After confusing an awful lot of people by insisting that he could pass Medicare for All without ending the filibuster, Bernie Sanders has finally clarified how he’d go about it.
The Vermont senator says he would enact his signature health care proposal using budget reconciliation, the legislative process that prevents filibusters on certain types of tax and spending bills, allowing them to pass with a bare majority. Most experts believe that the special rules required for reconciliation would prevent Congress from using it to pass Sanders’ proposal. But in a statement Wednesday, Sanders essentially said he would be willing to bulldoze those limitations.
“It is the vice president who determines what is and is not permissible under budget reconciliation. I can tell you that a vice president in a Bernie Sanders administration will determine that Medicare for All can pass through the Senate under reconciliation and is not in violation of the rules,” he said.
Using the power of the vice president to wave a bill past reconciliations procedural roadblocks is not a new idea. As Politico notes, Texas Sen. Ted Cruz unsuccessfully pressed Republicans to use similar tactics during their push to repeal Obamacare in 2017. It might work, legally, and would amount to punching an enormous hole in the filibuster without demolishing it entirely.
So let’s unpack the idea a bit. Under the “Byrd rule,” Congress is not allowed to pass bills through reconciliation that only have a “merely incidental” effect on the budget. What this means in practice is that purely regulatory proposals aren’t eligible. This would be a problem for Sanders’ health care plan, since the legislation effectively bans private insurers from competing with public coverage (that’s what makes it single-payer). Most health policy and budget wonks consider that a regulatory play, through and through.
The question is: Who decides what counts as “merely incidental”? Traditionally, the Senate relies on rulings from the Senate parliamentarian. But technically, it’s the vice president who gets to make the final call in his or her capacity as the chamber’s presiding officer. If VP Elizabeth Warren or Kamala Harris wanted to green-light Medicare for All, they’d have the power to do it. (Presumably, they’d try to layer on a patina of principle and argue that each piece of the legislation contributes in some way to its collective impact on the budget.)
This would be a major break with Senate tradition. It would also be an end-run around the filibuster that would create precedent for using reconciliation much more aggressively in the future. Would it mean that Congress could pass anything using the process, though? I don’t know. The Byrd rule—which, unlike the filibuster, is actually written into law—has six different tests for whether provisions in a bill satisfy the requirements of reconciliation, some of which are quite strict. It bars legislation if it doesn’t “produce a change in outlays or revenues,” for instance, which is a fairly cut and dry standard that would seem to foreclose voting rights legislation, to take just one example. But at this point, we’re really getting into the realm of hypotheticals. The big picture is that if Sanders can muster 51 votes for his health care bill—which itself seems fairly unlikely in a world where West Virginia Sen. Joe Manchin is a key Democratic stakeholder, if we’re being honest—he’s willing to bend the Senate’s rules as we know them. (Of course, the Senate itself has to go along with the plan.) He might not urge Congress to kill the filibuster. But he’ll certainly encourage them to maim it.
Correction, April 11, 2019: An earlier version of this post misspelled Kamala Harris’ first name.