Surprise!
Democratic aides say that Senate leaders working with the White House to meld the two bills are inclined to leave the public option out and to let supporters propose amendments to add it during floor debate.
Before I go any further, no, that's not actually the main thrust of the article. And the main thrust is really interesting and you should go read it. But it's an important part for my purposes today -- the discussion of how procedure will effect the substantive outcome of this bill.
For those of you who don't recognize this set up, it's a familiar play. The bill comes to the floor with some particular deficiency, and the "deal" is that opponents are to be allowed a vote on an amendment that would correct it. But the catch is that the unanimous consent agreement under which the bill comes to the floor and the terms for debate are set requires a 60 vote threshold to pass that amendment.
Why would anybody agree to such an arrangement? It's meant as a mechanism for bypassing the trouble and delay caused by a threatened filibuster, whether of the bill as a whole or of that particular amendment. Rather than go through the actual annoyance and time-wasting involved in a real filibuster, the leadership chooses to recognize the validity of the threat, and instead of dealing with the annoyance of filing for cloture and waiting a real filibuster out, the parties instead agree that they'll require for passage of the bill or amendment the same 60 votes that would have been necessary for cloture.
This has the advantage of saving everyone some time and trouble without really requiring any more votes to pass the measure than would otherwise have been necessary. But it also has the effect of shielding those who claim they would filibuster from having to stand up and go on record as opposing cloture, not to mention actually conducting the filibuster -- though that, too, has certainly become easier to do these days. That's why I call this the "painless filibuster."
So, expect the "deal" for the health insurance reform bill, if it excludes the public option from the version going to the floor, to be similar in its terms. Yes, public option proponents will be given the opportunity to offer an amendment on the floor to add the public option into the bill, but it will require 60 votes to be adopted. Why? Because otherwise the Republicans (and, it is implied, one or more Democrats) will filibuster that amendment and force its withdrawal in order to allow the rest of the bill to go forward. Agreeing to a 60 vote threshold avoids that unpleasantness, and saves time at precisely the point in the process when time will be at a premium.
And expect public option proponents to take the deal, too. Why? Because that's what progressives do.
But should they take the deal? What if they didn't?
If someone -- and I do mean some one -- doesn't like the deal, they can just object to the unanimous consent request that would carve it in stone and move the bill to the floor. One Senator is all it takes.
But wouldn't that mean blocking the whole bill, even the good parts, from coming to the floor and helping at least some people in need? Not really. There are other ways to bring a bill to the floor, like making a motion to proceed instead. All it really takes to move a bill to the floor is a majority vote on a motion to proceed.
But of course, a motion to proceed is... subject to a filibuster. That's why Senate leaders seek to avoid using them on controversial bills (like those that would let people take their kids to the doctor without having to worry about going bankrupt and becoming homeless).
Without a deal in place, a filibuster could indeed block the bill from moving forward. However, that means that whomever it is that doesn't want to see the bill come to the floor without the protection of an agreement that would save them from having to go on record against cloture on a public option amendment, or who later intends to block that public option amendment when it comes up, will simply have to filibuster on the record right then and there by voting against cloture on the motion to proceed. The very thing they were hoping to avoid with the unanimous consent agreement.
So remember, if the bill comes to the floor with a deal requiring 60 votes to pass a public option amendment, it happened with unanimous consent.
Unanimous consent. That means setting the public option up to lose was OK with Chuck Schumer, OK with Chris Dodd, OK with Bernie Sanders, and so on, and so on, and so on.
Could they have an eleventy-bazillion dimensional chess kind of a reason to do so? Sure. But it's one you probably won't know is working -- if it works at all -- until the very last minute, when there's no further opportunity to fix things if it turns out not to have been the plan all along. But are there indications that this could really be happening? Yes there are.
So how would you like them to handle this?