How Pelosi will game the Stupak 12 By Marc A. Thiessen

March 5, 2010

Rep. Bart Stupak (D-Mich.) has warned that he and other pro-life Democrats are ready to kill health-care legislation unless the pro-abortion provisions enacted by the Senate are removed. House Speaker Nancy Pelosi must win their votes to pass her bill. To do so she will have to promise two things: first, to fix the provisions they oppose in a reconciliation bill; and second to get an iron-clad commitment from Senate Democrats they will vote to sustain whatever deal she makes.

The problem for Stupak and his allies is that such a guarantee is not enough to ensure their position prevails -- because Senate Republicans are gearing up to use something called the “Byrd rule” to blow up any deal Pelosi cuts to pass health care in the House. And in the end, that would be just fine with Pelosi. She wins either way. Here is how:

In order to get a reconciliation bill with the fixes they demand to the Senate floor, Stupak and his pro-life colleagues must first vote to pass the original Senate health care bill -- including the abortion language they oppose. Only after this bill is passed in the House can the chamber then take up a reconciliation bill and send it to the Senate for its approval.

That’s where the “Byrd rule” comes in. Designed to protect the rights of the minority, the Byrd rule allows any Senator to raise a point of order demanding that “extraneous” (non-budgetary) provisions be removed. According to former Senate parliamentarian Bob Dove, “If a ‘Byrd Rule’ point of order against a provision is sustained, the provision is stricken from the bill….Appealing the rule of the chair requires 3/5 vote of duly elected and sworn Senators (60 votes).” (This process is known colloquially in the Senate as a “Byrd bath” and the dropped provisions are known as “Byrd droppings.”)

Republicans intend to raise points of order against the reconciliation package. They believe it is virtually certain that the Senate parliamentarian would find any abortion deal Pelosi makes with pro-life House Democrats to be “extraneous” (there is no reasonable way to argue the provision is primarily budgetary). So any abortion deal with Stupak and his allies would be struck from the bill.

That might only be the beginning of the bill’s unraveling. To pass health care, Pelosi will have to cut all sorts of deals in a reconciliation bill to bring along conservative “blue dog” Democrats.

Using the Byrd rule, Republicans will proceed to pick apart every element of these deals Pelosi makes, piece by piece. It is unclear which provisions would survive scrutiny under the Byrd rule. But each time a point of order is sustained, it requires 60 votes to overturn that ruling -- which means Senate Republicans have the votes necessary block key elements of the reconciliation package.

If this happens, the amended reconciliation bill would go back to the House , where Stupak and others would then likely oppose it. Reconciliation would be dead.

That would be fine -- except for one small problem: Stupak and his allies will have already voted to pass the original Senate bill, which Pelosi could send to the president at any time for his signature. And that would suit President Obama and Speaker Pelosi just fine. Indeed, it might be their preferred outcome. Once the Senate bill is approved, the president and Democratic Congressional leaders have little incentive to pass a reconciliation bill.

Think about it: Does Senate Majority Leader Harry Reid really care if Senate Republicans stop the House from amending the Senate’s already approved health care bill? He probably hopes they succeed. And if the reconciliation deal is killed in the Senate, Pelosi who would be able to tell Stupak that his complaint is not with her, but with the Senate Republicans. She would send the Senate bill to the president and he would sign it into law.

The bottom line:

Stupak and the blue dog Democrats in the House have no leverage if they go along with Pelosi in a reconciliation strategy. The only way
they can ensure that the abortion language and other provisions they oppose are eliminated is to reject reconciliation entirely -- and demand that the House and Senate start over with clean legislation.