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The Insidious Myth of Reconciliation

Jon Walker at has a new post up at Firedoglake entitled thusly: The Insidious Myth Of The Progressive Bill Killers. The post argues that wonks like me have greatly mischaracterized the position of the bill-killers. They don’t really think the bill is worse than nothing, Jon says. They just think a better bill can be achieved through reconciliation or some other filibuster-breaking strategy.

Really? I appreciate that Jon is injecting some subtlety into the debate. It’s been sorely lacking from most (although not all) of the kill-billers, who have unironically grabbed from a patchwork of right-wing frames to make their case. If there’s been a post from Jane Hamsher saying: “You know, actually this bill represents a lot of progress in comparison to the status quo, but it’s not all we hoped for, and I think we can afford to gamble a bit on making it better via reconciliation”, then I must have missed it. Certainly, this more nuanced case has been made by some players in the debate — it’s very close to the position statements put out by the unions, for example — but it’s generally not the one we’ve seen from the activist/online left, which is the group that I and others have been specifically critical of.

But just so that there are no further misunderstandings, I would join Jon in asking for everyone involved in this debate to state their preferences explicitly. You can see mine in the graphic on the right. I think that the Senate’s bill is quite a lot better than the status quo, and quite a lot worse than the ideal. I also think that the inclusion of a weak public option — which is really all that was on the table — would have made very little difference. A robust public option would have made more impact, but is still a long ways from the optimum policy.

You might not agree with my preferences — although they have been formulated very carefully, over many months of study, and in (mostly indirect) consultation with people who know more about health care reform than I do. But, that’s not really the point: I’ve stated my preferences very clearly. The kill-billers haven’t. If the kill-billers indeed think that the Senate’s bill is materially better than the status quo, it is incumbent upon them to say so. And if they think the bill is in fact no better than the status quo or even somewhat worse, then it is incumbent upon them to explicitly reassert that too.

Jon may be right that most of the kill-billers have also advocated the use of reconciliation or some other end-around to a bill passed under regular order. But that position reveals nothing about their preferences for the Senate bill vis-à-vis the status quo. And it’s this preference that matters, because success via reconciliation is very unlikely.

Jon outlines four variants of such a procedure in his post, each of which I will address below.

1. Try to pass a version of the House bill using reconciliation. Take provisions removed by the Byrd rule and pass them by attaching them whole or piecemeal to the next few big defense and/or agricultural appropriations bills.
2. Use reconciliation to pass a bill with only Byrd-rule proof provisions. This would include an expansion of Medicaid, expansion of CHIP, early Medicare buy-in, public option, possibly employer mandate, etc.

The first two strategies that Jon puts forward are really one in the same. Both strategies try to pass the parts of the bill that could overcome the Byrd rule via reconciliation; Strategy 1 then tries to pass the remaining provisions as a rider to another, unrelated bill whereas Strategy 2 is agnostic about what to do next.

As I’ve argued before, Strategy 2 is liable to be a bad idea on its face: even if the reconciliation attempt were successful, it would almost certainly result in worse policy than the Senate’s bill (and perhaps even worse than the status quo):

[The] overwhelming opinion among [process wonks] is that, although the public option might survive the reconciliation process, things like the ban on denying coverage for people with pre-existing conditions, the additional regulations on insurers, and the creation of the health insurance exchanges would almost certainly not. Plus, the bill would have to be deficit neutral over five years and would be subject to renewal every five years.

If your lone objective were to end up with something that you could call a public option, then yes — reconciliation offers some possibility of that. But I don’t see how you’re likely, on balance, to wind up with a better bill — losing the guaranteed issue provision alone would probably outweigh the inclusion of a public option.

I haven’t really seen any attempt at a rebuttal to this argument. Thus, some sort of a bill splitting strategy is needed to pass the remaining provisions, such as Jon’s Strategy 1.

