Updated legislative scenarios for health reform

Updated legislative scenarios for health reform

(Update: My brain was stuck in 59-Senate-Democrats mode, and was assuming that Leader Reid would need Senator Snowe’s vote to reach 60. That is now incorrect, assuming Senator Byrd is healthy enough to vote. I have edited this post accordingly.)

Here are my updated legislative projections for health reform:

  1. Cut a bipartisan deal on a comprehensive bill with 3 Senate Republicans, leading to a law this year; (0.1% chance, down from 5%)
  2. Pass a partisan comprehensive bill through the regular Senate process with 60 59 Senate Democrats + one Republican, leading to a law this year; (20% chance, down from 25%)
  3. Pass a partisan comprehensive bill through the reconciliation process with 51 of 59 Senate Democrats, leading to a law this year; (50% chance, up from 25%)
  4. Fall back to a much more limited bill that becomes law this year; (24.9% chance, down from 50%)
  5. No bill becomes law this year. (steady at 5% chance)

I last updated my legislative scenarios more than three weeks ago, on September 3rd. Since then we have had the President’s speech, a lot of behind-the-scenes work on Congressional Democrats by the White House, and the beginning of the Senate Finance Committee markup. I think we also know at least the partial strategy of Democratic leaders. They will pursue path 2 if they can. If they can’t hold 60 votes, they will blame Republicans for failure and shift to path 3. I project a high probability of this latter scenario, higher than most experts I know.

Careful readers will see that my projected probability of success for a comprehensive bill (paths 1 + 2 + 3) has increased from 55% on September 3rd, to 70.1% today. In this respect the President’s speech, and more importantly the behind-the-scenes work he, his White House staff, and Congressional Democratic leaders have been doing, are working. I sense a much greater degree of partisan unity among Democrats, creating flexibility on policy and therefore legislative bargaining room as the leaders try to craft a bill. Congressional Democrats appear to agree that they need to agree. They are, however, still not sure about what they’re going to agree. But at least in public, they are taking much more constructive tones toward their inter-party disputes. This increases their chances of success.

Democratic Congressional leaders have chosen path 2. Leader Reid can set up the process to have a test vote at an early stage of the Senate floor procedure. (For the procedural nerds, I will guess there will be a vote on cloture on the motion to proceed to a House-passed tax bill now on the calendar, maybe the week of October 5th.) If Leader Reid gets 60 votes for that test vote, then he will know he has a high probability of succeeding on that path, and they will charge forward.

If he cannot hold 60 votes for that early test vote, either because Senator Byrd is too ill to vote (he says he is not), because Senator Snowe is not onboard, or because some of the other 59 Democratic Senators disagree on the substance, then path 2 won’t work. Leader Reid has a tactical advantage in that he will likely know this in advance of the test vote, and the vote is at the beginning of the regular order process. If he knows he will lose the key test vote, then I expect he will hold the vote, fail to get 60, blame Republicans for the failure, and immediately start down path 3, claiming that Republicans forced him to do so.

I have surveyed some experts on these probabilities. Compared to three weeks ago, all of them have increased their predictions of Democratic success on a comprehensive bill. Most, however, project a higher probability of Democratic success through path 2 rather than path 3. They are implicitly assuming that the Leaders’ chosen path will be successful, and that Leader Reid can hold 60 votes.

I am guessing there is much greater Democratic disunity than we have seen this week at the Senate Finance Committee markup. When a markup gets partisan, as it has in this case, Members tend to retreat to their respective partisan corners and it’s easier for the majority to hold all its votes. Near-unified and aggressive Republican opposition makes it slightly easier for Chairman Baucus (reinforced by Leader Reid and the White House) to whip nervous committee Democrats into line. It also increases the pressure on those who don’t like the substance (like Senator Rockefeller) not to press too hard, for fear of killing the bill entirely.

The real action is not taking place at markup. It is taking place behind closed doors, away from the markup. When the President chose a partisan path in his speech, he pushed the real debate behind closed doors. This is now a debate among House and Senate Democrats. Republicans can influence that debate only to the extent they can change the decision-making process of Democratic members, since everyone assumes that almost every Republican will vote no. If Senate Democrats can extend the consensus that is apparent at the Senate Finance Committee markup to all 60 59 members of their Caucus, and if they can get and hold Senator Snowe, then I’m wrong, my expert colleagues are right, and the Leaders’ preferred regular order path 2 will be successful.

