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In order to cut off the Republicans amendment strategy, sources said Democrats would likely allow voting on amendments to go on for a couple of days. Once it was clear the GOP amendments were failing routinely and were intended as a delay mechanism, Senate Majority Leader Harry Reid (D-Nev.) would appeal to the chair, which would be occupied by Vice President Joseph Biden whose constitutional role includes serving as President of the Senate to rule specific amendments out of order.
Democratic sources said last week that there is a well-established principle in the Senate of getting around delay tactics. They point to a handful of precedents, including a 1977 debate over a natural gas regulation bill. At the time, two Democratic Senators mounted what was known as a post-cloture filibuster. The Senate had agreed to invoke cloture, or limit debate on the bill, but for 12 days and one full night the two Senators filed amendment after amendment, forced readings and demanded quorum calls. Then-Majority Leader Robert Byrd (D-W.Va.) called on Vice President Walter Mondale to rule 33 amendments out of order.
After that incident, Senate rules were changed to prohibit post-cloture filibusters. The rules regarding cloture now state: No dilatory motion, or dilatory amendment, or amendment not germane shall be in order. Roll Call could not identify any precedents involving a reconciliation bill.
Even if Democrats dont employ the strategy against dilatory amendments, both Graham and Hatch said just using the reconciliation process to ensure passage of a health care bill that otherwise could not overcome a filibuster would be enough to throw the chamber into partisan warfare that Graham also referred to as catastrophic.
The fact of the matter is, they are going to abuse the reconciliation rules and let me tell you, the reconciliation rules have never been used for such sweeping social legislation like this, Hatch said. If they had the votes, it would already have been voted on. They dont have the votes.
Graham likened the result to predictions of what would have happened had Republicans in 2005 followed through on their plan to rule filibusters of judges unconstitutional. Graham was a member of the bipartisan Gang of 14 that prevented that from happening.
Paul Singer contributed to this report.