How Health Reform May Play Out: 75% Odds of Enactment; 25% Odds of Failure

By Mar 19, 2010, 4:48 PM Author's Blog  

Health reform: How the 25% chance I see of failure might unfold. Although President Obama and Democratic leaders of Congress are increasingly optimistic about passing health reform before Congress departs on Easter Recess March 26, lot’s of hurdles remain. Here’s how it might unravel and what to watch for if it does unravel, a 25% shot in my estimation.

Fails to pass the House Sunday. This seems quite unlikely at this point, but it is possible. The first sign would be any postponement beyond Sunday. House Democratic leaders would only allow a vote to occur on the rule and on passage of the reconciliation bill, H.R.4872, if they were confident the votes would be there to pass them. If Sunday early afternoon passes without a House vote on the rule, that would be an ominous sign. If the vote on the rule failed, House leaders would almost certainly pull the bill.

Senate fails to take it up. This is also highly unlikely, but Senate Majority Leader Harry Reid (D-NV) would not move to proceed to H.R.4872 if he didn’t think he had a majority vote. If the Senate goes on Easter Recess without taking up the bill, that would be an ominous sign.

A 60-vote point of order is sustained against H.R.4872 in the Senate. Senate Republicans have several points of order they plan to make, although they won’t say specifically in advance. If the Senate Parliamentarian, Alan Frumin, sustains any of them, that portion of the bill would be stricken, unless it pertains to Social Security, in which case, the entire bill would be ruled out of order. This is where at least half of the 25% chance of failure resides. There has been loose talk of Vice President Biden or the presiding Democratic senator refusing to abide by the Parliamentarian’s ruling, but most long-time Senate staff dismiss this possibility. There is also little chance that Senator Reid could muster the 60 votes necessary to waive a 60-vote point of order.

Hundreds of amendments push off passage beyond the endurance of Senator Reid. The Budget Act limits debate on reconciliation bills to 20 hours and requires amendments to be germane and not dilatory, but there is no limit on the number of such amendments. Theoretically, you could have a “vote-aroma” in which senators would continuously vote without debate on amendment after amendment. In the past, this has raises issues over informing senators about what they’re voting on, so Senate leader usually reach a unanimous consent request to allow 5 minutes equally divided on each amendment. Senate Republicans are preparing hundreds of amendments they hope will be allowed by the Parliamentarian, but I expect a ruling at some point that the shear number of amendments is dilatory. This is where almost the remaining half of my 25% chance of failure resides.

Any Senate change to H.R.4872 would force a second vote by the House. This is a live possibility if any point of order is sustained or if any amendment passes. The House would go crazy voting a second time, but it would probably do so unless a week or more time passed in between those House votes.

Easter Recess would be postponed or canceled to keep this bill on track. If the Senate makes any changes requiring a second House vote, there is no way Democratic leaders would let Congress go home until H.R.4872 came to a final vote.

Senate fails to pass it. Once the Senate comes to voting on final passage, I’d be very surprised if H.R.4872 doesn’t pass because it only requires a majority vote. With 59 Senate Democrats, in my opinion, a majority can be found to pass this.

President Obama will sign the original Senate bill, H.R.3590, and the reconciliation bill, H.R.4872, when Congress sends them to him. There has been talk about Democratic leaders withholding H.R.3590 after it is “deemed” to have passed the House so President Obama couldn’t sign it until the reconciliation bill had passed also, reassuring the House that the Senate wouldn’t walk away from the reconciliation bill once its original bill, H.R.3590, had been enacted. The problem with that is that the Joint Committee on Taxation only scores reconciliation savings from enacted law. Without an official score on the revenue provisions, a point of order would lie against the reconciliation bill. Therefore, I expect Congress to send the H.R.3590 to President Obama for his signature immediately upon House passage, and he will sign it.

Bottom line: 75% odds of enactment. I include within that the possibility that it might take several more weeks to complete this unprecedented process, but, mostly, I expect the House to pass H.R.4872 Sunday and for the Senate to pass it unchanged by March 26 or thereabout.

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