Health Care Battle Near an End?By Roger Aronoff  
President Obama went into the East Room at the White House on March 3rd and talked about bringing the health care "journey to a close." He is giving the Republicans one more chance to sign on to the Democrat's health care legislation, or else he is prepared to move forward without their cooperation. And this time, apparently, he really means it, in spite of the fact that an overwhelming number of polls show, several by as much as 15 or more points, that the public is opposed to such legislation.
Shortly thereafter, on MSNBC, news anchor Tamron Hall said that "at that summit that we all watched for seven hours the President did say in the end that this may boil down to just key differences, that the Republicans do not believe in a huge government intervention in health care, and it is something the Democrats have wanted for many, many years, and it boils down to that."
She is absolutely correct. That is the crux of the debate, though few on the Democrats' side are willing to be so blunt about it. Most on the left, including President Obama, try to claim that this does not represent a "huge government intervention," and that Republicans want no intervention, both of which are patently false.
What was supposed to be new in the President's speech was that he was announcing plans to incorporate a number of Republican ideas into the legislation, though he never quite said how that would be accomplished. They included ways to combat waste and fraud, and funding for pilot projects at the state level to resolve medical malpractice cases. Even if these substantively addressed Republican concerns, which they don't, the problem is that both the House and Senate have already passed bills that must now be somehow merged and presented to the President as one bill for his signature. The easiest way, and the way that is being pushed, is for the House to vote to approve the Senate bill exactly as it is, and then have the Senate make changes, or fixes, in accordance with the wishes of a majority of the House through the process called reconciliation, which requires just a majority of the number of Senators present at the time of the vote, rather than the supermajority of 60. The bill, along with the reconciliation agreement, would then go to the President for his signature.
I discussed a number of the issues involved in the health care debate, including reconciliation, in a previous special report. Those issues, such as the expanded use of the IRS, remain daunting.
And what about reconciliation?
Harry Reid, Nancy Pelosi and some of their media allies have argued that they can use reconciliation, and pass the changes with 51 votes. But other Democrats, including Kent Conrad and parliamentary guru and author of the Byrd Rule, Robert Byrd, say no they can't.
Kent Conrad (D-ND), chairman of the Senate Budget Committee, was on "Face the Nation" on February 28 and said that "Reconciliation cannot be used to pass comprehensive health care reform...The major package would not be done through reconciliation." Conrad said that it was not an option.
"I am the chairman of the committee in the Senate, and I think I understand how reconciliation works and can't work," he said, arguing that the so-called Byrd Rule would prevent the use of reconciliation for the main health care bill. "The only possible role I can see for reconciliation would be to make modest changes in the major package."
Robert Dove, who was Senate parliamentarian for 37 years, was on MSNBC on March 1st. As Dove pointed out, the Senate parliamentarian advises whether legislation is available to be handled through reconciliation, but it is the Vice President in his capacity as president of the Senate who can overrule the advice of the parliamentarian. So Vice President Joe Biden could do that, and that would apply. This is the thread on which the Democrats' hopes lie.
Dove said that reconciliation was used for non-budgetary items until the mid 80s, when Sen. Robert Byrd (D-WV) "felt that it was really being abused and sponsored a rule which is now known as the Byrd Rule. Since that period, anything that is not purely budgetary has been available for getting rid of those provisions and that has been followed since then."
When MSNBC's Chuck Todd said that he thought the Democrats just wanted to do fixes, not the full bill and asked if they could do these fixes under reconciliation if they have just a tangential tie to the budget, Dove said he didn't want to pre-judge, but he suggested that the answer was no. Asked for an example where reconciliation was not allowed because of the Byrd Rule, Dove cited 1995, when there was a very large reconciliation bill, and there was a provision in that bill that provided that no federal funds could be used for abortion. He thought it violated the Byrd Rule. Part of the Byrd Rule is that if something is in a bill not for its budgetary effect but for policy effect, that invokes something called the incidental test and it can be thrown out. In that case it was thrown out.
