Speaker Pelosi, Leader Reid, and their Administration allies face seven challenges in implementing the two bill strategy:
- Yes/no political question
- Yes/no reconciliation question
- Substance & vote counting, especially in the House
I have a companion post which describes the mechanics of the two bill strategy. Warning: the mechanics post is intended as a technical reference and gets into more detail than you may want.
Last August I posted a primer on reconciliation which may be helpful.
1. Yes/no political question
Irrespective of the bills’ substantive details, can Speaker Pelosi and Leader Reid convince each of 217 House Democrats and 50 Senate Democrats that it is in their crass political self-interest to vote aye (multiple times) and have a major health bill become law?
Most Democrats are from safe districts so this isn’t an issue. But there are some House Democrats who voted aye for House passage and are nervous about voting aye a second time.
Argument: You already voted aye. Your opponent this November can already run an ad against you for that vote. There is therefore no political cost to you voting aye a second time.
Response: If you vote aye a second time, the bills will become law. You are then committed to defending these laws and your votes for them through the remainder of this year (and thereafter). If you change your vote to no, the bill will not become law and you give yourself a response to that negative ad. Your message changes to “I changed my mind, and here’s why I opposed the bills.”
The crass and self-interested political question is not “Do I do additional damage by voting aye a second time?” It is “Given that my opponent will attack me for voting aye last October, am I better off (A) voting aye, having it become law, and defending it, or (B) voting no, having it not become law, and explaining why I changed my vote?”
Let’s use an extreme example to illustrate this tradeoff. Suppose you cared only about getting re-elected. Suppose you knew today that on Election Day a new comprehensive health care law would be intensely unpopular with 95% of your constituents. Clearly you would be politically better off to change your vote and explain why you did. You would still take heat for voting aye last October, but that’s true in either case. And some fraction of those 95% of your constituents would give you credit for voting no the second time and helping kill the bill. Even if all of the other 5% took retribution against you for flip-flopping, the severe imbalance in the numbers makes it politically advantageous to change your vote.
This is an extreme example, and I am not arguing it makes sense for all these nervous House Democrats to switch. I am instead making the less contentious claims that (i) there is a potential political benefit to switching from an aye to a no, and (ii) this political benefit gets bigger the less popular is a new health care law in fall of 2010.
A new law may make the anger and opposition go away. If so, the arguments for sticking with your aye vote are valid. But if you think opposition will continue to climb and intensify after a new bill is signed into law, then it may be in your narrow political interest to switch from aye to no.
Nervous House Democrats from purple districts know this, presenting a significant challenge for Speaker Pelosi.
2. Yes/no reconciliation question
Do Speaker Pelosi and Leader Reid lose any votes if they use reconciliation to pass Bill #2?
I think this is the smallest challenge of all those I list. I think the proposed process is an abuse of the intent and spirit of reconciliation. Even when made aggressively by Congressional Republicans, that argument so far does not appear to be dissuading Congressional Democrats from pursuing this path.
Still, if only two or three House Democrats who previously voted aye decide they cannot take the political heat associated with what is being labeled as a “nuclear option,” they could jeopardize the entire strategy. The vote-counting margins are so thin, especially in the House, that this procedural debate could still matter.
It also feels like this issue is still ripening. It appears the Blair House Debate and the President’s upcoming remarks this week are in part designed to provide those nervous Congressional Democrats with air cover for the process aspects of some tough votes.
It doesn’t really matter what the viewers of Fox News or MSNBC, or the editors of the New York Times or Wall Street Journal think on this point, except to the extent they influence the behavior of those swing votes in the House.
The core challenge here is to sequence three votes:
- House passage of the Senate-passed bill (which I call Bill #1);
- House passage of the new reconciliation bill (Bill #2);
- Senate passage of Bill #2.
(I’m glossing over working out differences between the House-passed and Senate-passed versions of Bill #2. For this purpose that’s a detail.)
Each leader wants (needs?) the other body to go first:
- Some Democratic Senators will want to vote for a new reconciliation bill only if they are certain that it will lead to a new law. They therefore want the House to pass Bill #2 before the Senate does, so that if Speaker Pelosi can’t get the votes for Bill #2, the Senate Democrats don’t have to vote and don’t have to take any risk.
