The process for passing health care reform can at times sound like one of those e-mails from a generous foreign banker. I am pleased to be consulting you on behalf of the Nigerian Trust and Mercantile Exchange to request your assistance deeming the Senate health care bill as passed.
For the moment, the public focus is on the House's "self-executing rule," an effort by House Democrats to get around voting on the unpopular Senate health care bill. Under that back-bend, members would vote on a 100-page House bill of popular fixes to the roughly 2,000-page Senate bill. Passage of this smaller bill would automatically "deem" that the larger Senate bill had passed. House Speaker Nancy Pelosi says she is leaning toward this approach because no one would have to actually vote on a bill he or she doesn't like (one of the impediments she faces as she tries to line up the 216 votes she needs to pass health care legislation).
But House Democrats aren't going through all this just out of cowardice. Part of what is requiring them to be so creative is the unpredictability of the coming reconciliation process in the Senate. Under the Democrats' current plan, Senate reconciliation is the last stage in the health care reform drama. But to get to that stage, House Democrats must cast votes based on the hope that the Senate follows through.
They're understandably nervous this might not happen. The Senate reconciliation process is unpredictable and confusing. It sounds straightforward enough: The Senate will have 20 hours of debate, followed by consecutive votes on amendments. The mischief comes in two ways: from challenges to the content of the bill and from the political implications of the amendments.
Reconciliation limits debate and allows passage of a bill by a simple majority. Under its rules, all items in the bill being considered must pass a series of tests to prove that they are related to the budget. If Republicans challenge a provision on these grounds, the Senate parliamentarian must rule whether it passes the tests. Because the central reconciliation rules were written by Democratic Sen. Robert Byrd, the puns get fowl quickly. Meetings to determine what can stay in or out of a bill are known as "Byrd baths," and items that fall out are known as "Byrd droppings."
If the Senate parliamentarian says a provision does not qualify to be part of a reconciliation bill, it is taken out of the bill. (His rulings can only be overturned by 60 votes, which the Democrats don't have.) If the bill is changed, it is diverted from its path to the president's desk—because once altered, the bill must return to the House for a vote. Democrats want to avoid this outcome because it will require Nancy Pelosi to find 216 votes all over again. Even if she can find the votes, the delay means more time spent bickering and not talking about jobs and the economy, the issues Democrats—and voters—really want to talk about.
The next chance for procedural mayhem comes during "vote-a-rama" (not like the PBS kids series, though potentially just as childish). This is the period after debate during which the Senate votes on amendments. There's little or no debate on the individual amendments—just straight voting with no break through the day and night. All senators must be present for the votes. This could be a stamina test more like the Jimmy Stewart version of a filibuster in Mr. Smith Goes to Washington than the process that now has that name.
Amendments during vote-a-rama can include anything—they needn't be related to budget issues—and the person who submits them can ask that they be read. Bob Dole once attached the United States Code, which includes all U.S. statutes, to one amendment. (Dole ultimately relented after he got what he wanted.)
Before they drop from exhaustion, Republicans will seek to make Democrats take one brutal vote after another. They will introduce amendments designed to look popular but which, if they pass, will alter the bill, requiring that it go back to the House, causing delay and possible derailment. To avoid this, Democrats will have to defeat every Republican amendment, momentarily embracing the title of the Party of No.
Republicans are working to craft amendments targeted for maximum political impact—amendments to help small business by exempting them from tax increases or bolstering Medicare. When Democrats vote no, Republicans will try to use it as an issue in the fall election. If Democrats hold firm, Republicans will seek to use the vote-a-rama to keep driving home their argument that Democrats are trying to force the health care bill on the American people.
This sounds like a silly charade, and it is. But House Democrats are sufficiently worried their Senate colleagues may buckle under the pressure of having to take so many unpopular no votes that they're trying to build themselves a political way out. If the Senate fails to pass the reconciliation bill, only its original bill will have become law, which means House Democrats will be stuck having to defend its unpopular special deals for states like Nebraska and Florida. The self-executing rule seeks to limit their political exposure because House lawmakers can then say they never actually voted for the Senate bill.
Their goal is the same as the person writing those e-mails from Nigerian bankers: Design a process so that even if everything goes wrong, you won't get caught.