U.S. Speaker of the House Rep. Nancy Pelosi (D-CA) and Senate Majority Leader Sen. Harry Reid (D-NV) are trying to close the deal on health care.
The yearlong debate over health care reform — a titanic contest involving big ideas, passionate convictions and lofty principles — is headed toward a highly unlikely endgame: a clash between parliamentary procedure attorneys.
As Democrats prepare to use reconciliation to move much of the reform package, there will still be high drama. The call for votes will be a historic moment for Congress and for Barack Obama’s presidency. And there will be the requisite dose of well-honed sound bites from the august orators of the House and Senate.
But until then, the behind-the-scenes conversations in Washington these days sound more like this:
GOP operatives plotting defense are fixating on whether H.R. 3200, the House bill that former Ways and Means Committee Chairman Charles Rangel (D-N.Y.) first designated as the reconciliation bill, must be used, rather than H.R. 3296, the number of the reform bill the House actually passed. And they’re pondering the legal status of H.R. 3590, the number given by the Senate to the House bill when it arrived from down the hall in the Capitol.
Meanwhile, some of the best minds in the Democratic Caucus are charged with coming up with the correct wording for a reconciliation bill that would allow the House to amend the Senate health care bill before it even passes it.
To help interpret the process, it’s useful to keep an eye on a few key decisions that will be made along the way and the possible arguments that will swirl around them:
Timing and scoring: President Obama said he wants to see substantial progress on the reform effort by March 18, but he complicated the task with his last-minute embrace of a handful of Republican ideas for the package.
Senate and House leaders must add those ideas to others they are vetting with members to craft the final reconciliation bill and then attract enough votes to pass it.
Experts from both parties agree that the House-sought changes to the tax on so-called Cadillac health care plans easily fall within the fiscal constraints of the reconciliation process.
But there is a mixed assessment on whether revisions in some health care cost-reduction pilot programs — such as the GOP push for tweaking the tort reform system — comply with the rules that require the content of the bill to affect spending, taxes and deficits.
Once the package is agreed to, it must be submitted to the Congressional Budget Office to determine its cost and the impact on the deficit. That process could flag proposals that don’t have the requisite fiscal impact. The CBO score is also important because Democrats could be forced to sunset provisions that might have a deficit-reducing effect in the short term but not in the long term.
Some observers have suggested that the CBO scoring will be relatively quick because many of the proposals have been floated and tested before. But CBO has jealously guarded its independence and isn’t likely to hurry results to meet the president’s deadline.
Sequencing: It’s no secret that the House has a trust issue with the Senate. Speaker Nancy Pelosi’s worst nightmare is to see her chamber pass the Senate health care bill — including such sweetheart deals as the Nebraska Medicaid payout — and then have the Senate fail to pass the reconciliation bill that would strip it and other objectionable provisions from the law.
Thus, Pelosi has a chicken-or-the-egg problem.
The most logical sequence would be for the House to pass the Senate bill and then pass the reconciliation agreement that includes the tweaks, deletions and add-ons negotiated between the two chambers and the White House.
But House members don’t want to do that and risk making Pelosi’s nightmare come true. They are looking for some guarantee from Senate leaders that the chamber then will take up and pass the reconciliation bill.
There has been talk that Senate Democrats would send the House a reassuring letter. But many senators find that offensive, and some House members figure it wouldn’t be worth the paper it’s printed on.
To get around the problem, House leaders may try to pass reconciliation first and then the Senate reform bill. The problem with that is that the reconciliation bill must be used to amend current law — if the House doesn’t first pass the Senate bill, it won’t be law.
Still, some experts say the approach can be and has been done. For instance, they say, the House can include such language in the reconciliation bill as: “Not withstanding any other provision of law ...”
But congressional parliamentarians have signaled their unease with that process, so the approach is still a matter of internal debate.
A different option under consideration is to include language in the rule governing the House debate that would prohibit Congress from sending the Senate bill to the White House without passage of the reconciliation measure. It’s also unclear whether that’s legal.
Surviving a ‘votorama’: That’s a nickname some insiders have given to the Senate’s occasional marathon amendment sessions, one of which led to 118 consecutive votes in two days.
Assuming the House finds a way around its sequencing concerns and gets a reconciliation bill to the Senate, the handling of the measure in that upper chamber will be carefully watched.
Republicans claim Senate Majority Leader Harry Reid (D-Nev.) must send the bill back to the health and finance committees in order to trigger the strict rules on amendments to reconciliation bills.
Democratic experts say that’s ridiculous. Reid can forgo sending the bill to the committees and call it up on the floor, because it will be protected in two ways: Debate is limited to 20 hours, and any amendments must be related to fiscal issues.
Both sides agree that no matter what path the reconciliation bill takes, Republicans will put up a furious fight — including introducing dozens of amendments — to challenge the legitimacy of the bill and to try to slip in a poison pill that could kill it. According to an analysis by the law firm Patton Boggs, Republicans may challenge provisions on grounds that they don’t meet the fiscal constraints of the reconciliation rules.
In addition, at the end of the 20-hour debate, senators can offer an unlimited number of amendments — a provision that opponents can exploit by “offering amendments and forcing votes until they physically are no longer able to do so,” the Patton Boggs attorneys conclude.
Abortion: In a rare point of agreement, experts from both parties agree that abortion has no rightful place in a reconciliation bill. It doesn’t have anything to do with taxes, spending or deficits.
But Pelosi and Reid still have to address the concerns of some members that the reform measure maintain a ban on using federal funding to pay for the procedure. The House and Senate bills both have language aimed at doing that, but they are significantly different. And a group of about a dozen House members critical to a Pelosi vote count object to the Senate version.
There are two possible ways to move newly negotiated language agreeable to both chambers.
The first would be to move a stand-alone bill after the Senate reform measure and reconciliation pass the House. But even if it survived in the House, abortion rights advocates would be almost certain to filibuster the bill once it got the Senate, so that path isn’t under serious consideration.
A second way is to get 60 senators to vote to waive the reconciliation rules and allow the amendment. The U.S. Conference of Bishops is promising to help deliver those votes.
But given the number of Democrats who support abortion rights, passing the amendment in either chamber would require Republicans to do something they’ve vowed never to do: Help pass health care reform.