A Pinch of Pepper Nearly Grounds Health Care Bill

Posted April 19, 2010 at 7:01pm

Updated: April 21, 11:37 a.m.

When Democrats changed course this year and decided to use the reconciliation process for the final push on health care legislation, there was much talk about the potential impact of the “Byrd Rule.” Named after Sen. Robert Byrd (D-W.Va.), the Budget Act proviso prohibits extraneous matters, defined as those not directly affecting revenues or spending, from being included in reconciliation bills.

[IMGCAP(1)]Senate Budget Chairman Kent Conrad (D-N.D.) explained during debate on the reconciliation bill that his staff and the staff of two other committees had “spent long hours going over this bill in excruciating detail with the Parliamentarian” to ensure it “complies with the rules of the reconciliation process.”

Despite that thorough scrubbing prior to the bill’s introduction, Budget ranking member Judd Gregg (R-N.H.) still found two minor items in the bill that the Senate Parliamentarian agreed were extraneous. They were subsequently knocked out of the bill by Gregg on points of order, thereby forcing the bill back to the House for a final vote. The media were delighted to learn from budgeteers that such expungements are referred to as “Byrd droppings.”

Lost in all this was another threatened point of order that did not hold up over what I have long considered the “Pepper Rule,” after former House Rules Chairman Claude Pepper (D-Fla.). Both the Byrd and Pepper rules were first adopted in 1985 — the former as part of the Consolidated Omnibus Budget Reconciliation Act and the latter as part of the Gramm-Rudman-Hollings Balanced Budget and Emergency Deficit Control Act.

The Pepper Rule states simply that it is not in order in the House or Senate to consider any reconciliation bill “that contains recommendations with respect to the old-age, survivors, and disability insurance program established under title II of the Social Security Act.”

Unlike the Byrd Rule point of order, which only excises offending provisions, the Pepper Rule point of order blocks consideration of the entire bill. Instead of “Pepper shakings,” a valid point of order would produce a “Pepper grounding.” Of course, the House routinely waives such rules by majority vote. But the Senate requires a three-fifths vote to waive most Budget Act points of order, including those on the Byrd and Pepper rules.

Senate Republicans thought they might have a shot at blocking the health reconciliation bill with a Pepper Rule point of order against one section of the bill (the “Cadillac” plan tax), which was indirectly linked to the Social Security payroll tax. But the Parliamentarian was not buying it. Rather than press this and several Byrd points of order during debate, Sen. Chuck Grassley (R-Iowa) acknowledged the presiding officer of the Senate’s advisory rulings against his challenges and instead placed a list of the questioned provisions in the Congressional Record.

While the Pepper Rule was not triggered this time around, it may well get more attention after the president’s commission on deficit reduction makes its recommendations next December. If the commission, as expected, focuses its efforts on big-ticket items such as Social Security and Medicare, any recommendations affecting the former will not be eligible for inclusion in a reconciliation bill under the Pepper Rule, absent a 60-vote waiver in the Senate. If instead it is taken up under the regular order, the bill will be subject to a possible filibuster, which also requires 60 votes to overcome. Pepper’s intent, as a longtime defender of seniors, was to make sure Social Security was not used for deficit reduction purposes at the expense of the elderly and soundness of the system.

Pepper developed a reputation as a fighter for the elderly from his first full year as a U.S. Senator in 1937. Although he was defeated in Florida’s Democratic primary in 1950, he returned to Congress in 1963 as a Member of the House. He continued fighting for society’s most vulnerable, first as chairman of the Crime Committee and then as chairman of the Aging Committee from 1977 to 1983. Pepper wrote in his memoir that becoming chairman of the latter committee meant to him that “the nation’s elderly, all thirty-seven million of them, were now my constituents and that it was my duty to safeguard their interests in every possible way.” When he became Rules Committee chairman in 1983, he had to give up his gavel at Aging, explaining that he could help seniors more at Rules.

As one of seven Democrats on the 15-member Greenspan Commission on Social Security reform in the early 1980s, Pepper was anointed by Speaker Tip O’Neill (D-Mass.) as the party’s point person. When the commission’s recommendations were presented to Congress in 1983, Pepper was in a position as Rules chairman to shepherd their consideration. While he did not get all he wanted, he was able to uphold a bipartisan accord that saved the system from bankruptcy.

One of the provisions he championed in that bill was to take Social Security off-budget in fiscal 1993. When the Gramm-Rudman-Hollings bill was in conference in 1985, Pepper was top conferee for Rules. The conference report moved that date up to fiscal 1986 and barred making Social Security changes in reconciliation bills. I naturally thought Pepper was behind all this, hence my “Pepper Rule” designation. Yet, in fact-checking this column, I discovered the rule actually originated as an amendment by fellow Floridian Sen. Paula Hawkins (R). Nevertheless, I stand by this tribute to Sen. Pepper. Pepper rules.

Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for Scholars and former staff director of the House Rules Committee.