Well, the read I gave you both here and at Congress Matters on the Baucus health care draft has pretty much panned out as the DC conventional wisdom. And my reaction to the individual mandates is now being mirrored in the media. The bill as written is a bomb. Republicans won't vote for it, because they're in this to hand Dems a defeat, not to work out policy differences. And Democrats aren't much interested either, because Baucus locked them out of the room, by and large. Seriously, how do you come back to the 10 Senate Finance Dems who had no role in your "negotiations" and ask for them to rubber stamp the product when it either conflicts with their every stated position on health care, or simply excluded them from the process, or both? You're going to stand between 10 United States Senators and the spotlight, on the hottest issue in Washington, and then ask them for a favor? Good luck!
So what's going to happen? And how should Senate Finance Dems respond? Here's one take, from last Sunday, to mull over:
Here's a question I got via Twitter last night:
@KagroX assuming Baucus bill is as bad as Bob Reich says http://tinyurl.com/... how will Schumer, Rockefeller, Stabinow vote in Cttee?
And I answered:
@mitchellhirsch They will probably be asked to report it out and wait to see how it's merged with HELP.
And that's something to think about. I mean, the real answer is that I have no idea what they'll do. And I've heard whispers that there might be attempts to amend the draft to include a public option, of course.
But if it doesn't get included, what would Senators like Schumer, Rockefeller, Stabenow and Menendez do?
Well, I think they'd likely come under intense pressure to simply go along and allow the bill to be reported out of committee, despite their objections. If the leadership wants to keep the reconciliation option open, they'll be mindful of the fact that the budget resolution instructs Senate Finance (as well as the other four committees of jurisdiction) to report out legislation achieving $1 billion in budgetary savings, to be included in the reconciliation process. I'm not 100% sure, but I think that will require that the Finance Committee actually come up with something, even if it's just pro forma, or at least it will make things considerably more difficult if they don't.
So I think it's possible that Senators on the Finance Committee who support the public option will essentially be asked to put those concerns aside for the sake of moving the process forward, and that they'll agree to do that.
Should they? Or should they use that leverage to force more consideration of the public option?
Good question. And I suppose it's worth considering. Because if they hold things up, then I suppose it falls to Baucus and the more conservative Dems to decide whether they'll block their own bill and throw things into the chaos of reconciliation on the floor rather than in committee. Surely the conservative types will be using the logic of the process to try to put the liberals over a barrel, telling them that unless they give in, the process can't move forward, and since the bills will be merged anyway, what really matters is that outcome, not the Finance Committee vote. But the same logic applies in reverse, too. At least insofar as the committee and later merger outcomes are concerned.
The real question is what happens if the Committee makes no report and offers no bill? There are real answers about that, but they're archaic and confusing -- even more so than questions about what happens during reconciliation under the normal process.
We'll have to look at that later, and decide who holds more leverage -- conservatives or liberals -- should reconciliation go forward without a bill from Finance.
And that question led here:
Yesterday, I wondered what the strategic situation was for Senators on the Finance Committee who were dissatisfied in some way with the Baucus draft. Are they better off voting to report a bill they don't like? Or refusing to, and letting the process deal with getting no bill from Finance, in whatever ways it can?
So what happens if Finance deadlocks and simply reports no bill?
The closest I've come to an answer is this:
The role of the Budget Committee is to package into an omnibus bill, "without any substantive revisions," the recommendations of the various authorizing committees charged with reconciliation instructions
If an authorizing committee’s recommendations fail to meet its instructions, the Budget Committee will still include that committee’s recommendations in the legislation. However, in those instances, it will be in order for any Senator to offer on the Floor, a motion to recommit the reconciliation bill with instructions to report back forthwith with an amendment -- which need not be germane -- that achieves the savings the committee failed to achieve.
For example, if the Senate Finance Committee is given instructions with respect to health care issues within its jurisdiction, but fails to meet its instructions, Budget Committee Chairman Kent Conrad (R-ND) cannot "write" the health care section for inclusion in the omnibus reconciliation bill reported by the Budget Committee. However, once reconciliation gets to the Floor, Chairman Conrad (or any other Senator for that matter) may offer, in the form of a motion to recommit, his or her own health care section that does meet the instructions.
So that may just mean that if public option supporters block passage of the Baucus plan (or vice versa), the reconciliation bill goes to the floor anyway, but just gets recommitted for further work. So it's a giant circle, and somebody ends up having to give. Though you might ask why that couldn't be the conservatives instead if those favoring a public option.
I don't know, however, exactly where the process of "merging" the Finance and HELP bills comes in. If there are substantive conflicts between the two, the Budget Committee can't settle them itself, apparently. So does it happen before they see it? All the explanations of the reconciliation process that I've seen say that when there are multiple committees instructed in the budget resolution, their products go directly to the Budget Committee, are patched together there with no substantive changes, and then are sent to the floor. Though I guess there's also the possibility that Budget could send both to the floor separately and let the full Senate work it out from there. There's never any discussion in those guides about merging bills with fundamentally different approaches to policy like this. I've come to understand the general approach to merging multiple versions of the same bill after sequential or concurrent referrals, but the merger of two or more bills into one, combined with the arcana of reconciliation leaves me with a lot of questions.
