CommunityThe Bullpen

The Stupak Amendment Is Back: What’s an Enrollment Corrections Bill?

Jane has gone over this, but what Bart Stupak hinted at today has apparently come true. Stupak’s four-page “enrollment corrections” bill will get some sort of vote in the House as part of the overall health care bill. You can look at the scans of the four-page document here. It’s essentially the Stupak amendment.

Page 1
Page 2
Page 3
Page 4

On page 2, you can see clearly that it says “Nothing in this Act shall be construed to require any health plan to provide coverage of abortion services or to allow the secretary or any other person or entity implementing this Act (or amendment) to require coverage of such services,” and then later, “None of the funds appropriated by this Act… shall be expended for any abortion or to cover any part of the costs of any health plan that includes coverage of abortion, except in the case where a woman suffers from a physical disorder, physical injury or physical illness that would, as certified by a physician, place the woman in danger of death unless an abortion is performed…. or unless the pregnancy is the result of rape or incest.”

This is the Stupak amendment, right down to the language on Page 3 about a separate abortion rider (which is not currently offered in any state where private coverage is banned). And it’s added as a “concurring resolution” to this bill.

Now, can that work? What about reconciliation? Don’t the changes have to be budget-related? What’s the deal with this “enrollment corrections”?

A concurrent resolution doesn’t have to be signed by the President, just adopted by the House and Senate. Enrollment corrections are typically reserved for technical changes to a bill happening in between passage and signage – before “enrollment” of the bill.

The question here seems to come down to how this is presented. Does this enrollment correction get tucked into the reconciliation bill and then “deemed” (there’s that word again) passed by the Senate? Would it have to be a stand-alone measure? What about the Byrd rule?

I asked Sarah Binder, a parliamentary expert and a professor at George Washington University, about all this. She doesn’t quite think it’s possible. Specifically, she says that “any enrollment corrections resolution considered to be more than a technical correction would need unanimous consent (in the Senate) to be adopted.” Failing that, it could possibly run through a cloture vote, basically 60 votes in the Senate. But if it’s inside the reconciliation process, then one Senator merely can challenge the language of one line of the bill and get the concurrent resolution ordered out of the sidecar.

It seems it may come down to WHEN the vote happens. If it occurs before the final vote, Congress might be able to get away with having it included in the total bill. But that doesn’t seem like it would work, for reasons that David Waldman explains here:

It seems to me that if the Senate parliamentarian is indeed insisting that the reconciliation bill address “current law,” then that means the Senate bill must be not only enrolled, but signed by the President before reconciliation can be considered, at least in the Senate. I assume the House parliamentarian has no such objection to the House beginning its work (which is curious in itself), since he’s apparently allowing the House to consider and pass reconciliation before the Senate bill is enrolled.

Will the Senate parliamentarian insist that the bill be signed before permitting the Senate to begin its reconciliation work on the floor? He may have no say over what the House parliamentarian approves with respect to when the House passes reconciliation, but he can prevent the Senate from beginning until the Senate bill becomes “current law.”

Nobody really knows if Stupak can pull this off; there’s very little precedent.

If the vote occurs after the vote on the final bill, it would have to go through a very dicey reconciliation process. And as a concurrent resolution, it might have to exist as a standalone measure entirely, meaning it’s eligible for a filibuster.

Now, we don’t know what assurances are being made on the Senate side to keep this in. Remember, if anything from the House reconciliation sidecar gets changed, the sidecar has to go BACK to the House for another vote. At which point we’re in exactly the same boat that we’re in right now. Democratic Senate leaders have already said they would whip to make no changes whatsoever to the sidecar. So there could end up being a “conspiracy of silence,” where nobody says anything about the abortion language (though presumably a Republican might) and it passes through the Senate without incident. Or Joe Biden overrules the chair on the point of order, and Democrats are whipped to sustain it (though Republicans have said they would not agree to that and would vote en masse against it).

It’s about as clear as mud. But somehow, when something has to be done, the rules tend to melt away. It’s clear the House cannot pass the health care bill without Bart Stupak. That tends to concentrate the mind.

The Pro-Choice Caucus, incidentally, is talking about an open revolt on this.

The vote prompted an angry backlash from members of the Pro-Choice Caucus, who vowed to kill any future healthcare bill containing the Stupak language, which they say goes beyond current law and places more restrictions on abortion than already exist.

Leaders of the Pro-Choice Caucus, some 30 minutes after storming into Pelosi’s office, renewed that threat.

“This concurrent resolution which Congressman Stupak and several others have filed, from the position of the people who signed my letter back in November, is a non-starter,” said Rep. Diana DeGette (D-Colo.), a Pro-Choice Caucus co-chairwoman. “We compromised to the concept ‘no federal funding for abortion,’ which is current law — we don’t like that. And so if Mr. Stupak and a few members, along with the Republicans, decide to use this to take healthcare down, then that loss on healthcare coverage is going to be on their hands.”

DeGette said a move allowing the enrollment resolution to go forward would put “somewhere between 40 and 55” pro-abortion rights votes at stake.

That math was also leading to counter-rumors, including from aides of anti-abortion rights Democrats, that Pelosi could not realistically be putting even a dozen votes from the left at stake for the sake of Stupak and his allies.

But you know, they say a lot of things.

Previous post

Stupak Abortion Language to Be Substituted for Senate Language in Deal to Secure Health Care Votes

Next post

Democrats & Republicans Really Are Interchangeable As News Out of New York Shows

David Dayen

David Dayen