Obama is going to give his health care speech tomorrow and a lot of focus is going to be on whether or not the speech changes any of the basic dynamics of the health care debate. My guess is that Obama could give the best speech in the history of Western Civilization and it wouldn’t mean a thing. The real work is going to done behind the scenes (although you can watch some of it on CSPAN3, broadcast sometime after midnight local time). Baucus is going to mark-up a bill in the Finance Committee and there will be some drama associated with that. Amendments will be introduced, phone calls will be made, and amendments will be approved and defeated. Maybe Olympia Snowe will vote for the Finance bill, maybe she won’t.
Then Harry Reid’s staff will take the Finance bill and combine it with the Dodd/Kennedy HELP bill. The goal will be to come up with something that can win all 59 Democratic caucus members’ votes (at least, for cloture) plus Olympia Snowe’s vote. That means that Ben Nelson has to sign off on it. Blanche Lincoln has to sign off on it. Joe Lieberman has to sign off on it. Every Democratic caucus member has to be cool with the bill. Some may hedge by voting for cloture but against the bill, but don’t expect any Republicans to do that.
If, by some miracle, the bill makes it this far in the Senate, then it is going to pass. And, provided that the House passes a bill (which is very likely), the House and Senate will select conferees to negotiate one single health care bill.
The problem for the conferees will be a sort of Catch-22. There are enough progressives in the House who have pledged to vote against the conference report if it doesn’t include a public option to defeat the bill. But there are enough Democratic senators that have pledged to vote against a public option to make it hard to pass through the Senate with one. To understand, let’s look at something David Waldman wrote back in February.
If the differences are settled in conference, a conference report goes back to both houses for them to pass. The reports are not subject to amendment, and in the Senate, motions to proceed to consideration of conference reports are not debatable, and therefore not subject to filibuster, though the report itself can be. But because conference reports are also not amendable, any filibuster would have to be a straight-up talkathon, as opposed to the less obvious filibuster by endless amendment (which you saw in miniature this week as the Senate worked its way through the stimulus package). That’s one reason you rarely see conference reports filibustered. The first house to act also has the right to recommit the report to conference if it just won’t accept the result. But once one house has adopted the report, the conference committee is considered dissolved, and the report can’t be recommitted (because there’s no one to recommit it to).
Now, let me go over this carefully. David notes that you cannot offer amendments to a conference report. This is basic. The whole point of the conference report is to get the House and Senate voting on the exact same bill with the exact same language. Any successful amendment in only one house would screw that up, so amendments are not allowed. This eliminates one form of filibuster (the introduction of limitless amendments). David also notes that the motion to proceed to the conference report is not debatable. So, you can begin talking about the bill without getting 60 votes. What this means is you don’t have to file for cloture to bring up the bill. However, you still have the problem that the only mechanism for making a senator shut up so that you can vote is to get 60 votes. I have to confess that I can’t quite nail down the specifics of how the Senate would need to proceed to force a vote. David says that the Republicans would have to wage an old-fashioned talk-a-thon type filibuster, meaning that someone would have to be present to talk at all times or Reid could move for a vote. I am not certain about that. But, in any case, it could be difficult to pass the conference report through the Senate if it has the public option reattached.
That would be the point at which the administration and Democratic leaders would begin stomping up and down and demanding an up-or-down vote. If, for any reason, they couldn’t get one, the fallback position is to do the bill through the budget reconciliation process that I’ve talked about many times before.
Unless Massachusetts promptly amends their Constitution (again) and appoints a replacement for Teddy Kennedy, the Democrats will need Olympia Snowe and total unanimity from their Senate caucus in order to pass the first hurdle (and potentially the last).
That assures that the bill will be watered down from what the House wants. But, if the bill fails and goes to reconciliation, it will be possible to pass it with 51 votes (including the vice-president). Therefore, the reconciliation bill could be more ambitious than the bill they are trying to pass right now. The problem with the budget reconciliation route (aside from lost momentum) is that not all elements of the bill will be germane to the budget. Those elements may have to be stripped out, leaving a bit of a swiss cheese flavor to the reform.
Whether the non-germane elements can be packaged in such a way as to win 60 votes is another question.
So, that’s the lay of the land. And it isn’t very clear that a speech by Obama can do much either way. At best, he can bolster health reform advocates and put some pressure on skeptical senators to at least vote for cloture.
