Republicans find parliamentary loophole in reconciliation ploy

The Democrats in the House and Senate have been struggling to find a way to pass health care legislation without invoking cloture, a vote they cannot win without a Republican crossover vote since the election of Scott Brown in Massachusetts (who, by the way, will be sworn in tomorrow!).

Today The Hill reports that the Republicans may have found a way to stymie any Democrat attempt to cram a health care bill through Congress using the budget reconciliation process:

As it turns out, Senate Democrats may not be able to force healthcare legislation through the chamber on a simple majority vote.

Republicans say they have found a loophole in the budget reconciliation process that could allow them to offer an indefinite number of amendments.

Though it has never been done, Sen. Jim DeMint (R-S.C.) says he’s prepared to test the Senate’s stamina to block the Democrats from using the process to expedite changes to the healthcare bill.

Experts on Senate procedural rules, from both parties, note that such a filibuster is possible. While reconciliation rules limit debate to 20 hours, senators lack similiarconstraints on amendments and could conceivably continue offering them until 60 members agree to cut the process off.

Ed Morrissey at HotAir.com discusses potential obstacles to the unlimited amendment non-filibuster filibuster:

In this case, though, the strategy depends on one vote — and that isn’t Scott Brown. The Senate Parliamentarian will have to rule on whether the GOP can continue offering amendments, as Harry Reid will undoubtedly invoke a point of order to limit amendments. The reconciliation rule itself doesn’t have any limitations on amendments, only on debate on the main bill.

Reid will argue that infinite amendments violate the “spirit” of the 1974 budget agreement that created the reconciliation exception to cloture, but parliamentarian Alan Frumin has no precedent from which to work. He could side with Reid, but that would put Frumin in the position of creating a Senate rule by fiat. Frumin would be more likely to point out that the rules don’t preclude the GOP strategy and leave Harry Reid to find a political solution to his problem — which was what a few Democrats told The Hill anonymously.

So even reconciliation has its problems, and Democrats may find themselves in the unique position of manhandling the rules to get to a finishing line and seeing Republicans already there. They would be much better off opening a dialogue with the GOP and creating a new reform bill with their input.

As recently as a month ago, I would have thought Morrissey's suggestion  of a dialogue between the parties on health care absurd on its face.  However recent political developments in Massachusetts, New Jersey, Virginia, Illinois and Indiana may shift the debate just enough to make it possible.