The Congressional Health Care Reform Three-Step

President Barack Obama repeatedly tried to get the bipartisan summit on health care reform to focus on policy rather than process. Now that the summit is over, however, process is rightfully back on the table.

As I noted in my previous post, many of the major health care reforms of the past few decades have been accomplished through use of the reconciliation process. But how exactly would it be used this time for this reform?

Let’s review where reconciliation fits into the wonderful whacky world of the U.S. Senate. As you’ll recall, 41 Senators can invoke a filibuster and consequently prevent a bill from coming to the floor.  Only if 60 of their colleagues vote to close debate (by invoking cloture) can a bill be voted upon by the full Senate. (For an interesting history of the filibuster and cloture, check out the Senate’s web site). There is an exception, however. Since 1974, budget and tax related items can be brought to the floor of the Senate through a process known as “reconciliation” and no filibuster can stop it. So a key issue is, what matters are eligible for the reconciliation process?

Enter Senator Robert Byrd the widely acknowledged master parliamentarian of the U.S. Senate. He created what is known as the Byrd rule to help determine what is outside the reconciliation process. Put simply, the Byrd rule defines as “extraneous matter” items that do not impact government outlays or revenue in a substantive way. (It’s more complicated than that, but that’s the gist of it).

New taxes, and the health care reform process has plenty of them, are clearly within the purview of the reconciliation process. Preventing carriers from excluding pre-existing medical conditions from coverage is not.

What this means is that the Senate can not pass comprehensive health care reform through the reconciliation process. But hang with me here, because the fact is they don’t need to pass comprehensive health care reform through the reconciliation process because they already have. Remember? It was only a few weeks ago, on December 24th, 2009 to be precise. The Senate passed a comprehensive health care reform bill on a party-line 60-to-39 vote. yes, I know. It seems like ages ago, but it has only been a couple of months. And that affirmative act still stands.

So here’s the legislative three-step Democrats are likely to use to pass comprehensive health care reform.

Step One: The House votes on and passes the Senate version of health care reform.
Step Two: The Senate, using the reconciliation process, passes legislation to “fix” certain aspects of the health care reform it passed in the Senate.
Step Three: The House passes the Senate’s ‘clean-up” bill.

Both the Senate health insurance legislation and the clean-up bill arrive on the president’s desk. He signs them both into law.

What you may (and should) ask, would be in the clean-up bill? As previously predicted here, the follow-up bill is expected to remove state-specific funding elements such as the special treatment currently in the Senate bill favoring Nebraska, Louisiana and a few other states. The clean-up is also likely to change the criteria of a “Cadillac health plan” subjecting fewer policies from being subject to the proposed excise tax. Other fees and taxes would also likely be a part of the second bill. In other words, the clean-up bill would only relate to the budget and/or taxes, meeting the test of the Byrd rule.

I haven’t come up with this on my own. This legislative dance to enact health care reform was discussed at length on “Hardball with Chris Matthews” on MSNBC (the relevant discussion starts at about 3 minutes, 10 seconds in this clip, although he refers to it as a two-step process). What’s significant, however, is that it’s a strategy that makes sense (if your goal is to pass health care reform). Republicans will object that it’s ramming health care through Congress, but the GOP can’t claim the three-step violates Senate rules.

Many thought President Obama’s health care reform bill died with the election of Scott Brown to the Senate from Massachusetts on January 19, 2010. The odds are: they were wrong.

Reconciliation Puts Health Care Reform on Fast Track and GOP in Bind

Democrats in Congress are going to pass a budget resolution soon and, at President Barack Obama’s request, it will include reconciliation protection for health care reform. This undermines the ability of Republicans to block provisions in whatever bill emerges and would allow Congress to send legislation to the president’s desk without any Republican support.

Reconciliation protection is not new. Republicans used it when they controlled Congress over Democratic outcries of injustice. Now that the Democrats are in the majority the script remains the same, just the roles have been exchanged. The purpose of all this is to prevent the minority party using a filibuster to block legislation.

