The mathematics of a reconciliation health reform bill.

How to fix health policy.
March 5 2010 4:41 PM

Reconciliation Math

The problem is in the House, not the Senate.

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Nancy Pelosi. Click image to expand.
House Speaker Nancy Pelosi

The Democrats' strategy for passing health care reform is taking shape. The House will pass the Senate bill. Then the House will pass (through the budget reconciliation process, under which legislation can't be filibustered) a bill making certain changes to the Senate bill to bring it in line with President Obama's Feb. 22 proposal. For a while it was unclear whether the House or Senate would pass reconciliation first, but House Majority Leader Steny Hoyer, D-Md., cleared the matter up in a Feb. 28 appearance on CBS News'Face the Nation. "The House will have to move first on some sort of corrections or reconciliation bill," Hoyer said.

But does the House have the votes?

Until now, most attention has been focused on the Senate and whether there's sufficient support to bypass the threat of filibuster through reconciliation. The answer is probably yes. According to a whip count of the Senate's 59-person majority by Chris Bowers of Open Left, 41 Senate Democrats support using reconciliation; an additional six say they may support it; and 11 are undecided. Only one (Sen. Blanche Lincoln of Arkansas) affirmatively opposes it. Of the 17 Democrats in the maybe/undecided column, Majority Leader Harry Reid, D-Nev., need only pick up nine. That's eminently doable because it's become increasingly obvious that reconciliation isn't the exotic legislative technique Republicans make it out to be.

The problem lies in the House. That may seem counterintuitive, given that the House passed a bill on Nov. 7 that was more liberal than the Senate bill. Asked to choose between the more conservative Senate bill (with the flat-out unacceptable parts altered in a separate reconciliation bill) and no health reform at all, why wouldn't the House choose the Senate bill?

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The answer begins with the fact that since Nov. 7, when the bill passed the House quite narrowly, 220-215, House Speaker Nancy Pelosi has lost three votes. John Murtha, D-Pa., died; Robert Wexler, D-Fla., resigned to become president of the Center for Middle East Peace and Economic Cooperation; and Neil Abercrombie, D-Hawaii, resigned to run for governor. Balanced against these yeas is one nay, Nathan Deal, R-Ga., who just resigned effective March 8 to run for governor. That narrows health reform's victory margin from five votes to three (217-214). If President Obama is serious about acting within six weeks, then the final House vote will come before special elections to replace Wexler (April 13), Murtha (May 18), and Abercrombie (May 22), and probably before any elections to replace Deal, too (though no date has yet been set). Even if the Democrats wait till late May, there's a pretty good chance the special elections will keep the victory margin at three votes (219-216), because Murtha's district tilts slightly Republican; McCain eked out a narrow victory there in 2008. (The other seats are unlikely to change party, judging from the Cook Political Report's partisan voting index.)

We will assume, then, that Pelosi starts with a victory margin of three.

Take away from that three Rep. Bart Stupak, D-Mich, and Joseph Cao, R-La. Stupak is the author of a House amendment on abortion that has the imprimatur of the U.S. Conference of Catholic Bishops. Both Stupak and the bishops say they won't support the Senate bill's language on abortion. Neither will Cao, the sole House Republican to vote for health reform on the first go-round. Why not resolve the dispute by putting the Stupak amendment into the reconciliation bill? Because Senate rules won't allow it. To be included in a reconciliation bill, a measure must have some impact on the federal budget. If Stupak and the bishops were truthful in their claim that the Stupak amendment merely preserved the Hyde amendment's existing ban on federal funding for abortions, then the Stupak amendment would indeed affect the federal budget by stripping from the Senate bill its supposedly noxious federal funding for abortions. But the Senate bill doesn't fund abortions. According to Nick Baumann of Mother Jones, the Congressional Budget Office affirmed before the Senate vote that its abortion language would have no budgetary effect. Therefore, a Reid spokesman told Baumann, reconciliation can't be used to restore the Stupak amendment to health reform. ("No one thinks you can change the abortion language under reconciliation," George Will said Feb. 28 on ABC News' This Week. Inadvertently, this pro-life commentator was calling the U.S. Conference of Catholic Bishops a bunch of liars. He's right!)

Take away Stupak and Cao and the House health-reform bill lacks a majority if the vote is held before the special elections (215-216). It also lacks a majority if the vote is held after the special elections and Murtha's seat goes Republican (217-218). Health reform retains a one-vote margin of victory only if Murtha's seat stays Democratic (218-217). But before you whip out your checkbook and give all your money to Pennsylvania's Democratic party, read on, because health reform's troubles don't end here.

Stupak and Cao aren't the only pro-lifers in the House who will change their vote from yea to nay if health reform doesn't include the Stupak amendment. Stupak says he counts 15 to 20 Democrats who will do so. (Previously, he said there were 40.) Most calculate the Stupak bloc at about one dozen. A Feb. 24 memo by House Minority Whip Eric Cantor, R-Va., identifies, in addition to Stupak and Cao, 10 House Democrats who may bolt over abortion. In January Nate Silver of the Web site FiveThirtyEight.com calculated only 10 likely Stupak bloc bolters, but six of Silver's 10 (including three of those he deemed most likely) weren't on Cantor's list at all. So lets call it 12.

Take away a dozen votes and the House health-reform bill fails by a 21-vote margin before the special elections (205-226). If the vote is after the special elections and Murtha's seat goes Republican, it also fails by 21 votes (207-228). * If Murtha's seat stays Democratic, it fails by 19 votes (208-227).

