Hurry Up and Wait? (Updated)

by Jonathan Cohn | March 11, 2010

Whether it’s Intrade, the polls, or the increasingly panicked predictions of doom from Republicans, the signs all suggest that the prospects for passing health care reform have been improving. And that's not just luck. Although President Obama and his allies have benefited from exogenous events, particularly the Blue Cross rate hikes, it seems clear they’ve made smart strategic moves, too. In particular, they’ve managed to simplify the debate and speed it up.

So it’s a bit unnerving to read, and to hear, that House Democrats want to slow things down and make them more complicated. It started earlier this week, when Majority Whip Steny Hoyer made clear the House might not be able to vote by March 18, the deadline the White House has publicly proposed. Energy and Commerce Chairman Henry Waxman subsequently conveyed the same message to White House Chief of Staff Rahm Emanuel during a meeting.

And it’s not just the timing that’s at issue. It’s the sequence of votes as well. The House doesn’t trust the Senate; for much of the last few weeks, Speaker Nancy Pelosi was saying her chamber could not vote on the full Senate bill until the Senate had approved amendments to it, via the reconciliation process. About two weeks ago, it looked as if the House had finally relented; House leadership confirmed that they would be voting first. But now it turns out the issue wasn’t quite settled after all.

A number of options for passing legislation are, apparently, still under discussion. And one of them, first reported in Congress Daily, involves the use of a special, “self-executing” rule. Rules, for the uninitiated, set the parameters of debate when the House considers a bill: How long the debate will go, what kind of amendments can be considered, and so on. As I understand it--and, despite a number of conversations about it over the last few days, I’m still not sure I understand the mechanics of this--the House can write, and has before written, rules that effectively trigger the enactment of another measure.  Slate's John Dickinson explained the logic:

This approach would serve two purposes. First, Democrats who think the Senate bill doesn't sufficiently limit abortion rights would never have to be on record as having voted for it. (Because the Senate abortion language can't be fixed in Bill B for procedural reasons, some Democratic aides say there is talk about a later bill that would handle these issues.) Second, if the Senate didn't fulfill its end of the bargain by voting on Bill B--remember, it's already passed Bill A--then House Democrats would be able to say: I never voted for that crummy Bill A. In fact, I only voted for that nifty Bill B to fix it.

(For more details on how this procedure would work, see Daniel Foster at National Review or consult the Congressional Research Service.)

As I’ve said before, I’m less comfortable second-guessing strategy than I am second-guessing policy. And I’m certainly less comfortable second-guessing legislative tactics as opposed to political messaging. There are just too many things that, even as a relatively well-informed reporter, I don’t know. Besides, if there are any two players in this debate I'm inclined to trust, it's Pelosi and Waxman.

Still, complication and delay seem dangerous. Given the widespread revulsion with legislative deal-making at this point--and the apparent success of Obama’s appeal for a “straight, up-or-down vote” on reform--crafting the rule to spare House members a certain vote seems quite likely to muddle the message. As for delay, if the last year has taught us anything, it’s that time is not reform’s friend. It means more days not spent discussing the economy, which is the voters’ primary concern, not to mention more days in which something can go wrong. And, lord knows, a lot of things can still go wrong.

For what it’s worth, most of the sources on and around Capitol Hill I’ve consulted on this seem to think it’s unlikely the House would actually use the self-executing rule. Among other things, there’s a good chance the Senate Parliamentarian would not allow it. And it's always possible House leadership is or has been posturing, to get the best possible terms on the reconciliation bill or to assure its nervous caucus that it's fighting for its interests. I guess we'll just have to wait and see.

Update: That was quick! Roll Call's David Drucker is reporting that the Senate Parliamentarian has indicated that, in his opinion, Senate rules would preclude the chamber from voting on amendments to a bill that has not yet become law. The source is "senior GOP aides" who say they got the information verbally, so it's not clear exactly what the parliamentarian ruled or what that ruling means. (At the very least, the presiding officer of the Senate would have the authority to disregard the Parliamentarian's counsel.) But an unfavorable ruling from the Parliamentarian is, as I wrote above, what many insiders already expected.

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