This is the second of three posts on how the Massachusetts special election interacts with health care reform:

Let’s examine the procedural options for Team Obama and the Democratic Congressional leaders, assuming Mr. Brown wins the Massachusetts Senate special election on Tuesday. Each option is painful for the President and Democratic Congressional leaders.

1. Ram it through

This is the easiest procedural path. It’s what they appear to be doing now.

As fast as they can before Senator-elect Brown is certified and sworn in, the White House and Democratic leaders try to do the following:

  • Finish the negotiations at the White House.
  • Get a CBO score.
  • Whip the votes in the House and the Senate, assuming still-seated Massachusetts Sen. Paul Kirk (D) would vote for the bill. Modify the deal as needed to get to 218 + 60.
  • Draft the negotiated deal as an amendment to the Senate-passed bill.
  • The House substitutes the deal for the text of the Senate-passed bill, passes it with 218 or more votes, and sends it back to the Senate.
  • Leader Reid proceeds to the House-passed bill (message) on a majority vote, files cloture on it, and fills the amendment tree to block Republican amendments.
  • Two days after filing cloture, Leader Reid gets 60 votes for cloture.
  • Republicans take the full 30 hours of post-cloture debate.
  • Two days after the cloture vote, a majority of the Senate votes for and passes the bill, sending it to the President for his signature.

Timing matters in the ‘ram it through” option. The variables are:

  • How long it takes for leaders to negotiate a preliminary deal;
  • How long it takes for them to get CBO scoring to produce an outcome they can sell;
  • How long it takes leaders to whip the deal and modify it to get to 218 + 60;
  • How long it takes Brown to be certified as the winner; I assume this depends on both the margin of victory, whether the MA Secretary of State tries to slow walk the certification, and whether Leader Reid tried to delay the swearing-in of the winner. Massachusetts law requires the Secretary of State to take “at least ten days” after election day to certify the results.
  • Sen. McConnell would have a limited ability to slow things down on the Senate floor.

While I think it’s unlikely, the “ram it through” option could procedurally collapse if the above process moves slowly and Senator-elect Brown is certified and sworn in quickly, denying Leader Reid the 60th vote he would need to execute his part of the strategy. An aggressive Democratic Congressional leadership would have the advantage in an all-out procedural slugfest.

2. House folds

If negotiations drag on until Brown is seated and Kirk is gone, Democrats could throw away the negotiated deal, and the House could simply take up and pass the Senate-passed bill without amendment. This would mean literally not a word could be changed in the Senate-passed bill, because even the smallest change would require sending it back to the Senate. If the House passes the Senate-passed bill, it goes straight to the President. The Senate would never consider the legislation, debate it, or vote on it with their newest Republican member.

A variant involves the House and Senate passing a separate correcting resolution to fix “errors” in the Senate-passed bill. This would, however, provide Senate Republicans with leverage, so I think it’s unlikely.

As snippets of the House-Senate Democratic negotiations leak out of the White House, it is difficult before the election to imagine a post-MA scenario in which the House folds completely. Obviously the House would never choose to do this, but if it was the only way to get a bill to the President.

3. Reconciliation

Again assuming that Sen. Brown has been seated and Leader Reid has at most 59 votes, reconciliation is still technically an option. The House could take the negotiated deal and structure it as a new reconciliation bill, try to pass it through their committees (ugh), and then on the House floor, and then send it to the Senate. Senate committees would again have to act (ugh again), and Leader Reid could then bring the bill to the floor. Reconciliation rules limit floor debate to twenty hours. Floor amendments are in theory limited in scope but not in number, so I imagine Republicans would offer hundreds of amendments to strike pieces of the bill, forcing Democrats to take many tough votes.

This path is really hard and presents multiple opportunities for disaster. The bill would again have to go through House and Senate committee markups, and it’s not even clear that the Senate parliamentarian would consider a new bill in February of 2010 to be a reconciliation bill under the budget resolution passed in 2009. Byrd rule problems would jeopardize the community rating and guaranteed issue provisions and reopen the abortion discussion. And it could only be a five-year bill, which is enough time for all the pain to be felt and for the benefits to just begin. As I said, really hard to execute. This is why you only see Members from the Democratic campaign committees talking about the reconciliation option, and not anyone from the committee that would actually have to do the work.

The key advantage to this option is that Leader Reid would need only 50 votes to pass a reconciliation bill, out of 59 total, since the VP breaks a tie. This would allow a more liberal bill to be enacted, if the procedural hurdles could be overcome.

4. Snowe-storm

The President could negotiate with Senator Snowe (R-ME) to be the 60th vote in the Senate. Stranger things have happened before.

Continue to Part 3: My projections for health care reform, or return to Part 1: What happens to health care legislation if Scott Brown wins Massachusetts?