons each time. If this bill fails, we almost surely won’t get another shot until the 2020’s, and that will be as vicious a fight as this one, with no greater odds of success.

    If anyone thinks we can start over again right away, I ask you, what congressional dynamics do you think are going to change? The only differences will be that the congressmen who went to the mat on this will be exhausted, and as the elections approach, congressmen get even more skittish. So this is it folks, the Senate bill with its flaws, or benefit caps, discrimination for pre-existing conditions, etc., go on indefinitely. Once it passes, then a stand-alone Medicare expansion could work. Medicare is popular even with conservatives, and it could go through reconciliation. Being idealistic doesn’t have to conflict with being smart.

  11. Submitted by Charley Underwood on 12/21/2009 - 02:36 pm.

    Eric Ferguson, you ask an great question. You ask what Congressional dynamics are going to change before the next time we try reform.

    Let me broaden your excellent question just a bit with a bit of doom and gloom. Before the next 15 years have passed, just about everything will change. The U.S. will have lost the wars in Afghanistan, Iraq, Pakistan and anywhere else we choose to invade. All forms of fossil fuels will be fundamentally out of reach for the average member of the lower or middle class. The percentage of qualified voters who actually vote will drop to just over half of what we have now (if we are still having elections). Most trauma centers will have closed. The percentages of those covered by health insurance will be at half what they are now, and the benefits will be restricted to the point that health-related bankruptcies will be nearly 10 times what they are now. The American empire will have ended in 15 years.

    What will have changed? Just about everything, as we can comparatively see with the former Soviet Union, some 20 years after their own Afghan adventure and ill-considered arms race ended their own empire.

    Really, Eric, it’s quite late now. Either we use the dwindling money we have to rebuild the fabric of our once-great democracy, or it is doomed. Spending all our patrimony on wars and on obscene subsidies to the super-rich is a surefire prescription for disaster. And, truly, this particular bill is merely another subsidy for the super-rich under the thinnest guise of “reform.” It deserves to fail.

  12. Submitted by Pat Mayer on 12/21/2009 - 02:42 pm.

    Use of reconciliation would have been MAD. (Remember Mutually Assured Destruction?) With that in mind we can expect righteous right wing Republicans to use it sometime in the future. Right Michelle?

  13. Submitted by Gregory Stricherz on 12/21/2009 - 03:52 pm.

    It always amazes me to hear someone say the good “liberal” Democrats will save us from the GOP. Or vice versa. To quote someone who is probably not popular with most on either side of the fence (George Wallace), “There’s not a dime’s worth of difference between the Democrat and Republican Parties.” Until we all wake up to that fact, we bound to end up in the world Charley Underwood describes.

  14. Submitted by Paul Udstrand on 12/21/2009 - 03:54 pm.

    //Meanwhile, I remind the commenters saying the bill should be chucked that the history of health care reform shows there are roughly 15 years between serious attempts, and they all fail for the same reasons each time. If this bill fails,

    This bill is a failure. The only reason 15 years go by between attempts is because the Democrats are beholden to the health care industry instead of their constituents. If the Democrats were who they say they are, this bill wouldn’t exist in the first place.

  15. Submitted by Rebecca Hoover on 12/21/2009 - 04:31 pm.

    Whadda mean, this bill is a failure? Ever since the details of the Senate bill began being leaked, insurance company stock prices started rising rapidly. This bill is the best thing to come along for the insurance and drug companies in a long, long time. The insurance companies can thank senators like Minnesota’s own Amy Klobuchar for the windfall.

    The average citizen would do well, however, to look at what Amy does and not at what she says. I saw her on the news saying sweet nothings to the average voters about the great way the bill will help them while saying nothing about the way this bill takes their money and them for a ride. It’s too bad Klobuchar has sold her soul so soon.

    It would have been nice to have REAL health care reform. The goal is to provide quality health care to ALL Americans. Unfortunately, this bill falls far short of meeting that goal. It enriches the big corporations while providing some expansion in coverage for a very high price. It is interesting that the Klobuchar’s drain them thar average citizens dry mentality seems to be going unnoticed. To protect themselves and to move our country to a better place, we need to get Amy outta there.

  16. Submitted by Dan Kitzmann on 12/21/2009 - 04:53 pm.

    I’m with Greg (comment 13).

