Split Decision

by Anthony Wright | August 28, 2009

Anthony Wright is executive director of Health Access California, the statewide health care consumer advocacy coalition. He blogs daily at the Health Access WeBlog and is a regular contributor to the Treatment.

Many people have suggested that state health care reform initiatives--both in Massachusetts, which enacted reform, and California, which didn't--could serve as the model for what happens nationally.  But the most important lesson learned from the states may be procedural rather than policy.

Congressional leaders may, according to various reports, split reform into two bills. One would go through the reconciliation process, which is reserved for budget-related items and in which a simple majority can pass legislation, without threat of a filibuster. The rest of the package would go through the standard process, in which legislation effectively needs a supermajority of 60 votes, since that's what it takes to break a filibuster.

It may sound unusual, but such a strategy has been tried before in similar circumstances: Both California and Massachusetts leaders had to resort to similar parliamentary gambits in their health

reform discussions, in both cases to overcome intractable Republican opposition to core portions of their agenda.

California is the only state in the country that has the uniquely high requirement that in order to pass a budget or taxes, you need a two-thirds supermajority of the legislature. The Republican minority in the legislature thus have the power to block anything budget-related (which many analysts appropriately blame for our current fiscal woes). Governor Schwarzenegger wanted support from fellow Republicans, but after waiting into September and getting nowhere (sound familiar?), he and Democratic Assembly Speaker Nunez finally devised a way around the obstruction from Republicans. They split the bill in two, with the intent to pass one part by majority-vote in the legislature, but have the second part with the budget-related financing items bypass the legislature altogether and go on the ballot. Unfortunately, health reformers ran out of time to make a deal in the legislature while also meeting the signature-collecting deadlines to make the ballot for the November 2008 election. (That experience provides another lesson about moving quickly.)

Massachusetts health reformers had their own issues. Democrats had supermajorities in the legislature, but a Republican Governor, Mitt Romney, who was running for President. Governor Romney had interest in doing health reform--for one, his state would lose hundreds of millions of federal dollars without it--but balked at elements of what the Democratic legislature thought was necessary. So they also split the proposal, with the understanding that Governor Romney would veto portions he didn’t like, and that the Massachusetts legislature--with its large Democratic majorities--would override those vetoes. Presidential candidate Romney got to take credit for the health reform law, but without having signed key components, including some restorations to Medicaid benefits and the assessment on employers who didn’t cover their workers.

The notion of splitting the health reform to have part of it pass under reconciliation’s 50-vote threshold, and part of it under the 60-vote threshold, raises a similar issue. Will some Senators vote for a portion of a health plan (even components they are fine with) if they intend to vote against the other part, whether for principle or politics? Would voting for a part of it mean they are implicitly supporting the whole package? Or does splitting the bill allow them to vote for a portion while providing the political cover they need? If it is any indication, Presidential candidate Romney had no qualms about trumpeting both “his” health reform, and that he vetoed key parts of it. Given his most prominent 2012 competition is that one who brought the odious term “death panels” into popular usage, his position is comparatively reasonable.

The broader lesson from the states is that health reform is big enough and important enough that it takes some extraordinary measures to make it through--especially against the twin pillars of undemocratic supermajority requirements and Republican obstruction--and we should be open to those options.
 

Source URL: http://www.newrepublic.com//blog/the-treatment/split-decision