In the wake of the Massachusetts Senate race, the question on everyone's mind is whether the health insurance reform bill -- in one form or another -- still pass?
Early speculation about rushing the House-Senate non-conference negotiations to a conclusion and passing that compromise before Scott Brown was certified and sworn in has been tamped down, leaving three basic options still available. That list may grow as people continue to brainstorm, but so far, these are the most likely paths:
- The House can still choose to pass the Senate-amended version of H.R. 3950, unchanged. That would lock in what's become known as the Senate bill, which in a purely technical sense could be adopted by the House and sent to the President's desk without having to clear the Senate (and a filibuster) again. This option is disfavored in the House, however, because there are so many Members who have gone on record as saying they're opposed strongly enough to one provision or another to vote against it if it comes to the floor unchanged.
- The House can bargain for the right to try to adopt further amendments to the Senate version in a separate bill, in exchange for agreeing to pass and lock in the Senate bill as a baseline measure. The speculation there is that the second bill would have to be passed under the budget reconciliation process, or else risk being blocked by a filibuster. Reconciliation involves an awful lot of procedural risks, but in theory, this option at least offers House, Senate and even White House negotiators the opportunity to address some of the issues their talks were close to resolving, and which are considered by many to be necessary in order to win votes for passing the bill adopted by the Senate.
- Everyone can head back to the negotiating table and either see if there's a coalition of 60 votes in the Senate and 218 in the House that can be cobbled together for some amended form of the Senate bill. If not, they can either concede that it cannot be done and scrap it entirely, or see if there are any smaller, salvageable parts that might pass and make some sense standing on their own.
Option one probably doesn't need much more in the way of procedural explanation. In that case, the House votes on a rule allowing consideration of the Senate's amendment to H.R. 3590, and upon adoption of the rule proceeds to debate and vote on agreeing to the Senate amendment. If a majority will pass that rule and agree to the amendment, the deal is done and the Senate bill goes to the President's desk, Massachusetts notwithstanding.
Option three results either in scrapping the bill and doing nothing, or in the continuation of behind-the-scenes negotiations in search of something that gets a majority in the House and 60 votes in the Senate. You'd need 60 in the Senate again, because once the House amended the Senate version of H.R. 3590 with its own new amendment, that amended bill would go back to the Senate. And though the motion to proceed to consideration of a House amendment is non-debatable (and therefore protected from the filibuster), the amendment itself gets no such protection. It's a bit complex, but generally understandable to anyone who understands why the Senate ever needed 60 votes for anything in the first place. The same rules generally obtain.
Option two, then, is the tricky one. First of all, it involves reconciliation, which is a headache in itself, but not impossible. Second, there's the trust issue. Single payer advocates, reproductive rights advocates and dozens of assorted others burned during this process by various promises to "fix it later" that ended up falling through will be justifiably wary of yet another "fix" promised for "later." So how might a deal be structured that does the job, but leaves some leverage in the hands of those who've been burned before? Here's Transportation Weekly publisher Jeff Davis, writing at TNR on the subject:
When it comes to enacting laws and then later amending those laws, it doesn’t matter in what order Congress passes bills. All that matters is the order in which the president signs those bills into law. As long as the president signs the health care bill 30 seconds before he signs the reconciliation bill, the latter can amend or repeal any provisions in the former. So the House and Senate could, in theory, vote on a conference report amending the Senate health care bill before the House actually has to take the tougher vote to accept the Senate bill.
No matter whether the House votes on reconciliation or the Senate bill first, the Speaker can ensure that the health care bill is signed into law before reconciliation. (The dirty little secret of Congress is that even if the House votes to pass the Senate health care bill tomorrow, the Speaker has unilateral power to hold that bill at her desk until January 3 of next year before sending it to the President and starting the 10-day Constitutional veto clock.)
Just a note about that last bit: if you read the Dec. 15, 2008 Congress Matters post about the enrollment process and the link it featured to the C-SPAN article on the subject, then you're already familiar with the "dirty little secret."
In effect, then, those Members unwilling to accept the Senate version of the bill without changes, but concerned that they won't get what they're promised in the way of a fix, can hold final passage of the Senate bill hostage until the fixes are taken care of. And they'd be crazy not to, if there's any serious consideration being given to heading down a "fix it later" path.
And here's an additional procedural tip e-mailed to me by Jeff. If House Members are still skittish about voting for the Senate bill straight-up, even after securing a fix through reconciliation, they can use a little procedural trick called a "self-executing rule" (see this CRS report [PDF] for more)-- or at least a self-executing provision in a rule -- to take care of business. At the conclusion of the reconciliation process, when the House and Senate have both passed their bills and have agreed on a conference report settling any differences, the House may opt to include in the rule it adopts to govern debate on that conference report a provision deeming the Senate amendment to H.R. 3590 agreed to by the House. That way, when the House adopts the rule to allow the reconciliation bill conference report to come to the floor, it also agrees to the Senate bill it's amending along the way, just moments before beginning debate on the fix, and without ever having a separate, stand-alone vote on the Senate bill they don't like.
Pretty neat, eh? Well, it's still a long and potentially rough road getting there. Do read all of what Jeff had to say about the perils of reconciliation and keep it in mind. It's no picnic, but even so, he does conclude by saying it wouldn't be unreasonable to think the process could be wrapped up by late February.
Will they do it? There's no telling. The Conventional Wisdom, of course, is that they won't. But such things become Conventional Wisdom in equal parts because the alternatives are as difficult to explain as they are to do. The politicians certainly don't relish the prospect of having to do them, but neither to most beat journalists relish the prospect of having to explain them. Together, they simply agree that though you might not like it if the politicians don't do it, it'll all be OK if they also make sure you don't understand how it might have been done if the journalists don't explain it.
But that's what gets me out of bed every morning. So too bad for them.