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 copayments, 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.

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.

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