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Former Senate Parliamentarian Untangles Rules Governing Health Care Debate


If you are puzzled by today's parliamentary maneuvering, we think we have just the man to unpuzzle you. Alan Frumin used to be parliamentarian of the Senate. He spent decades in the parliamentarian's office. He's now retired and joins us to help sort things out. Thanks for talking with us.

ALAN FRUMIN: Oh, you're very welcome.

SIEGEL: And is it fair to say that the parliamentarian is like the umpire at the - in the Senate, and he calls parliamentary balls and strikes?

FRUMIN: Yes, that's a fair description.

SIEGEL: Well, today's vote was 51-50. And because this bill was voted through a procedure called reconciliation, you couldn't filibuster against it, so you didn't need 60 votes to close debate. Why is it...

FRUMIN: You didn't need 60 votes to begin debate.

SIEGEL: ...To begin debate. Excuse me. Why? Why is it covered by reconciliation? And what else does reconciliation mean?

FRUMIN: Reconciliation was designed to bring about discrete budgetary changes at the margins to create changes in revenues and changes in outlays. It was not designed for major policy changes. And so there is this push and pull when people want to use reconciliation to produce very substantial policy changes, which is why we have something called the Byrd Rule, which provides for removal of provisions that are not strictly budgetary.

SIEGEL: That's B-Y-R-D after Senator Robert Byrd, I assume.

FRUMIN: Yes. Yes.

SIEGEL: Your successor, the current parliamentarian, has said that some features of the bill that the House passed - or the bill that they considered, we think, today, including the defunding of Planned Parenthood - don't pass that rule, and they can't be considered under reconciliation. What's that argument about?

FRUMIN: Well, what that argument is about is that those provisions either have no budgetary effect or the budgetary effect pales in comparison to the policy implications of that provision. That's what the Byrd Rule was designed to prevent because, again, the whole reason that this bill can't be filibustered is it was designed to bring about needed budgetary changes. It was not designed to circumvent the Senate's way of doing business, requiring, in essence, 60 votes to pass major substantive legislation.

SIEGEL: So how might the argument over the defunding of Planned Parenthood - how would that come to a vote in the Senate?

FRUMIN: Well, presumably, that amendment or that provision is in the pending version of the amendment that's been offered. There are two hours of debate on that amendment. And at the end of those two hours, points of order will be in order. And presumably, some opponent of that provision - let's say the Planned Parenthood provision - would stand up and make a point of order against such and such language on the grounds that it violates the Byrd Rule. The parliamentarian has already reviewed that language. And assuming that that language has not been changed from that which he reviewed, she would turn around and advise the presiding officer to say that the point of order is well taken.

SIEGEL: Advise? Advise or instruct?

FRUMIN: Well, advise. The presiding officer is either a senator or the vice president of the United States. The parliamentarian is a staff member. And staff members seldom instruct senators or vice presidents to do anything.

SIEGEL: But what's the record for the parliamentarian in terms of giving advice to the presiding officer?

FRUMIN: There's possibly one example I can think of where a vice president ignored the parliamentarian's advice, and that was in 1987.

SIEGEL: (Laughter) Quite a while ago. One other question. John McCain, when he spoke, said we should go back to regular order. This - we should have hearings of the Senate health committee. At this point, could the Senate just decide to do that and have hearings on a bill?

FRUMIN: Well, if the Senate decides to do that, it will have to abandon the track that it's on. The Senate is considering a bill passed by the House under the reconciliation process. And that process, that bill would have to be abandoned if the Senate wanted to start anew with a bill that's considered, quote, "regular order."

SIEGEL: So even though Senator McCain came to support this particular process, he called for its ending. Well, thank you very much for that. Alan Frumin, former parliamentarian of the U.S. Senate.

FRUMIN: Pleasure talking to you. Transcript provided by NPR, Copyright NPR.

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