The legislative landscape for health care after House passage

The House passed their version of health care reform Saturday night on a 220-215 vote. Today I’m going to update my projections and analysis, and focus on upcoming “pivot points” in the health care debate.

1. Pass a partisan comprehensive bill through the House and through the regular Senate process with 60, leading to a law this year; (was 50% -> 40%)
2. Pass a partisan comprehensive bill through the House and through the reconciliation process with 51 Senate Democrats, leading to a law this year; (was 10% -> 20%)
3. Fall back to a much more limited bill that becomes law this year; (was 10% -> 20%)
4. No bill becomes law this year Congress. Process continues into next year. (was 29.99% -> 20%)

I have adjusted the scenarios based on two assumptions, making the new numbers not precisely comparable with the old:

• I assume the Finance Committee bipartisan solution path is dead (I only had it at 0.01% chance last time); and
• I assume virtually no chance of a signed law this year, so I have adapted the timeframes accordingly. I say this despite recent statements from the President and Leader Reid that they want/intend to get a law by 31 December.

Pivot points and the importance of recess

Pivot points (my term) are opportunities for legislative momentum to shift. These opportunities are to some extent predictable. This past week had four pivot points, which is extraordinary:

1. Election Day – loss of momentum for Ds;
2. the Senate Democratic Policy Lunch on Tuesday – loss of momentum for Ds;
3. Friday’s politically challenging employment report – loss of momentum for Ds; and
4. Saturday night’s House passage vote – momentum gain for Ds.

Sometimes a pivot point will pass without any noticeable change in the legislative outlook. But to the extent these dates/events are predictable, it at least tells you when to look for important shifts.

Here are obvious pivot points over the next few months:

• every Tuesday after the Senate Democratic Policy Lunch;
• whenever CBO releases its score of the Reid substitute amendment;
• the Monday/Tuesday after Thanksgiving recess;
• Friday, December 4th, when the next jobs report is released;
• Th/F December 17-18, the end of the week before the Christmas recess;
• the first week Members are back in DC after the holiday recess;
• late January, for the President’s State of the Union Address.

The most potentially significant consequence of the slower schedule is that Members will be home for two long recesses before a bill might be completed. Will Members feel the same intensity of pressure they did in August? If so, that could greatly shift momentum.

Will Leader Reid begin Senate floor consideration before Thanksgiving recess? If he does, then he will probably have to show his amendment to the world before that recess, and expose his Members to pressure on specific text over that short break. If he waits until after recess, his Members may have a slightly less painful Thanksgiving break, but at the expense of lost time on the backend and a lower probability of Senate passage before Christmas. I would expect him to try to “back up” final passage before the Christmas recess, by in effect telling the Senate around December 18th “you can go home for Christmas only after we’ve finished the bill.” The smell of jet fumes is usually enough to cause Members to vote aye on cloture to shut off a filibuster, but in this case I’m not so sure.

The three-part strategic question

In December Democratic leaders may face a two-part strategic question:

1. If we cannot hold 60 Ds, do we use reconciliation to pass a bill with 51, or instead go for 60 on a much more limited bill?
2. When do we make this decision?
3. Conference or ping pong?

My survey of (Republican) insiders is split on what Democrats may decide on (1), but nearly unanimous on question (2) almost all say this strategic shift would come in January at the earliest. The earliest projection was December 18th.

I assume liberals would prefer a reconciliation path that would probably produce a bill closer to the House-passed bill, at the price of painfully splitting off moderate Senate Democrats. This is a slash-and-burn partisan path, but may be the highest probability path to a signed law. I also assume moderate Democrats would prefer a scaled-back bill. We know Democratic moderates would support the Finance Committee reported bill, so if Senate liberals could swallow hard and wait for the next step, this would be the easiest path to Senate passage. Leader Reid tacked away from this when he announced his amendment would contain a strong public option.

If the Senate can pass a bill, Democratic leaders will need to wrestle with question (3).

Conference or ping pong?

Everyone knew the House would eventually pass something, given the enormous Democratic margin in the House. House Republicans were more effective in their resistance than I anticipated. This contributes to an apparent loss of momentum in the Senate. There are now two games ahead: Senate passage, and reconciling differences between the House and Senate.

In theory, if the Senate passes a bill, the chance of a law skyrockets. But the House passed its bill with a left-edge coalition – most of the Democratic no votes were from moderates. If the Senate passes a bill through regular order (with 60 votes), it will be relatively more moderate, and more compatible with an alliance on the other side of Pelosi’s caucus. This could be quiet difficult. How do Speaker Pelosi and Leader Reid work out differences between a bill that Lieberman, Nelson, and Lincoln support and one opposed by moderate House Ds? Splitting the difference may alienate both sides of the Democratic caucuses. We’re already starting to see lines drawn in the sand on abortion.

This is why some observers think Senate passage may lead to ping pong rather than a conference. Normally after the House and Senate pass versions of a bill, the body that votes second requests a conference with the other body and appoints a handful of members to be conferees. The second body then agrees to a conference and appoints its own conferees. The conferees negotiate and produce pretty much whatever new text they want, although they generally stay within the scope of the contents of the two bills. The conference report language must then be passed by both bodies to go to the President.

Ping pong is a colloquial term for skipping conference. The House-passed bill will soon arrive in the Senate. The Senate will presumably take up the House bill and amend it. If and when the Senate passes its version, it would not request a conference, and would not appoint conferees, but would instead send the amended bill back to the House. the House could then try to further amend the Senate bill, or just take it up and pass it. This ping pong can go back and forth a few times.

Conventional wisdom seems to be that House and Senate Democratic leaders are intensely focused on the downsides of a conference. It puts tremendous pressure on the leaders and conferees to resolve differences. It also gives House and Senate Republicans certain procedural opportunities to cause mischief before and during conference.

But ping pong has its own downsides. The minority, especially in the Senate, gets another crack at amending the bill. Smart money would bet today on ping pong rather than a conference, but I expect this to be revisited often over the next couple of months.

My projections

It is highly likely the legislative process will continue at least into January.

I am projecting a 60% chance that a comprehensive bill becomes law this Congress, but I have shifted some of that 60% from the regular order path to the reconciliation path. By itself I’d never expect the Senate to shift to a reconciliation path after failing to get 60 – Senate-only logic says heck no, and the strain on Reid’s caucus would be too great. But if Democratic leaders are forced to shift away from regular order on a comprehensive bill, I would guess that Speaker Pelosi would push hard for the Senate to use reconciliation to produce a bill more compatible with the House-passed bill rather than dialing back expectations. This puts me at 40% regular order success, 20% reconciliation success, 20% fall back to a narrower bill, and a 20% chance the whole thing implodes. It’s the slow pace and the two intervening recesses that give me hope.

Insiders: Please send me your thoughts privately, especially if you disagree.

(photo credit: Matt Tanguay-Carel)