If, however, one or more Senate Democrats looks at the substance of the committee-reported bill and says, “I cannot support that,” and if they cannot satisfy that Senator’s concerns, then Leader Reid will be forced onto path 3. There will be tremendous peer pressure on those wayward Senators to ally with the team, and if Leader Reid had 2-3 votes of wiggle room I would have an entirely different prediction. But he has to hold everybody, and that’s hard to do.

I therefore think they will try path 2, probably fail, and end up on path 3, the reconciliation path. You can see I am projecting a 71% chance that Leader Reid cannot hold his caucus and Sen. Snowe together (50% divided by 70% equals 71.4%). Senate Republicans can increase this probability if their substantive arguments against the bill are effective at making individual Senate Democrats uncomfortable.

This guess depends heavily on how Senators make their decisions. The more they care about the substance of the bill, the substantive critiques from Republicans and the press, the bill’s low popularity, and negative pressure from constituents back home, then the greater the probability that I’m right and they end up on path 3. The more they focus on the importance of sticking together as a party and supporting the President, the more likely their chosen path 2 will succeed.

When I worked for Senate Majority Leader Trent Lott, I remember many closed-door meetings of the Senate Republican Leadership where the leaders had strong disagreements they could not immediately resolve. They would argue, shout, and pound the table, and remain at loggerheads. In almost all cases, as the meeting ended they would agree on a short common message to use with the press to indicate that all was well and Republicans were unified. They would do this to buy themselves time to work out their differences in private. The press, public, and their legislative opponents would see a unified partisan front which often disguised enormous intra-party struggles. It took me a while to recognize that when I saw the Democratic leaders showing a unified front to the press, they might be doing exactly the same thing.

(photo credit: rogersmj)

30 responses

  1. Ok finally you've made me look this square in the face: we're going to have to deal with a partisan health reform reality. So is this game, set, match? Since it's hard to unscramble bureaucratic eggs, have we basically taken an irrevocable step toward the US version of UK's NHS? What is there left to do? I believe in activism but I do not believe in futile action. Where must we go?

    • Call your Representative and Senators (in their DC office). Don't email them. Call them. Email is largely ignored. Phone calls are not. As an individual citizen, your greatest impacts are (1) speaking up at town meetings, (2) calling, (3) meeting with your representatives and/or their staff, (3) voting, and (4) letters to the editor.

      Each individual call has a trivial impact. If enough people call, it can have a big effect.

    • I don't think there is anything we can do. If passage can be delayed until after the VA and NJ elections, and if the Dems take large losses in those states (a big if), that could make reluctant Dems more queasy. Or it could just steel them to press forward no matter what the opposition. It is hard to know.

      How would you revise the odds if passage is delayed until after those state elections and if the GOP wins both of them?

  2. Keith, you keep talking about getting to 60 by getting Olympia Snowe's vote. What about the impact of the newly appointed Paul Kirk? If the Massachusetts Republicans aren't able to delay his appointment by two months (normally laws take that long to take effect in the Commonwealth, but Gov. Patrick waived it in an executive order), the Democrats would have 60 without Sen. Snowe.

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  4. Keith what impact, if any, do you think Republican Senators like Demint or Coburn up not agreeing to unanimous consent and making the Senate read every bill word for word. Do you think this threat has any teeth to it? Also do you think by going this route the DEMs have set president for the Republican’s to undo this legislation once they are back in control using the same method, reconciliation?

    • No. The historical lesson of socialized medicine is that it becomes permanent once everyone is dependent on it. Repeal can only happen if the implementation of the law is delayed past Jan 20 2013.

      Socialized medical systems can only die if the country itself dies – as the USSR died.

  5. Fantastic use of Bayesian probabilities and updating, and interesting subject matter, too.

    It's still too bad the Republicans haven't clearly unified on a single, substantive alternative (I'd prefer Health Insurance vouchers for all — simple and easy to explain, plus good amount of market mechanisms).

