1 October 2009 
A couple friends have suggested a Senate legislative scenario that has significant merit, enough so that I am again updating my projections for the legislative outlook.
Last week I projected that Senator Reid would try to move legislation on the Senate floor through the regular order, probably fail at the beginning of the process, then shift to a fast-track reconciliation path, blaming Senate Republicans for forcing him to use hardball procedural tactics.
For any Senate bill, the beginning of the legislative process is the motion to proceed. Before debate and amendments begin, the Senate must agree to spend time on the bill. Under regular order, the motion to proceed is debatable. “Debatable” in effect means “can be filibustered,” and you need 60 votes to shut off a filibuster – this is called invoking cloture. This means that at least 60 Senators need to agree that the Senate should spend time on a bill for the amendment process to begin. Amendments are also debatable, and so is final passage. Each stage of the regular order process therefore requires Leader Reid to have 60 votes, including the preliminary phase before debate on the bill begins.
Based on input from these friends, I have reevaluated several assumptions I made last week. The last one is key.
- I was guessing that some Senate Democrats would be so nervous about the substance of the Baucus bill, that they might not only vote no on final passage, they might oppose invoking cloture on the motion to proceed. I now think all Senate Ds will support invoking cloture on the motion to proceed, even if some might be undecided on final Senate passage.
- There are now 60 Senate Democrats. If Leader Reid holds all of them, he does not need Senator Snowe.
- Senate Republicans might not oppose the motion to proceed.
These friends pointed out that Senate Republicans probably prefer to debate health care reform under regular order than under the reconciliation process. It’s hard to amend a reconciliation bill, and time limits bring the floor process to a conclusive end in a limited amount of time. Under regular order, it is easy to offer amendments to the bill, even if it’s hard to adopt them. And under regular order the debate and amendment process can continue forever, unless there are 60 votes to stop it. Senate Republicans trying to kill a bad health care reform bill probably have an easier time doing so under regular order, if they think they can split Senate Democrats with amendments and make moderate Democrats uncomfortable supporting the final product.
This is what happened to immigration reform. The Senate began debate and amendments, then tied itself up in knots. There was never a 60 vote coalition to support shutting off debate, and the Majority Leader eventually had to give up and pull the bill from the calendar. Technically, immigration reform was never “voted down,” because it never came to a final vote. It just died because its supporters could not find 60 votes to invoke cloture and bring the process to a definitive conclusion.
Oddly, Senate Democrats and Senate Republicans might both prefer regular order to reconciliation. Senate Democrats would avoid the expected Republican accusation of process abuse, and Senate Republicans would anticipate a higher probability of killing a bad bill by amendment and filibuster.
The same could happen with health reform, and I now believe this is the likely path the Senate will travel. I think there is a high probability that either Reid will have 60 Democrats supporting the motion to proceed, or Senate Republicans will support it, or both. I think the regular order path is more likely than I projected last week, and the reconciliation path less likely.
My updated probabilities are therefore:
- Cut a bipartisan deal on a comprehensive bill with 3 Senate Republicans, leading to a law this year; (0.1%)
- Pass a partisan comprehensive bill through the regular Senate process with 60 59 Senate Democrats + one Republican, leading to a law this year; (50%)
- Pass a partisan comprehensive bill through the reconciliation process with 51 of 59 Senate Democrats, leading to a law this year; (20%)
- Fall back to a much more limited bill that becomes law this year; (24.9%)
- No bill becomes law this year. (5% chance)
There is a crucial corollary that opponents of this bill need to understand. If the bill is considered under regular order, Leader Reid will probably try to encourage nervous moderate Democrats to split their votes. Leader Reid needs 60 votes to stop a filibuster, whether it’s of the motion to proceed, an amendment, or the final passage vote. Once he has invoked cloture with 60 votes and closed off debate on any one of those questions, he only needs 51 votes on the actual question. So you need 60 votes to get the vote on final passage, but only 51 votes to pass the bill.
I expect Leader Reid might say to a nervous Senate Democrat, “Stick with me on the procedural votes.” Vote with me to invoke cloture whenever I need it, so the Republicans can’t kill this with a filibuster. If you need to vote no on amendments or on final passage to please people back home, that’s fine, since I only need 51 votes there. You can split your vote.
This tactic was made famous by Senator John Kerry (D-MA) during the 2004 campaign when he said of his votes to authorize the use of force in Iraq: “I voted for it before I voted against it.” He voted aye on cloture, and no on final passage. He split his vote. Only he knows why he highlighted this during a campaign.
Watch out for Democratic Senators who are considering voting for (cloture on) the Baucus bill before voting against (final passage of) it. If your Senator votes for cloture, he or she has enabled passage of the bill, even if he or she votes no on final passage. If your Democratic Senator tells you he or she may oppose the health bill, ask if he or she will oppose cloture. The cloture votes are the ones that determine the outcome.
This tactic can be negated if it is publicly highlighted before it is used.
