I tried to update my projections for health care legislation but found I was making wild guesses. This is too much of an inside game for me to predict what will happen over the next ten days. My crystal ball is foggy.

I can, however, offer some questions and observations for you to consider. I hope you find them useful.

Q: Is there a deal?

A: We don’t know. We know that, at the behest of the President, Leader Reid is dropping both the public option and Medicare buy-in from his amendment. Last week he said the buy-in was a core element of what he asserted was a consensus Senate Democratic deal. I think there is an Obama-Reid-Lieberman deal on two key issues, the announcement of which generated tremendous legislative momentum. As best I can tell, there is not yet a comprehensive Reid amendment supported by 60 Senators.

Watch closely for reports of a CBO score. Every time I read “Leader Reid’s staff continues to work with CBO,” I think “They still don’t have an amendment.” They need a good answer from CBO, and they need to sell it to 60 Senators. Despite the apparent enormous shift in public momentum favoring Senate passage, it appears they don’t have either one at the moment.

A friend astutely observed, “The proponents of this thing are simultaneously closer to final success – and to a complete collapse – than they have been for months.”

Q: Why might this take until Christmas Eve?

A: Assume Senate Republicans (or at least one) are willing to use all available procedural tools to slow this down. Leader Reid needs three votes: his new amendment to the Reid substitute, the Reid substitute, and final passage. On each of those votes he will need to invoke cloture. That process takes 3+ days.

Example:

  • Leader Reid offers his new amendment today and files cloture on it.
  • The Senate votes on cloture the day after tomorrow (Saturday).
  • Assuming cloture is invoked, there are then 30 hours of debate post-cloture.
  • So the new amendment would then be adopted Sunday.

These cloture votes can be “stacked,” but the three 30-hour periods must run sequentially, burning up the entire next week. Then again, Leader Reid may decide he only needs to win one or two of the three before sending everyone home.

In addition, I assume Senate Democrats have figured out that Senate Republicans can offer and force votes on certain amendments during those three 30-hour periods. There could be some politically very difficult votes for Democrats next week.

Update: Two friends point out that Leader Reid can use a tactic called “filling the [amendment] tree” to block consideration of troublesome amendments, so Senate Republicans may lack this opportunity.

Q: Is there really only one legislative option?

A: No, there are two. Option one is that 60 Senate Democrats/Independents can rally around, invoke cloture on, and pass a Reid amendment. House Democrats would then either have to swallow it whole by passing it without a conference, or, more likely, have a conference in which they make some optical tweaks, then swallow it whole. When one legislative body credibly says “We cannot pass anything but X,” and the other says “We don’t want to pass anything but Y,” X wins.

Option two is for the House to initiate a new bill through the reconciliation process. This path could produce a bill that is farther left than the current bill. Both the public option and a Medicare buy-in would survive the Senate’s Byrd rule, although other parts of the bill might be in some jeopardy. Leader Reid could pass such a bill with 50 Senate Democrats plus the Vice President, allowing/forcing up to 10 moderate or nervous Senate Democrats to vote no. I assume House Blue Dogs would similarly vote no. Social issues within the bill would likely move left as well.

If the President, Speaker, and Senate Majority Leader had agreed to pursue this path months ago, it would have had a high probability of legislative success, in a take-no-prisoners fashion. Successfully executing this process now would be less certain because of the calendar and deterioration of broad-based public support for the policies. Outside advocates on the Left would be initially ecstatic, but Leaders correctly fear that further delay and starting over risk implosion. In addition, they appear to want get health care done so they can shift their focus to the weak employment picture and deficit problem. I would be stunned if the leaders chose to go the reconciliation path, despite the pounding they are beginning to take from their Left. Then again, there’s an outside chance they may be forced down this path.

Q: Who are the key decision-makers?

A: Surprisingly, it’s the leftmost Senators and House members. Any single Democratic Senator has the unilateral ability to force the reconciliation path, simply by saying no to Reid’s deal, if and when it comes together. Formally, Leader Reid gets to decide what will be voted on, and he therefore can “box in” either the left or right side of his party. He appears to be following the President’s lead, leaning toward Lieberman on his amendment, and putting liberals in the position of “Are you going to kill health care reform because it doesn’t have everything you want?”

