Health Care Battle Near an End?

March 15, 2010

President Obama went into the East Room at the White House on March 3rd and talked about bringing the health care “journey to a close.” He is giving the Republicans one more chance to sign on to the Democrat’s health care legislation, or else he is prepared to move forward without their cooperation. And this time, apparently, he really means it, in spite of the fact that an overwhelming number of polls show, several by as much as 15 or more points, that the public is opposed to such legislation.

Shortly thereafter, on MSNBC, news anchor Tamron Hall said that “at that summit that we all watched for seven hours the President did say in the end that this may boil down to just key differences, that the Republicans do not believe in a huge government intervention in health care, and it is something the Democrats have wanted for many, many years, and it boils down to that.”

She is absolutely correct. That is the crux of the debate, though few on the Democrats’ side are willing to be so blunt about it. Most on the left, including President Obama, try to claim that this does not represent a “huge government intervention,” and that Republicans want no intervention, both of which are patently false.

What was supposed to be new in the President’s speech was that he was announcing plans to incorporate a number of Republican ideas into the legislation, though he never quite said how that would be accomplished. They included ways to combat waste and fraud, and funding for pilot projects at the state level to resolve medical malpractice cases. Even if these substantively addressed Republican concerns, which they don’t, the problem is that both the House and Senate have already passed bills that must now be somehow merged and presented to the President as one bill for his signature.

The easiest way, and the way that is being pushed, is for the House to vote to approve the Senate bill exactly as it is, and then have the Senate make changes, or fixes, in accordance with the wishes of a majority of the House through the process called reconciliation, which requires just a majority of the number of Senators present at the time of the vote, rather than the supermajority of 60. The bill, along with the reconciliation agreement, would then go to the President for his signature.

Kent Conrad (D-ND), chairman of the Senate Budget Committee, was on “Face the Nation” on February 28 and said that “Reconciliation cannot be used to pass comprehensive health care reform...The major package would not be done through reconciliation.” Conrad said that it was not an option.

Robert Dove, who was Senate parliamentarian for 37 years, was on MSNBC on March 1st. As Dove pointed out, the Senate parliamentarian advises whether legislation is available to be handled through reconciliation, but it is the Vice President in his capacity as president of the Senate who can overrule the advice of the parliamentarian. So Vice President Joe Biden could do that, and that would apply. This is the thread on which the Democrats’ hopes lie.

When MSNBC’s Chuck Todd said that he thought the Democrats just wanted to do fixes, not the full bill and asked if they could do these fixes under reconciliation if they have just a tangential tie to the budget, Dove said he didn’t want to pre-judge, but he suggested that the answer was no. Asked for an example where reconciliation was not allowed because of the Byrd Rule, Dove cited 1995, when there was a very large reconciliation bill, and there was a provision in that bill that provided that no federal funds could be used for abortion. He thought it violated the Byrd Rule. Part of the Byrd Rule is that if something is in a bill not for its budgetary effect but for policy effect, that invokes something called the incidental test and it can be thrown out. In that case it was thrown out.

Sen. Byrd sent a letter to his colleagues last April stating his views very explicitly:

“I oppose using the budget reconciliation process to pass health care reform and climate change legislation.... As one of the authors of the reconciliation process, I can tell you that the ironclad parliamentary procedures it authorizes were never intended for this purpose.”

The Wall Street Journal ran an excellent editorial this week arguing that reconciliation has not been used this way, and that it often has come with large majorities voting for these measures. That would seem to indicate that the decision to use reconciliation or not is based on whether or not it fits the requirements, rather than because the powers-that-be can’t secure enough votes.

“Democrats often point to welfare reform in 1996 as a reconciliation precedent, yet that bill passed the Senate with 78 votes, including Joe Biden and half of the Democratic caucus,” states the WSJ editorial. “The children’s health insurance program in 1997 was steered through Congress with reconciliation, but it, too, was built on strong (if misguided) bipartisan support. The Balanced Budget Act of 1997 that created Schip passed 85-15, including 43 Republicans. Even President Bush’s 2001 tax cuts, another case in reconciliation point, were endorsed by 12 Senate Democrats.