(photo credit: Esther)
On local radio this a.m a member of the Cato Institute came up with another strategy that he felt Senator Reid would employ. That would be to make Health Care Reform an amendment to a bill that would have significant support to be passed by the Dem;s. With that additional incentive, the composite bill would be moved through the Senate similar to what you indicate in your article.
Won't happen.-kbh
Keith, that's really scary. Actually, even though I was aware of the distinction between cloture and final passage, I hadn't even considered vote-splitting as an option. You're absolutely right–what the moderates need is camouflage. The Democrats seem to be in spectacle mode right now (voting no, or yes, on the public option in Senate Finance, as appearances to constituents demand).
Do you think Reid can get the marginal Democrat to go for it? I mean, someone like Ben Nelson obviously knows that voting for cloture on final passage is tantamount to a vote for final passage. In other words, how likely is it that we'll see vote-splitting UNTIL the cloture vote on final passage, where the rubber really hits the road? I don't know, it just seems like that one's a bit harder to use as camouflage. I'm a layman, and I always understood it as "voting for" the bill.
KBH: I read the post last night and was too depressed to comment. It appears, and your probabilities support this contention, that a bill and very possibly a "partisan comprehensive bill" will in fact pass the Senate. How different will it be from the House bill – just the absence of a 'public' option? If in fact, the House/Senate negotiators end up with a public option (partisan House + partisan Senate = public option) is that likely to defeat the bill in the final vote?__@chris: yep, "really scary"__
Yes, I think this has to be the Republican response. Make sure that every Democratic Senator with a tough re-election campaign knows that he or she is going to get a bunch of "voted for it before voted against it" ads if this happens.
Without a lot of Repulican support, any health system bill will become the responsibility of ALL Democrats in the next election.
Unfortunately, most of the policy changes do not take effect until 2013. Oh, the taxes and "contributions" are collected quickly and no doubt, knowing how Congress works, will be spent even before the actual policy is implemented. But, many people, except maybe senior citizens on Medicare Advantage, may not feel anything right away, until after the next presidential election.
Why A Strong Public Option Is Essential – By jacksmith – Working Class
Robert Reich the pubic option: http://bit.ly/dDYSJ
The public option is ESSENTIAL because over 200 million of you are trapped in the forest of the wolves. Which is the forest of the DISGRACEFUL, GREED DRIVEN, PRIVATE FOR PROFIT MEDICAL INDUSTRIAL COMPLEX! With no way out except through needless inhumane suffering, and DEATH. While the wolves tear at your flesh, and rip you limb from lib. Then feast on your lifeless bodies like a dead carcase for transplant parts.
At the most vulnerable times of your lives (when you were sick and hurting), millions of you have had to fight and loose cruel, but heroic battles. Fighting against the big guns of the DISGRACEFUL, GREED DRIVEN, PRIVATE FOR PROFIT MEDICAL INDUSTRIAL COMPLEX! in the forest of the wolves. All because you have no place else to go. You have no other CHOICE!
But the PUBLIC OPTION will give you someplace safe to go. And it will give us someplace safe to take you. The public option will be your refugium (your refuge). Where the wolves cannot get at you when your down, hurting, and vulnerable. Where everyone who needs it can find rest, security, comfort and the care they need. Protected by the BIG GUNS of We The People Of The United States. THE MOST POWERFUL PEOPLE AND COUNTRY ON EARTH.
This is why it is so critical that we do not lead another 50 million vulnerable, uninsured Americans into the forest of the wolves, without the protections of a Strong Government-run public option. We The People Of The United States MUST NOT LET THAT HAPPEN to any more of our fellow Americans. If healthcare reform does not contain a strong public option on day one. YOU MUST! KILL IT. Or you will do far more harm than good. And millions more will die needlessly. Rich, middle class, and poor a like.
To those who would continue to obstruct good and true healthcare reform for the American people, and who seek to trap millions more vulnerable Americans in the forest of the wolves. We will continue to fight you. We are prepared to wage all out war against you, and will eagerly DESTROY! you. Time…is…UP! YOU HAVE BEEN WARNED! No Co-op's! No Triggers!
Healthcare reform can be the GREATEST! Accomplishment of our time and century. A time when future generations may say of us, that we were all, AMERICAS GREATEST GENERATIONS.
BUT WE MUST ACT!
I therefore call on all my fellow Americans and the peoples of the World. To join us in this fight so that we may finish becoming the better America that we aspire to be for everyone.
SPREAD THE WORD!
I have been privileged to be witness as many of you fought, and struggled to take your first breath, and your last breath on this earth. Rich, middle class, and poor a like. Life is precious.
Whatever the cost. WE! MUST SUCCEED.
God Bless You My Fellow Human Beings
jacksmith – Working Class
Senator Bernie Sanders on healthcare (http://www.youtube.com/watch?v=RSM8t_cLZgk&fe…
Isn't Senator Byrd still ill? If he is, then there are not 60 votes.
According to Rasmussen, health care is not polling very well.
Time passing and things happening — would love to hear your updated take on likely outcomes given current happenings… Thanks for any insight.
Keith,
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.
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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.