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Earlier I suggested that the public option probably does not have the votes to pass the the U.S. Senate. Let’s examine this in a bit more detail.

Open Left’s Chris Bowers lists 43 senators who as of last Wednesday, he believes based on official communications would vote in favor of a public option. This appears to be the best and most contemporary whip count of its kind.

There are at least two names on Chris’s list of yea votes that I’d regard as less than certain: one is Ted Kennedy, who obviously supports the public option but might not be healthy enough to vote on it, and the other is Diane Feinstein, who has indicated that she’s open to either a public option or non-profit co-ops — wherein lies the whole debate. But let’s give the Democrats credit for these two votes and start counting upward. What’s their easiest path to 50?

There are five more senators who have either given signals that they’d support the public option or, when push came to shove, would be more likely than not to do so:

44. Tim Johnson (SD). Appeared to commit to the plan over the weekend. Should be regarded as a highly likely ‘yes’ vote.
45. Robert Byrd (WV). Has yet to take a position publicly, probably because he’s been ill. But Byrd is generally pretty liberal on economic issues, and his colleague (Jay Rockefeller) is a vociferous supporter of the public plan. The potential barrier here, as in Kennedy’s case, is likely Byrd’s health rather than any philosophical concerns he has about the plan.
46. Amy Klobuchar (MN). Howard Dean’s website lists her as a supporter. She’s been decidedly more ambiguous in e-mails to constitutents, and Minnesota has lots of skin in the health care game in various forms. Still — although Klobuchar is not as liberal as you might expect from a Minnesota Democrat — this seems to me like an eminently whippable yea vote.
47. Ron Wyden (OR). Wyden’s indifference to the public option is a little odd — he’s ordinarily quite liberal — and may reflect his desire to promote his own health care alternative. Once it came time to vote on the actual, non-Wyden bill, I’d expect him to vote yes on the public option.
48. Herb Kohl (WI). Ostensibly supports the public option but with a lot of caveats: that it be “bipartisan”, etc. Realistically, any public option that the Senate is considering is likely to be fairly watered down, moving Kohl into the probable yea vote category. But the co-ops concept might also be alluring to him.

Now, here are the senators that Bowers lists as maybes but who I think would be relatively unlikely to vote for the public plan. Not included here are Joe Lieberman and Susan Collins, who he lists as definite no’s.

Mary Landrieu (LA). Other sources have her as a ‘no’. She may be hedging a bit in constituent e-mails, but given a straight up-or-down vote on the public option, her vote seems highly unlikely.
Johnny Isakson (GA). Republican who is moderate on health care issues. Open Left lists him as a “maybe” based on what I think is a very optimistic read of a statement he made in June. Also, Isakson (along with all other Republicans but Olympia Snowe) sent a letter to the President stipulating his opposition to the public plan. Very little chance he’d vote for a public option.
Kent Conrad (ND). Given that he’s probably done more than any other senator to hurt the public option, I don’t really see him coming up big for the plan in the clutch.
Ben Nelson (NE). Generally the most conservative Democrat in the Senate, Nelson came out against the public option early on but has since hedged a bit. I don’t know that Nelson would vote to filibuster a health care bill on final passage if it happened to include a public option. But, given the opportunity to take a straight up-or-down vote on the provision without bearing the burden of potentially killing health care reform (e.g. if an amendment on the public option had been proposed), I don’t think a ‘yes’ vote is likely.
Evan Bayh (IN). Similar story to Nelson. He’s been voting very conservatively (even relative to normal) this year.
Tom Carper (DE). Fairly conservative, and very corporatist Democrat. He takes a lot of money from the insurance lobby and there are also a lot of insurance jobs in his state. Seems to want co-ops instead.
Mark Warner (VA). Takes a ton of money from the industry. Our regression model regarded him as a very unlikely ‘yes’ vote. Has been somewhat ducking making a commitment on the issue, but some constituent communications suggest he’d much prefer the co-ops plan.

That leaves seven senators who I suspect are the true swing votes in a 50-vote environment. The Democrats would need at least two of these, and possibly as many as 4-5 depending on the health of Byrd and Kennedy and whether someone like Feinstein or Kohl ended up voting against the public plan.

Blanche Lincoln (AR). She’s been all over the board on the public option. I don’t know if anyone can say with confidence how she’d vote until they take the roll call.
Mark Pryor (AR). Been receiving less scrutiny than Lincoln since he’s not up for re-election, but his position has been just as ambiguous.
Mark Begich (AK). Here’s a guy who I suspect has fairly liberal instincts and doesn’t take a lot of PAC money but is obviously in a very conservative/libertarianish state. Probably among the more gettable of the swing votes.
Jon Tester (MT). Largely the same story as Begich, although he’s a bit more of a populist.
Max Baucus (MT). Public statements suggest he supports the public option in principle but he obviously hasn’t done very much to move it along in practice. Common sense would dictate that he’d be unlikely to vote for a public option if it wasn’t in the bill that came out of the Finance Committee. On the other hand, it’s not out of the question that he’d want to save face with some of his liberal critics.
Bill Nelson (FL). “Not even his hairdresser knows,” according to the Huffington Post.
Olympia Snowe (ME). Would probably vote for a public option that had a ‘trigger’ and vote against it otherwise.

