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[Note: Changes have been made to this column, initially posted before Republican Senate candidate Scott Brown’s Senate victory, to account for the election result.]
The prospect that Massachusetts, of all places, might end up killing health care reform is so fraught with ironies too numerous to namethat it’s difficult for me to think clearly on the subject. But now that state Sen. Scott Brown, an anti-reform Republican, has beaten out state Attorney General Martha Coakley, a pro-reform Democrat, to replace the late Sen. Ted Kennedy, here’s my prediction: The health reform bill will die.
Before we delve into the various rescue scenarios being bruited about, let me confess that while I feel more pessimistic than most about health reform’s prospects after Brown’s victory, I couldn’t quite bring myself to believe, until it happened, that Massachusetts voters would, in the sacred privacy of the voting booth, conclude Brown had the necessary equipment to represent them in the U.S. Senate. I stood with Thomas Schaller, a political scientist at the University of Maryland who was among the first to notice that the Democrats no longer needed the South to win the presidency. Schaller observed yesterday on FiveThirtyEight:
[A]ny chance Brown had of sneaking up on her is now gone. The closeness of the race is generating high passions—cautious excitement on the right, worry bordering on panic on the left. But in Massachusetts you don’t want high passion and level of attention on both sides if you’re a Republican; you want an asymmetrical level of passion favoring your side. You want to catch the Democrats napping all the way through to Election Day. That almost happened. But Coakley and state Dems—especially the unions—and the White House all awoke before it was over.
This logic remains sufficiently compelling to make the Democratic loss in Massachusetts especially humiliating.
Even before Brown’s victory, his lead in the polls led to a flurry of speculation about how health reform might pass without its 60th vote. My problem is that none of these scenarios strikes me as plausible.
Scenario No. 1:House Surrender. This is the strategy reportedly favored by the White House. House liberals have been hoping to persuade the Senate to increase subsidies for the purchase of insurance, to squeeze more savings out of the drug industry, to make the new health insurance exchanges national rather than state-based, and to allow illegal immigrants to purchase unsubsidized insurance in the exchanges. A surrender strategy would have the House adopt the Senate bill as is. That would mean giving up not only on these concessions but on concessions that Senate Majority Leader Harry Reid has already made on the Senate’s behalf, such as the labor-negotiated limits on the tax on “Cadillac” health plans.
I find it easy to imagine that Brown’s victory will motivate House liberals sufficiently that they’ll be willing to drop their demands in the interest of getting the bill across the finish line. Throughout this process, liberals in Congress have repeatedly swallowed their pride and grudgingly yielded on principles they hold dear because they know that even a severely compromised bill will extend health insurance to 31 million of the 45 million people who are currently uninsured.
The problem isn’t the liberals. It’s the conservatives. Rep. Bart Stupak, D-Mich., author of the House’s anti-abortion amendment, told the New York Times that he won’t support the Senate alternative. That alone might be enough to eliminate the possibility of a hasty House surrender to the Senate. The bill could clear the House without Stupak, but not without Stupak and four other pro-life Democrats: Remember, in November it passed by only five votes. (Thirty-nine Democrats, nearly all of them conservative Democrats, voted against the bill.) House Minority Whip Eric Cantor, R-Va., claims that 37 Democrats who previously voted for the bill may now be in play, based on the abortion issue; the bill’s proposed cuts to the privately managed Medicare Advantage program; or concern about the budget deficit. Of these, Cantor suggests that 17 may be especially ripe for plucking. These calculations were made before Brown’s win, which almost certainly makes conservative House Democrats riper still.
Scenario No. 2: House Surrender With Asterisk. Under this scheme, promoted by Ron Pollock, executive director of Families USA, a nonprofit group supporting health reform, the House would adopt the Senate bill but afterwards (perhaps immediately) it would make changes to the bill through the budget reconciliation process, which requires only a 51-vote majority. That would be a way to boost subsidies, to lower the prices government pays for drugs and maybe even to revive the public option. (What the hell?) But reconciliation probably couldn’t be used to resolve differences over abortion, because the question of whether to cover abortions isn’t directly related to the budget. Remember, conservative Democrats, not liberal Democrats, are the ones whom House Speaker Nancy Pelosi is at greatest risk of losing.
Scenario No. 3:Lose Massachusetts, Gain Maine. Brown won’t support health reform? Then get swing-voting Sen. Olympia Snowe, R-Maine, to vote for it instead. But a Republican Senate victory in New England against health reform probably makes Snowe more skittish about voting with the Democrats, not less so. It should also be noted that, in a profile scheduled for the Jan. 24 New York Times Magazine (already published on the Web) Reid said of Snowe, “As I look back it was a waste of time dealing with her, because she had no intention of ever working anything out.” I can’t think of anyone in a better position to know.
Scenario No. 4:Evelyn-Wood-Style Negotiation. House and Senate leaders were already negotiating over bill differences at the White House in lieu of a formal House-Senate conference. Get the damn thing done and ram it through the House and Senate in the next week! The election’s over, but local officials must by law wait 10 days before delivering final results to Massachusetts Secretary of State William Galvin, a Democrat, in order to make sure all absentee ballots are fully counted. They also have the option of waiting an additional five. That gives Congress 10 to 15 days to push health reform through with Kennedy’s temporary replacement, Sen. Paul Kirk, still in the aye-voting saddle.
But it isn’t entirely clear that Kirk is still allowed to vote now that the special election has taken place. According to this 2003 Congressional Research Service report, “Prevailing practice is for state governors to fill Senate vacancies by appointment, until a special election is held, at which time the appointment expires immediately [italics mine].” Multiple precedents are cited in this 1984 report by former Senate parliamentarian Robert Dove. One especially awkward precedent, cited by Washington Times blogger Amanda Carpenter, concerns none other than Ted Kennedy, who was seated one day after a special election on Nov. 6, 1962, even though Massachusetts didn’t certify him the winner until Nov. 21.
Massachusetts law, on the other hand, states that a senator appointed to fill a vacancy “shall serve until the election and qualification [italics mine] of the person duly elected to fill the vacancy.” “Qualification,” as noted above, could take more than two weeks.
A less nuanced problem is that Brown’s victory makes it more likely that Sens. Joe Lieberman and Ben Nelson, who barely supported the bill as passed by the Senate, will seize on even the tiniest change negotiated with the House as justification for switching from yea to nay.
A common theme among pro-reform bloggers as Massachusetts voters went to the polls was that Democrats mustn’t panic over the prospect of a Bay State loss to Republicans. Brown’s victory may very well be about no more than the simple fact that Martha Coakley belongs to the same party as the president at a time when unemployment in Massachusetts stands at 8.8 percent. But let’s get serious. Panicking is what politicians do when they lose elections. And the stark symbolism of losing a Senate seat in the only state that went for George McGovern in 1972 isn’t easy to forget. The best contingency plan, sorry to say, was to believe Coakley would win. If there’s a workable Plan B, I don’t know what it is.
E-mail Timothy Noah at chatterbox@slate.com.