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A quick social studies refresher: It takes 51 votes to pass legislation in the Senate. However, any Senator can mount a filibuster which prevents the Senate from voting on a measure (movie buffs may remember Jimmy Stewart mounting a one-man filibuster in Mr. Smith Goes to Washington).  It takes 60 Senators shut down a filibuster by voting for “cloture“. 

Reconciliation protection means filibusters are not allowed. Democrats (and the Independents who caucus withthem) now number 58 Senators (with a 59th, Al Franken, on the way from Minnesotta). Consequently,  Democrats need only hold on to 50 votes to pass health care reform legislation. Vice President Joe Biden would be happy to provide the 51st vote. Not a single Republican vote would be needed.

And now back to our regularly scheduled post:

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Imposing a majority vote on legislation as controversial as health care reform is not common in Washington, but it has precedent. The cable news chatterboxes and talk radio will be spewing sound and fury over the injustice of it all, but that’s mostly partisan political posturing. Politics, after all, is the art of getting things done. Exploiting (or, if you’re in favor of what’s happening, “merely invoking”) the rules to achieve a goal is very much an American tradition.

Nor does reconcilliation mean Republicans will be excluded from the health care reform debate. The culture of the Senate promotes vigorous debate.  As evidence: leading Senators are referring to the expedited process as a tool of last resort. The Los Angeles Times, for example, reports Finance Committee Chair Senator Max Baucusas expressing the hope that Democrats can work with Republicans to pass health care reform.

The reason is that Democrats like Senator Baucus want to pass long lasting reform. They recognize that pendulums swing — even political ones. Indeed, given the political environment of the past few years it’s hard to see how long Democrats can sustain their large majorities in the House and Senate. Pragmatic leaders want to find common ground so the new health care system they create can withstand changes in the political tide.  “If we don’t use reconciliation, we are going to have a much more sustainable result,” the LA Times reports Senator Baucus as saying. “When we jam something down someone’s throat, it’s not sustainable.”

Republicans aren’t buying it. They claim reconciliation means health care reform will not be subject to vigorous debate. That’s not likely. The Democrats are simply not unified enough to ram something this controversial through the Senate. Instead, a group of 16 moderate Democrats in the Senate will assure that multiple perspectives are heard. And like many Republicans they’ve expressed concern about the cost of reform and the expanded government role in health care coverage being sought by many Democrats. Without the support of at least half this group, the Senate Leadership can’t move a bill forward even on a majority vote. 

Reconciliation will prevent a filibuster, not debate. That debate will be loud and vigorous. It also, however, greatly increases the likelihood that there will be a vote on health care reform, most likely by the Fall. Which puts the GOP in a bit of a dilemma.

Republicans can remain on the sidelines of the debate leaving Democrats to shape the reform legislation and inherit the blame (or credit) of whatever is signed into law. Either way, however, the GOP is marginalized and their brand as the party of “No” is solidified. Not a politically pleasant outcome.

Instead, Republicans can engage in the debate, put forward alternatives and work hard to find common ground with moderate Democrats to force some of their provisions into the final legislative packkage. Compromise, however, means they’d need to accept some provisions they strongly dislike. Further, Democrats will get the lion share of the credit for finally addressing health care reform.

Worse for Republicans, accepting any significant compromise could put them at odds with their base — and the Rush Limbaugh’s of their world who speak for that base and who apparently cannot be opposed. It’s not clear the substantive gains Republican Senators could obtain by working with moderate Democrats is worth the resulting political pain.

Unless the moderate Democrats prevent it, healthcare reform is coming, probably in the Fall. Reconciliation protection will see to that. The loss of a filibuster does not, in and of itself, mean there will be no debate. Nor does it make Republicans irrelevent to fashioning comprehensive reform.

Reconiliation cannot make Republicans irrelevant. Only Republicans can make Republicans irrelevent.