This past summer, the Senate wrote into its budget rules that beginning Oct. 15, they could use a procedural maneuver called "reconciliation" to pass health care reform, which would allow the bill to pass with 51 votes instead of the 60 needed to overcome a filibuster. A committee in the House of Representatives today quietly took the precautions necessary to allow the Senate to proceed with reconciliation, if it comes to that.
Democrats insist, however, the Senate will avoid it. After Senate Finance Committee Chairman Max Baucus (D-Mont.) passed a health care bill out of his committee with the help of one Republican, he said it is clear reconciliation will be avoided, Politico reports.
Democrats want to avoid the maneuver with good reason, analysts say.
"There are policy reasons not to do it, there are political reasons not to do it," Rick Weissenstein, a health care analyst for Concept Capital's Washington Research Group, told the Hotsheet. Still, he said, "at some point they're going to start running out of time."
Using reconciliation will remain an option until Democrats can get 60 members to cooperate -- and the party wants to pass a health care bill this year. Liberal advocates for reform say getting all 60 Democrats to cooperate should not be difficult, even to pass a bill with the much-debated public option, since they do not even technically need to vote for the bill -- they simply need to agree to not stand in the way.
Policy-wise, the reconciliation process is simply not intended for comprehensive pieces of legislation like health care reform.
The Senate rules allow reconciliation bills to pass with a simple majority and limited debate on matters that pertain to the budget -- something the Senate saw as too important to be weighed down by partisanship. Since reconciliation bills must pertain to the budget, the Senate is not allowed to use them for matters that would set policy. For this reason, some lawmakers have warned that a reconciliation health bill would have to leave out important provisions (such as consumer protections), resulting in a "Swiss cheese" bill.
If the Senate were to use reconciliation, however, it would most likely include the non-budgetary -- and noncontroversial items -- in one bill and write a second bill to pass under reconciliation. Congressional staff have been crafting ways they could convert the current legislation into bills that could pass through that process, Weissenstein said.
The real challenge, Weissenstein added, is political.
"I think it would be perceived, certainly by Republicans and moderates, as a last ditch effort to pass something that didn't have popular support," he said. "If you've gotten to that point, in some ways you've kind of lost the war."
Some liberal reform advocates, however, see reconciliation as a path to victory over Republican obstruction.
"If we get to October 15, it's because we're already at an impasse," Tim Foley wrote for the social entrepreneurship group Change.org over the summer. "More to the point, Republicans in Congress could simply have done what the Senate always does when the minority doesn't like whatever reform is being pushed out – run out the clock... Now running out the clock has the opposite effect – it will actually increase the chances that health care reform will pass, despite their objections."
The reconciliation process is less about overcoming Republican opposition, however, than it is about bypassing hesitant Democrats. Technically, the party only needs 60 votes for cloture -- to bring all debate, including filibusters, to an end. At that point, only 51 votes are needed to actually pass the legislation.
"There isn't any need for reconciliation," Jane Hamsher of the liberal group FireDogLake told the Hotsheet. "There are 60 members of the Democratic caucus, and none of them will publicly say that they will join the Republicans in an unprecedented filibuster against their own caucus."
Hamsher pointed out that some of the very same Democrats who now appear to be on the fence or opposed to reform proposals like the public option -- such as Senators Mary Landrieu of Louisiana and Blanche Lincoln of Arkansas -- voted for cloture to give President George W. Bush an up-or-down vote on his Supreme Court pick Samuel Alito. Those senators proceeded to vote against Alito in the actual confirmation vote.
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Liberals tracking Senate votes for the public option say there are at least 51 senators who will vote for a bill with a moderate version of the public option.
"So when Harry Reid says 'we don't have 60 votes,' it's because someone is conducting a 'silent filibuster' but he won't tell the public who it is," Hamsher said.
Whatever the case may be, Weissenstein contends the Democrats may have to resort to using reconciliation by January if a bill is not passed before then.
"If they don't get it done by Christmas, things start to get dicier, that's for sure," he said. "In an election year it would be hard to do much past that."
He said, however, that he believes a bill will pass the Senate before then.
"I think enough members understand, from the Democrats' standpoint, doing this bill is a very, very big deal," he said. "There will be squabbles until the very end, but enough will be willing to work for the greater good that I think they'll be willing to bend more than they normally would. I woudn't give you any odds on that, though."