- Some Democratic House members feel the same way about the Senate, and won’t want to vote aye for Bill #2 in case the Senate might not pass it. I would imagine more nervous House Democrats from purple districts might fit into this group. Many of these Members already feel burned from when they cast a politically damaging vote for a cap-and-trade bill that died in the Senate.
- I expect some House Democrats will insist the Senate pass the reconciliation bill (#2) before the House passes Bill #1. They fear that, if the House passes Bill #1 unchanged and the President signs it into law, the Senate has little incentive to take any additional political risk and Bill #2 will die in the Senate. Interestingly, I can imagine both some House liberals and some more moderate House Democrats (especially the pro-life ones) falling into this group.
These dynamics definitely exist at the Member level. They may also exist at the Leader level. I wrote about the possible blame-shifting exit strategy dynamics among Team Obama, Speaker Pelosi and Leader Reid last week.
Lesson #1 in how a bill really becomes a law: The House and Senate are two separate legislative bodies that occasionally work out their differences.
Corollary: Never underestimate the potential for friction and distrust between the House and Senate, even (especially?) between Members of the same party. Former Republican House Majority Leader Dick Armey once said, “The Democrats are the opponents. The Senate is the enemy.” This sentiment exists in both parties and both bodies.
Illustrating this, here is a POLITICO article from Friday:
Still, Pelosi and Senate Majority Leader Harry Reid have been in a staring contest of sorts about who should move first on a revised health care bill. To that end, the speaker and her no. 2 prodded the Senate Friday to move forward with reconciliation.
That’s in part a sign of the distrust that has crept in between Democrats in the two chambers, with some House Democrats angry that the more moderate Senate caucus hasn’t been able to pass a liberal version of reform.
… “Yesterday took us further down the path,” Pelosi said of Thursdays summit. “Now, we’ll put something together. Harry – will see what he can get the votes for, and then we’ll go from there.”
Update: After further discussions it looks like the Speaker and Leader Reid may not have much flexibility to choose a sequence. The money problem I describe below in #4 appears unsolvable. If so, that means Bill #1 will have to pass the House (but not necessarily be signed into law) before the Senate can consider Bill #2. In addition, while there is technically a choice in which body goes first on Bill #2, I would bet heavily on the House going first. If the Senate goes first then two Senate committees need to mark up Bill #2 (Finance & HELP). That’s a nightmare.
So I predict that the likely sequence is:
- House passes Bill #1, the Senate-passed bill.
- The House initiates and passes Bill #2, the reconciliation bill.
- The Senate passes Bill #2, the reconciliation bill.
- The President signs Bill #1.
- The President signs Bill #2.
4. Money (& sequencing again)
The Congress is still operating under the quantitative limits established by last year’s budget resolution. This will continue to be true even though Congress is now working on this year’s budget resolution. The old limits apply until a conference report on the new budget resolution is passed by the House and Senate. That would rarely happen before the mid-April statutory deadline for the budget resolution, and it’s a safe bet that Speaker Pelosi and Leader Reid will delay it as needed to avoid further complicating their health care efforts.
Still, Bill #2 must comply with the limits in last year’s budget resolution. Since the House Rules Committee can waive budget rules with a simple majority, this is probably a bigger practical challenge in the Senate, where waiving those same rules requires 60 votes (and therefore the cooperation of a Senate Republican).
There is also a vote counting dynamic that goes beyond the formal procedural limits. The President and Democratic Leaders worked hard to get CBO to say their bills reduce the budget deficit over ten years, and also over the long run. I think those claims are misleading because of factors ignored in the CBO analysis, but my view is beside the point.
The tension here is that the leaders will want to spend taxpayer money in Bill #2 to include popular provisions that engender political support from wavering Democrats. (A cynic would call this “buying votes with taxpayer money.”) Since Bill #2 is a reconciliation bill, it must reduce the budget deficit over ten years and must not increase it in the long run (I’m oversimplifying).
There is an additional and potentially fatal challenge introduced by the two bill strategy. Senate Finance Committee Chairman Baucus said it well but I’ll bracketed language to further clarify it:
blockquote>The general rule is, if there is reconciliation, you have to amend something that is passed