THE TREATMENT AUGUST 19, 2009
Well, well, well. Maybe the Democrats are ready to get tough after all.
The big legislative obstacle to passing health reform has always been the Senate, where it takes 60 votes to break a filibuster--60 votes the Democrats may not have. It seems increasingly unlikely the ailing Ted Kennedy could be present for a vote. And even if he were, conservative Democrats like Ben Nelson might be reluctant to vote for a bill that not a single Republican supported.
It was to avoid this problem that Obama and the Democrats earlier this year won the right to consider health care legislation under the budget reconciliation process, in which time is limited and, as a result, legislation can't be filibustered. But since that time Democrats have been talking down the possibility, in part because it presents its own problems. The parlimentarian could (and almost certainly would) remove from legislation elements that didn't directly affect the budget. Quite possibly, that would mean throwing out provisions creating the insurance exchanges, regulating the insurance industry, and so on--in other words, it would mean throwing out some pretty essential pieces. What's more, under the reconciliation rules, legislation would effectively have to be deficit neutral after just five years. So far, reformers have been designing plans that would be deficit neutral only after ten.
But there may yet be a way to use reconciliation--and to do so without all of those unpleasant sacrifices. As the Wall Street Journal is reporting, Democrats are looking into the possibility of splitting their health care bill into two pieces. One would include changes to Medicare and Medicaid, new taxes on individuals or employers, subsidies for people buying insurance, and (maybe) even a public plan. Because all of these affect federal outlays, positively or negatively, this bill could go through the reconciliation process, passing with just 50 votes.
The second bill would include the other elements--the insurance regulations, the requirement that everybody get coverage, and so on. These are the pieces of reform the parlimentarian likely wouldn't allow to go through reconciliation. As a result, it would still need 60 votes. But that's not so far fetched, since these happen to be the parts of reform on which there is the most wide-ranging consensus. Plenty of Republicans support these ideas, at least in principle.
All of this is theoretical, of course. Republicans might not support that second bill if it meant handing the Democrats a victory. At the very least, they'd fight Democrats on the details. Nor is it clear Democrats themselves have enough unity to get fifty votes for the controversial elements of reform. And all of that is assuming the parliamentarian lets those controversial elements go through reconciliation in the first place That's hardly a sure thing; it will really come down to his interpretation of the rules. But even the theoretical possibility of Democrats passing reform on their own would change the dynamics in Congress, by giving Republicans new incentives to negotiate in good faith--and giving Democrats a way to enact legislation in case the GOP remains as obstructionist as it is now.
Update: It seems Matthew Yglesias was already thinking along these lines a few days ago.