How many votes does Senate Majority Leader Harry Reid really need to pass health care reform? Is it 50 or 60? It's not simply a question of parliamentary procedure—the answer will in large part shape the legislation. The logic is simple: the more votes Reid needs, the more bargaining he has to do—particularly on the question of the public option. And the more bargaining he has to do, the weaker the legislation is likely to get.
This question was at the forefront this week when Joe Lieberman announced that he would block health care legislation in the Senate if the bill weren't modified. His detractors, in their effort to assign Lieberman to his own special circle in hell, have overstated the case against him. Lieberman is not the only senator who might vote for the final bill but has expressed qualms. He is, however, the one who has said out loud that he would filibuster the final bill. Moderate Democrats—Lieberman is an independent—have been coy. (Indiana Democrat Evan Bayh has said he'd also block the bill, but he doesn't match Lieberman's history of poking Democrats in the eye.)
Wait, say his critics: Lieberman's sins are of a different magnitude. Those other Democrats could have taken a middle road that Lieberman has closed off for himself. They could vote with their 57 Democratic colleagues and two independents to get the 60 votes needed to end a filibuster—but then vote against the final bill, which needs only a simple majority to pass. This would allow the bill to go forward but give them political cover at home.
Technically, that's true. Politically, it's a near impossibility.
Harry Reid has two big filibuster hurdles to clear. The first comes at the start of the process on the "motion to proceed." That puts the legislation in play. Joe Lieberman has said he'll not filibuster that. But one of the other moderate senators—Ben Nelson, Mary Landrieu, or Blanche Lincoln—might vote with Republicans. Those senators are waiting to make their final call until after the Congressional Budget Office makes a ruling on how much the bill will cost. If one of these senators does support a filibuster at this stage, that will make them more obstructionist than Lieberman.
Why would they do such a thing? Because they might decide they have more leverage to get their way at the start of the process than at the end after debate and before the final vote when they'll be more subject to the momentum that builds as a bill goes forward.
If Reid can clear that hurdle and get the bill into play, he'll face another big 60-vote test to stop all the debate and move to a final vote. At this point, as a political matter the final vote to end a filibuster is no different than the vote for final passage. (So, 60 is the new 50. Technically, 60 is the new 51, since a bill needs 51 votes to pass, but Reid needs only 50 senators. He can rely on Joe Biden, as president of the Senate, to break any tie votes.)
At this point, the John Kerry rule kicks in. During the 2004 presidential campaign, the Democratic presidential candidate was lampooned for saying he voted in favor of funding for the Iraq war before he voted against it. Kerry had a perfectly sound procedural rationale for his vote, but it didn't matter. He looked like a man with no convictions.
In the health care debate, the Kerry precedent plays out this way: If a senator votes to allow debate on the bill, but then against the bill itself, he risks looking like a hypocrite. I oppose the health care bill for reasons X and Y and therefore will not be voting for it, he can say. Yet when given the chance to actually do something about stopping a piece of legislation I oppose—by supporting a filibuster to block it—I chose not to.
True, this reasoning is purely political. Is there no senator in this group, you ask, willing to take a political hit for the larger good of passing health care reform? The senators "in play"—for the moment (check back hourly for updates!) Mary Landrieu of Louisiana, Blanche Lincoln and Mark Pryor of Arkansas, Bayh, Ben Nelson of Nebraska, and Lieberman—have already made their calculations. It is that the political price they will pay for caving on their objections (whether it's the cost of the bill or an increased government role in health care) is bigger than the price they will pay for voting against health care. So they aren't inclined to see a "larger good" at stake here. It's also possible that they define "larger good" differently from supporters of the current bill.
Then again, perhaps Reid should just call their bluff. Lieberman would be the least likely to cave. The Democrats, however, would ultimately do the right thing for their party and their president. Right? Reid doesn't think so. Playing that kind of hardball in your own caucus is tricky given that you may need the Senator you're shoving around today on another matter tomorrow. More important, he doesn't want to risk calling a vote without knowing its outcome. If he does call their bluff and holds the vote, and one of these moderate Democrats votes with the opposition, he suddenly has a big public relations problem on his hands. The president's health care reform plan not only can't get Republican votes, critics will say, it can't get all the Democratic votes. And the critics will be right.