I just watched Jon Kyl on the floor of the Senate give a long speech (long enough that I gave up after a while) against the reconciliation bill. He claimed -- as Keith Hennessey claimed yesterday -- that the Democrats have no sufficiently cleaned the bill of Byrd bait. That is, Kyl claims that Republicans will raise several successful points of order against the bill, backed, he says, by all 41 Republicans regardless of the substance of the provision. In particular, if I understood him correctly, he intends to challenge the delay in implementing the excise tax, and also the imposition of the payroll (soak the rich) tax.
OK, what's going on here? First, I think Republicans are trying as best they can to undermine the Democrats' story that the patch is inevitable once the bill has passed. In other words, it's a first-bill ("pass") strategy, not a second-bill ("patch") strategy. Will it work? I don't expect it to. The reason that marginal Members of the House need the patch are, first, because of the Nelson deal and other supposedly shady backroom deals; and, second, because the unions opposed the excise tax. Now that the unions are actively on board and whipping for a yes vote, no one in the House will really care any more about the excise tax. And they can be sure that if worse comes to worst, they can always run a separate bill through using regular order to repeal Nelson and the other demonized deals (what, the Republicans are going to filibuster a bill that does nothing but repeal those things?).
The next question is whether it's pure bluff or not. Answer: I don't know! First, I should say that while I understand the basic rules here, I am by no means a technical expert in Byrd rule and other reconciliation points of order...there's a lot of nitty-gritty in there. What I can do is think about incentives, and likely behavior, and reported actions. By all accounts, the Democrats have been working with the Senate parliamentarian as they developed the reconciliation fix (and of course the Dems have expert staff that knows this stuff well); it strikes me that it would be very surprising if they didn't clear the major financing provisions in advance. I also question whether Kyl can guarantee that he would keep 41 votes together in all cases, even to remove a popular provision from the bill. That's especially true after the House acts, when Republicans can no longer claim that they are stopping health care reform by slowing or stopping the patch; that's why the logic of pass-then-patch has always seemed so strong to me.
All that said, I do think there's certainly a very real possibility that Republicans can either sustain at least one point of order against the bill, or pass one amendment, in either case forcing the House to vote once again. But unless they manage to really affect major components of the patch (and again, that would probably come down to knocking out a major funding change, which as I said seems unlikely to me), I don't think it's much of a threat at all. The tough vote for the House is the vote on the Senate bill (or the vote on the rule that would count as the vote on the Senate bill, or whatever they wind up doing); the patch is an easy vote, especially the second time around.
So all told, no, I don't think that Kyl is holding a very good hand here, although at this point his bluff if probably as good a play as any.