What's next for health care reform? Reconciliation

Source: Gearlog

Optimists predict that media coverage of Senator Kennedy’s death will shame Republicans into changing their opposition to health care reform. Nicholas Lemann, writing in the New Yorker, says, “Kennedy’s death … will cost Obama a vote in the Senate, but this may be outweighed–is it too much to hope?–by the good feeling that Kennedy’s decades of large-heartedness have generated, and by the unmistakable sense that universal health care was his enduring wish. His death could spur health-care legislation the way his brother’s death spurred civil-rights legislation.”
That type of reconciliation – a kindly, all-is-forgiven meeting of the minds – would indeed be historic. Unfortunately, “too much to hope for” is right, I’m afraid. The Republican Party, having lost most of its moderates, is now dominated by its right wing. A Democratic strategy is already emerging that calls for playing a different sort of reconciliation card.

Can the Democrats stop a filibuster?

Whenever one party holds the majority of seats in the Senate, as the Democratic Party does now, it can theoretically pass legislation with a simple majority vote of 51 to 49. To prevent this, the minority party can use a tactic called a filibuster.
In a traditional filibuster, Senators speak to the Senate chamber for as long as they want. Strom Thurmond spoke for 24 hours and 18 minutes in opposition to the Civil Rights Act in 1957. In 1964, southern Senators filibustered the Civil Rights Act for 57 days. (The House of Representatives has a Rules Committee that sets a limit on debate when a bill goes to the floor, so the filibuster issue doesn’t come up.)
These days the filibuster is much easier on the vocal chords. No one needs to speak at all. Any senator can simply place an anonymous hold on a bill, which amounts to a threat to stage a filibuster if the bill comes up for a vote.
A filibuster prevents the Senate from moving on to any other business until one of two things happens. The motion to filibuster can be withdrawn or Senators can invoke the cloture rule. The cloture rule limits discussion to an additional 30 hours. The magic number of votes needed to end a filibuster is currently 60. That’s why Senator Kennedy’s death makes a difference.
The number of Democrats in the Senate has fluctuated since the November election. Arlen Specter changed parties. Roland Burris was finally seated to replace Senator Obama. Al Franken finally won the vote-count challenge in Minnesota.
For a brief time there were 60 votes, counting the two independents who regularly caucus (i.e. vote) with the Democrats. With Senator Kennedy’s death, there is no longer a filibuster-proof Senate. There are also some blue dog Democratic Senators who can’t be counted on to support health care reform. This leaves the Democrats no option but to pursue Plan B, reconciliation.

What is reconciliation anyway?

Reconciliation is a parliamentary procedure that limits debate on a bill to 20 hours. The New York Times refers to reconciliation as “arcane.” Technically it’s limited to bills that affect the national budget. When President Clinton wanted to use reconciliation to pass his health care reform in the 1990s, Senator Byrd successfully objected that health care did not meet the requirements for a reconciliation bill. If the Democrats want to use reconciliation this time around, they’ll be forced to do some fancy foot work.
Legal minds on both sides of the aisle will be looking for ways either to use reconciliation and to prevent its use. A budget reconciliation bill cannot contain any “extraneous” provisions that do not affect spending (or revenues) over the next five years. Democrats would have to prove that health care’s impact on the budget is more than “merely incidental.”
According to the Times:

Knowledgeable analysts from both parties believe that … important elements of [health care] reform will probably pass muster [as reconciliation] because of their budgetary impact: expansion of Medicaid for the poor; subsidies to help low-income people buy insurance; new taxes to pay for the trillion-dollar program; Medicare cuts to help finance the program; mandates on individuals to buy insurance and on employers to offer coverage; and tax credits to help small businesses provide insurance.
Even the public plan so reviled by Republicans could probably qualify, especially if it is given greater power than currently planned to dictate the prices it will pay to hospitals, doctors, drug companies and other providers, thus saving the government lots of money in subsidies.
Greater uncertainty surrounds two other critical elements: new rules requiring insurance companies to accept all applicants and charge them the same premiums without regard to medical condition, and the creation of new exchanges in which people forced to buy their own insurance could find cheaper policies than are currently available.
Republicans claim that they want to make medical insurance and care cheaper and give ordinary Americans more choices. But given their drive to kill health reform at any cost, they might well argue that these are programmatic changes whose budgetary impact is “merely incidental.” Democrats would very likely counter that they are so intertwined with other reforms that they are “a necessary term or condition” for other provisions that do affect spending or revenues, which could allow them to be kept in the bill.

Reforms that can’t be maneuvered into the requirements for reconciliation, such as reforming the health insurance industry, could become the basis for a second bill. Although such a bill would be vulnerable to a filibuster, there does appear to be broad support for insurance reform.

Bipartisan support for major social legislation: A distant memory

Passing health care reform using reconciliation is not ideal for the Democrats. The party and Obama could lose electoral support in 2010 and 2012. The opposition between Democrats and Republicans could establish a polarizing pattern that will make it difficult for Obama to follow through on the remainder of his agenda in the next three years.
Bipartisanship on an issue as major as health care was especially important, as it might have kept reform from unraveling in the coming years. But barring a Republican change of heart, prompted by the enduring wishes of Senator Kennedy, it’s not going to happen. We can expect to hear a lot more of the arcane details of reconciliation in the near future.
Related posts:
Should Obama have pitched health care differently? Will Kennedy’s death make a difference?
Edward Kennedy: Healthcare is a fundamental right, not a privilege
Without the public option, it’s not health care reform
Health care reform: Politics and substance