Since this is a column usually about government and how it does things, let me explain something expressed in the newspapers and on TV. You will hear more of it as Congress takes action on major legislation. The reconciliation process (nuclear option is often cited in the press and is the same) is a key item. Here are details about what it is and why it is important.

The U.S. Constitution gives no authority for passing bills without two-thirds majority (of quorum present) in the House and the Senate. A conference committee accommodates differences between House and Senate versions of any legislation. Their joint agreement is again voted on in each chamber, up or down. “Reconciliation” is a legislative process to consider contentious budget bills and was originally devised to avoid filibusters, long delays by Members running their mouths in an effort to draw attention to themselves.

Created in a budget resolution in 1974, reconciliation is used to legislate policy changes in mandatory spending or revenue (tax) programs. It is an optional procedure when issues of tax increase or reduction, deficit limits, or spending limit changes are involved. Therefore, it can involve all of the “authorizing committees” that can have a requirement input into how taxes are spent in completing authorizations. Remember, each side of Congress must first authorize and separately appropriate tax money (the latter initiated only in the House). In reconciliation, non-germane amendments may not be offered, and the Senate-side debate is limited to 20 hours. I know – it gets complicated, and it’s done this way on purpose.

Since 1980, reconciliation has been used nine times when Republicans (R) controlled both the House and Senate, six times when Democrats (D) controlled both the House and Senate, once when D controlled the Senate and R the House, and seven times when R controlled the Senate and D the House (23 times in all). Nineteen of these budget bills were signed into law by the President.

In 1985, to the national benefit, the Byrd Rule (Section 313 of the Budget Bill) was enacted and made permanent in 1990. The Byrd Rule was offered by Senator Robert Byrd (D-WV) to restrict use of reconciliation as a means around the legislative process. This rule prevents use of reconciliation via six specific provisions for exempting bills from conventional processes.

It is notable that today, even with the intense partisanship on issues covering health-care reform, cap-and-trade or immigration, Senator Byrd holds to his long-held position that use of reconciliation is a legislative budget procedure for simplifying means for budget and appropriation agreements and must not be used as a gimmick to force non-budget legislation into law. He has stated that using reconciliation to pass other non-budget issues is “an outrage that must be resisted.”

In the current Congress, there is contentious bickering about use of reconciliation for purposes other than established use. Senator Reid (D-NV) has been disingenuous in claiming otherwise. There appears to be three major perversions of reconciliation use on current major legislative concerns that might take the following forms in implementation. Option #1 is for the House to pass an exact same version of any Senate bill with an understanding that immediately after passage a series of “fixes” would be made, and the bill would be passed by simple majority under reconciliation provisions instead of the required super majority. Option #2 is for the Senate to pass whatever bill under the simple majority provisions using reconciliation processes and then for the House to pass the same bill. My view is that neither of these approaches will garner enough votes in either chamber to achieve legislative passage.

Option #3 is scary and a potential harbinger to watch and assess. Under reconciliation procedures any Member can ask a “point of order” to determine the germaneness of any item in proposed legislation, and the Senate Parliamentarian must determine the validity of questioned event. The vice president, chairing the Senate, could ignore any ruling of the Parliamentarian and so keep (politically motivated) extraneous provisions in a bill, assuring the misuse of reconciliation procedures.

Kind of exciting, isn’t it? It’s also bad news for Americans if government’s legislative processes are perverted for the wrong ends. IH