Sen. Lindsey Graham (R-S.C.) predicted dire consequences for the Senate if Democrats move forward with a tentative plan to try shut down GOP amendments during this month's expected debate on a health care reconciliation bill.
Saying the move would be "catastrophic for the Senate," Graham in an appearance on CBS' Face the Nation pleaded with Democrats: "Please don't do this. Just please."
But retiring Sen. Evan Bayh (D-Ind.) acknowledged that Democrats are seriously considering using a rarely used Senate rule prohibiting "dilatory amendments" against Republicans when the reconciliation bill, which otherwise cannot be filibustered, comes up for debate.
Though the Senate overcame a GOP filibuster of its comprehensive health care reform bill and passed a bill Christmas Eve 2009, Democrats lost their filibuster-proof 60-vote supermajority when Sen. Scott Brown (R-Mass.) won a special election to fill the seat of the late Sen. Edward Kennedy (D-Mass.).
House Democrats have indicated a willingness to pass the Senate measure, but only if separate budget reconciliation measure is passed by both chambers to make changes to the Senate bill.
Senate Republicans have made no secret of their plan to try to trip up consideration of the reconciliation measure by offering a nearly endless stream of amendments. Though reconciliation bills are limited to 20 hours of debate and need only 51 votes to pass, amendments do not appear to be limited.
Bayh said Democrats might attempt to change that.
"It could be the Parliamentarian is going to be called on to decide [whether there is] a difference between a filibuster, which you're not allowed to do, or endless amendments, which would after a while sort of verge on the functional equivalent of a filibuster," Bayh said on Face the Nation. "Conceivably, the vice president could be called in to decide whether the Parliamentarian should be overruled or not. And I think that's all going to come down to, you know, look, are these legitimate amendments that after a period of weeks are really designed to improve the product or are they just slowing things down?"
Speaking on NBC's Meet the Press, Sen. Orrin Hatch (R-Utah) said he believes Democrats will try to alter the rules to fit their purposes.
"I suspect they are going to manipulate the rules even further, in ways that were never contemplated, in order to get this dog though," Hatch said.
Senate rules do prohibit dilatory amendments and motions once the chamber has broken a filibuster or invoked cloture, but there do not appear to be any specific rules pertaining to how many amendments or motions can be offered under reconciliation, a fast-track procedure intended to address budgetary discrepancies.
Previous reconciliation debates in the Senate have featured multiple days of nearly nonstop voting in what has become known as a "vote-a-rama."
House and Senate Democrats have been aiming to complete the process before they leave for a two-week Easter recess on March 26.
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 don't 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 don't 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.