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Moving Forward With Health Care Reform

January 17, 2010 - by Donny Shaw

The final polls for Massachusetts’special Senate election on Tuesday are rolling in, and it’s looking like a total toss-up. That means the focus of the health care reform effort in Congress now turns for the moment to what happens if Democrat Marths Coakley loses, giving the Republicans 41 seats and enough votes to effectively filibuster the final bill against the wishes of the Democrats’ then 59-seat majority.

Tuesdays’s election results will certainly be viewed as a referendum on Congress’ health care bill. But even if the Republican candidate wins and the Democrats no longer hold a 60-vote supermajority in the Senate, there will still be at least two realistic options for the health care bill to make it through Congress and be signed into law.

1) The House could just accept the Senate’s bill. The Senate and the House have to pass the exact same version of the bill, word-for-word, before President Obama can sign it into law. If the Republicans win on Tuesday, the easiest way to do that would likely be for the Democrats to forgo blending the House and Senate bills and just have the House vote to pass the Senate’s bill. That way the Senate wouldn’t have to take any more votes on health care. A lot of progressives in the House would not be happy with this approach since the Senate bill is weaker in some key areas, but, in the end, they would likely figure that the Senate bill is better than no bill at all and go along with it. This could happen quickly after a defeat for the Democrats on Tuesday, allowing them to claim a bigger victory in enacting the biggest overhaul of the country’s ailing health care system in more than 60 years.

As an addendum to this approach, Congress could follow up before the bill takes effect in 2013 and pass improvements to it separately. Some of the things the House-Senate negotiators have been working on over the past few weeks would make sense for this. For example, further expanding Medicaid, shortening the patent exclusivity period for biologics, increasing subsidies for helping the middle class afford insurance policies and eliminating the health insurance industry’s exemption form federal anti-trust laws could all be done later this year or in the next session of Congress.

2) They could use budget reconciliation. This is the approach progressive Democrats would likely favor if the Republicans win in MA on Tuesday. Theoretically, the budget reconciliation process would let the Democrats pass health care reform without being subject to Republican filibusters in the Senate. But it would also be wildly unpredictable, yielding a lot of the big decisions about the bill’s contents to the Senate Parliamentarian, a resident rules expert and not an elected lawmaker.

The budget reconciliation process allows for any legislation that is determined (by the Parliamentarian) to have an impact on the federal budget deficit to come to a final vote in the Senate after a maximum of 20 hours of debate. That means that the minority party cannot filibuster beyond 20 hours, and that the legislation would need a simple majority of 51 votes in favor to pass (not the 60 that it takes to break a filibuster). The Democrats would have to thoroughly re-work their bill in order to make it eligible for budget reconciliation. And even then, the Parliamentarian can strip pick pieces out of the bill and determine them to be ineligible for the process. The resulting bill would likely be stronger in some key areas that are favored by progressives — for example, any bill that goes through budget reconciliation would probably have a strong public option — but would lack some other important aspects, like the ban on insurance companies denying customers based on pre-existing medical conditions. Some of the things that get plucked out of the bill by the Parliamentarian could be passed later as separate pieces of legislation, but there’s no guarantee that the Republicans, who have voted against health care reform all along the way, would let the Democrats do that.

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