In 2009, Democrats chose to proceed with a health-care bill under the regular order — that is, they sought to pass the legislation under normal House and Senate rules. They did not put together a budget reconciliation bill with health care in it, something that could have passed the Senate with a simple majority vote. They conceded that such an approach would likely produce a flawed product, as many non-budgetary provisions in a health-care plan would not survive the reconciliation process. And so they decided to try and pass a bill without resorting to reconciliation, even though they knew they would need sixty votes in the Senate to succeed. It worked. They passed a bill in the House in November, and a somewhat different version in the Senate in December.
Then came Scott Brown. His stunning election to the Senate on January 19 upended the Democrats’ end-game. They were going to work out the differences between the House and Senate-passed bills in January and proceed to pass an agreed-upon version in both chambers as expeditiously as possible. But that plan was contingent on getting sixty votes again in the Senate. With Brown’s election, Senate Republicans increased their numbers from forty to forty-one, thus forcing Democrats to find at least one Republican Senator to support their final bill.
For the past two months, the White House and Democrats in Congress have been weaving ever-more complicated legislative webs all with the express intent of avoiding at all costs any need to negotiate with the now slightly enlarged Senate minority. In effect, what Democratic leaders want to do is — at the very end of the legislative process — switch from regular order to a reconciliation process in order to avoid having to deal seriously with any elected Republicans.
But it’s become increasingly clear that the Democratic scheming and maneuvering necessary to pull off such a high-wire act has created a web of entanglements that could very well doom passage of the entire effort.
In particular, there now appear to be two huge hurdles standing directly in the way of a plan to jam a bill through in the coming days.
First, there is the matter of the liberal abortion provisions in the Senate bill. As the Catholic Bishops conference has noted, the Senate-passed bill includes several provisions that would allow taxpayer funding of elective abortions. Consequently, the Bishops opposed passage of that bill when it was considered in the Senate, and now oppose its passage by the House. The problem for House Democrats is that every version of the end-game they are now considering is predicated on having the House take up the Senate bill and pass it unchanged for presidential signature.
That is entirely unacceptable to the Catholic Bishops. They oppose House passage of the Senate’s pro-abortion health bill. Period. And their opposition hasn’t come with procedural loopholes that would let members off the hook if they promised to pass a fix separately. That would be fool’s bargain, and the Bishops know it. So pro-life House Democrats, led by Congressman Bart Stupak, really have no choice here. They can’t support the Senate bill unless they want to be known for supporting the most pro-abortion bill ever considered in Congress. Their only real option is to force House leaders to amend the Senate bill before passing it to include strong restrictions on funding of abortion. Yes, that would mean the bill would have to go back through the Senate again before going to the president, but so be it. That’s not the Bishops’ problem. It would mean the president and the Democrats would have to really negotiate to get some Republican support, which is of course the norm for sweeping and important legislation.
The Democrats’ problems don’t end with abortion, though. Today, the Senate parliamentarian confirmed to Republican members that the Senate health-care plan must first be signed into law by the president before the Senate can take up a reconciliation bill making changes to it. This is the House Democrats’ worst nightmare. That means they can’t pass and hold the Senate health bill pending clearance by the Senate of a reconciliation bill making fixes. If the House votes to approve the Senate bill, that’s it. The Senate bill will become law, signing ceremony and all. Congress may or may not follow through by amending it later. In the meantime, House members will have voted to approve the Cornhusker Kickback, the Louisiana Purchase, the special treatment for Florida seniors, countless special deals for hospitals, a new tax on many collectively bargained health plans, not to mention a massive tax increase, Medicare cut, and job-killing mandates.
In short, if congressional Democrats are bound and determined to pass a sweeping government takeover of American health care on an entirely partisan basis, their only way forward is for the House to accept without change the highly unpopular Senate bill, and suffer the consequences. That will be a very bitter pill for many rank-and-file members to swallow.
There is an alternative, however. The White House and House and Senate Democrats could abandon reconciliation, fix the problems in the Senate bill, and then work with some Senate Republicans to produce a plan that can get a supermajority in the Senate. No doubt it would require more than cosmetic changes to the government-heavy plan Democrats have drafted. But it is not impossible. It has been done countless times before on major legislation. And it is certainly what the public is telling their elected leaders they want to see happen.
If, however, the Democrats continue to insist it’s their bill or no bill, the odds are increasing by the day that it will be no bill.