Micheal E. Hammond, former General Counsel of the U.S. Senate Steering Committee, is one of the preeminent experts on U.S. Senate procedure. Here is what he says about passing ObamaCare via reconciliation.

February 22, 2010, 10:00 a.m. EST

MEMORANDUM

FROM: Michael Hammond
RE: New Obama Health Care Draft

As of this hour, there is an 11-page document on the White House web site outlining Obama’s newest version of ObamaCare. Before laying out a summary of the most recent Obama proposal, I would like to make a couple preliminary points:

PRELIMINARY POINT #1:

OBAMACARE CANNOT BE PASSED THROUGH RECONCILIATION

There are several reasons for this:

First, you cannot get the bill through the House without “fixing” abortion, and you cannot do abortion on reconciliation in the Senate.

Cao will not be the deciding vote. This means that, if absolutely nothing has changed, the current House vote count on the House bill is 217-216. But things have changed:

  • Public support for ObamaCare has continued to sink through the floor.
  • Between 10 and 12 “yes” votes would vote against the Senate bill based on its abortion language.
  • Many House Democrats are still uncomfortable about the “Cadillac tax.”

But, under the Byrd Rule (which prohibits reconciliation language with budgetary implications which are only ancillary to the policy ramifications), you can’t fix abortion on reconciliation. We have asked Senate parliamentarian Alan Frumin concerning our ability to offer abortion amendments to reconciliation, and he has adamantly stood by the position that this is not allowed. And, to get around the Byrd Rule, the Senate requires 60 votes. Without an abortion “fix,” this bill cannot pass the House.

Furthermore, the new provision to allow the government to set insurance rates is also a violation of the Byrd Rule.

Also, the $60 billion union “fix” requires a $62 billion offset. And the additional substantial costs of Obama’s proposal would also have to be offset. Assuming they take the entire $2.5 trillion package and pass the whole thing through reconciliation, they can pay for some of these costs with the phony $124 billion budget “surplus” contained in the Senate-passed bill. The downside of this is that the insurance “reforms” (preexisting conditions, limits on co-payments, etc.) which form the core of the bill will be thrown out under the Byrd Rule.

But, assuming they are using reconciliation for nothing more than a “fix,” they have to come up with a new set of offsets. The offsets on the Senate bill are unavailable to them. And it’s not like it has been easy to come up with the offsets they have.p>

In order to comply with the 1974 Act, these offsets would have to make the reconciliation bill compliant with the reconciliation instructions during the first five-year window and revenue-neutral in every year thereafter. Thus far, NO VERSION OF THE LEGISLATION HAS BEEN ABLE TO COMPLY WITH THIS REQUIREMENT, EVEN USING THE PHONY ACCOUNTING GIMMICKS.

Incidentally, Pelosi is now demanding that the Senate act on reconciliation before House members are forced to put their necks on the line again. But a Senate-initiated tax bill is unconstitutional, and would be “blue slipped” in the House.

Incidentally, the 1974 Act allows an unlimited number of amendments to be offered, without debate, at the end of the 20-hour statutory time for debate. My recommendation would be that, if Senate Democrats decide to invoke the “nuclear option” and throw out the Senate rules in order to do reconciliation, that the first ten amendments be the pro-gun agenda.

Finally, the Senate has failed to comply with the reconciliation instructions that mandated reporting by October 15. And, although they may get a pass on this, the production of a new concurrent budget resolution will extinguish this possibility unequivocally.

PRELIMIARY POINT #2:

What bothered the American people, as much as anything, was the perception that the Senate’s ObamaCare bill was produced by fraud, secrecy, corruption, bribery, and extortion. Rather than improve the process, the White House has actually made it more corrupt by:

  • threatening to fraudulently take a process restricted SOLELY to deficit reduction and using it to pass the biggest deficit engine in human history; and
  • refusing to release legislative language, in the hope that controversies can be kept secret.

there is more to the story here…REDSTATE website

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