In a post entitled "The Simple Calculation on Health Care Reconciliation," Chris Bowers writes that the choice is fairly simple. It comes down to whether you prefer a "less expensive, more widely available health care delivered through a partisan legislative process that excludes congressional Republicans" to "the health care status quo, and a bi-partisan legislative process that includes congressional Republicans?" As a question of political framing, that may be correct. But as a question of legislative process, it's wrong. I get into this in greater detail in my reconciliation primer, but the key here is something called "the Byrd rule" which allows provisions of the legislation to be challenged on the grounds that they "produce changes in outlays or revenue which are merely incidental to the non-budgetary components of the provision." What's a "provision?" It's undefined. But it can be pretty granular. In recent years, Senate parliamentarians have literally deleted clauses from sentences on the grounds that they represented a legislative provision that was not budgetary in nature. One Democratic Hill staffer -- from a very liberal Congressman's office, by the way -- gave me this example. "Imagine that I created a commission to gather and assess evidence on a specific treatment and then gave them $35 million to implement their findings," he said. "The Senate parliamentarian could delete the first half of my sentence. I'd be left with $35 million to implement the findings of a commission that didn't exist." That sort of thing would happen straight through the bill. There's no sure guide to what would be left. The bill could be entirely unworkable. Democrats could be left with legislation that appropriates trillions of dollars but doesn't retain the directions detailing how to spend it, the structures needed to make it work, or the regulations necessary for insurance market reform. That's not a reason to take reconciliation off the table. It's at least as dangerous for Republicans, if not more, and so it serves as a useful nuclear threat. But it is a reason to not consider the reconciliation process a first-best outcome.