So what's it all mean?
Well, there's a political calculus to be made (as is always the case), and it's got 8,000 moving parts (as is always the case).
Here's where I stand now:
- If they don't use reconciliation, then there's no reason Finance has to report at all. Let the Finance Dems who are unhappy with the bill dig their heels in and refuse to report it out. It won't make a difference if they don't use reconciliation, because they were just going to merge the Finance and HELP bills anyway (about which, see more here), and they can do that without actually having a formal product from Finance.
But...
1A) If they can't report a bill out of Finance, that may actually increase the chances of using reconciliation, because politically they'll be afraid that they'll never be able to unify the Democratic Caucus, since they couldn't even do it among 13 of them, so they'll doubt their ability to do it among 59 (and of course, even if they do, 59 doesn't cut it unless they do use reconciliation).
- If they do use reconciliation, then Finance is required to report something, and digging in their heels throws a monkey wrench it the works. Is that a good thing, or a bad thing? Well, we don't know. If Finance just doesn't report, then Budget (which is supposed to package up the products from Finance and HELP and send that to the floor, under reconciliation) will send a bill with (at least one) giant hole in it, instead. And then the bill will be subject to a motion to recommit it to the committee whose bill is missing, probably with instructions to report it back forthwith (which means it actually never leaves the floor) with one or more amendments that will bring it into compliance with the reconciliation instructions (which are that it should cut a net $1 billion per year for five years from the deficit). So the question is: under reconciliation, do you get a better product out of a motion to recommit where 59 Democrats get to vote than you would have gotten out of Finance where 13 Democrats vote?
Keeping in mind that...
2A) If they're operating under reconciliation, whatever instructions come with the motion to recommit will have to be compliant with the reconciliation instructions and qualify under the Byrd rule and other applicable points of order against such a bill. That means tighter germaneness rules, demonstrable deficit cutting, etc.
So if Senate Dems dig in their heels and refuse to report the bill out if their amendments fail, that could increase the chances of proceeding under reconciliation, unless they're somehow able to argue to leadership that they're more likely to get to 60 with the plan of the Democratic Finance defectors than they are to either get 60 with the Baucus plan or to get 50+1 under reconciliation (whatever bill it is and whichever parts qualify under that procedure).
And finally...
- No one seems to have noticed -- at least publicly -- that the HELP bill might itself not be compliant with the reconciliation instructions. And if it isn't, then the HELP bill is worthless if they go with reconciliation, and the committee may have to start all over again, and just report out something quick that cuts $1 billion a year for five years. That's easy for Finance (whose bill also may or may not come out in compliance with reconciliation instructions), because they can tinker with any revenue pool they want. As is sometimes said, a simple "rounding error" can pay for an entire bill, when you're talking about putting taxes in the mix. But HELP would have to make actual, programmatic cuts somewhere. And if they're looking to save the framework of their current bill, they may have to make as much as $100 billion or so in such cuts.
But did I say finally? I meant that this is the final part...
- It's still the case that nobody knows what the Parliamentarian will count as deficit reduction under the Byrd Rule. Is the CBO score determinative, or is there more to it? No one seems to know. If they come to the Parliamentarian with a CBO score that says the public option will in fact produce the requisite amount of savings to cut the deficit, is that enough? Or do there really have to be programmatic changes made in the bill itself that implement those savings and target them for deficit reduction? That is, is it enough if the CBO says a public option will save money in, say, Medicare, that can then later be used for deficit reduction? Or must the bill actually make cuts in authorizations in that amount, and if the savings from reduced costs don't actually materialize, then the penalty is borne by the program that had its authorizations slashed in anticipation of not needing them?
I don't know. And I don't know anyone who does.
At bottom, it means that Senate Finance Dems shouldn't feel too bad about refusing to go along with giving the Baucus bill a "pass" just for procedural reasons, at least at first. The risk of holding out, though is that it increases the odds that the leadership will conclude that reconciliation is the only option. And while it eliminates the possibility of the filibuster, it also creates tough questions about what survives and what doesn't.
And if they don't use reconciliation? Well, then, there's no reason I can think of why Finance has to report anything at all. Just go straight to the "merger" stage, and see what happens.
But in the end, if Finance Dems are unable to amend the Baucus bill to meet their approval, they question will be whether it's worth it to gamble on being able to craft the programmatic language they want and have it qualify under the restrictive rules of reconciliation, or whether the amendments they want to try to add on the floor (assuming they've failed in committee) stand a better chance of being adopted and ultimately passing under regular order -- that is, with 60 votes.
Again, I don't know. And I don't know anyone who does.