Dove also pointed out that reconciliation allows for only 20 hours of debate in the Senate, but following that the Republicans can submit an unlimited number of amendments. In addition, they also would be able to challenge and slow down the process through points of order, and Democrats could overcome the incidental test with 60 votes.  
Sen. Byrd sent a letter to his colleagues last April stating his views very explicitly:
"I oppose using the budget reconciliation process to pass health care reform and climate change legislation.... As one of the authors of the reconciliation process, I can tell you that the ironclad parliamentary procedures it authorizes were never intended for this purpose."
The Wall Street Journal ran an excellent editorial this week arguing that reconciliation has not been used this way, and that it often has come with large majorities voting for these measures. That would seem to indicate that the decision to use reconciliation or not is based on whether or not it fits the requirements, rather than because the powers-that-be can't secure enough votes.
"Democrats often point to welfare reform in 1996 as a reconciliation precedent, yet that bill passed the Senate with 78 votes, including Joe Biden and half of the Democratic caucus," states the WSJ editorial. "The children's health insurance program in 1997 was steered through Congress with reconciliation, but it, too, was built on strong (if misguided) bipartisan support. The Balanced Budget Act of 1997 that created Schip passed 85-15, including 43 Republicans. Even President Bush's 2001 tax cuts, another case in reconciliation point, were endorsed by 12 Senate Democrats.
"The only precedent within historical shouting distance is Ronald Reagan's 1981 budget, which was controversial because it reshaped dozens of programs. But the Senate wasn't the problem--it ultimately passed the budget 80 to 14. The real dogfight was in the Democratically controlled House, where majority rules have always obtained, yet Reagan convinced 29 Democrats to buck Speaker Tip O'Neill. Reconciliation, in other words, wasn't used to subvert the 60-vote Senate threshold, but rather to grease the way for deficit reduction.
"The process was designed for items that cut spending or affect tax revenue, to meet targets in the annual budget resolution. Democrats want to convert it into a jerry-rigged amendment process: That is, reconciliation wouldn't actually be used to pass ObamaCare per se. Instead, it would be used only to muscle through substantive changes to the bill that passed the Senate on Christmas Eve, without which 216 House Democrats won't vote for it. So Democrats would be writing amendments to current law that isn't in fact law at all--and can't become law without those amendments."
Then-candidate Obama also spoke against using reconciliation for such major legislation, saying in 2007 that "We are not going to pass universal health care with a 50-plus one strategy." Perhaps he is betting that he can win over the public by demonstrating that the Republicans won't accept a compromise even with provisions that they approve of in principle. But in fact these so-called compromise provisions don't really do much to change the nature of what the legislation is designed to accomplish, namely for the federal government to control the distribution of and rules governing health care and health insurance.
A recent example demonstrates the problem. A Washington Post article from this week shows how the nose under the tent becomes a massive federal intrusion. Just like with Cap & Trade, when the Democrats began to recognize that it wasn't going to make it through the Senate, Obama instead had the Environmental Protection Agency (EPA) write regulations covering carbon emissions. When he lost the vote in Congress for a deficit reduction commission, he named his own commission by executive order. When the Senate voted last May by 90 - 6 to say no to bringing Gitmo detainees to U.S. soil, Obama proceeded anyway with plans to bring them to a little utilized prison in Illinois. 
And specifically on health care, he is already doing it again. The law to expand mental health coverage was taken by the White House and vastly expanded beyond the intent of the law, according to "key business and insurance industry groups." It was done through legislation, widely considered the last major piece of health care legislation, passed in 2008. According to the Post article, recently "the Obama administration issued 154 pages of regulations governing implementation of the law," which had passed with broad bipartisan support and was signed by President George W. Bush in 2008. It may not be surprising that leaders of business and insurance groups felt that the regulations were "more expansive" than they believe lawmakers intended. But it could also be a preview of what's to come when more than a hundred new bureaucracies and agencies and commissions are created, each with hundreds of pages of implementing regulations that were never contemplated by the congressmen who voted on the legislation.
