Well, it’s official, or pretty official anyway. Scott Brown has been elected to Teddy Kennedy’s old seat and Martha Coakley has conceded. Some Democrats are blaming Coakley for running an inept campaign, and this may well have accounted for Brown’s margin of victory. But the real question is what allowed him to get close at all. The theory I subscribe to says that the Massachusetts special election for the Senate became nationalized around the pending health care reform bill. Brown dubbed himself the 41st vote against it, and Coakley obliged by calling herself the 60th vote for it, and also, in doing that, reneged on her strong pro-choice position taken in the primary, and then reinforced the narrative that she was part of the industry bailout team by interrupting her campaign to go to a fund raiser in which health care and Pharma industry lobbyists and contributors were prominent. Coakley was clueless about the strength of the anti-Wall Street feeling out there, just as her leader Barack Obama has been. Hopefully, the White House bubble has now been pierced and the President recognizes that an electoral disaster is pending unless the Administration can align against Wall Street and for Main Street. But whether he has or not recognized this, he now surely knows that the 60 votes in the Senate to pass critical legislation he favors, including health care reform, are not likely to be there on Party line votes. So, either he must work on a bi-partisan basis, not a good prospect with this band of Republicans, or he, along with the Senate leadership, must find a way around the 60 vote requirement in the Senate.

Tonight, many people are addressing what might be done to get around the 60 vote requirement, and people who just yesterday were saying that if Coakley loses health care reform will be dead are now singing a different tune exploring various legislative scenarios that will make it possible to pass it with a majority of votes in the Senate. There are basically three ways of doing that: 1) the Majority Leader of the Senate could refuse to accept holds and procedural filibusters implemented merely by indicating an intention to filibuster, and instead could require actual filibusters to block legislation; 2) the House and Senate could use the reconciliation procedure to pass certain health care reform measures that have budgetary impact; and 3) the Senate could use the nuclear option to abrogate the procedural rule allowing the filibuster, disposing of it once and for all, and restoring majority rule in the Senate. I’ll comment on all three options.

Some people think that requiring actual filibusters would be enough to restore majority rule. Others think that actual filibusters would introduce too much delay in passing critical legislation in time for Congressional elections, and that Democrats will be more interested in other ways of getting around the filibuster. I tend to agree. Restoring physical filibusters may have worked if this had been done in January of 2009, but now there are only ten months left, until the Congressional elections, and tonight Democrats know that they are facing a nation-wide electoral blood bath, unless they pass enough good legislation in Main Street’s interest that they can once again run credibly as “the Party of the people.” Delays introduced by allowing the filibuster are severe handicaps in passing enough good legislation to persuade people that Democrats have delivered on the promises. That is, there is time enough to turn the ship around, but not time enough to legislate and live with the filibuster too.

That brings us to the nuclear option. This way of handling the filibuster is the best from a technical point of view. The problem with it, however, is that it makes individual Senators very powerful in situations where just a few votes are needed to get to the 60 needed for cloture, so that legislation can be passed by majority vote. In fact, it makes every Senator a power onto him- or herself, if they’re only willing to use the power of “no.” We’ve seen that power used in spades in this Congress, and it’s clear that the Senators who used it would certainly not give it up. And even those who have not used it this time around, have used it at other times, and even the most progressive Senators have had occasion to use it and to benefit from it. So, the Senate is very unlikely to use the nuclear option, unless the existence of the filibuster becomes a national issue and the public begins to understand that the Democrats’ inability to act rapidly and effectively is, at least partly, due to its existence. Such an issue won’t come to widespread public consciousness in the short run, unless the White House, or the House Of Representatives, decide to go on the warpath against it, and there’s no indication right now that either will do that without turning first to other options.

That brings us to reconciliation which is, once again, receiving attention as a possible course of action to get health care though. Chris van Hollen (D-MD), part of the Party leadership in the House, has mentioned the possibility of turning to it if the 60th vote is not there in just the past few days.

Bloggers at Firedog Lake quickly picked up on his statement, and, in particular, Jon Walker and Jane Hamsher have written about the idea of “sidecar reconciliation,” or having the House pass the Senate’s bill as it is now written, while getting a commitment from the President, and the Leadership of both Houses that measures favored by the House to “fix the problems” with the Senate Bill would be passed in the Spring using reconciliation. In this way, the excise tax might be modified or repealed, subsidies might be increased to make mandatory insurance more affordable, and even a Public Option like the one in the House bill might be passed. Is this idea of sidecar reconciliation feasible?

Just this evening, Lawrence O’Brien, the well-known pundit with long Washington and White House experience provided some immediate objections. First, while reconciliation removes the need for 60 votes at the end of the legislative process, it can’t get around the need for 60 votes to get past various parliamentary maneuvers which opponents can introduce during the reconciliation process. O’Brien says that these situations occur even a few times per day during the legislative process, and that if the opponents are determined to tie up the reconciliation process in the Senate they can certainly do so.

