Robert Dove served as Senate parliamentarian until 2001. The O’Neill Institute’s Lester Feder spoke with him about the reconciliation process and its implications for health reform.
Robert Dove: First of all, reconciliation was never designed for something like health care. It’s the reason that it wasn’t used on the original Clinton health-care bill. It’s designed for deficit reduction, and therefore everything in a reconciliation bill must contribute to deficit reduction. And if it doesn’t, then it’s subject to something called the Byrd Rule, and it gets stricken. So that would turn the present healthcare reform bill into something resembling Swiss cheese as you knock out various provisions that did not affect the federal government deficit.
That, I assume, is one of the reasons that the Democrats haven’t used reconciliation to this point—I think it was designed, frankly, as a threat more than a reality, a hammer over Republicans: “Cooperate or we will do this.” Well, that didn’t work.
Lester Feder: So, if they did try to pass reform using reconciliation, what would be the process for trying to move it forward?
Robert Dove: Well, both in the House and in the Senate, the committees that are instructed would have to report out their bills to the Budget Committee. The Budget Committees take those instructions—it cannot change a word of them—and report them to the full chamber. In the Senate, the motion to go to that bill is not debatable, and the bill itself is only debatable for 20 hours. All amendments must be germane. If there are differences between the two houses in their reconciliation bills, then you would either work out those differences through a conference, or through amendments as they bounce back and forth.
Lester Feder: The decision about what can stay in under the rules is solely up to the parliamentarian?
Robert Dove: Theoretically, no—Vice President Biden is the ultimate decider. But no vice president has tried to play that role in reconciliation. We haven’t had vice presidents that have tried to play important procedural roles for a very long time. The last one was Nelson Rockefeller, in 1975, and before him Hubert Humphrey, in the 1960’s. But no vice president has ever tried to play a role in reconciliation. Basically, since Walter Mondale was vice president, they have kind of been co-opted by the president and given an office down in the West Wing. Their interest in playing Senate politics has become attenuated. That has left the Senate parliamentarian in an extremely powerful position.
Lester Feder: So as the rules of reconciliation are written, the Vice President is the technically the one who should make the procedural call, but he defers to the parliamentarian?
Robert Dove: He doesn’t usually even show up. If you expect to see the Vice President on the Senate floor, you’re going to be disappointed. He’s almost never there, so he’s usually not even there to do that.
If he were to show up, and he wants to make these decisions, yes. He has the authority to do that. He is the president of the Senate.
Lester Feder: So, who is the parliamentarian, and how is he selected?
Robert Dove: His name is Alan Frumin, he was appointed as an assistant parliamentarian in 1977. He’s very knowledgeable, he’s basically a straight shooter, and he calls them like he sees them. He’s not a partisan official, and I would expect him to be fairly strict in using the rules of reconciliation. I know his view of the use of reconciliation for things that it was not designed for, and I can assure you it was not designed to implement a health-care reform bill. He was the parliamentarian in 1993 and 1994 who argued with the Budget Committee against using it, and he was successful then.
The parliamentarian works for an official called the secretary of the Senate. The secretary of the Senate is basically the choice of the majority leader, and he has the power to replace the Parliamentarian. Various parliamentarians have been replaced over the years by the Secretary of the Senate when the Majority Leader was unhappy.
Parliamentarians were asked to leave by the secretary of the Senate in 1980, in 1986, in 1994, and in 2001.
Lester Feder: And for what reasons?
Robert Dove: Well, in 2001, I was the parliamentarian that was removed. My interpretation of the Budget Act did not comport with what the majority leader, Trent Lott, thought was appropriate, and he removed me. That’s when Alan Furmin, who was my deputy, moved up.
Lester Feder: And what was the disagreement over the Budget Act?
Robert Dove: It was over a provision in a budget resolution that was going to allow the Appropriations Committee to basically have a five million dollar slush fund of unallocated funds that they could just spend however they wished. That’s not how the budget process works. The allocation budgets of the Appropriations Committees are supposed to go to each of the subcommittees, and there’s not a nice little pot of money that can just be used however you wish. I told Trent Lott that and he was not happy.
Lester Feder: As you watch the discussion about how the Democrats proceed, and the role of reconciliations in that, do you think the people adequately understand how the Senate procedure works? Or do you think that’s not being well reported or discussed.
Robert Dove: I think they understand pretty well that it is not probably a good route to go, but in extremis the Democrats may still go that route. I don’t think they want to end up with nothing.
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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.