No Ramming Health Care Through
At some point this fall in October or November probably, there will be a fish-or-cut-bait moment in the Senate as it tries to pass comprehensive health care reform with at least a small whiff of hard-won bipartisanship. Democratic leaders will start getting impatient, even exasperated, trying to lock in 60 votes or more to win passage over near water-tight Republican opposition. Reform advocates will argue bipartisan efforts are pointless and urge Democrats to seize the chance, pass something landmark this year and use any strategy necessary, including a budget tactic allowing passage with a simple majority of 51 votes -- a world easier than 60 votes normally required for controversial legislation. It's hardly that easy, though. The reconciliation path is fraught with trouble, both procedural and political.
The temptation will be there, no doubt. Republicans will warn of "socialized health care" over and over this fall and town halls may remain the pressure cookers they are today. Democrats will warn that nothing may get done without "reconciliation", the parliamentary term for a budgetary legislative vehicle that can't be filibustered. Even White House Chief of Staff Rahm Emanuel and senior presidential advisor David Axelrod are leaving the reconciliation option open, saying it would be worse to have historic health care reform die on the Senate floor for lack of one or two votes when there are ways to pass it partisanly through reconciliation.
Health care legislative dealmakers, such as Finance Committee Chairman Max Baucus, D-MT, and Majority Leader Harry Reid and Sen. Chris Dodd, D-CT, have all said a bipartisan backed bill is necessary to be successful. That sentiment could quickly slip, though, when health care reform reaches a do-or-die moment later this year and the clock is ticking louder.
Republicans used reconciliation to pass former President Bush's signature 10-year tax cuts when they ran the Senate in 2001 and 2003. That's what Democrats will argue, even as Republicans threaten to shut down the Senate if reconciliation is used to thwart them.
There's one rarely discussed problem with using reconciliation: the so-called "Byrd" rule.. When reconciliation rules were set up as part of congressional budget reforms in 1974 to ease passage of deficit reduction, they were never intended to be used for substantive policy legislation. As a result, legislation passed though reconciliation needs to have a budgetary impact and not represent new policy. Any section of legislation that does would be subject to a point of order, and waiving the rule requires 60 votes, the same number needed without reconciliation.
Major planks of a Democratic health care reform, including any type or variation of a public provider option, insurance market reforms, requirements that insurers cover people with pre-existing conditions and wellness and prevention programs, would be subject to a 60-vote requirement, putting Democratic leaders right back where they started.
Also, like the Bush tax cuts, any reconciliation health care reform would sunset after 10 years, and depending on which party is running the Senate in 10 years and by how much, it would be uncertain any health care reform would be permanent.
Democrats will therefore need 60 votes to pass a policy bill no matter what. With some centrist Democrats on the edge and possibly unprepared for now to vote yes on a final bill, Democrats will need to strike a compromise with at least a handful of Republicans, such as with Olympia Snowe and Susan Collins of Maine or possibly retiring George Voinovich of Ohio, to ensure passage. Compromises will irk, maybe even outrage, some liberals, but they'll be necessary to make when it's realized that reconciliation is not the answer many think it is. (Liberals will go along with a centrist-appealing plan, possibly without a public option, if that is all that can truly pass.)
Good old fashioned negotiating and compromise will be the answer, and there'll be some arm twisting, too, from the White House and Democratic leaders, especially if supporters are only one or two votes shy of passing a final bill through the normal procedure with most Republicans standing proudly opposed.