If you’re Harry Reid and want to apply such a strategy, the first thing you’d have to decide is whether to pass the reconciliation bill first or the regular order bill first. Let’s consider each alternative:

Pass reconciliation bill first. If this is your approach, then what likely happens is that you won’t be able to pass the second part of the bill: Nelson, Lieberman et. al. will be pissed that you’ve worked to circumvent them, and will instantly promise to filibuster the portions of the bill that would be adopted via regular order. Jon claims you could work around this:

I dare all 40 Republicans plus one conservative Democrat to vote for a stand-alone provisions that would let insurance companies continue to exclude people for having pre-existing conditions. If they are foolish enough to vote against extremely popular insurance regulation as stand-alone provisions they will face the mother of all attacked ads in 2010.

There are four problems with this. Firstly, while some provisions like guaranteed issue would be popular, others like the formation of the exchanges would be bureaucratic banalities that the public would have a hard time getting excised about. Secondly, the senators in question have already demonstrated a willingness to vote against other popular provisions of the legislation, particularly including the public option. Thirdly, the use of the reconciliation procedure would be unpopular and would sour public opinion on the balance of the bill. And fourthly, senators like Ben Nelson have a lot of incentive to preserve the filibuster — in a 50 + 1 environment, they would no longer be the veto points, and would lose most of their power. So they’d be very disinclined to do anything that even tacitly weakens the power of filibuster.

I don’t see how attaching the provisions to unrelated legislation like a defense bill would make things any better. After all, it would be the liberals — not the conservatives — who would be responsible for having weighted down the “must pass” defense legislation. Public opinion would be overwhelmingly against the liberals for holding the defense bill hostage and they would lose the stare-down.

Pass regular order bill first. This is the strategically sounder approach, since it clears the higher, 60-vote hurdle first before things tend to devolve into the inherently unpredictable reconciliation process. Still, I don’t think it overcomes the problem. If you stated explicitly that this was what you were planning to do, it would seem that Ben Nelson, knowing exactly what would come next, would withhold his cloture vote from the regular order portion of the bill.

Perhaps, rather, the idea is to “surprise” the Senate by unexpectedly introducing additional provisions under reconciliation once you’ve already got the main portion of the bill passed. Does this sound attractive to you? Well then, the best thing to do would be to pass the bill as is now, since that is the first step in the strategy. To repeat: the most promising application of the split-bill/reconciliation strategy involves passing what you can now — not killing it.

With that said, I would still not consider this an especially promising path. You’d have essentially three separate sets of objections to overcome. Firstly, there would be the senators who objected to the language of the reconciliation bill on its face. This would probably be more than just Nelson/Lieberman/Lincoln, et. al. if you wanted any sort of robust public option. The Schumer public option, for instance, which is comparable to the House’s version, failed 10 to 13 in the Senate Finance Committee, losing the votes of Kent Conrad and Max Baucus in addition to Blanche Lincoln. That might already put you close to, or perhaps even shy of, the 50 vote threshold. Secondly, you’d have objections from process hawks, like Robert Byrd and perhaps Russ Feingold, who disagreed with the “creative” use of the reconciliation tactic. And thirdly, you’d have some unknown number of senators who felt tricked and would withhold their votes out of annoyance.

In my estimation, getting something like the House’s version of the public option would be distinctly unlikely. A Medicare buy-in or a watered-down public option might be achieved, but is somewhat iffy. But to reiterate: if you want to take this gamble, your strategy is to pass the bill now and not to reject it.

This is Jon’s next potential strategy:

3. Pass the bill with no individual mandate for right now. Let progressives hold the individual mandate hostage until some point between now and 2015 (when the individual mandate goes into effect), and they will trade it in exchange for better reforms. There is zero need to have the individual mandate just sitting on the books unused for the next few years.