    Your advice to call Reps is good for opposition, but perhaps you could also offer your idea of best Rep alternative?

    • "I'd prefer Health Insurance vouchers for all — simple and easy to explain, plus good amount of market mechanisms). "

      Problem is, they're scared of this after McCain.

      Also, despite what people say, you can defeat something with nothing. Oftentimes, it's even easier.

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  7. Keith,

    If reconciliation is used will the Public Option, Government Takeover of Healthcare remain regardless of budget constraints?

    If they go this route, will they be able to get anything they want?

    It seems if reconciliation is used, the Republicans could axe part of this bill because the country is going broke. The Bush tax cuts are going to expire soon so why not Obamacare after a period of time?

    I am desparate for any signs of hope that the Democrats will not get what they want in a bill with reconciliation.

  8. No one is talking about House bill, but is there a chance it may die there if Pelosi includes public option and 40 Blue Dogs and moderate democrats vote 'Nay'? Do they have an option to modify the bill and revote, or just to vote in favor of Senate bill (assuming it passes) after their bill failed?

    • Neither. In the House, the Speaker controls the procedure with an iron fist. Nothing gets voted on without her say so. The real action is in the House-Senate Conference. Everything right now is the gamesmanship of getting there. If the so-called "Public Option" is included in the House bill, it will be much easier (procedurally) to replace the whole thing with "Medicare For All" in Conference since a conference committee isn't supposed to come up with things that are totally new (although they do this all the time anyway). Universal Medicare is close enough to the Public Option that it can probably be smoothly substituted in Conference without point of order objections being successful once it returns to the Senate for final passage under a 51 vote rule.

  9. How about one additional option that is not being discussed? Remember when the Republicans tried to permanently change the rules of the Senate 5 or 6 years ago to eliminate the fillibuster on judicial nominations? The maneuver they were trying only requires 51 votes. The Dems have a larger majority now, so why not try the same thing to eliminate the fillibuster permanently? That maneuver only requires 50 votes plus Biden. Perhaps if the other options fail they will try this, or do it before a bill emerges from conference so that it can be passed intact.

    After thinking about it, I still think the Dem plan is to get any crummy bills into conference, and then replace them with "Medicare For All". Universal Medicare is the easiest to implement since the machinery already exists, and is the least likely to produce an administrative disaster that would imperil the Dems reelection prospects. It is also easier to increase an existing tax instead of imposing a hodgepodge of new taxes and complicated mandates. Think "Cash for Clunkers" here. How many dealers still haven't been paid?

    Or maybe I am thinking too much like an engineer instead of a political hack.

    • If the Dems vote for Universal Medicare IT WILL DOOM THEIR PROSPECTS FOR RE-ELECTION.

      WE THE PEOPLE DON'T WANT IT and that includes many of the Independents and Moderates that were stupid enough to vote for Obama.

      • You and I may not want it ,but the Dems are going to cram it down our throats anyway. It is their highest priority, and they are going to do it. The only question is exactly how and in what form, and what gamesmanship and tactics they will use. They know they will take some electoral losses, but the question is what will minimize them. In my opinion, a more socialist law that is smoothly implemented will cost them much less than a less socialist law that proves to be an administrative disaster.

  10. Keith,

    This may sound simple, but if this were to pass by either method, could it realistically be un-done in your opinion if the best case scenario occurs and the Republicans were to take back the house and / or The Senate in 2010?

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  17. I may be grasping at straws but I just can’t phathom this bill passing without getting sick.
    WASHINGTON -(Dow Jones)- The Congressional?Budget?Office said Thursday a U.S. House health-care system re-write would extend health insurance to 96% of the nonelderly U.S. population by 2019, and spend $1.055 trillion to do so.
    This CBO report is on drudge. Does this mean that the CBO is not counting the elderly in on the final cost? It just seems funny the way they wrote it? We still have to pay to cover them right? Thought maybe someone could help me out here.

    You really have to parse every word they say. It’s just 96% of nonelderly U.S. population by 2019, and spend $1.055 trillion to do so. I just don’t feel right about that quote.


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