The completely predictable (and often predicted) post-cloture breath-holding from LIeberman, Lincoln, et al., in which they loudly insist they won't allow a health care bill with a public option to go forward, has begun. And with it has come renewed calls for the use of the budget reconciliation process to pass the health insurance reform legislation.
Reconciliation has been looked upon as a sort of magical silver bullet for a while now, ever since people found out that reconciliation bills aren't subject to the filibuster. They haven't paid quite as much attention to the unique difficulties that reconciliation's restrictive rules that might make it difficult to get the bill through the process intact, but that challenge is starting to sink in.
The fact is that we just don't know exactly what survives intact and what doesn't when the decisions fall to the parliamentarian, whose job it is to decide which of the arcane rules apply to what provisions of the bill. And that's not even getting into the fact that there's even some question as to what, exactly, constitutes a "provision." If you thought having a vote on whether or not to end debate on the question of whether or not to begin debate was ridiculous, you probably never even saw the question of what's a "provision" coming.
But there's some credible speculation that the part of the bill that's causing such difficulty for Democratic foot-draggers -- that is, the public option -- has a connection to the necessary deficit reduction that's strong enough to survive a Byrd Rule point of order. It's the policy-making provisions such as those prohibiting preexisting condition exclusions and rescissions that would have the most obvious Byrd Rule problems. And yet these two provisions, at least, are among the most popular and widely supported of any in the bill.
So since we're resurrecting the idea of reconciliation, we might as well resurrect one of the strategies suggested earlier for how to handle it. It's something we've discussed before at Congress Matters, but from a slightly different angle. With the passage of time and some of the prerequisite events now behind us, now's a good time to reconsider it head on. So for that, we take you back to the Huffington Post article that led to the above-linked discussion:
But there's another alternative, according to Martin Paone. Paone, who served as a Democratic Senate floor staffer for 29 years, has been advising Democrats as they craft their legislative strategy. He proposes that Democrats try to get 60 votes to waive the Byrd Rule -- which would then allow the inclusion of those non-budget-related provision in one bill that would require only 51 votes for final passage.
What's the advantage? And why would any senator who opposes the entire bill vote for such a waiver?
The answer can be found in the specific proposals that would be in violation of the Byrd Rule. Mostly, those would include reforms to the way the insurance industry operates -- for example, a ban on using preexisting conditions to deny coverage, or a law that insurance companies can't drop a client just because they get sick.
Those are wildly popular reforms. Getting 60 votes to support those policies is much easier than getting 60 for a public health insurance option, which Republicans and some conservative Democrats oppose.
Yes, the Byrd Rule is a nasty annoyance, but it can be waived. It's just that it takes 60 votes to do so, and getting to 60 has always been the problem. My only critique of the idea at the time was that it required the kind of compartmentalized thinking that Senators are supposed to be capable of doing, but had been having trouble with lately. Or at least have had trouble admitting to, anyway, as when Evan Bayh (D-IN) insisted that as the process moved forward, he regarded procedural votes as more and more inseparable from substantive votes. That concerned me, but the successful adoption of the motion to proceed now gives us reason to believe that when push comes to shove, even the foot-draggers are better at this kind of compartmentalized thinking than they're willing to claim credit for.
So, assuming the public option's CBO score is sufficient to save that provision from the Byrd Rule, but not the pure policy changes like the prohibition on preexisting condition exclusions, etc., they could theoretically keep most of the current bill intact instead of splitting it up into separate bills as had once been floated, and seek waivers of the Byrd Rule for some or all of the policy changes. Those waivers require 60 votes, but think about what those policy changes are and how that would set things up.
You'd get the benefit of reconciliation for the public option, assuming its CBO score translates into Byrd Rule immunity, and then you'd have separate votes on Byrd Rule or other points of order (if any) raised against the provision to end preexisting condition exclusions and the like. That's a tough vote to say no on for anybody, including a number of Republicans (who may do it nonetheless, because it's always easier to stay united in general opposition than it is to stay united in support of something in particular).
Where do we think Lincoln, Landrieu, Lieberman, Nelson, etc. would come down if they were asked in isolation whether they'd agree to waive the Byrd Rule with respect to preexisting conditions and nothing else? And then rescissions and nothing else? They could vote yes for those waivers, but still vote no on the whole bill and still have it pass mostly intact.
Still, one or two other objections to the use of reconciliation remain, some more serious than others. The least serious, of course, is the Republican objection that reconciliation is somehow akin to the nuclear option. It's not. And the best evidence for that is the fact that reconciliation's procedure is clearly established by statute. Part of what made the nuclear option nuclear is that it was a creation that grew out of the cracks and crevices of the law.
More serious is the objection that diverting the process into reconciliation now could cause considerable delay, possibly setting us back by a matter of months. That's certainly possible, since there's an awful lot in the bill. It's perhaps not that much of a concern for provisions like preexisting conditions and rescissions that might be expected to have a reasonable shot at winning waivers. But the bill would have to be combed thoroughly for potential issues, both as a matter of the politics (to enable leadership to begin counting heads on specific waivers) and as a matter of procedure (it's required that reconciliation bills sort out and identify to the parliamentarian all the potential problem areas). Time's an issue, to be sure. But getting a better and stronger bill out of the Senate could be well worth the wait for Democrats who hope to be able to run on the results in 2010.
Lastly, there's the question of whether reconciliation reinserts budget hawk Kent Conrad (D-ND) into a central role in the process in a way that could throw a wrench in the works. Conrad's never been a fan of the public option, as we know. In order to turn things around now and bring this bill to the floor under reconciliation, the Finance Committee and HELP Committee bills would have to be sent to Conrad's Budget Committee, and from there to the floor -- something that would perhaps give pause to public option supporters. But the Budget Committee's role in that is limited to combining the two bills into one without making any substantive changes to either of them. So there's no opportunity at that point for Conrad to meddle in those affairs.
The next step, though, holds a little more danger. Since it'd be the Budget Committee that had sent the combined bill to the floor, Conrad would have a solid claim to managing the bill on the floor, and therefore to offering a manager's amendment that could make some substantial alterations to its provisions. But Conrad's been a pretty solid team player in this process. He was personally opposed to including reconciliation instructions in the budget resolution (which was his baby) in the first place, but very properly got himself out of the way when the rest of the caucus made it clear that they wanted that option open to them. I don't have any reason to believe he'd throw himself on the tracks now, especially if the whole reason the leadership had decided to kick it back to reconciliation was to preserve the public option.
So all told, I don't think reconciliation is as dead as some would have us believe. Foreclosing that possibility would redeem their original narrative that the public option was dead, though. And that's perhaps the value to them of this new obituary. But like the first one they wrote, this one may be both premature and unwise.