Here are the stages to passing a piece of legislation once it has passed through the committees with jurisdiction:
1. The House passes a bill with a simple majority.
2. The Senate gets 60 votes to start debate on a bill, 60 votes to end debate on a bill, and 51 votes to pass it.
3. A Conference Committee convenes, made up of representatives of both parties of both house of Congress, and irons out the discrepancies between the two bills. Once they have one bill, they send it back to be passed thru:
4. The House, with a simple majority.
5. The Senate, which automatically begins debate but still needs sixty votes to end debate, and 51 votes for final passage.
As I have stated before, the administration has always intended to wait until they reach the fifth step to put on a full-court press for the public option and whatever other pieces of this legislation that they consider must-have. The main reason for this is that they simply didn’t think they would ever have 60 votes for the public option in the second stage. But it is also because their number one priority was to keep the ball moving. If they insisted on a certain provision at the committee level and it didn’t pass, the process would stall there. If they insisted on it at Stage One or Two, it would stall there. The place to take risk was always during the crafting of the Conference Report (Stage Three) and the real hurdle was always crafting something there that could pass through Stage Five.
If you simply add this distinction between Stage Two and Stage Five, then Jon Cohn’s analysis makes perfect sense. But, if you don’t make the distinction between the two stages, it doesn’t make sense at all.
Cohn lays out the White House’s current position and contrasts it with what some of their critics are saying. He argues that there isn’t really a distinction if you realize that the administration is supportive of a public option but feeling risk-averse because they lack confidence that Reid can pass one. What needs to be added is that they are risk-averse because they always planned on taking a stand for the public option in the Conference Committee (Stage Three) and making their public case for it in preparation for final passage in the Senate (Stage Five). Why should they change this plan and risk stalling the whole process at Stage Two?
The critical piece you need to understand this strategy is that the hardest vote to get is Stage Two. Once both Houses of Congress pass their own versions of health care reform, everyone will have a big self-congratulatory party. At least 60 senators will have already have come together and voted for reform once. It will be incredibly hard for any Democrat to turn around at that point and vote against final passage just because something was added or subtracted in the Conference Report.
If you doubt me about this distinction, consider this. If the White House didn’t think it would be possible to pass a public option at Stage Five, they would have killed off the idea long ago or made the case for using the back-up budget reconciliation process if it wasn’t included. And if they thought it was possible to pass a public option through the Finance Committee or on the first pass in the Senate (Stage Two) they would have fought for it. They always assumed that the public option was only gettable in the Senate at Stage Five. But, now, Harry Reid is telling them that he can get a form of it at Stage Two. Keeping that in mind, read the following from Cohn:
But when Senate Majority Leader Harry Reid briefed the president at the White House on Wednesday, Obama responded with a series of tough questions–not rejecting the idea, but not rushing to embrace it, either. When word of that meeting leaked out, public option supporters took Obama’s reaction to mean that the administration continued to prefer the “trigger” compromise, under which a failure by private insurers to deliver affordable coverage would trigger the creation of a public plan.
Maine Senator Olympia Snowe, the lone Republican working with Democrats on health care, favors a trigger. And it’s no secret that the administration has worked hard to keep her on board–either because Obama wants at least one Republican vote, because he believes losing her might mean losing some moderate Democrats, or some combination thereof.
Whatever his reasons–and it’s possible only Obama himself knows–his reaction prompted complaints that generated headlines in the Huffington Post and Talking Points Memo, among others. The administration responded by stating, clearly, it was not trying to undercut the Senate leadership. But it still did not go out of its way to support the opt-out–something the Senate leadership noticed, according to the senior staffer.
All of this talk about how the president doesn’t want a public option is nonsense. The idea that he wants a trigger because he loves Olympia Snowe so much is also nonsense. What he wants is to pass a bill through the Senate on the first pass. He does not want the bill to stall there. And he probably is struggling to understand why he should risk stalling it there when it wasn’t ever considered necessary to have a public option at the first pass in order to have it in the final bill. What he’s telling Harry Reid is, ‘go ahead and pass it now if you can, but I’m not putting all my eggs in your basket.’
This position does harm to Reid’s ability to whip for the vote now, but Obama only really cares about whipping the final bill. This confuses people who don’t understand the crucial distinction between the first and last Senate votes. They assume that Obama only cares about passing something. But he explained his strategy quite clearly back in July:
The House bills and the Senate bills will not be identical. We know this. The politics are different, because the makeup of the Senate and the House are different and they operate on different rules. I am not interested in making the best the enemy of the good. There will be a conference committee where the House and Senate bills will be reconciled, and that will be a tough, lengthy and serious negotiation process.
I am less interested in making sure there’s a litmus test of perfection on every committee than I am in going ahead and getting a bill off the floor of the House and off the floor of the Senate. Eighty percent of those two bills will overlap. There’s going to be 20 percent that will be different in terms of how it will be funded, its approach to the public plan, its pay-or-play provisions. We shouldn’t automatically assume that if any of the bills coming out of the committees don’t meet our test, that there is a betrayal or failure. I think it’s an honest process of trying to reconcile a lot of different interests in a very big bill.
Conference is where these differences will get ironed out. And that’s where my bottom lines will remain: Does this bill cover all Americans? Does it drive down costs both in the public sector and the private sector over the long-term. Does it improve quality? Does it emphasize prevention and wellness? Does it have a serious package of insurance reforms so people aren’t losing health care over a preexisting condition? Does it have a serious public option in place? Those are the kind of benchmarks I’ll be using. But I’m not assuming either the House and Senate bills will match up perfectly with where I want to end up. But I am going to be insisting we get something done.
That should be clear if you understand the different points in the process. There are a few tough votes in the Senate. Even Schumer says that they are still one or two votes short. If the administration is going to put on a full-court press for those last holdouts, they only want to do it once.
