Health Care Reform Loses Its Mojo

For several weeks, every national poll has indicated that more Americans are now opposed to the various health care reform bills that have worked their way through the House and Senate than support them, and the gap has widened with each new poll.

In the face of this, Democratic leaders in the Senate have talked of various legislative strategies to get a bill passed this year, in the face of strong Republican opposition in the Senate to many features of the bill that has made its way through three separate House committees. Among the suggested approaches was splitting the bill into two pieces, with the more controversial portions (such as a new public insurance option) stuffed into a Senate version of the bill that could be passed through the reconciliation process, requiring only 51 votes. The less controversial sections would then be put into a second bill, where the normal 60 votes would be needed to end a filibuster. There has been talk of getting a single bill that is less controversial and less extensive through the Senate with some Republican support, and then using the conference committee of House and Senate members to mold a compromise final bill, in essence leaving Democrats to fight the big policy issues out among themselves, out of the public spotlight.

One of the two Senate committees with jurisdiction for the health care reform bill, the Finance Committee, is still drafting its version of a bill, and anything that comes out of this committee may be unacceptable (too weak) to satisfy progressive Democrats in the Senate and House -- some of whom have threatened to vote no on any bill without a public option. An assumption that has accompanied the various approaches to Senate action is that the House will pass a final bill, since the filibuster power does not exist for the minority party in the House, and with the Democrats holding a near 80-seat margin, it would require 40 Democrats in the House to abandon their speaker and the president for the bill to fail there. While there are over 50 “Blue Dog” Democrats, it is not at all clear that near 80 percent of them will stand together to kill the bill.

So for now, it is the Senate where the gambits are being discussed.

The death of Senator Edward Kennedy on Wednesday complicates the picture for the Democrats. Kennedy was one of 60 Democrats or Democrat-leaning independents in the Senate. In an unusually cynical move in 2004, the Massachusetts legislature passed a bill that removed the power of the governor to appoint a replacement senator in the case of a vacancy. Massachusetts Democrats hoped for a win in the presidential race for Senator John Kerry, and did not want then Republican Governor Mitt Romney to appoint a Republican to succeed Kerry until the next federal election in 2006. The 2004 bill called for a special election to be held within 145 to 160 days after a vacancy occurred. With his death from brain cancer imminent, Kennedy wrote a letter to state legislative leaders in July asking them to change the law again so that the governor, now a Democrat, could appoint his successor. If the law remains as it is, a special election will not be held until January or February 2010. If that is the case, the 59 Democrats in the Senate would need at least one Republican to cross party lines to break a filibuster on health care reform in the next few months, assuming the reconciliation process was not used to kill the filibuster threat and a final bill was ready in this period.

The Obama administration, not wanting to "waste a crisis" in the words of Chief of Staff Rahm Emanuel and seeking to maximize the honeymoon period for its new charismatic leader, attempted to steamroll through an aggressive legislative agenda quickly -- the near $800 billion stimulus package, cap-and-trade legislation (a watered-down bill barely passed the House and is now stalled in the Senate), and health care reform. The goal was to have both cap and trade and health care reform completed in both houses of Congress before the August recess. Unfortunately for the Obama team, his glow has faded and his approval ratings have dropped very quickly.