Can House Democrats trust the Senate not to foul up a two-bill strategy for health care reform?

No.

While most of the public discussion focuses on the procedural challenges particular to reconciliation, a more important point is being overlooked. The hardest part of the Pelosi/Reid strategy is trying to enact one massive package of legislative changes, spread out over two separate bills, one of which cannot change. Reconciliation is just the icing, and in some ways, reconciliation makes a two bill strategy easier since it avoids the filibuster threat.

The MSM has picked up on the sequencing challenge. For Bill #2 (the new reconciliation bill) to be scored properly for Senate consideration, Bill #1 (the original Senate-passed bill) has to have passed both the House and the Senate. But this means that House Democrats would have to vote for Bill #1 before knowing that Bill #2 would make it to the President’s desk.

This is being framed as a “trust” issue. Can House Democrats trust Senate Democrats to pass Bill #2 and send it to the President? After all, we know those Senate Democrats were happy to stop work with Bill #1, since that was their original bill.

This lack of trust is reinforced by centuries-old institutional tensions between the bodies, and by comments like Leader Reid saying at the recent Blair House summit that no one is talking about reconciliation.

In theory the trust issue is a solvable problem for Democrats. If a substantive agreement can be worked out, Leader Reid can make public procedural commitments, either on the Senate floor, in writing, or in person to wavering House Democrats. Leader Reid could be invited to speak to a House Democratic Caucus meeting and provide in-person reassurances. The President could reinforce such a Reid commitment. The lack of trust between Members of the same party but different Houses of Congress is a difficult but not insurmountable problem.

And yet nervous House Democrats have a right to be nervous, because while Leader Reid can make certain procedural commitments, he cannot guarantee, in advance, Senate passage of a bill without any modifications. At a minimum, House Democrats who embark on the two-bill strategy place themselves at risk of having to vote on Bill #2 a second time after spending Easter Recess back in their districts. This provokes the somewhat surreal follow-up question: Can House Democrats trust themselves?

Let’s assume the Speaker somehow rounds up the 216 votes she needs for a substantive package. Assume that package is drafted so that Bill #1 will pass the House unchanged first, and all the modifications will be in Bill #2, drafted as a reconciliation bill, to be passed first by the House and then by the Senate.

Let’s further assume the House passes Bill #1 and Bill #2 before the Easter Recess, scheduled to begin sixteen days from now, on Friday, March 26th.

Bill #1 is now ready to be sent to the President. Bill #2 goes to the Senate as a reconciliation bill. (Q: For how long can the Speaker hold Bill #1? Can she hold it forever if Bill #2 does not become law?)

Leader Reid, carrying through on a hypothetical commitment made to House members, brings up Bill #2 and tries to pass it. Let’s further assume that he has at least the 50 votes he needs, in his pocket, for final passage. So assume we (think we) know that the Senate will pass a version of Bill #2.

I don’t think Leader Reid can guarantee that the Senate will pass Bill #2 without modification. And if a single word in Bill #2 is added, removed, or changed, then the House will have to vote on Bill #2 again.

I see three risks during Senate floor consideration:

  • Senate Democrats may want to modify the substance of Bill #2, notwithstanding any commitment by Leader Reid to oppose all amendments. I believe Senate Democrats are generally comfortable using reconciliation as the process for consideration of Bill #2, Republican objections notwithstanding. But that does not guarantee that those Senate Democrats will oppose all amendments. It’s easy to imagine Senators saying they’re not just going to let the House write a whole new health bill without Senate input.
  • Even if Leader Reid can exert effective party discipline/cohesion, Senate Republicans will be looking for vulnerabilities and offering amendments to try to pick off 10 Democrats and amend the bill. I expect it would be quite difficult to pick off that many Democrats in this type of situation. But suppose Bill #2 contains another Cornhusker Kickback? Do you think that Bill #2 will be entirely devoid of targeted “Member interest” items (read: pork) as Speaker Pelosi makes the deals she needs to make to get to 216? Are you certain 50 Senate Democrats would oppose a Republican amendment to strike the most vulnerable of such items? If Senate consideration of Bill #2 happens after the Easter Recess, this risk is even greater. People will have more time to scrub the bill for politically vulnerable special interest provisions, and pressure will have time to build on Senate Democrats to fix the worst problems in Bill #2.
  • Even if Leader Reid can rally sufficient party discipline to defeat every Republican amendment, and he needs only 50 of his 59 Members to do so, he still faces a Byrd rule risk. If Bill #2 contains a single provision, or even part of a provision, that has no budgetary impact, then 41 Senate Republicans acting in concert can force it to be removed from the bill. If it’s something like the Stupak abortion language, such a change would have a profound impact on the strategy. Suppose, however, it’s a trivial change. Suppose there’s a study on asthma in the bill that comes over from the House. Striking that study with the Byrd rule will mean that the House and Senate-passed versions are different. This means the House will have to vote again on Bill #2.
  • What if the schedule slips enough so that a second House vote on Bill #2 is after the recess?
  • Are nervous House Democrats willing to place themselves in the position where they have to vote a second time for Bill #2, after a week of feedback and pressure from the people back in the district?
  • Are those other House Democrats whose support for Bill #1 is contingent on Bill #2 also becoming law willing to trust that the differences in the two bills can be worked out, and more importantly that the House will again be able to pass Bill #2, after the Easter Recess?

Successfully executing a two bill strategy is hard. Even if Congressional Democrats can resolve their trust issues, no one can promise a successful two-bill outcome, especially if the strategy spans the Easter Recess.

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