By Alexander Bolton - 01/19/10 12:45 AM EST
Congressional Democrats are considering passing healthcare reform before the winner of the Massachusetts special election is seated in the upper chamber, Democratic sources say.
The expedited endgame would be necessary only if Republican state Sen. Scott Brown defeats state Attorney General Martha Coakley in Tuesday’s special election to fill the seat left vacant by the late Sen. Edward Kennedy (D-Mass.).
If Coakley wins, Democrats will retain their 60-vote, filibuster-proof majority in the Senate.
Leaders will make a final decision when results of the election are known, but sources close to the Democratic leadership in both chambers say a speedy vote is the best option.
The plan could backfire if a single Democratic senator, such as Sen. Ben Nelson (Neb.) or Sen. Evan Bayh (Ind.), objected on grounds that it would violate the will of voters in Massachusetts.
Rushing the final bill through the Senate before Brown could take a seat would be difficult.
The president and Democratic leaders must reach an agreement, receive a cost analysis from the Congressional Budget Office (CBO) and give lawmakers and the public 72 hours to review the final language. Finally, they must pass the bill through the House and wade through the final Republican procedural objections in the Senate before clearing the bill to President Barack Obama.
This would be complicated enough in normal circumstances, but if Brown wins, they would have to do it within a span of seven to 15 days.
House Speaker Nancy Pelosi (D-Calif.) told colleagues emphatically during a conference call earlier this month that the House would not roll over and accept the Senate bill without changes.
Pelosi spokesman Nadeam Elshami reaffirmed that stance Monday.
“Nothing has changed regarding the House position about the Senate bill. We are working toward a compromise,” he said.
Rep. Eliot Engel (D-N.Y.) told the New York Daily News that he expected a lightning-quick vote if Brown won.
“I’m telling you, Massachusetts, if it goes wrong, is going to be a big catalyst to push a vote,” Engel said. “They will tell us that it’s now or never, we’ve gotta have a bill, we’ve gotta do this, we’ve gotta do that.”
Another option under discussion would be to have the House pass the Senate bill and then use special procedural rules known as budget reconciliation to amend it post-passage. Democratic Congressional Campaign Committee (DCCC) Chairman Chris Van Hollen (Md.) floated the idea during an interview on Bloomberg Television.
Under this scenario, House lawmakers would pass the bill with a promise that it could be changed at a later date with a reconciliation bill that requires only a simple majority in the Senate.
But a source familiar with the discussions of Democratic leaders said using reconciliation to make belated changes to the Senate bill is a “distant second” on the list of possibilities.
A major problem with using reconciliation is that it would take several weeks, perhaps more than a month, for the various committees of jurisdiction to pass legislation affecting healthcare-related spending and taxes that could be bundled into a package for consideration on the House and Senate floors. Furthermore, reconciliation protection can be used only for measures that are designed to have budgetary impact, complicating what policy changes could be made retroactively to a House-passed Senate bill.
A third, albeit unlikely, option would be to seek one Senate Republican to join the remaining 59 Democrats and Independents in passing the final bill.
Sen. Olympia Snowe (R-Maine) is the most likely target. While she voted against the healthcare bill on the Senate floor, Snowe was the only Republican to back a Democratic plan in committee.
“As I look back it was a waste of time dealing with her … because she had no intention of ever working anything out,” Reid said of Obama’s persistent effort to woo Snowe.
Senate Republicans would cry foul and challenge the legislation in court if Democrats tried to pass a final healthcare bill through the Senate with a vote cast by Sen. Paul Kirk (D), who was appointed to fill Kennedy’s seat temporarily, a GOP aide said.
“Trying to delay the seating of duly elected senator to jam through a bill that is tremendously unpopular would be met with outrage,” said the aide, who predicted that Bayh or other Democratic senators facing reelection this year would object to avoid being sucked into a controversy over allegations of dirty politics.
“The perception of this would be catastrophic,” the aide said.
Conservative columnist Fred Barnes laid out the legal objections to Kirk voting after Election Day in a recent article in the Weekly Standard, saying he will no longer be a senator.
But Democrats have vigorously disputed that argument, giving themselves leeway to use Kirk as a 60th vote if necessary.
“Fred Barnes should stick to being a pundit, because his legal advice is lousy,” said Jim Manley, Reid’s spokesman.
Manley has also rebutted Republican attacks against rushing a bill through the Senate or using reconciliation to pass changes demanded by the House.
After Sen. Judd Gregg (R-N.H.) told The Boston Globe that either option “would be Chicago politics at its worst,” Manley told the Globe: “Both of those options are well within the scope of the rules of the Senate.”
Democrats and Republicans have begun to focus their sparring on just how much time Kirk would remain in the Senate after the special election.
A GOP aide pointed to a provision of Massachusetts election law stating the governor could certify a winner “on or after the seventh day following a special state election.”
Democrats have said it would take 10 to 15 days to certify a winner.
The Globe reported that town clerks in Massachusetts would wait 10 days after the election to collect the ballots of overseas military personnel and then would have another five days to send the results to Secretary of State William Galvin.