This is creative and daring — but I don’t see how it works. The most obvious barrier is that you probably could not get 60 votes for a bill without an individual mandate. Why? Because such a bill, with good reason, will be scored terribly by the CBO. You would definitely have very high premiums and would probably have a bill that was no longer deficit-neutral (the government is on the hook for some of those higher premiums to the extent that it’s paying subsidies). Is Ben Nelson going to vote for a bill with a $1.1 trillion price tag that raises premiums by 30 percent? Is Kent Conrad? Is Claire McCaskill? There’s almost no way. And the “we’ll fix it later” argument won’t impress them, since they think the bill is “fixed” as is!

Even if you could somehow overcome this barrier, you’d still be taking a huge risk. If you deliberately pass a broken bill, there are two ways to rectify that: you can fix it — or you can kill it. Which of those two outcomes is more likely I have no idea, and neither does anybody else.

This is Jon’s last option:

4. Force Harry Reid to use the “nuclear option” like former Senator Bill Frist threatened to do.

He concedes that this is a long shot. Senators generally like the filibuster. Attempts to reform it have tended to go down overwhelmingly — by a 19 to 76 margin, for instance, on a bill introduced by Joe Lieberman (!) in 1994. That probably paints too pessimistic a picture — the Republicans, after all, came fairly close to exercising the nuclear option in 2005. But there are a couple of conditions that would need to be in place to make winning the “nuclear war” at all likely, neither of which apply here. Firstly, you’d want to use the process on a bill that was fairly popular with the public, which health care decidedly is not. (Financial reform might be a better candidate.) Secondly, you’d need unbending, rock-solid consensus among at least 50 senators on the underlying policy you were trying to pass; you don’t have that on the more robust versions of public option.

* * *

The failure to use reconciliation does not reveal any lack of courage on behalf of Harry Reid or the White House. It is, rather, a reflection of reality. The more unadorned, straightforward versions of reconciliation — like Strategy 2 — might not work and would probably result in objectively worse policy than the bill that the Senate is considering now. The more exotic versions, like Strategy 3, might or might not result in better policy, but almost certainly wouldn’t work.

Nor have we discussed the political fallout from using reconciliation, which in my view could be enormous:

The Bush tax cuts were popular; health care is not. Moreover, the filibuster actually polls well, so use of [reconciliation] would be unpopular. If you intersect an unpopular policy with an unpopular process, I don’t know what you’re going to get, but the downside risk would seem to be fairly profound — as in, I’d take even money at that point that the Democrats would lose the House.

Also, tax cuts are a relatively straightforward application of the reconciliation process — health care is not, and the resulting procedural debate would last weeks if not months, giving the public plenty of time to stew over it.

None of this is to say that the reconciliation strategies are impossible. They might work. But the hurdles are much more significant than what Jon has implied, and reconciliation might also “work” but produce a worse, perhaps much worse, policy outcome. Even if one were willing to ignore the political fallout, it would be a fairly poor strategy. And when the consequences for the Democrats’ electoral fortunes are taken into account — as well as their compromised ability to pass policies like a jobs bill and financial reform next year — it seems like a very poor risk.

My impressions of the reconciliation process, just like my impressions of the health care bill itself, are formed based on a combination of extensive reading in an area in with which I’m not so familiar (Senate procedure), coupled the expertise I’ve developed in politics and public opinion. It’s a view that reflects the “consensus” that most others who have earnestly considered the issue have come to.

Maybe my view — the broad consensus view — is wrong. I’m sure the kill-billers will be ready to accuse me of being trapped within the confines of Beltway conventional wisdom (this would be an odd accusation, since 538 is a completely independent blog, is based in Brooklyn rather than Washington, and does not rely to any material extent on “insider” access). But I have not seen a robust and persuasive attempt to rebut the arguments that I and others have made about reconciliation. And I think, indeed, it forms something of a crutch: a convenient excuse not to have to commit to the question of whether the Senate’s bill really is worse than the status quo, and a vehicle to direct one’s anger at the White House, Joe Lieberman, Ben Nelson, and the rest of the usual suspects, instead of getting beyond it and working to facilitate the best policy.

Nate Silver is the founder and editor in chief of FiveThirtyEight.