But wait — I’ve pulled a little trick on you. What’s to say that 50 is the magic number of votes for the public option? It’s far from clear that this is the case.

Suppose that the bill as reported out of committee to the Senate floor contains a public option. Opponents of the public plan could then try to pass an amendment to strip that provision. Proponents of the public option could try to filibuster voting on that amendement. But as I suggested earlier, I suspect that would probably be a mistake as even if the filibuster succeeded, it might encourage Democrats who are wavering on the overall package to filibuster everything else. So I suspect the public option needs at least 50 votes worth of support overall (with Vice President Biden potentially casting the 51st, tiebreaking vote as needed).

Alternatively, suppose that the bill that hits the Senate floor does not contain a public option. In this case, proponents of the public option could propose an amendment that included it. This amendment, however, would almost certainly be subjected to a filibster, meaning that a public option would need 60 votes to pass. It almost definitely does not have that many (even if there were a senator here and there who who was willing to break a filibuster on the issue even if they did not support the public plan itself.)

So for the public option to pass, it probably needs to be included in the initial, unamended bill that hits the Senate floor. This means that it probably needs to be supported by a majority of the Senate Finance Committee. But this is a little bit of a problem, since the public option only appears to have seven solid yes votes in the Finance Commitee when it will need 12:

Likely Yes (7): Rockefeller, Bingaman, Kerry, Schumer, Stabenow, Cantwell, Menendez
Probable Yes (1): Wyden
Swing (4): Baucus, Lincoln, Bill Nelson, Snowe
Probable No (2): Carper, Conrad
Likely No (9): Grassley, Hatch, Kyl, Bunning, Crapo, Roberts, Ensign, Enzi, Cornyn

If you could get a majority of this group of 23 senators to support the public option, then it would have better-than-even odds of being included in the bill that made it to the President’s desk. Getting a majority of this group, furthermore, would probably mean that folks like Blanche Lincoln and Bill Nelson had voted in favor, meaning that the bill had at least 50 votes worth of support in the Senate overall.

On the other hand, I don’t think a public option is likely to be included in a conference report if it hadn’t already been approved in the bill passed by the Senate. This is the sort of thing that would make some senators very angry — wavering Democrats who were looking for an excuse to vote against health care would have one, and could blame the liberal conferees for ruining their hard-earned compromise. Maybe liberals get really lucky with the conference commitee appointments and the Preisdent’s approval has ticked back upward to 57 or 58 percent because of some good economic news or something; it’s possible that you could add a public option at the conference stage. But it’s just not very likely; there’s too much risk that the conservative Democrats in the Senate will feel as though they’ve been baited-and-switched.

So, again, in order for a public option to pass, it probably requires the support of:
1. A majority of the Senate Finance Committee;
2. A majority of the Senate overall.
…and these two things are highly correlated; it is likely that either both are true or neither are.

When Kent Conrad says the public option does not have the votes, I suspect this means that (i) he himself does not want to vote for it; (ii) Max Baucus, the committee chair, is no more than lukewarm on it; (iii) senators like Carper and Lincoln have told him they’d prefer to vote on a bill without a public plan. If Conrad knows this, then the White House probably does too. There’s some utility to them in pulling back on the public option now as (i) it signals their willingness to broker a deal while a deal can probably still be had and (ii) it prepares the liberal blogopshere to be let down gently, and perhaps to have rebounded by the time the bill comes up for final passage in the fall and their phone calls and door-knocks could be essential.

If the White House now says that Kathleen Sebelius “misspoke” in her statements on CNN this morning, they still have a lot of explaining to do. Did Barack Obama, Robert Gibbs, Bill Clinton, and Dick Durbin also misspeak when they hinted that it was time to move past the public option? Did they not know that they’d generate headlines like this one on the Drudge Report, headines that would take a lot of wind out of the public option’s sails?

The White House had to know these things. This has not been a subtle hint. If they’re hedging a bit now, it’s probably because they’re hoping to temper the reaction some in the blogopshere. I don’t blame them for wanting to do so. And I don’t blame the blogosphere for being angry — the White House did not provide much in the way of leadership on this issue. But that doesn’t mean it isn’t the right time for the White House to (at least mostly) cut bait. There’s likely going to have to be some sort of “regrouping” moment in September for health care to pass — some sense of momentum that the White House can sustain for two, three, four weeks. If you’d waited until then to table the public option, such a moment would be less likely. There also probably has to be some effort to sell the public on the virutes of the plan as is — and if the Administration can’t convince the liberal blogopshere of that over the next 2-4 weeks, they almost certainly can’t hope to do so to the general public.

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