I’m back after a hiatus. Leader Reid dominated the health news this week with his announcement that the bill he will bring to the Senate floor will contain the public option. This is an important but overrated issue. Still, it is dominating the tactical planning and vote counting, so let’s examine the upcoming Senate floor situation.
I have the benefit of a helpful friend who has helped me anticipate the legislative action. Much of this post is based on that friend’s input.
Remember that Leader Reid has complete control over the text of the bill he brings to the Senate floor. As a formal matter he can put anything he wants into the bill. This is a primary element of the power of the Senate Majority Leader – he gets to determine the base text of any bill being debated.
As a practical matter, Leader Reid wants his bill to pass the Senate, which tremendously limits his flexibility. He is playing with a universe of 61 potential votes (59 Ds + Independent Lieberman + Republican Snowe), of which he will sometimes need 60. That’s an enormously difficult task because any 2 of those 61 working together can hold him hostage. If Leader Reid pushes Senator Snowe away, then any one D can leverage him.
Here are important votes to watch when the Senate begins debate, in a reasonable possible chronological order.
- Cloture on the motion to proceed - Reid needs a majority (51) to pass the motion to proceed so the Senate can begin debating and amending the bill. If Republicans filibuster this motion, he will need 60 votes to invoke cloture and shut off debate. Members of the majority party traditionally stick with the leader on all votes related to the motion to proceed. If a D or Sen. Lieberman threatens to vote no on this cloture vote, then the bill is in huge trouble. If cloture is invoked on the motion to proceed, then the vote to adopt the motion to proceed becomes routine.Sen. Lieberman’s recent comments suggest he will support cloture on the motion to proceed, but may oppose cloture on the bill (step 4 or 5 below). And Republicans may not even filibuster the motion to proceed. One can argue that the best way to kill a bad bill is to get on that bill quickly (and avoid looking obstructionist by granting the motion to proceed) and start offering amendments. The motion to proceed may be a non-event.
- One or more votes to waive the Budget Act – If the bill in any way violates the numeric requirements set forth in the budget resolution, then a Senator (almost certainly a Republican, and a safe bet would be Budget Committee Ranking Republican Judd Gregg) could raise a budget point of order that would kill the Reid amendment. Reid can avoid this ifhe gets all the numbers right (very difficult). The politics of building a compromise among 60 Senators may, however, force him to spend more money than the budget resolution allows, or at different times than it allows. If so, he will have no choice but to violate the Budget Act. In this scenario he will need 60 votes to waive the Budget Act.The Baucus/Finance Committee bill appeared to fit within the budget resolution parameters. This is unsurprising since the most experienced budget staffer on Capitol Hill works for Chairman Baucus. Will Reid’s version be as rigorous?
- A motion to strike or amend the public option - I assume someone will try to strike (delete) or amend (change) the public option part of Reid’s amendment. Assume all 40 Rs would support such an amendment. Q: How many Ds support it?If 9 or fewer Ds support it, then the amendment fails and the public option as drafted by Reid remains in the bill.If 10 Ds support it, then it’s a 50-50 tie, to be broken by Vice President Biden, who is also President of the Senate. If he votes no, then the amendment still fails.If the VP would or might vote aye, or if there are 11 or more Ds supporting the amendment, then things get really interesting. A majority of the Senate would support changing the bill, but the overwhelming majority of those who would be expected to vote for final passage would oppose such a change. I would expect liberals (like Sen. Rockefeller) to filibuster the amendment, forcing the center-right to get 60 votes to invoke cloture on their filibuster. They won’t be able to do so.
This could provoke a stalemate within the Democratic party, in which liberals refuse to allow a majority of the Senate (all Rs + maybe 11 Ds) to strike or change the public option, and moderate Ds refuse to support cloture on the Reid substitute amendment (see step 4) unless their amendment is adopted.
- Cloture on the Reid substitute amendment – I anticipate Leader Reid will move to proceed to a “shell bill,” some random tax bill already passed by the House (so he doesn’t run into a Constitutional problem). If the motion to proceed is adopted, he would then take his proposal and offer it as a complete substitute amendment to the bill. As a technical procedural matter, the Senate will then debate and try to amend the “Reid substitute [amendment].” At some point, Leader Reid will try to shut off the debate and amendment process by filing a cloture motion on his amendment. He will need 60 votes to invoke cloture, and this is probably the determinative vote for success or failure. If he gets 60 votes or more to invoke cloture on his substitute, then adopting the substitute amendment is straightforward (he needs only 51). The fourth step likely becomes routine as well.
- Cloture on the bill as amended by the Reid amendment - If his substitute amendment is adopted, there will be other procedural opportunities for opponents to slow down or block the bill. Reid will need to file cloture on the underlying bill as amended by the Reid substitute amendment. He will again need 60 to invoke cloture and 51 for final passage.
The Senate has a long tradition of compromise. The public option is not a binary policy choice. There is a spectrum of options available, if Democratic Senators are willing to work together and compromise. It is quite easy to imagine a stalemate leading to a White House-brokered compromise among Democrats to facilitate steps 4 and 5. I don’t like this scenario because I oppose the underlying bill and hope it dies, but one should not assume that Sen. Lieberman’s stated opposition, for instance, draws a bright line.
I will soon update my projections.
(photo credit: U.S. Senate Historical Office)