Then-candidate Obama also spoke against using reconciliation for such major legislation, saying in 2007 that “We are not going to pass universal health care with a 50-plus one strategy.” Perhaps he is betting that he can win over the public by demonstrating that the Republicans won’t accept a compromise even with provisions that they approve of in principle. But in fact these so-called compromise provisions don’t really do much to change the nature of what the legislation is designed to accomplish, namely for the federal government to control the distribution of and rules governing health care and health insurance.

The point is that this is why Obama is willing to water this bill down so much. The reality of the law comes in the many pages of “regulations governing implementation.” So the fact that reconciliation rules don’t allow Congress to change policy matters, only budgetary and tax matters, wouldn’t faze the Obama administration once something called “health care reform” was passed into law. The Republicans and Democrats both know this. In this political environment, already well into primary season and the winds blowing Republican, it may prove to be that the planks that Democrats are being asked to walk are too fraught with peril to ever allow this legislation to cross the finish line.

Ed Harris of CNN reported this week that Democrats are upset with Obama, because they don’t think he should still be out trying to round up Republicans and water the bill down further, but rather should be looking to line up enough Democrats to walk the plank. On March 4th,  Rep. Bart Stupak (D-Mich.) stated what could be a fatal blow, when he told George Stephanopoulos that “In the present form, the Senate health care bill is going nowhere in the House of Representatives…Not only do the members of the House of Representatives not agree with the Senate bill—the process by which the Senate bill was passed, the special deals, there is no member that wants to vote for that.”

The reality is that there are already two bills, one passed by the House by a five-vote margin, one passed by the Senate with 60 votes on Christmas Eve. What normally would happen is that they would go to committee, the leadership would meld the two bills into one, and both the House and Senate would then have to approve them, by a simple majority in the House, and a so-called supermajority of 60 in the Senate. Few think that’s possible, with Republican Scott Brown having since won the Massachusetts Senate seat, running as the 41st vote against the legislation and idea of national health care.

The House is another story. After passing their version of the legislation by a vote of 220-215, things have changed. Democratic Rep. John Murtha has died, Neil Abercrombie of Hawaii has resigned to run for governor, Robert Wexler of Florida resigned to work for a non-profit organization, and the latest, Rep. Shelley Berkley has stated her intentions to vote against the bill because she doesn’t trust the Senate to make the fixes. On the Republican side, Rep. Anh “Joseph” Cao of Louisiana, the only House Republican who voted for it the first time, has said he won’t vote for it on final passage. There was a report this week that nine who voted no might now vote yes, but no guarantees. Plus, more than 40 Democrats are from districts which John McCain won in 2008. The House is being asked to vote yes on a bill that still has several special deals for certain states: the Cornhusker kickback, the Louisiana Purchase and the Florida Flim-flam. Obama has now said he wants the Nebraska and Florida deals removed, but the Louisiana deal can stay.

This is the fourth or fifth last chance for this legislation. The big question is what Obama will do if he has no legislation that has worked its way to his desk. There have been rumblings that he’ll try by Executive Order and through cabinet level regulations, that he will attempt to create national health care by fiat. Even loyal congressmen are getting tired of walking the plank, and there is turmoil at the top levels of the White House as chief of staff Rahm Emanuel is being portrayed as distancing himself from the stumbling moves of the administration in getting something passed. Obama sees this as his defining moment.

If the Democrats had the votes to pass it, it would be passed immediately. But they don’t, and instead will try to make whatever deals it takes. Last year the Senate worked every day through December, late into the evening, under the notion that 2010 is an election year, and it would be very difficult to get the bill passed in that environment. Well here we are, and President Obama is as determined as ever to get it done, betting that doing nothing would be worse for his presidency than forcing passage of something; anything. He knows the math in Congress is never likely to be better for him than now, but the question is, how far is Congress prepared to go to help save Obama’s presidency.        

Copyright ©2010 Roger Aronoff

Roger Aronoff is the Editor of Accuracy in Media, and a member of the Citizens’ Commission on Benghazi. He can be contacted at