    Seeing the comments here devolve into the tired, self-congratulatory good-guys-(Dem)-vs.-bad-guys-(GOP) narrative depresses me and reminds me why I could never join either party. For Democrats to be proud of this confused boondoggle of a bill is just sad; for Republicans to think it heroic to fight against it as some kind of principled last stand is farcical.

  17. Submitted by Paul Udstrand on 12/21/2009 - 05:10 pm.

    I’m with Hoover!

    The other thing is, it’s that fifteen year lag between attempts that actually makes this bill worse than nothing. With nothing there might be pressure to try again, but this will kick the can down the road. I’m so tired of seeing the Democrats shoot themselves in the foot like this time after time. And they wonder why so many people voted for Nader? Well, these betrayals make it easy to vote third party. I’ve got three years to figure out who I’m going to write in.

  18. Submitted by Paul Brandon on 12/21/2009 - 06:32 pm.

    I really have problems with the idea that this bill is somehow worse than nothing.
    It DOES expand health care coverage, and
    it DOES institute a large number of pilot projects for cost cutting (and yes, other countries have shown that this approach can be successful — read Thomas Reid).
    The options are either incremental improvement now, or nothing now. The only third option is changing our system of government, and that’s another discussion.

  19. Submitted by Richard Schulze on 12/21/2009 - 10:26 pm.

    Once it passes, if it passes, it’s a start. I don’t like it. I don’t like the people who wrote it. And, I don’t like the people who couldn’t offer an alternative.

    There’s still opportunity to do, through smaller bills, some changes that would improve this one. The difference is that all the focus will be on smaller issues that are less susceptible to distraction.

  20. Submitted by Paul Udstrand on 12/22/2009 - 11:46 am.

    //The options are either incremental improvement now, or nothing now.

    This is an artificial constriction. Basically your saying that the US is structurally incapable of implementing an actual solution for our health care crises. We were artificially constricted to incrementalism by Democrats who wouldn’t let single payer advocates into the room.

    You can brag about incrementalism if you want, but I’m living next door to a young woman in a wheel chair who’s progressively going paralyzed because her insurance has denied coverage for a operation on her fourth ventricle. She’s lost the function of her legs, right arm, and part of her left arm, and she just lost her gag reflex which is life threatening. They say they’ll let her know the results of her appeal by the end of the year. If she lived in Germany, England, France, or even Canada she’d have gotten the operation last week when the diagnosis was made. And again, she HAS insurance, she’s supposed to be one of the lucky ones. Nothing, NOTHING in this bill would have gotten or will get this young woman the treatment she needs. All I can say to anyone who thinks this is best we can do is… well, not flattering.

    And unlike the Republicans, the Democrats do not have a record of coming back to something again and again until they get it passed. They’ll pass this and try to move on. I’ve seen the Dems shoot themselves in the foot like this many times before. They don’t have the guts to fight for a real solution so they pass some huge pile of increments that fails to improve anything. They just don’t seem to understand the way to win elections and stay in power is to get it right and make it work. So they’ll be headed into the next election cycle trying to argue that this was the best they could do to a nation that will be wondering why we’re all paying more for health care, and still not getting health care. Yes this is worse than nothing, not only does it condemn millions of Americans like my neighbor to suffering and death, it will cripple the only party that could’ve actually done something. You can try, but I think you’ll find that you’re just not going to have enough lipstick for this pig. Just look at the reactions to this already, and it hasn’t even passed yet.

  21. Submitted by Dan Kitzmann on 12/22/2009 - 12:46 pm.

    Paul U, I’m with you. You have nicely captured the reason for my utter disgust with this bill in particular and with our sorry two-party system in general. The process and outcome of such fraudulent legislation as this provides valid justification for not voting at all.

    I admire the optimism of those who believe a bad bill of this magnitude and needless complexity can readily be “improved” later on. When was the last time that happened? Perhaps they will tackle it right after they simplify the tax code.

  22. Submitted by Michael Darger on 12/22/2009 - 09:54 pm.

    In the spirit of “better is perfect” (think about that a little bit) I support posts #10, 18 and 19 above. This bill does get rid of pre-existing conditions and lack of insurance as exclusions to coverage. It expands coverage to a lot more Americans. So despite all of what it does not do, it still IS a big step forward. Politics is the art of the possible, not the pursuit of the perfect.