Second, O’Brien also points out if House members make a deal like this one, he doesn’t think it likely that the reconciliation part of the deal will be implemented, because he’s never seen it happen before. He might also have added that this leadership doesn’t have a good record on keeping its commitments. I’m reminded of Nancy Pelosi’s promise to let Anthony Weiner introduce an amendment substituting the HR 676 Medicare for All bill for HR 3692, in order for Weiner to get a symbolic vote on Medicare for All on the floor of the House. In the end, however, Pelosi pressured Weiner to give up his end of the deal because she said she couldn’t allow amendments to come to the floor without introducing inordinate delays in the legislative process. Right after Pelosi failed to deliver on her promise to Weiner, she immediately showed the world that her excuse to him, was just that, when she allowed the Stupak Amendment constraining women’s reproductive choice to come to the floor for a successful vote. In the Senate, a similar thing happened when Bernie Sanders wanted to bring S 703, his Medicare for All bill to the floor for a vote. In order to get his vote for health care reform, Harry Reid promised him that he could bring his Amendment to the floor, and also promised other concessions on community health centers. Harry delivered on the community health center funding, but when Republicans insisted that Bernie’s Amendment be read in full, thus jeopardizing Harry Reid’s schedule for passing the bill, Harry took away Bernie’s pony, and forced him to give up his reading in the face of Republican pressure. Of course, the biggest example of bad faith in bargaining came from the White House itself, when progressives in Congress were persuaded to give up their support for Medicare for All in return for a health care reform bill, that would have a very strong public option as one of its principal features. But as the months went by, it became clear that the Administration was backing efforts by the Senate Finance Committee to pass a reform bill without even a token public option. And gradually, the President himself, backed off advocating for the public option in various public statements. In short, this leadership doesn’t have a good record when it comes to delivering on its side of the deals it makes in Congress.

In the proposed sidecar reconciliation deals, the Leadership would be guaranteeing legislation passed through reconciliation, that it does not have the power to guarantee. As O’Brien says, since there are all kinds of procedural maneuvers that can de-rail reconciliation, if one doesn’t have the 60 votes to overcome debate on them, opponents of the legislation can block passage if they are determined enough. If that happens the Administration and the Leadership would plead that they wanted to keep to their deal, but could not be responsible for the intransigent opposition of Republicans and blue dogs to the ameliorative progressive measures sought through reconciliation.

Also this last, going beyond the mechanics, doesn’t directly address the political climate raised by the sidecar reconciliation idea. Peterr had this to say about the matter of climate.

Once the House passes the Senate bill, it goes to Obama’s desk for his signature and IT BECOMES LAW.

That fact changes the legislative landscape dramatically, and not for the better.

Once the Senate bill becomes law, all the discussion of a “fix” involve either the filing of a new bill or amending other items already before Congress. But make no mistake: the process you are sketching out involves the House accepting the Senate’s bill as is and adopting a major law now, and then immediately going to work in the HOPE of fixing it.

There will be lots of pressure to simply leave the law alone and come back to it later — and the later, the happier a lot of people will be. The GOP will be more than happy to delay, derail, and otherwise obstruct all the progress to fix it, and PhRMA and the rest of the Baucus Caucus will be happy to oblige them.

In short, sidecar reconciliation as described by Jon Walker and Jane Hamsher probably won’t work. Beowulf, has a little better idea about how sidecar reconciliation might work however. He says:

. . . its not necessary to pass the Senate bill first. The House can take it up anytime before the end of the current Congress (that is, the end of this year). The House and Senate can start working out the terms of the budget reconciliation bill and once the Senate has voted to pass it, the House can vote to approve the reconciliation bill and the Senate health care bill on the same day.

Why on Earth would anyone in the House trust the Senate and the White House not to screw them over on the reconciliation bill if they’re suckered in to vote for the Senate health care bill now and work out the terms of the reconciliation bill later? After all, a sidecar rides next to the motorcycle not behind it.

However, even though Beowulf’s procedural comment solves the trust problem. It doesn’t meet the objection of Larry O’Brien that 60 votes are needed throughout the reconciliation process to handle procedural maneuvers. If the opposition really wants to defeat the health care reform measures in the reconciliation bill, it can grind reconciliation to a halt. If he’s right about this, then health care reform and other critical legislation can only be passed if the Democrats are willing to bite the bullet and get rid of the filibuster. I’ve already discussed the primary difficulties in this course, and pointed out that the nuclear option won’t happen unless the President, the Leadership, the House, and the public force it on the Senate.

Will they do it? The fate of health care reform, and all the rest of any agenda the Democrats may have, rides on the answer to this key question. And so does their electoral fate in both 2010 and 2012.

(Also posted at the Alllifeisproblemsolving blog and Correntewire.comwhere there may be more comments)



Joseph M. Firestone, Ph.D. is Managing Director, CEO of the Knowledge Management Consortium International (KMCI), and Director and co-Instructor of KMCI’s CKIM Certificate program, as well as Director of KMCI’s synchronous, real-time Distance Learning Program. He is also CKO of Executive Information Systems, Inc. a Knowledge and Information Management Consultancy.

Joe is author or co-author of more than 150 articles, white papers, and reports, as well as the following book-length publications: Knowledge Management and Risk Management; A Business Fable, UK: Ark Group, 2008, Risk Intelligence Metrics: An Adaptive Metrics Center Industry Report, Wilmington, DE: KMCI Online Press, 2006, “Has Knowledge management been Done,” Special Issue of The Learning Organization: An International Journal, 12, no. 2, April, 2005, Enterprise Information Portals and Knowledge Management, Burlington, MA: KMCI Press/Butterworth-Heinemann, 2003; Key Issues in The New Knowledge Management, Burlington, MA: KMCI Press/Butterworth-Heinemann, 2003, and Excerpt # 1 from The Open Enterprise, Wilmington, DE: KMCI Online Press, 2003.

Joe is also developer of the web sites www.dkms.com, www.kmci.org, www.adaptivemetricscenter.com, and the blog “All Life is Problem Solving” at http://radio.weblogs.com/0135950, and http://www.kmci.org/alllifeisproblemsolving. He has taught Political Science at the Graduate and Undergraduate Levels, and has a BA from Cornell University in Government, and MA and Ph.D. degrees in Comparative Politics and International Relations from Michigan State University.