Let them make a spectacle of themselves?
One of the approaches suggested by some to the threat of filibuster of health reform has been "let them filibuster; let them stand up on television making their obstructionist speeches and let the American people see them for what they are."
But Senate rules make that not as effective an option as might be imagined.
Democrats have 60 Senators, technically. In practice they have 58; Kennedy and Byrd may not be able to get out of bed to vote.
It takes 60 votes to invoke cloture and end a filibuster. So, Democrats may not be able to force a vote if they can't muster 60. For that reason, it has been suggested that 60 votes are necessary to get health care out of the Senate.
So, of they are going to filibuster, why not let them? Let them make a spectacle of themselves. Let the voters see them for what they are, as in 1957 and 1964 when filibusters were used by southern Senators against the Civil Rights Act?
Rule 22
Senate Rule 22, though, allows a "silent filibuster." No speeches needed; no spectacle at all.
Under Rule 22, if 41 Senators state their intention to filibuster, then nothing can be done absent a cloture vote. It is not necessary to stay on the floor and debate (or read recipes, or whatever). Just a quiet procedural tool keeps reform from coming to a vote.
The Byrd Rule
Of course, some things can't be filibustered. Budget Reconciliation votes are not subject to filibuster. That's why Senate leaders have kept open the option of using Reconciliation to bring health care reform to a vote, where only 50 votes are necessary. But Reconciliation is subject to its own rules, in particular, the Byrd Rule.
The Byrd Rule provides that:
- Bills passed using Reconciliation must be deficit neutral within five years (all of the current proposals take ten years to reach deficit neutrality).
- Policy matters cannot be voted using Reconciliation.
Those two features of the Byrd Rule mean that any bill passed using Reconcilation would be exceedingly weak. Costs would have to be cut in half (or tax revenue doubled), and policy features such as "no bias against pre-existing conditions" would have to be removed.
Conference Report
Some have pointed to the Senate rule that provides that a motion to proceed to conference report is not subject to debate. Unfortunately, though, the conference report itself can be filibustered (unless it is a Budget Reconciliation bill). So whatever bill comes before the Senate after conference with the House, will likely need 60 votes.
Are Even 50 Votes Possible?
It isn't clear that even 50 votes are possible if the bill includes a public option. Only 44 Senators have said they would vote for a public option (and that includes Olympia Snowe, whose commitment is shaky at best and Ted Kennedy, who probably won't be able to vote). 41 have said they will not vote for a public option. That leaves 15 Senators, and it is difficult to identify six likely yes votes among them.
So it might come down to this: no public option, or no bill out of the Senate, even using Reconciliation.
It's too early to concede that point, as Slinkerwink has pointed out. But smart political strategy always involves counting the votes.
There WILL be a health reform bill
The votes are there for a health reform bill that (a) provides affordable coverage, (b) provides near-universal coverage, (c) solves the Medicare funding crisis and saves us from national banrutpcy, and (d) reforms insurance, so that pre-existing conditions must be covered, and coverage cannot be revoked.
What isn't as clear is whether there is a feasible path to (e) a public option to compete with the insurers.
Count me among those who think that providing affordable, universal coverage, solving the Medicare crisis, and reforming insurance are one heck of an accomplishment. And count me among those who say that if we liberals cause that accomplishment to fail by, in the end, helping kill any bill that does not include a public option, then we are "f@cking stupid."
Would you have voted against Social Security because it didn't include agricultural workers and domestic workers and nonprofit organization workers? In retrospect, killing Social Security because it was imperfect at first would be a huge mistake. Let's not make a similar one this time.