    I saw a very pertinent talk on The Emergent Logic of Health Law at the U back in January by M. Gregg Bloche, Professor of Law, Georgetown University. Bloche says “By quitting the quest for a single, master design, we can better focus our efforts on emergent possibilities for legal and policy change.” He presented the case for an emergent (i.e. can’t fix it all at once) approach to health care reform. Check out his paper
    In other words, Bloche thinks it not rationale to expect a major, systemic fix at one time. Things will evolve and must evolve. To me, this is a major argument against the nuclear option.

  23. Submitted by John E Iacono on 12/22/2009 - 10:23 pm.

    Paul U:
    I agree with you about this bill.

    I differ somewhat about an optimal solution, however, and I do believe that it would be possible to pass half a dozen single topic bills that would make some big differences:

    >Require insurance companies to offer a base policy (benefits specified in the law) to anyone who applies: no preconditions, no exclusions, and no differentiation in premium based on age or any other health issue.

    All citizens would have to be required to enroll in at least this policy. Subsidies for those who COULD not afford it to be financed by a 1/4% increase in the Medicare tax on the part of both employee and employer. (from 1.45% to 1.70%).

    >Require all insurance policies to provide at least the benefits in the base policy.

    >Limit medical malpractice awards to actual damages plus a maximum of $250,000.00 pain and suffering.

    >Subject all insurance companies — for profit or non-profit — to an “exess ‘profits’ tax of 90% on net earnings in excess of 8%, after disallowing all administrative expenses in excess of 15% of benefits paid.

    I can think of a few more individual bills that would be very hard for legislators to turn down, but even those above would make a significant impact on current and future health care costs.

  24. Submitted by Paul Udstrand on 12/23/2009 - 01:31 am.

    John I.

    Your present a fine list of suggestions, although I think tort reform is a red herring. One thing that’s missing is simply a requirement that Insurance pay whatever medical bills a customer gets, no rejections, and pre-authorizations required. One of the biggest problem with this legislation is it acts as if getting people to buy insurance was the big problem. They could’ve passed a number of smaller bills this year, and organized a big battle for major reform, single payer next year.

    As for those who hope this is a first step, I’m don’t mean to be unduly gloomy but the the Democrats cut so many deals with so many special interests for so much money they can’t come back to this, this is it. They’ve already promised not to come back and try to modify this stuff, that’s the deal. I’ve seen this before. They’re gonna call this a historic breakthrough, and walk away. I don’t think the American are gonna buy it. I think people are going to decide that this was a bailout for the health care industry like the bailout the financial industry got, good for business, not so good for people. One reason I think no deal would be better than this deal is this deal ties our hands. And again to all these people who don’t think we can fix anything in a big move, but have to “evolve”… We created social security, we created medicare, we created the public education system, we built the federal highway system, we went to the moon, why can’t we build a health care system? We’ve already got it, all we have to do is expand medicare to cover everyone. I’m really tired of these apologies for mediocrity. This is why you can’t trust status quo liberals, they’ll talk themselves out of doing almost anything.

    Meanwhile, Nicole, the neighbor woman I referred to in a previous post, has lost her hearing and appears to losing some eyesight as well. I for one will never accept the argument that this is the best we can do. This isn’t the best we can do, this is a failure.

  25. Submitted by John E Iacono on 12/23/2009 - 10:33 am.

    I empathize with Nicole, having experienced similar dilatory tactics myself. It is an inexcusable tactic used by insurers for auto, fire, and loss claims as well. One can only hope she can eventually recover, instead of the insurer’s hope that she will die and so save them a few dollars.

    I should have included the requirement to pay the bill as presented, although — at least at first — this would drive up costs until providers become accustomed to receiving what they bill and adjust their charges.

  26. Submitted by Rodney Hytonen on 02/20/2010 - 01:48 am.

    “Once you’ve declared nuclear war, the last vestiges of civilized conduct are out the door.”

    The last vestiges of civil conduct are ALREADY out the door – and for every bill.

    And REAL Health Care is too important (both to their careers and to the American People)to worry in the least about political fallout.

    Why on earth wouldn’t we just use the Nuclear Option and Pass HR676 ?

    The only POSSIBLE answer to that question is that Harry is under orders from the WH, NOT TO GET A REAL BILL.

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