Senate Republicans caused a major stir Thursday when they told reporters that the parliamentarian had informed them that the Senate bill needed to be signed into law before lawmakers took up a sidecar bill to fix it.
And Senate Budget Committee Chairman Kent Conrad (D-N.D.) told his Democratic colleagues during a caucus meeting Thursday that he had heard the same thing.
But according to reporting by POLITICO’s David Rogers, the accounts aren’t accurate and misconstrue what the Senate parliamentarians have said. That is that reconciliation must amend law but this could be done without the Senate bill being enacted first. “It is wholly possible to create law and qualify law before the law is on the books,” said one person familiar with situation.
This Politico report is ridiculous. The United States Code (at 2 USC 641b) says that Congress can pass "a concurrent resolution containing directives to one or more committees to determine and recommend changes in laws, bills, or resolutions." Consequently, Congress enacted such a resolution last year (S. Con Res. 13) that only directed "changes in laws." Last time I checked, a bill or resolution does not become "law" until it is signed by the President.
And who are these "Senate parliamentarians" that Politico cites? There's only one Senate parliamentarian, as far as I know.
Anyway, Speaker Pelosi understands that the Senate parliamentarian's ruling prevents Congress from passing reconciliation changes to the health-care legislation until Congress passes the Senate bill. :
So we will pass the Senate bill. Once we pass it, the President signs it or doesn’t, it’s – people would rather he waited until the Senate acted, but the Senate Parliamentarian, as you have said, said in order for them to do a reconciliation based on the Senate bill, it must be signed by the President.
Based on all these weird reports, I suspect that Pelosi intends to never have a direct vote on the Senate bill. Instead, she’ll do a self-executing rule that allows approval of the reconciliation bill to signify approval of the Senate bill (this is called the "Slaughter Solution"). Then the Senate bill will go to the President for signature. Then the Senate will vote on reconciliation. But it still seems like House members who go along with this strategy could get stuck with the Senate Health Bill signed into law without any Reconciliation Bill ever being passed in the Senate.
Pelosi's whole bogus strategy seems to rely on House officials saying (with a straight face) that the House can approve a reconciliation bill that contains fixes in a "bill" instead of a "law", despite the explicit instructions adopted by Congress in 2009 requiring that the reconciliation bill must contain “changes in laws.”
This is all complex, but the bottom line is: Regardless of whether the “Slaughter Solution” is constitutional and regardless of whether the Slaughter Solution complies with the statute about reconciliation, still the Slaughter Solution would not really help wavering House members. They cannot avoid the consequences of approving the Slaughter Solution: President Obama would then sign the Senate Health Bill into law, and the Senate could then reject the Reconciliation Bill.