By Katie Connolly and Daniel Stone
Keen followers of health-care reform are about to become entranced by the workings of a man most have never heard of until now: Alan Frumin. No, he's not the sausage king of Chicago. He's the Senate Parliamentarian. Those who've watched Senate sessions on C-Span have probably seen the unassuming Frumin perched on the dais advising the Presiding Officer on arcane procedural regulations. These days, it's looking ever more likely that if health-care reform is to be passed this year, it won't be because of Barack Obama. It will be because of Frumin. His rulings could make or break the entire bill.
With hopes for bipartisan agreement on reform growing more fanciful by the day, Democrats are considering using the budget reconciliation process to pass the more contentious aspects of reform. Reconciliation circumvents filibuster rules, so that a bill can be passed with a simple 51-vote majority rather than the 60 votes ordinarily needed to shut down a filibuster and proceed to a vote. But only certain types of legislation qualify to be considered under reconciliation. This caveat is enforced by the Byrd rule. Named after its original sponsor, Robert Byrd, the rule is designed to prevent reconciliation from being used to pass non-budget-related legislation. Before it was passed in 1985, senators had tried to push their entire legislative agenda through reconciliation. Its abstruse language, however, renders it subject to interpretation. Alan Frumin is the man charged with delivering that interpretation.
Frumin cuts a recognizable figure on Capitol Hill. Sometimes harried, the mustached parliamentarian is regularly seen shuffling between Senate offices lugging enormous file folders under one arm. He appears broadly respected by Senate staff. "He's got an open-door policy," says Jim Manley, press secretary for Majority Leader Harry Reid. "Both Democratic and Republican staff are constantly trooping into his office to see what they'd have to do to get their bill to go to one committee or another or how to craft an amendment that they can introduce on the Senate floor." According to Manley, Frumin treats both sides of the aisle with equal geniality.
The parliamentarian's job is a highly specialized one. An expressly nonpolitical role, it usually goes to staffers who've worked in the office for years and are well-versed in the Senate's byzantine rules. A graduate of Georgetown University Law Center, Frumin has worked in the parliamentarian's office since 1977, when the House parliamentarian recommended him for the spot. He was elevated to the top job in 2001 after then majority leader Trent Lott fired his predecessor Bob Dove. Dove had served under Republican leadership for many years, but Lott grew unhappy with his rulings, including that only one tax bill could be considered that year using reconciliation. "The role of the parliamentarian in a contentious reconciliation situation is incredible," Dove told NEWSWEEK. "It is not something that any parliamentarian ever wishes upon themselves, but it goes with the job."
The hornet's nest waiting for Frumin involves which aspects of health reform, according to the Byrd rule, are to be considered "extraneous" and should therefore be struck from the bill. The Byrd rule states, "A provision shall be considered extraneous if it produces changes in outlays or revenues which are merely incidental to the non-budgetary components of the provision." But what exactly constitutes a "provision"? And how does one define "merely incidental"?
"A provision is what the parliamentarian says it is. It can be a sentence. It can be a paragraph. It can be part of a sentence. It is whatever Alan says it is," Dove says, adding that the description "merely incidental" is "a horrible test for a parliamentarian to enforce because it is so subjective." In the past, senators have invented creative ways to dodge unfriendly rulings. Dove recalls members of the agriculture committee once deciding to protect their entire section of the budget by writing it as one sentence and then arguing that no part of a sentence could be struck.
How Frumin will judge such tactics is a mystery. He did not return phone calls requesting an interview. But with the stroke of a pen, Frumin could rule the public option, or a health-insurance exchange, as merely incidental and have them dropped from the bill, dashing the administration's hopes in the process. Similarly, he could decide they square with the Byrd rule, and thus allow sweeping changes to the nation's health-care system to be enacted without laboring through the Senate's cumbersome, archaic procedures.
"The parliamentarian really has to live and breathe by the rules," says Senate historian Don Ritchie. "Modern parliamentarians think that the Senate has forced them to be in deciding roles that they would prefer not to be." Although his position is strictly nonpartisan, Frumin is wading in highly politicized waters. Dove recalls the firestorm that erupted over his 1995 decision to strike a budget provision that would have ended all federal funding for abortions. "It was my view that it was not there for the budgetary impact but for the social policy it was trying to implement and I said it was subject to the Byrd rule and it was," he said.
Frumin will likely face similar challenges—possibly even on abortion—this fall. "He's a straight shooter. He will call things as he sees them," says Dove. Just how he sees them is the object of much speculation on Capitol Hill. While senators scramble to brush up on the Byrd rule, Frumin, usually comfortable in obscurity, may need to start preparing for a deluge of new friends—and enemies.