Pelosi needs to pick up roughly a dozen votes to pass health reform. Where will she get them? It would make sense to start with Rep. Dennis Kucinich, D-Ohio, and Eric Massa, D-N.Y., who voted against health reform last fall because they thought the bill was too conservative. Kucinich probably knew when he cast his nay that it wouldn't decide its fate. Might he be willing to rescue it now? Apparently not. Kucinich told the Wall Street Journal last week that Obama's proposal "starts with a wholly unacceptable Senate health care bill and, with a few exceptions, continues to make it worse. It's a much better bill for insurance company investors than it is for the American people." Maybe she'll have better luck with Massa, but I wouldn't bet the farm on it; Massa used his nay vote to raise campaign funds among single-payer supporters.

Next there are House Democrats who are retiring. Rep. Bart Gordon, D-Tenn., voted for the bill in the Energy and Commerce committee before he voted against it on the House floor. Also retiring are John Tanner, D-Tenn., and Brian Baird, D-Wash. They voted against health reform, too. The theory goes that if these three no longer have to run for re-election, maybe they'll support health reform as a favor to Pelosi. But if they no longer plan to serve in the House, what practical reason would any of them have to do Pelosi any favors now?

The least promising recruiting pool of all are the conservative Democrats who voted against the bill. Arguably last week's bipartisan meeting at Blair House (morning session, afternoon session) was held entirely for their benefit. But are they grateful? Don't count on it. After the November House vote, the New York Times assembled a very revealing chart that showed no fewer than 31 of the 39 House Democrats who voted nay represented districts that went for John McCain in the 2008 presidential election. Subtract Gordon, Tanner, and Baird, and you're left with five potential targets: Scott Murphy, D-N.Y.; Glenn Nye, D-Va.; Larry Kissell, D-N.C.; John Barrow, D-Ga.; and Artur Davis, D-Ala. 

Let's assume Pelosi picks up all five. She's still short by about six votes. Let's suppose she picks up all five, plus the three retiring members, plus the two dissenting liberals. (That isn't going to happen.) That's 10 votes, which still probably isn't enough.

This is why I wrote the pope to request he give health care reform a papal dispensation. Without one, the bill will almost certainly fail.

Update, 9 p.m.: I may be too optimistic when it comes to Davis, who is running for Alabama governor. The blogger Daniel Nichanian says that makes him a lost cause. Nichanian also thinks that Rep. Marion Berry, D.-Ark., a retiring member who voted yea, may switch to nay because he's pissed off  at the White House. I think that's unlikely. In general, Nichanian seems a smidgen more optimistic than me about the bill's prospects. His rundown has a lot of excellent fine-grained detail. Charles Babington of the Associated Press has another helpful rundown identifying as possible yeas 10 of the 39 Democratic nays from November. But to get into that category, all you had to do was decline to state your position (though some affirmatively called themselves, or had their spokespeople call themselves, undecided).

Update, March 2: Hoyer proposed an alternative sequence  today. The House would still vote on reconciliation before the Senate (as it's apparently bound to by law). But it would vote on reconciliation first. ThentheSenate would pass reconciliation. Then, and only then, would the House vote for the Senate version of health care reform. In effect, it would come pre-amended. This works great from a strategic point of view (the House doesn't have to accept "trust me" assurances from the Senate), but would it pass parliamentary muster?

Update, March 3: Add Massa to the roster of retiring Democrats who voted against health reform. Massa says he won't seek re-election because he's had a recurrence of non-Hodgkins lymphoma. Politico suggests another reason may be a House ethics committee investigation of allegations that he sexually harrassed a male staffer. Massa's retirement loosens his obligation to pro-single-payer contributors who gave to his campaign based on his opposition to health reform from the left. Conceivably an ethics committee investigation will make him more pliant to Pelosi's wishes. But the fact that he won't run in the fall means he has little long-term reason to do Pelosi any favors, and since his opposition appears 100 percent based on principle, his retirement may have little relevance.

Update, March 5: Gordon is starting to sound  like he'll switch from nay to aye. So is  Rep. John Boccieri, D.-Ohio. But on the minus side, Deal, the Republican who was going to quit effective March 8 to run for governor of Georgia, was persuaded by the GOP caucus to remain until the health reform vote. That prompted Michael Tomasky to observe ruefully, on his Guardian blog, that the Democrats don't have anything like the Republicans' party discipline. Indeed, Abercrombie, the Democratic yea vote who quit to run for governor of Hawaii, didn't even show up  for his going-away party!

Update, March 5, 4:30 p.m.: Massa, the nay-voting Democrat who earlier this week said he wouldn't run again, has now moved his departure date up  to next week. Democratic leaders may not be good at getting departing Democrats they'll need on health reform to stay, but apparently they aren't too bad at persuading Democrats voting against them on health reform to get lost! Massa's district is pretty Republican (weird, because Massa's pretty left; maybe his being a career Navy officer helped) but it's doubtful a special election will replace him before the health reform vote. So Massa's departure almost certainly means the Democrats will need one less vote to prevail.

Correction, March, 5, 2010: An earlier version of this column failed to account for the fact that these dozen votes include Stupak and Cao. The numbers have been adjusted accordingly. (Return to the corrected passage.)

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E-mail Timothy Noah at chatterbox@slate.com.

Timothy Noah is a former Slate staffer. His  book about income inequality is The Great Divergence.

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