Opponents of the odious Stupak amendment have taken heart from a number of statements coming from legislators vowing to oppose the amendment's inclusion in the Senate version of the health insurance reform bill, and in the final conference report as well.
Mcjoan discussed just such statements earlier today, those elicited by Ryan Grim and Sam Stein from Sens. Barbara Boxer (D-CA) and Max Baucus (D-MT):
"If someone wants to offer this very radical amendment, which would really tear apart [a decades-long] compromise, then I think at that point they would need to have 60 votes to do it," Boxer said. "And I believe in our Senate we can hold it."
"It is a much more pro-choice Senate than it has been in a long time," she added. "And it is much more pro-choice than the House."
Boxer's reading of the political landscape might seem like the hopeful spin of an abortion-rights defender. But it was seconded by a far less pro-choice lawmaker, Sen. Max Baucus (D-Mont.)
"It would have to be added," sad the Montana Democrat of an amendment that mirrored that offered Rep. Bart Stupak (D-Mich.) in the House. "I doubt it could pass."
One side note before we go any further: are you surprised to see Max Baucus there? For all the other problems we've had with him, both recently and in the past, Baucus will quickly remind you if he gets the opportunity that he's a pro-choice vote coming out of Montana, and that's worth something.
But to get back to the main point, what about this assumption that adding Stupak-like language to the Senate bill (or indeed, adopt language that might strip out the public option Harry Reid took such pains to include ) will take 60 votes?
It's something that seems to have grown out of our constantly being beaten over the head with the 60-vote threshold on so many, many issues. We've become accustomed to it as though it were "the new normal," and so it mostly passed without comment when Sen. Chuck Schumer (D-NY) insisted that if the public option were included in the bill sent to the Senate floor, it would take 60 votes to strip it out, and today, Boxer's comments were received in the same way.
But is it absolutely true? Well, if the "absolutely" frame doesn't give away the fact that this answer -- like almost any answer where the question involves the legislative process -- is, "well, yes and no," then nothing will.
Here's what I wrote when Sen. Schumer made his comments late last month:
Quick and dirty, the idea that if the public option has to be added in by amendment, then it would take 60 votes; but if it were included from the beginning, it would take 60 votes to take it out is probably not correct.
It would take 60 votes to add it in because Republicans would filibuster an amendment to add it. But an amendment to strip it out? What happens to that amendment?
Does a public option supporter filibuster it? Maybe. And what do Republicans say to that? OK, great! We'll help! Let's all vote no on cloture on this amendment, and then we'll all just sit and stare at each other until you guys realize that we're stuck on this amendment forever, and we never get to a vote on final passage. Fine with us.
The same scenario obtains with the Stupak amendment. Try to add it on the Senate floor, and you'll absolutely meet stiff opposition. No one doubts Senator Boxer's resolve here.
But how stiff can the resistance afford to be? Filibuster the amendment, and you create a situation in which Republicans may be only too happy to assist you. And then what?
Well, eventually you could be sure that Senator Reid will seek cloture on the entire bill, and that would effectively threaten to close debate on the amendment as well. But it would also close debate on all other pending amendments, so anyone still awaiting a vote on something near and dear to their heart will be opposed to cloture on those grounds alone. You could possibly engineer it so that it was the last amendment of those likely to have any Democratic support to be offered, and simply run out the cloture clock on that. That's a possibility. But outside of that scenario (which assumes that there's no other poison pill out there that you'd rather save that single silver bullet for), the only reason adding a Stupak amendment or trying to strip out the public option by amendment would require 60 votes is if you secured a unanimous consent agreement for such a requirement.
Is it out of the question that such an agreement could be reached? No. But it does represent a fairly serious hurdle, given that you've got the entire Republican Conference opposed to the bill as it's now written. Getting unanimous consent out of them on anything would be tough enough, let alone on something they all intend to filibuster if they can.
So it may very well be the case that an amendment to add Stupak-like language (or worse, the identical language, since that would technically take the issue out of the hands of conferees, whose mandate extends only to differences between the two versions of a bill) could pass with a bare majority.
Is there such a majority? Maine's Republican Senators, Olympia Snowe and Susan Collins, are both pro-choice votes, so it's possible Republicans may only come in with 38 votes for such an amendment. Would Democrats provide 13 more? That's a stretch. So it may in the end be safe to allow a vote to go forward, regardless of the procedure required to get there -- though you'll want to be absolutely certain of what you're doing and where your votes are.
So why is it that the Myth of 60 only seems to work against us, no matter what the situation? That has to do with one side being in the position of not wanting the bill to pass at all. And when it comes to occupying the position of not wanting anything to pass, you can be pretty sure that's where you'll find the Republican Party. That's the luxury (and strategic advantage) of being the Party of No. If setting things on fire and watching them burn to the ground doesn't bother you, that'll afford you a lot of freedom.
But will it definitely take 60 votes to do any of this? Not necessarily, and though it's kind of complex and has to be gamed out each time to understand why, we'd better get used to doing it, and so should Senators who want to offer this kind of reassurance.