I am getting questions about a two bill strategy for health care if Scott Brown wins in Massachusetts today. Let’s call it option five relative to my prior list of four.

This strategy combines two options from my prior post: the House would pass the Senate bill, and they would initiate a new reconciliation bill. The sequencing matters, and to keep liberals onboard the reconciliation bill would probably have to come first.

I will be generous and give it a 2% probability. It’s an interesting idea in theory. In practice it would be a nightmare to execute. If Mr. Brown wins, the only path to Presidential success may to be try to get the House to pass the Senate-passed bill without amendment.

How they might do it (in theory)

  • Democratic leaders finish negotiating the substantive compromise at the White House.
  • They get it scored and sell it to their members. They still need 218 House votes, but in this scenario they need only 50 Senate votes (the VP breaks ties). That’s a huge advantage for Democratic leaders.
  • Assuming the Senate-passed bill will become law, draft a new bill that contains the differences between the negotiated deal and the Senate-passed bill. For example, if the “Cornhusker Kickback” drops out of the negotiated deal, then bill #2 would repeal that provision as if bill #1 were already law.
  • Draft bill #2 as a reconciliation bill. (This is hard.)
  • The House report bill #2 out of three committees unscathed: Ways & Means, Energy & Commerce, and Education & Workforce.
  • The House Budget Committee packages all three committee products into a reconciliation bill and reports it to the House floor.
  • The House passes a rule and this reconciliation bill with 218 votes.
  • The Senate Finance Committee and Senate HELP Committee report the same bill text out of their committees, again unamended.
  • The Senate Budget Committee packages the two committee products together into a single reconciliation bill and reports it to the Senate floor.
  • Leader Reid proceeds to the bill (simple majority vote).
  • Debate is limited to 20 hours. Amendments are unlimited but must be germane to the bill.
  • Under reconciliation rules, no filibuster is possible. As long as the bill has been drafted not to violate the budget resolution (difficult), Leader Reid can pass the bill with a simple majority (51, or 50 + VP).
  • After the Senate passes the reconciliation bill, they work out differences with the House if any were introduced in the process. They do this either by ping-ponging the reconciliation bill, or through a conference with the House. In either case, they never need 60 votes as long as they stay within the bounds of reconciliation.
  • After the identical reconciliation text has passed both the House and Senate, then the House takes up and pass the Senate-passed bill #1.
  • Both bills go to the President for his signature. He signs bill #1, then bill #2.

What could possibly go wrong?

Too many failure points

The above option has a huge advantage: it requires only 50 Senate Democrats to concur. It therefore avoids the Brown problem and the ongoing Nelson/Lieberman risks. This scenario works procedurally if you have a rock-solid unified (218 House + 50 Senate) alliance. This option allows up to 9 Senate Democrats to “walk” and vote no on the reconciliation bill, so the vote counting challenge shifts to the House.

But as one expert said, there are too many potential failure points in this strategy.

As I wrote this weekend, the Democrats’ challenge is not procedural. Their challenge is keeping cohesion within their legislative alliance when it is under massive political strain. Remember that Republicans, who are procedurally almost irrelevant in this strategy, would be pounding away rhetorically as we approach Election Day.

Here are just a few of the potential failure points:

  • Can all of the changes from the Senate-passed bill to the negotiated agreement be drafted in a way that complies with the Byrd rule? (I doubt it.)
  • Will the spending and tax changes in bill #2 comply with the budget targets for reconciliation required by the budget resolution? (No one knows until there’s a CBO-scored agreement.)
  • Will members of the three House and two Senate committees support the deal through committee markup, withhold on offering amendments, and oppose Republican amendments?
  • Assuming that bill #2 contains the more liberal parts of the negotiated agreement. Will moderate and nervous House Democrats vote for such a bill?
  • Will Senate Chairmen Baucus and Conrad, both of whom qualify as “moderates” in the Democratic caucus, go along with such a strategy?
  • Will Leader Reid be willing to expose his nervous Members who are in-cycle (up this November) to a long series of painful floor votes from Republicans?
  • This process takes a long time (absolute minimum of three weeks after a deal is negotiated, and probably much longer). At the end of this process, will beat-up House Members still be willing to vote for bill #1?

I could go on. This is a nightmare from a member-management standpoint. Counting votes on one bill is hard. Trying to make two bills work together as one is nearly impossible.

Variant

You’ll notice that I structured this option so that the House would pass the Senate-passed bill only after the reconciliation bill was complete. In theory the order could be reversed, but why would a House liberal agree to that? Then you’re just hoping the reconciliation bill makes it all the way through the process. Moderate House Democrats could simply refuse to vote for the reconciliation bill and it would die, leaving them with an enacted law that is the Senate-passed bill. I see no logical reason why House liberals would give up their leverage point, which is the sequence of votes.

Updating my predictions

I need to update my predictions (published Sunday) to reflect public comments by Democratic leaders and this new option. Here are my new predictions, assuming a Brown victory:

  • Ram it through: was 25% -> now 10%
  • House folds: was 25% -> now 30%
  • Reconciliation: was 3% -> now 1%
  • Deal with Snowe: steady at 2%
  • Two-bill strategy: 2%
  • Collapse: was 45% -> now 55%

You can see that I’m increasing the chance that the bill collapses if Brown wins. I’m also shifting the balance between the first two options heavily toward the House folding. That’s not because I think it’s a good option or I can imagine it working. It’s simply because the intensity at the top for an accomplishment is enormous, and all other options look worse. The leaders would face vote counting challenges with pro-labor members, pro-life members, the Hispanic caucus on illegal immigrants, and many, many others.

This means my pre-election probabilities change to:

  • Law: was 74.5% -> now 69.5%
  • No law: was 25.5% -> now 30.5%

And my results if Brown wins today are now:

  • Law: was 55% -> now 45%
  • No law: was 45% -> now 55%

I find it fascinating that a Senate election could shift the main locus of decision-making on this issue to the House. For months the focus has been on how Leader Reid holds 60 votes. If Mr. Brown wins, this becomes principally a House game, not a Senate one. And while I have learned never to underestimate Speaker Pelosi’s ability to get the votes she needs and hold her caucus together, a Brown victory could make that extremely difficult.

I will be watching Speaker Pelosi for signals about how the process will move forward. She’s got the health care process ball if Brown wins in Massachusetts today.

(photo credit: Gordian Knot by Kecko)