Does the emerging reconciliation strategy make sense?

reprinted with permission from Congressmatters.com

HuffPo covers what's said to be the latest thinking on the procedural strategy for health care. Much of the discussion lately has focused on splitting the bill into two parts and sending just one through reconciliation. One complaint, though, is that moving two bills through the Senate is, well, twice as hard.

But there's another alternative, according to Martin Paone. Paone, who served as a Democratic Senate floor staffer for 29 years, has been advising Democrats as they craft their legislative strategy. He proposes that Democrats try to get 60 votes to waive the Byrd Rule -- which would then allow the inclusion of those non-budget-related provision in one bill that would require only 51 votes for final passage.

What's the advantage? And why would any senator who opposes the entire bill vote for such a waiver?

The answer can be found in the specific proposals that would be in violation of the Byrd Rule. Mostly, those would include reforms to the way the insurance industry operates -- for example, a ban on using preexisting conditions to deny coverage, or a law that insurance companies can't drop a client just because they get sick.

Those are wildly popular reforms. Getting 60 votes to support those policies is much easier than getting 60 for a public health insurance option, which Republicans and some conservative Democrats oppose.

Waiving the Byrd Rule was always an available option, of course. But like waiving other, similar Budget Act points of order on previous high profile measures, it's not always something Senators are willing to do.

The thinking here is that the parts of the bill most widely anticipated to be non-Byrd Rule eligible (by which I mean that they would pass muster under the rule and not be subject to its point of order which would strike it from the bill) are the consumer-oriented reforms like the prohibition against refusing coverage due to preexisting conditions.

Those parts are what's said to be wildly popular, so they might well be able to garner 60 votes for a waiver, and thus remain in the bill. Once all required waivers are secured, the entirety of the bill would be free to pass by a simple majority. And by the way, that something that has always been true, whether it comes under the reconciliation process or not. Journalists and commentators have of late taken to referring to the 60 vote threshold as "traditional," when in fact both the rule and the "tradition" (if there is one) is that -- hey, guess what? -- majority actually rules.

Can it work? Absolutely. There's nothing at all that's procedurally problematic about it. But it depends on Senators who are opposed to the public option being willing to tightly compartmentalize their voting, and in a way not all that dissimilar to ways they've been asked to do in the past, but have so far refused.

In Senate minds, the health care negotiations were originally all about getting to 60, and to some extent this is still true. But the original goal was to bring the bill to the floor under regular order, and get to 60 in order to get past the filibuster. So leadership set about the task of asking Senators opposed to some specific part of the bill -- like the public option -- to compartmentalize their voting, and treat the cloture vote as entirely procedural. They could vote for cloture, thus allowing an up or down vote on the bill itself, on which they were free to vote no if necessary.

But that apparently didn't work. No one was willing to give up the opportunity to block the public option if they wanted to, even at the cost of sinking the entire bill.

This plan, while workable, has some of the same problems. It likewise requires Senators supposedly willing to sink the whole bill rather than allow the public option to survive to voluntarily surrender the vote that can stop it.

But there are some perhaps important differences that make this plan well worth considering. For one thing, the waiver vote is directly tied to specific portions of the bill that are supposedly very popular. A yes vote very clearly and directly puts "the good stuff" in the bill, while a no vote just as clearly keeps it out. A cloture vote isn't as closely tied to the specifics of the bill, and doesn't by itself put anything in or take anything out.

That's all good, as far as it goes. But if you can get Senators to compartmentalize their votes like this, then you might as well keep talking. Once you get them to see a waiver vote as something other than their last opportunity to so cripple the health care bill that the public option is no longer viable and instead as a procedural vote to allow good things to go forward despite the presence of the public option, then you might as well consider pushing them a little further forward and into looking at cloture the same way.

Well, I say you might as well, but I also know that Senators can find some very strange and not all that logical reasons to be intransigent about going so far and no farther on certain things. And this could very well be one of those things. Although the determined opposition will undoubtedly characterize the vote on the waiver as being equivalent to a vote on cloture -- that is, the last line of "defense" against the public option -- Senators will have available to them a certain measure of Ol' Reliable, the Senatorial Steak Sauce.