Part 1: What happens to health care legislation if Scott Brown wins Massachusetts?

Part 1: What happens to health care legislation if Scott Brown wins Massachusetts?

This is the first of three posts on how the Massachusetts special election interacts with health care reform:


The Massachusetts Senate race has three potential effects on health care reform:

  1. Procedural;
  2. Vote counting; and
  3. Potential blowback to the procedural response.

If Mr. Brown wins Tuesday, the direct procedural effects are the least important. A 41st vote would give Senate Republicans the power to obstruct but not kill a bill. Even if Brown were to be seated Wednesday, the President would still have procedural options that allow him to enact a law with only Democratic votes. The increased power of Republicans would be indirect: they could make the process path more difficult, requiring the President, Speaker Pelosi and Leader Reid to work harder to hold Democratic votes. If health care dies because of the Massachusetts election, it will be because nervous Democratic members refuse to support their Leaders’ response, not because Republicans have the votes to prevent a bill from becoming a law.

Democratic leaders now know (finally) that speed is their friend, and they were negotiating non-stop for several days this week. Here are five reasons for them to move quickly:

  • Tuesday’s election is entirely downside risk for them.
  • The House and Senate Democratic Caucus retreats are next week.
  • They would like to pass a bill at least through the House before the State of the Union Address.
  • They probably worry that a President’s budget rumored to be “austere” may push away some votes for health care. I expect the budget to be released in the first day or two of February.
  • More time means more interest group pressure on Members to draw bright lines.

A Brown victory on Tuesday would still allow Democratic Leaders several procedural options:

  • ram it through before Senator-elect Brown replaces interim Senator Kirk;
  • throw away the negotiation, and the House passes the Senate-passed bill without amendment;
  • pass a new reconciliation bill, either reflecting the text of a negotiated deal or a more liberal agreement; and
  • try to bring Senator Snowe back on board for the 60th vote.

The reconciliation option is procedurally challenging. The others are not. If the President wants to push forward in spite of a Brown victory, the Leaders can give him options for doing so. The challenge is not procedural, it is about holding a fragile Democratic caucus together when the procedure is under stress.

The vote counting analysis is not binary. A Brown victory would scare a lot of Democratic Members, but even a narrow Coakley victory will scare some. I think anything less than a five point Coakley win could scare enough House Democrats that House passage could get really difficult. Financial markets react instantly to expectations of future events; elected officials do the same. I imagine there are several Democratic Members of Congress who are already very nervous about their reelection, and increasingly so this weekend as we watch the bluest of States turn purple. A narrow Coakley win should not and will not reassure those members. For them I think it’s the difference in moving from “There’s a risk I might lose reelection if I vote for health care,” to “I’ll probably lose reelection if I vote for health care.” Will Speaker Pelosi and Leader Reid still be able to hold their caucuses together?

The impact of a Brown win would be indirect, and it would depend on both the tone and the procedural path adopted by Democratic leaders. If they say, “The Brown victory was not about health care” and charge forward procedurally, that 41st vote will make both the regular order “ram it through” path and the fallback options look procedurally illegitimate no matter when Brown is sworn in.

Democratic leaders risk exacerbating a Brown win by provoking a popular backlash to aggressive or unusual procedural tactics. Rushing a bill through the Senate before Brown is seated could easily be framed as subverting the will of the people, as could the other procedural backup options. Democratic Leaders will have responses about how their procedural paths are within the rules and therefore kosher, but I suspect they will be fighting an uphill battle. The Right and the Tea Partiers would obviously come unglued and be even more motivated for November (is that possible?), but I doubt the Democratic leaders will care. They should care if independents reach the same conclusion, and I expect rank-and-file Democratic Members will be closely watching Tuesday’s independent vote.

TNR’s Jonathan Chait dismisses the electoral impact of procedural hardball: “It’s a process argument of murky merits that will be long forgotten by November.” Further, he argues that

[W]alking away means you did nothing on the issue that consumed most of your time, and wait for your November beating as a failed Congress running with a failed President. Numerous conservative pundits have advised Democrats to take this approach, but I don’t think it’s a very sensible plan.

I think Mr. Chait is correct from the perspective of the President and Congressional Leaders. They have to worry about the party and their demonstrated ability to lead and deliver policy priorities. Some Members, however, will be more self-centered in their analysis – they might be happy to have health care reform become law, as long as they don’t have to vote for it.

The post-election decisions of three groups become important to passing a bill:

  1. The President, Speaker Pelosi, and Leader Reid – Do they insist on pressing forward? I think they do. They would not directly bear the electoral risk of enacting a new law. I think they long ago concluded that enacting a new health entitlement is worth losing a few Members.
  2. Nervous House and Senate Democrats – If a handful of House Members or just one Senator bolt, the bill is in trouble. They are the ones at risk from an aye vote.
  3. Democratic party elders who don’t work on health care – They may be concerned that ignoring a Brown victory risks creating a November tidal wave that kills their ability to pursue their non-health policy priorities next year. This is why Barney Frank’s comment is so important. Are other senior Democrats convinced by Mr. Chait’s argument, or do they draw new conclusions from Tuesday and decide it is in the Democratic party’s long-term interest to back off?

The only thing I can say for certain is that this will look different Wednesday morning, and again by next weekend after the dust has settled.

Continue to Part 2: Procedural options for health care after a Brown victory, or to Part 3: My projections for health care reform.

13 responses

  1. Pingback: Procedural options for health care after a Brown victory | KeithHennessey.com

  2. Pingback: My projections for health care reform | KeithHennessey.com

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  9. "They would not directly bear the electoral risk of enacting a new law. "

    Actually, I think that Leader Reid is an exception. He may very well lose himself in November from pushing this law, but I agree that he seems to have already decided to risk it.

  10. As somebody in cyberspace has already mentioned, Martha Coakley is a Democratic canary in a coal mine. Given that Coakley loses the special election, Democrats should know that they are in real trouble with the voters. And passing Obamacare despite the political significance of Coakley’s loss would be equivalent to lighting a cigarette in a mine shaft with a dead canary, IMO.

  11. Pingback: Snatching Something Out Of The Jaws Of Something « Around The Sphere

  12. Pingback: The Greenroom » Forum Archive » ObamaCare: The “What Next?” post

  13. Pingback: Patterico's Pontifications » ObamaCare: The “What Next?” post

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