David Waldman has previously laid out a detailed strategy that he believes would allow Congress to first pass the reconciliation measure before the House Democrats need to pass the current comprehensive Senate health care bill. This would give House Democrats a lock-solid guarantee that the changes they want will be made. It appears that even a big expert on Senate rules, former parliamentarian Robert Dove, agrees with Waldman's general assessment. Via Time:
Dove says the Dems' planned use of reconciliation is highly unusual. "I've never seen a two-bill strategy" where reconciliation is used to fix another piece of legislation, he says. "It's permissible, I've just never seen it."
Now just because Dove thinks it is permissible does not mean the current parliamentarian, Alan Frumin, would. After all, Frumin got his job when Dove was fired by Republican Trent Lott for not ruling his way on reconciliation. Which is ironic because Dove was selected by Lott to replace Frumin who was originally given the job by Robert Byrd (D-WV).
Of course, if Frumin does not think you can use reconciliation in the way Waldman outlined, there is nothing stopping Democrats from pulling a Lott and replacing Frumin with a qualified parliamentarian, like Robert Dove, who would. Equally, there is nothing actually stopping 50 determined Democratic senators plus Joe Biden from overruling the parliamentarian--potentially setting new Senate precedent to make using reconciliation easier--or even using the "nuclear option" to get rid of the filibuster, so they could just pass the House health care bill unchanged.
It appears the Senate Democrats have taken to saying that they “just can't do something,” when they really mean they just don't want to do something because that would require them to play hardball like the Republicans do. The gulf between what Senate Democrats could actually do, and what they say they can do, seems to be getting easier to see every day, and that might be the only positive thing to emerge from this health care battle.