All through last week, reports circulated that the leadership was close to the magical number of 218 but had not yet locked down the necessary number of votes. First we heard that the vote would be on Monday (11/2) then possibly Wednesday (11/4) or Thursday (11/5). In between Monday and Wednesday, of course, were some very important elections - Governors for Virginia and New Jersey and two open Congressional seats (one in California and one in New York) for which there were special elections.

 

The outcome of the elections on Tuesday held great significance both in terms of the interpretation of any "message" the American people might send as well as the practical effect the outcome would have on the pending healthcare reform legislation.

Although much of the media attention on the November 4 election results focused on the gubernatorial races in Virginia and New Jersey and what these might or might not say about the Obama Presidency, House leaders were closely watching the results of the two special elections.

 

In the California race, there was a general sense that because this District was a decidedly Democratic District before the special election, barring something catastrophic, it would remain in Democratic hands. The New York seat was a different story. This was a Republican seat that became vacant when President Obama appointed the incumbent Republican Congressman to be the Secretary of the Army. This was a seat that had historically been a Republican seat but Democrats felt that with the right candidate, it could switch to the Democratic column.

 

The outcome of these two races proved critical to the final vote on healthcare reform.

The California seat remained in Democratic hands as expected and the New York seat switched from GOP to Democrat. Both new Members of Congress were quickly sworn in once the results were certified and within hours of their becoming the newest Members of Congress, they were casting votes on one of the most significant domestic policy issues in the last 20 years. Both of the new Congressmen voted in favor of the healthcare reform bill.

 

As the final vote approached, beyond the core issue of health care/insurance reform, issues such as the handling of illegal immigrants and abortion took center stage. The issue that proved to be the toughest to navigate was abortion.

 

It has been the long-standing policy of the federal government that taxpayer money will not be used to directly pay for abortions. Nothing in H.R. 3962 as originally drafted, would have changed that policy. However, in the days leading up to the final vote, some began to question whether under H.R. 3962, taxpayer money would indirectly be used to pay for abortions? The rationale for this argument was that the bill provided taxpayer funded subsidies for low-income individuals to purchase health insurance and these subsidies could be used to purchase an insurance policy that paid for abortions.

 

Just days prior to the vote, a handful of Democratic Members announced that they could not vote for H.R. 3962 as originally drafted due to the possibility for taxpayer dollars could indirectly be used to pay for abortions. Due to the narrow margin, the Democratic leadership could ill-afford to lose these votes. These Members wanted to offer an amendment preventing any taxpayer money - direct or indirect - from being spent on abortions.

 

Unlike the Senate, where any Senator can offer any amendment on any subject at any time, the House operates under very strict rules. Virtually every piece of legislation that comes to the floor has a "rule" attached which outlines the length of time a bill can be debated and what amendments will be considered "in order". The rule is technically written by the Rules Committee which is controlled by the House Leadership (i.e. Nancy Pelosi). In order for these Democratic Members to be able to offer their amendment, it had to be approved by Speaker Pelosi.

 

Therefore, in the hours before the final vote, the Democratic leadership agreed to allow a vote on an amendment by Representative Bart Stupak (D-MI) that would specifically prevent any taxpayer dollars from being used to either directly or indirectly pay for abortions. The Stupak amendment was passed by a wide margin thus allowing several pro-life Democrats to vote for the bill. These votes were, in the end, the deciding votes.

 

However, after the vote, dozens of Democratic Members wrote a letter to Speaker Pelosi indicating that if the Stupak provision was in the final bill they would not vote for the final bill.
So it now appears that if the abortion restrictions are removed from the final bill, the vote in the House could drop below the 218 needed to pass. It has been estimated that at least 6 - 8 Democrats who voted for the bill on November 7th, would switch their vote if the abortion language is removed. The lone House Republican to vote for H.R. 3962 (Cao of Louisiana) has said that he would vote against the final bill if the Stupak language is removed. However, it also appears that if the abortion restrictions are retained in the final bill, the House could see dozens of "pro-choice" Democrats vote against the bill, again dropping it below the 218 needed.

 

The Senate will likely confront a similar debate when their bill comes to the floor.

 

Senate Majority Leader Harry Reid (D-NV) announced that he intended to begin debate on healthcare reform despite the fact that there is no actual bill to debate. Two separate healthcare reform bills have been passed by two Senate Committees -S.1679 Affordable Health Choices Act was passed by the Health Education Labor and Pensions Committee earlier this summer and S.1796 America's Healthy Future Act was passed by the Finance Committee in September.

