I'm doing my best to read everything that is available about passing legislation using reconciliation and the Byrd Rule. I'm not an expert on this topic. The fact is, there is only one expert on what can be passed using reconciliation: Alan Frumin.
Alan Frumin is the current Senate Parliamentarian. He rules on whether a provision in a bill being passed using reconciliation violates the Byrd Rule. Alan Frumin's opinion is the only one that matters. He alone will decide if a provision's budgetary impact is only incidental and therefore should be dropped. It does not matter how previous Senate Parliamentarians ruled in the past, it does not matter what all the experts think, it does not matter what the senators think, only Alan Frumin's opinion counts.
There are two other important things to remember about the Byrd Rule. First is that the Senate Parliamentarian has no real power. He informs the presiding officer that he thinks a provision violates the Byrd Rule. It is the presiding officer who officially drops a provision because of the finding of the Senate Parliamentarian. The presiding officer can choose to sustain or not sustain a point of order. In 1993 the presiding officer rejected two points of order and therefore prevented extraneous provisions from being dropped.
The only thing that really stops 50 Democratic senators plus Vice President Joe Biden from passing every provision they want using reconciliation is their desire to maintain tradition. If insurance companies can still drop people when they are sick, if millions of Americans are left without insurance, if our out of control health care spending continues to rise, it is solely because there were not 50 senators willing to put real health care reform over the idea of Senate tradition.
The other important thing to keep in mind is that the Byrd Rule was only first put into place in 1985. It did not end up in being permanent until 1990. If health care reform is turned into “swiss cheese” by the Byrd Rule, it is because Senate Democrats choose a 25 year old Senate rule over the needs of the American people.