The point is that this is why Obama is willing to water this bill down so much. The reality of the law comes in the many pages of "regulations governing implementation." So the fact that reconciliation rules don't allow Congress to change policy matters, only budgetary and tax matters, wouldn't faze the Obama administration once something called "health care reform" was passed into law. The Republicans and Democrats both know this. In this political environment, already well into primary season and the winds blowing Republican, it may prove to be that the planks that Democrats are being asked to walk are too fraught with peril to ever allow this legislation to cross the finish line.
Ed Harris of CNN reported this week that Democrats are upset with Obama, because they don't think he should still be out trying to round up Republicans and water the bill down further, but rather should be looking to line up enough Democrats to walk the plank. On March 4th,  Rep. Bart Stupak (D-Mich.) stated what could be a fatal blow, when he told George Stephanopoulos that "In the present form, the Senate health care bill is going nowhere in the House of Representatives...Not only do the members of the House of Representatives not agree with the Senate bill--the process by which the Senate bill was passed, the special deals, there is no member that wants to vote for that."
The reality is that there are already two bills, one passed by the House by a five-vote margin, one passed by the Senate with 60 votes on Christmas Eve. What normally would happen is that they would go to committee, the leadership would meld the two bills into one, and both the House and Senate would then have to approve them, by a simple majority in the House, and a so-called supermajority of 60 in the Senate. Few think that's possible, with Republican Scott Brown having since won the Massachusetts Senate seat, running as the 41st vote against the legislation and idea of national health care.
The House is another story. After passing their version of the legislation by a vote of 220-215, things have changed. Democratic Rep. John Murtha has died, Neil Abercrombie of Hawaii has resigned to run for governor, Robert Wexler of Florida resigned to work for a non-profit organization, and the latest, Rep. Shelley Berkley has stated her intentions to vote against the bill because she doesn't trust the Senate to make the fixes. On the Republican side, Rep. Anh "Joseph" Cao of Louisiana, the only House Republican who voted for it the first time, has said he won't vote for it on final passage. There was a report this week that nine who voted no might now vote yes, but no guarantees. Plus, more than 40 Democrats are from districts which John McCain won in 2008. The House is being asked to vote yes on a bill that still has several special deals for certain states: the Cornhusker kickback, the Louisiana Purchase and the Florida Flim-flam. Obama has now said he wants the Nebraska and Florida deals removed, but the Louisiana deal can stay.
The real irony is that so many of the people railing against the Republicans for opposing this legislation, in whichever version, dislike it themselves. But they apparently trust Obama enough that they want to pass it anyway, confident that he'll fix it through implementation and regulation, both short term and long term. He long ago made it clear that he views this process as a stepping stone toward single-payer health care. But in the meantime he has cut a deal with the pharmaceutical industry, protecting their products from reimportation at lower prices, a sweet enough deal for them to commit to spending an estimated $150 million running ads promoting this legislation. These, by the way, are the same people so appalled that the Supreme Court said corporations can run unlimited ads in support of candidates.
Also, with the personal mandate and no public option, this forces everyone into the arms of an insurance company. MSNBC's Rachel Maddow and Keith Olbermann have been regularly pushing Democratic senators to sign on to a letter trying to bring back the Public Option, and now report that 35 have signed on, but it appears that they may not be able to rack up the 50 votes necessary if they go that route.
This is the fourth or fifth last chance for this legislation. The big question is what Obama will do if he has no legislation that has worked its way to his desk. There have been rumblings that he'll try by Executive Order and through cabinet level regulations, that he will attempt to create national health care by fiat. Even loyal congressmen are getting tired of walking the plank, and there is turmoil at the top levels of the White House as chief of staff Rahm Emanuel is being portrayed as distancing himself from the stumbling moves of the administration in getting something passed. Obama sees this as his defining moment.
If the Democrats had the votes to pass it, it would be passed immediately. But they don't, and instead will try to make whatever deals it takes. Last year the Senate worked every day through December, late into the evening, under the notion that 2010 is an election year, and it would be very difficult to get the bill passed in that environment. Well here we are, and President Obama is as determined as ever to get it done, betting that doing nothing would be worse for his presidency than forcing passage of something; anything. He knows the math in Congress is never likely to be better for him than now, but the question is, how far is Congress prepared to go to help save Obama's presidency.