Many here on DKOS and others on the progressive left see a real failure of leadership on the HCR bill in the Senate. The calls have come from the left now to kill the bill and/or to use reconciliation to pass the progressive heart of health care reform. And, perhaps predictably, these calls have been either ignored or rebuffed by the current crop of Democratic power brokers: from Reid to Obama, to Emmanuel to Stenny Hoyer in the House.
But the real problem with the way this process has unfolded is that all the various components of health care reform have been bundled into one massive must-pass piece of legislation.
This obscures a key strategic mistake by Harry Reid and the White House on the HCR issue: by bundling all the various elements of health care reform into one absolutely-must-pass piece of legislation Reid both elevated the power of the 58th, 59th, and 60th votes (Lieberman et al.) and it made it more difficult for other more reasonable or progressive Senators to stand in the way of passage.
The solution -- taken from the pages of American history -- seem clear to me -- Follow the example set in securing the passage of the Compromise of 1850.
I. The Current Democratic Leadership: Why We Must Not Use Reconciliation
In explaining why the Democratic leadership in the Senate does not want to pursue a solution like reconciliation Dick Durbin (D-IL & Majority Whip) argued that:
I am one of those progressives, and I support the public option, but I can count and in the Senate you need 60 votes and if you don't have 60 you are empty handed. In this case we need to find a way to get 60 votes and that means accommodating and making concessions on a lot of issues we'd rather not make concessions on.
And responding to the question: What's the down side of using reconciliation?
Reconciliation is a very spare and thin process with limited opportunities...for example no insurance reform if we do reconciliation. We wont give American consumers the tools that they need to fight back against the health insurance companies. And I think they understand as we do that's a very very important element in this package.
We just can't pursue reconciliation; this argument goes, because the reconciliation process is too narrow in scope, too "thin" to accomplish meaningful, comprehensive reform. And anyway, in the Senate you need 60 votes to pass meaningful legislation and so we (progressives) must compromise.
Of course, what Durbin says about reconciliation is true. However, the obvious rejoinder is to ask him why not just break all the major constituent parts of health care reform up into separate bills and pass each of them separately while using reconciliation for the most controversial element: the public option?
II. The Compromise of 1850
In the wake of the Mexican-American War (1846-1848), and the United States' subsequent acquisition of vast territory in the West, Southwest, and Pacific Northwest, the issue of what to do about slavery in these newly acquired and newly organized territories became the dominant issue facing the nation.
In 1849 the slave and free states were equally divided at 15 apiece. Any talk of organizing previously unorganized territory or admitting new states like California into the union threatened to upset this balance and stoked the fears of pro-slavery, pro-free labor, and abolitionist advocates.
Henry Clay approached the growing sectional crisis in January 1850 by taking all the pressing issues and grouping them into a single bill which included: 1) admitting California into the union as a free state, 2) organizing the territory acquired from Mexico in the recent war, 3) the abolition of the slave trade in D.C. and 4) a new more robust fugitive slave law. However, after six months of debates no compromise was reached and Clay's omnibus bill was defeated.
What happened next is the path that Democrats today should follow: A new generation of political leaders, lead by Stephen A. Douglas (D-IL), decided to break up Clay's omnibus bill. Instead of trying to pass one giant compromise bill Douglas tackled the core issues in separate pieces of legislation. This way politicians from different parts of the country could support and oppose the elements of reform that they desired.
Eventually there were five different bills:
- California was admitted to the Union as a free state
- New Mexico and Utah territories were organized and could use the vote to determine if they wanted to become free or slave territories/states.
- Texas gave up some territory to New Mexico and got some federal money to pay some debt it had to Mexico
- A new Fugitive Slave Act was passed that made it much easier to arrest run away-fugitive slaves. It also made it a crime for federal officials to resist pursuing and returning fugitive slaves.
- An act abolished the slave trade in D.C.
III. Conclusion
The Compromise of 1850 was not, of course, perfect. A decade later the country came apart over the same issues the Compromise of 1850 hoped to solve. However, it holds some key lessons for how to move forward with controversial and complex national issues. Instead of taking Henry Clay's or Harry Reid's approach -- and bundling all the elements of reform into one omnibus bill -- take the path delineated by Stephen A. Douglas. Break up the complicated parts of reform into its constituent parts and pass each of them separately -- using reconciliation for the most controversial parts.
Durbin's and Reid's insistence that reconciliation is too thin a process to accomplish all the broad goals of health care reform seems to be a wholly misplaced concern. Use reconciliation now to gain a meaningful public option or Medicare expansion and then come back again at the issue and accomplish reform and regulation of the health insurance industry. I doubt very much if conservative Democrats will stand in the way or filibuster broadly popular -- but more narrowly tailored -- legislation that bars insurance companies from excluding people with pre-existing conditions or legislation that prevents insurance companies from having a life-time pay out cap. These legislative items could be tied to other more difficult policy provisions, like ending the insurance companies anti-trust exemption, which would in the end make all of the more progressive components of health care reform more likely to pass.
Right now we are stuck with an amazingly poor health care reform bill (if you can even call it that) in the Senate. The bill is a product of a process that placed (either knowingly or unknowingly) centrists and conservative Democrats in the driver's seat. A different process -- as the Compromise of 1850 indicates -- has a chance at coming to very different and very progressive ends. And if bills could be put together and compromises made over such a troublesome and searing issue as slavery then certainly an accomplished legislator could find a path toward resolution on health care by breaking up the omnibus bill in favor of a piecemeal approach.
Such a legislative strategy could work to perfection if Reid moves now toward reconciliation and then promises to come back at the other parts of the bill that have a broader consensus in January 2010. He will in essence have cut conservative Democrats like Nelson and turn coats like Lieberman off at the knees, leaving them no where to turn. Will Lieberman filibuster a single-issue bill baring insurance companies from excluding patients based on their pre-existing conditions? If they oppose the more popular parts of health insurance reform in the New Year they will be exposed for the spiteful, corporatist shills that they are.
Sadly, I think we all know that Harry Reid will not do this. He is not Stephen A. Douglas, nor is he Henry Clay. In this once-in-a-generation historic moment Reid has shown, I fear, that he is not up to the challenge of history. It is up to Democrats and progressives in the Senate to scuttle this bill and make a play for reconciliation. If they don't Democrats and progressives will suffer mightily as a result in the 2010 elections and we will all suffer together as a nation.