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Reconciliation Nuts and Bolts

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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7 Responses

  1. Howard Wasserman says:

    I think we count on two things to keep that from happening. First, their political interests may bump against their personal interests. That’s way the Senate vote is expected to occur just before Easter–will Republicans really want to give up their break to continue with simple obstruction. Second, eventually obstruction will give way because it ceases to be in their political interest. As unpopular as the reform bill is in many non-partisan circles, the public (the so-called independents, mainly) is unlikely to support obstruction for its own sake in lieu of doing “something”.

  2. If I understand correctly, the plan is to combine reconciliation with a ruling from the chair that all Republican amendments are non-germane. So Republicans won’t actually be permitted to offer any amendments, the rules not withstanding.

  3. Dan Cole says:

    Gerard: Here is an interview on point with a former Senate parlaimentarian: http://www.scpr.org/news/2010/03/01/reconciliation-wont-be-smooth-ride-for-health-bill/.

    Dan

  4. Logan says:

    Gerard,

    Debate is limited to 20 hours but Senators can offer up an unlimited amount of amendments and asked to have them read. Former Senator Bob Dole actually attached the US Code as an amendment back in the day as well (and thus got what he wanted).

    Senators can also attach amendments that are out of order and ask for the Budget Act rules to be waived and thus forcing Senators to vote for or against something they normally wouldn’t because they want to protect the BA rules.

    There’s also the CF (Cluster ####) that is the Byrd Rule. Which, according to one of the six rules, requires the parliamentarian to determine the motives for provision that does affect the budget. Robert Dove once ruled a provision out of order that disallowed federal funding for abortions because he felt the provision wasn’t in there to save money but to implement social policy.

    Also, according to the rules, the only way to overturn a ruling from the chair is with 60 votes. Thus 41 Democrats could dictate the procedure.

    That’s about all my knowledge on reconciliation. Hope it helps.

  5. Lance McMillian says:

    (1) Here’s a link featuring top Democrats — Obama, Biden, Reid, etc. — talking about the nuclear option of doing away with the filibuster in 2005. It is absolutely hilarious in light of present events:

    http://www.breitbart.tv/obama-dems-in-2005-51-vote-nuclear-option-is-arrogant-power-grab-against-the-founders-intent/

    Of course, if the shoe were on the other foot, Republicans would be similarly guilty of such gross hypocrisy. It just comes with the territory. Neither party is a bastion of virtue.

    (2) It is interesting to me that so much attention is focused on the Senate when to my mind the House is by far the greatest obstacle at the moment. The Senate at least has a majority seemingly willing to make this work. I don’t think the same can be said for the House. Moreover, the House members feel immediate political pressure since this is an election year.

  6. mls says:

    I believe that the response to an unlimited number of amendments would be to seek a ruling from the chair that they are dilatory. As a practical matter, the Senate’s processes are relationship-based, rather than rule-based, so it is unlikely that it will get to that stage. Once the Republicans have had an opportunity to make their Byrd rule points of order and offer a number of amendments, they would most likely let it go to a final vote.

  7. Dave says:

    Couldn’t Reid just fill the amendment tree?

    http://www.apsanet.org/~lss/Newsletter/jan2010/Rybick.pdf

    Not sure if this can be done in reconciliation, but I think it’s an idea worth throwing out there.

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