Why Democrats Don’t Want to Pass a 51-Vote Health Care Bill–and Why That Has Liberals Fuming

September 21, 2009 8:14 a.m.

As I noted on Friday, there’s a rift emerging on the left between some reform activists who want Democrats to pass health care legislation as part of the filibuster-proof budget reconciliation bill, and Democratic leaders, who see the reconciliation process as a tool last resort, and a dangerous one at that.

But as so often happens in inter-coalition disputes, the leaders of the two factions are talking past each other, and their arguments are getting lost in the cacophony. So what are those arguments?

There are many of them. But in the end the dispute boils down to a question of whether Democrats should be willing to test the limits of what’s technically feasible under the law and Senate rules–whether they should go farther than even the Republicans went when they used reconciliation to pass the Bush tax cuts–or whether doing so would steer U.S. politics on to a course so fraught and unpredictable that the consequences could outstrip the substantive gains they’d make by passing a comprehensive health care bill.Right now, on Capitol Hill, Democratic leaders and staffers are having complicated discussions about how to structure health care reform legislation in the event that they’re faced with no alternative but to use the budget reconciliation process. As we’ve noted before, that process isn’t straightforward at all. Complicated Senate rules hold that the reconciliation bill is meant to contain measures that are relevant to the federal budget. But many health care reform measures aren’t budgetary at all, and the circle Democrats are now trying to square is how to write those measures in such a way that they arguably do have a budgetary impact, if only indirectly. For instance (and completely hypothetically) creating a Comparative Effectiveness Review board doesn’t in and of itself have anything to do with the budget, but if that board was tasked with making changes that lowered Medicare spending, then Dems could argue that it’s inclusion is “integral” to other parts of the bill.

In the end, Democrats would take a bundle of such packages to the parliamentarian and make the case, much as a lawyer makes a case to a judge, that they satisfy all of the relevant rules. If the parliamentarian agrees, then Democrats can move ahead confident that reform will pass with 51 votes. But, Democrats say, the parliamentarian isn’t likely to greenlight the whole set of reforms. And for each of his objections, Republicans are likely to raise a “point of order” to strike the provision–a maneuver which can only be circumvented with 60 votes.

Marty Paone–a reconciliation expert who’s advising Democrats–says many provisions “may not survive and as such the bill will not be as comprehensive as many would prefer.”

“Also,” he says, “depending on the CBO scores, parts of the bill may have to be sunsetted if they add to the deficit.”

Though this is all certainly true, many activists say it’s all incidental. Some of them think the Democrats should pass what they can–including a strong public option–through reconciliation, and past the rest in a separate, less controversial, regular bill. (This, skeptics would remind them, would take up significantly more time; and in a poisoned political environment might not produce a complete reform package anyhow.)

Others say that under the terms of the Budget Act, the majority can do whatever it wants–that the Chair (also known as the Vice President) is the person with the authority to say what survives and what doesn’t. This is technically true: Yes, customarily, the Vice President just defers to the parliamentarian, but, as budget expert Stan Collender notes, there’s nothing that a determined majority in the Senate can’t pass if they’re willing to ignore custom and use the rules and laws that garner the budget process to their advantage. They could fire the parliamentarian and replace him with a partisan, or else Joe Biden could just ignore his averse findings.

At least in theory.

Skeptics have a number of strong objections to this line. Among them: that there probably aren’t 51 votes in the Democratic party to run roughshod over custom, and even if there were, to do so could have dramatic consequences.

“The Republicans did not do it,” argues Mark Schmitt, editor of The American Prospect, and a former Finance Committee staffer. What they did, he says, is “not a role model for anyone, but they didn’t do whatever they wanted.”

They passed the Bush tax cuts through reconciliation, yes, but to do so they had to twist and contort the cuts in ways that infuriated them. They didn’t want the Estate Tax to gradually go away and then pop back in 2011! They didn’t want to let all the tax cuts expire, essentially making it relatively easy for Obama to get some revenue back. But they chose to trim their ambitions to the constraints of reconciliation rather than deal with the constraints of compromising with some Democrats.

Why is there such hesitancy in the Senate to go all the way in reconciliation? Because if the majority party begins passing whatever it wants in reconciliation bills, it would significantly undermine the power of Senate elders.

Schmitt says, “If reconciliation became a free-for-all, it’s not just the minority party that would be cut out, the institutional prerogatives of most of the committees other than Budget and Finance would be drastically reduced, especially Appropriations. That’s why, political will or not, there are more than enough Dems who aren’t willing to blow open the process, for institutional reasons.”

What if the Democrats tried anyhow? Well Republicans could become even more obstructive than they already are. With appropriations bills coming up, Republican delays could all but shut down the government. And though the GOP would be taking a huge political risk by going that route, some Democrats aren’t willing to put the country through something that traumatic.

As it stands, Democratic leaders have settled on a course. They’ve been very clear that they’re not going to go out on a limb–that if they use reconciliation, they’ll do so by the books, and, for a number of reasons, will wait until they’re out of other options first. That has liberals upset. And the task for Barack Obama and Harry Reid and the rest is to convince their already frustrated base that they’re not caving to GOP and industry pressure. They have a lot of material to work with, but so far, it’s proving to be a hard sell.

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