 

There are major differences in the two versions and it is up to Majority Leader Reid to merge the two bills into a single piece of legislation for floor consideration. Prior to bringing that merged bill to the floor, the Congressional Budget Office must provide a "score" of the legislation. This "score" will determine the projected impact the legislation will have on overall government spending, the impact, if any, on the federal deficit, and the expected number of new individuals who will have health insurance coverage if this legislation were enacted.

 

As of Sunday, 10/15, the CBO had yet to complete its analysis and it was not clear when they would finish their work.

 

Part of the challenge faced by Senator Reid in putting a bill together is producing legislation that does not add to the deficit or raise taxes on middle income taxpayers. In order to meet the deficit neutral goal, significant amounts of new revenue will have to be generated. The Senate Finance Committee bill, S. 1796, relied largely on a new tax on so-called "Cadillac" health plans. The bill proposed to impose a 40% tax on the value of health plans when the premiums exceeded certain threshold amounts. According to the Congressional Budget Office, the proposed excise tax on "Cadillac" health plans would generate approximately $200 Billion in new revenue to the federal government over the 10 year period covered by their analysis.

 

Major opposition to this funding mechanism was mounted by labor unions as it was determined that many labor union health plans would fall into this category. Faced with strong opposition from the unions, the Senator Reid has been attempting to identify a different funding source. It was also reported that Senate Reid was considering raising the threshold levels to ensure that few union health plans would be subject to the tax. The problem with this idea is that it would significantly reduce the revenue the federal government would collect therefore necessitating a new funding source.

 

The Senate will be in session this week (11/16) but it is scheduled to be out of session the week of November 23rd due to the Thanksgiving holiday. It appears that the healthcare reform debate will not begin in earnest until Congress returns to Washington the week of November 30th. Where Does it Go From Here?

 

Under the rules of the Senate, the motion to proceed to consideration of a bill is debatable. This means that the motion itself can be filibustered and it takes 60 votes to defeat a filibuster. The current make-up of the Senate is 58 Democrats, 40 Republicans and 2 Independents. Both Independents (Lieberman (CT) and Sanders (VT)) caucus with the Democrats giving the Democrats the 60 votes necessary to defeat a filibuster.

 

It is expected that all 58 Democrats as well as Lieberman and Sanders will support a motion to proceed but indications are that this may be where Democratic unity ends. The first vote to watch will be the motion to proceed. If Majority Leader Reid is unable to get the 60 votes needed to end debate and go to a vote on the motion to proceed, then the Senate could be in for a long, slow process.

 

Some have counseled the Senate leadership to scrap the normal process for consideration of legislation and attempt to pass healthcare reform using a special process known as "Reconciliation".

 

Reconciliation is a mechanism used for consideration of legislation dealing with budget issues. More specifically, it is to be used exclusively for statutory changes in either entitlement programs such as Medicare, Medicaid or Social Security, or taxes.

Reconciliation is attractive to the Senate leadership because unlike bills considered under "regular order", reconciliation bills are NOT subject to a filibuster and only need a simple majority to pass.

 

However, reconciliation is unattractive because under the rules of the Senate, non-budgetary items included in a reconciliation bill are subject to a "point of order". If the parliamentarian rules that an item or items in the bill are not directly related to entitlement spending or taxes, the measure is stricken from the bill. A ruling of the parliamentarian can be overturned by the Senate, but it takes 60 votes to overturn a ruling of the parliamentarian.

 

This means that reconciliation could be used to deal with Medicare issues, Medicaid issues and taxes (and tax subsidies) but it could not be used, for example, to outlaw pre-existing condition restrictions in insurance policies. It could not be used to mandate guaranteed issue of insurance. It could not be used to create new grant programs aimed at health promotion or disease prevention. In other words, most, if not all of the insurance market reforms the President has requested would have to be stripped from the bill if the Senate attempted to use reconciliation rather than regular order. In addition, many new grant programs (these are funded with appropriated dollars and not "entitlement" funds) and commissions called for in the bill would also have to be excluded from the legislation.

 

If Senator Reid opted for reconciliation because he was unable to secure the 60 votes he needed to end a filibuster using "regular order," it is unlikely that he could get the 60 votes necessary to overturn a parliamentary ruling as well.

 

While the so-called "nuclear option" remains a possibility for some aspects of healthcare reform, so much would have to be left behind that many consider this an unlikely scenario.