The potential loss of a 60th vote in the Senate for health care reform has many in Washington focusing on the budget reconciliation process, which requires only 51 votes in that chamber. Since a reconciliation bill must contain provisions that have “budgetary impacts,” many of the regulatory and consumer protections in the House and Senate health bills would not qualify, so the idea now gaining traction would be for the House to accept the Senate health care bill as is, pass it without change, and then try to implement as many of the compromises now under discussion as possible in a subsequent reconciliation bill.

Politically, this is difficult, as it means swallowing all of the ugly compromises in the Senate bill whole in hopes of a possible (but not guaranteed) fix down the road. House members would have to go on record in favor of the Cornhusker Kickback, the Senate Cadillac Tax, and all the rest. Obviously, all of the House Democrats who held their noses and voted for their own bill the first time around after being told by their leaders “don’t worry, we’ll fix it in conference” are right to be extra-skeptical of this approach. But an interesting trial balloon floated by Ron Pollack of Families USA in a recent article in Politico points out that a reconciliation bill amending the health care bill could actually be voted on before the House votes to accept that health care bill.

That’s right. When it comes to enacting laws and then later amending those laws, it doesn’t matter in what order Congress passes bills. All that matters is the order in which the president signs those bills into law. As long as the president signs the health care bill 30 seconds before he signs the reconciliation bill, the latter can amend or repeal any provisions in the former. So the House and Senate could, in theory, vote on a conference report amending the Senate health care bill before the House actually has to take the tougher vote to accept the Senate bill.

No matter whether the House votes on reconciliation or the Senate bill first, the Speaker can ensure that the health care bill is signed into law before reconciliation. (The dirty little secret of Congress is that even if the House votes to pass the Senate health care bill tomorrow, the Speaker has unilateral power to hold that bill at her desk until January 3 of next year before sending it to the President and starting the 10-day Constitutional veto clock.)

But the problems with reconciliation are legion. The restrictions laid down by the Budget Act, the annual budget resolution, and the Senate’s “Byrd Rule” prohibiting non-budgetary items combine to make Alan Frumin, the Senate Parliamentarian, the de facto editor of a reconciliation bill. In particular, he determines which parts of the bill have to be jettisoned in order to keep the bill qualified for the 51-vote fast-track instead of the 60-vote cloture process, and he determines which amendments to the bill require a simple majority for passage and which require a 60-vote supermajority.

The process is not as quick as some have made it out to be. In order to qualify for reconciliation, three committees in the House and two committees in the Senate have to mark up provisions within their jurisdiction. Since there are no time limits on committee markups, these would last until recalcitrant Republicans drop from exhaustion and stop offering amendments. Then the committees in each chamber have to give their work product to the Budget Committees, which are then required to hold their own markups of the bill (amendment-free, this time) and report reconciliation bills to the chamber without substantive change (after waiting two extra calendar days in the House to allow Republicans to file minority views). 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.

Going to the floor, the House Rules Committee can waive all points of order against a bill, if backed up by a simple majority vote of the House. So restrictions in the Budget Act on the content of reconciliation bills are not that important going through the House the first time. But in the Senate, once the bill gets reported, any grouping of 41 senators can knock out any provision in the reported bill that a) has no budgetary impact (or which has a budgetary impact that is only incidental to the policy provision), b) increases the deficit by any amount over a five-year or ten-year period, c) ups 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. And of particular importance to a massive and open-ended bill like health care, the Senate’s PAYGO rule requires 60 votes for any provision that would increase the deficit by more than $5 billion in any ten-year period going all the way out to the year 2059. (You read that correctly: 2059.) This is why so many provisions in reconciliation bills have to “sunset” and expire after ten years.

In the House, the reconciliation bill would probably pass under a closed rule with only one Republican opportunity for amendment (the “motion to recommit”, which must be germane to the bill and which cannot violate the Budget Act). But in the Senate, while the Budget Act caps the total debate time on a reconciliation bill and all related amendments and motions at 20 hours, the authors of the Budget Act who drafted this provision back in 1974 neglected to limit the number of amendments that can be offered.

This leads to perhaps the Senate’s most stupefying activity (in a chamber chock full of stupefying activity)--“vote-a-rama.” 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. And by “unlimited,” I mean it is never less than dozens but could easily stretch into the hundreds. The Senate usually gets unanimous consent to shorten the time for roll call votes from the usual 15-plus minutes down to two minutes each, but that requires unanimous consent, which has been lacking on anything having to do with health care. As political scientist (and my old college professor) Walter Oleszek says, the Senate basically only has two rules: unanimous consent and exhaustion. So Republicans can keep offering amendments and forcing roll call votes until they are physically no longer able to do so. (This is why the Majority Leader prefers to schedule a reconciliation bill or budget resolution right before the Senate is supposed to take a long vacation--to give the minority an incentive to cut the vote-a-rama short and go home. The next scheduled Senate recess is the week of President’s Day, so the most logical time to schedule the reconciliation bill for the Senate floor would be the few days leading up to Friday, February 12.)

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 (which is a pure judgment call by the Parliamentarian), and there is an overriding rule that says that an amendment to strike any provision of the bill can be in order with a 51-vote majority even if it would violate any of the above rules (though in practice, this is a Parliamentarian judgment call as well).

Once the House and Senate pass a bill, it would have to go to House-Senate conference (the Budget Act appears to make no provision for ping-ponging a reconciliation bill). And under a new Senate rule, nothing can be added to that conference report that was not already in either the House or Senate bill, or such provision would require 60 votes in the Senate as well. But the debate on that conference report in the Senate is limited to ten hours, after which there is a final passage vote by a simple majority.

So reconciliation would give the minority party in the Senate a chance to force a separate roll call vote on every line of the bill. The requirement that every single provision in a reconciliation bill have budgetary impact means that the bill cannot address regulatory issues, consumer protection issues, or items like abortion. The open-ended limitations on deficit increases sharply curtail any additional spending in the bill and mean that most changes made by reconciliation that affect spending and revenues must expire in ten years. And the requirement that congressional committees hold a new two-stage markup process, combined with the usual (if time-limited) floor consideration and conference processes, means that using reconciliation would occupy all of Congress’s attention until late February, at a time when legislators are anxious to shift their public focus away from health care and back to the economy.

For more information, see these (1, 2) Congressional Research Service reports.

Jeff Davis publishes and edits Transportation Weekly.

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