As the possibility of bipartisan health care reform breaks down there will be more reporting about possibly using "reconciliation" to pass reform. Karen Tumulty at Time recently wrote a piece talking about reconciliation. Unfortunately, like almost all the reporting about reconciliation she failed to mention one of the most critical components of the Byrd Rule.
In her article she states, "Opponents would have the power under Senate rules to strike every provision of the bill that cannot be shown to reduce the federal deficit. "
It is true that any Senator may ask a provision of the bill be stricken if it is found to be “extraneous”. But she failed to mention that a provisions will not be removed if the determination that it is extraneous is waived “by the affirmative vote of three-fifths of the Members duly chosen and sworn (i.e., 60 Senators, if no seats are vacant)”. This is incredibly important. Many of the provisions that can technically be removed, because they are extraneous, are incredibly popular.
These include regulations outlawing: excluding pre-exisiting conditions, charging women more than men for health insurance, dramatically raising someones insurance premiums after getting sick.
These regulations are not just very popular with the American people but also with the Senators. For these regulations to be removed Senators would need to publicly vote to eliminate them.
I can see the ad now. Senator (blank) supports discrimination against woman by voting to give insurance companies the right to charge women more than men. Senator (blank) voted to give your insurance company the power to refuse to pay your medical bills. Senator (blank) voted to give insurance companies the power to raise your premiums when you get sick.
Publicly voting against many of these popular regulations would be political suicide. No one wants to be labeled a defender of the insurance industry's most repulsive practices. While many important provisions can technically be stricken during reconciliation, the number that are will probably be much smaller.
(I'm also putting together a list of ways to possibly protect the essence of the insurance regulations so that they couldn't be stricken under reconciliation. To any of the Senate/House aides reading this, I would be happy to share.)