The question then becomes, will one or more Senate liberals reply, “I’m going to vote against cloture on your amendment because I want to force you to either move your amendment back toward me, or to pursue the reconciliation path, which would be long and painful and risks complete failure but, if successful, is more likely to produce a bill that I prefer.”

Similarly, will the President and Speaker be able to hold a large bloc of House liberals on a bill in which Senator Lieberman’s preferences trump theirs? Or will they instead force their leaders to start over?

There’s no question which path the Leaders should prefer. This is instead a test of how these liberal members weigh their policy goals and pleasing their most active supporters, versus team play and supporting their President and party. Outside Lefties would be more effective if they pounded on their liberal friends in Congress who are more likely to be responsive to their pleas. While liberals beat up Senators Nelson and Lieberman, I wonder why they are not challenging Senators Boxer, Rockefeller, and Sanders for not standing up to their party leaders? Each of them has the ability to force the path the Left desires.

It’s not uncommon for legislative leaders to disappoint the average member of their party to satisfy the marginal member whose vote is needed for passage. In this case, however, the left margin has precisely as much leverage as the right. Senator Lieberman demonstrated his willingness to deny the President and risk Democratic party opprobrium to kill a bill he thought was bad. It worked for him. Will any liberal Members of Congress be willing to do the same? Or do they think that a law without a public option and Medicare buy-in is better than forcing another round of internal Senate negotiation, and better than risking a reconciliation path that might lead to complete legislative failure?

I usually think of policy and political spectrums as lines from Left to Right. We talk about “centrists” and people on the “wings.”

Occasionally the line becomes a circle, in which the Left and Right ends start to sound alike, or to have common interests. I can see two cases of that now.

  1. Outsiders on the far Left and, it appears, all Congressional Republicans now want to kill Leader Reid’s deal (again, if such a deal exists). Outsiders like former Governor Howard Dean and commentator Keith Olbermann argue the Reid plan is too weak, and should either be moved further left or pursued through reconciliation. Either way, they oppose the Reid-Lieberman agreement.
    Senate Republicans are similarly firing away. Dean/Olbermann want the Reid-Lieberman plan to fail so they can get something better. Senate Republicans want it to fail because they think the whole bill may crater if it does. These two factions share a goal of killing the Reid-Lieberman deal primarily because they have different expectations about what would happen afterward if they succeed. And Senate Republicans who are slowing the legislative process down may buy time for outside advocates on the Left to encourage/persuade/force Liberal Members of Congress to block the new Reid-Lieberman deal.
  2. Some on the Left now oppose the individual mandate. (See both partsof Keith Olbermann’s commentary.) This surprised me before I understood the logic. Mandating coverage in which the government can “keep prices down” through fiat is a good thing, they argue, while mandates without “cost controls” is bad. This appears to hinge on an intense hatred for a private insurance industry. So now both ends of the policy spectrum oppose the individual mandate within the Reid bill, albeit for different reasons. It would be interesting to see how a vote to strike the mandate turned out in one of the post-cloture voting periods.Advocates on the Left are correct that health insurers would be big financial winners in this bill. The government would be forcing everyone to buy their product, under penalty of punitive taxation for those who did not. Continued support (or at least non-opposition) from the insurers tells me they believe these guaranteed customers are worth the downsides of community rating and premium taxes.

What to watch

  • When does Leader Reid have a CBO score? Each day of delay hurts his chances of success.
  • After the next Senate Democratic caucus meeting, what do rank-and-file Democrats on the two edges of the party say? (Nelson, Lincoln, Lieberman, Rockefeller, Boxer, Sanders)
  • When does Leader Reid lay down (offer) his amendment and file cloture on it? Once he does, he’s committed. Does he do this before knowing he has 60 votes?
  • What does Speaker Pelosi say after the Reid amendment has been filed? She has to worry about dynamics within her own caucus.
  • Can the White House tamp down outside opposition from the Left before Reid offers his amendment? Does that opposition grow or subside over the next several days?

(photo credit: Crystal Ball #1 by just.Luc)