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By Jay Cost

« The Return of ObamaCare, Part 1: The Legislative Context | HorseRaceBlog Home Page | Counting the Heads of House Democrats / Updated 3-14 »

The Return of ObamaCare, Part II: The Political Context

In the last essay, I argued that the legislative process is going to complicate the passage of Obama's health care reform proposal. Just how complicated it will be is too early to say.

The politics are at least as complicated, if not more so. The biggest trouble will be in the House, not in the Senate. Consider:

-The vote on final passage of the Affordable Health Care for America Act was 220 to 215, with 38 Democrats voting with Republicans.

-John Murtha has since passed away.

-Robert Wexler has since resigned, and Florida's 19th Congressional District will not elect a replacement until early April.

-Neil Abercrombie of Hawaii's 1st Congressional District will resign at the end of this month. The special election to replace him will be held May 22. Thanks to the peculiar election rules, Republicans actually stand a chance of replacing him.

-Reports indicate that Joseph Cao, the sole Republican to support the reform efforts in November, will not do so this time around.

-That puts the number at 216-216, which is insufficient for passage.

Additionally, striking the Stupak abortion language from the bill will satisfy the left flank of the House caucus, but it will scare off pro-life Democrats who voted with the Speaker in November. There are 15 Democrats who voted for the Stupak amendment and for final passage with a lifetime National Right to Life Committee (NRLC) score of 70% or higher. 6 have a score higher than 90%.

For any votes held between the time that Abercrombie resigns and Wexler's replacement is seated, the Speaker will need to flip at least one Democratic vote to get the bill to pass. Factor in the Stupak Democrats, and the real number is probably between 5 and 20. That is, she'll have to convince between 5 and 20 Democratic House members who voted nay in November to vote yea this time around.

Next question: who are these House Democrats that voted nay in November? Here are some relevant details on them:

-Obama's median share of the presidential vote in their districts was just 45%.

-22 of them voted in favor of the Stupak amendment. 12 have lifetime NRLC scores greater than 70%.

-13 are freshmen members. 24 are Blue Dogs. 3 have stated plans to retire.

-On four divisive roll calls this year - cap-and-trade, financial reform, raising the debt limit, and the jobs bill - 34 voted against the leadership at least once; 21 at least twice; 12 at least three times.

-Update, 1:30 PM. Charlie Cook rates 31 of these 38 seats as competitive. 2 are likely Republican; 9 are toss-up; 9 are lean Democratic; 11 are likely democratic.

Nothing conveys a political problem quite like a map. Here is how their districts are distributed geographically.

District Location of Nay Voters - Google Maps.jpg

Put simply, these will be some tough nuts to crack.

It's important to note that whatever changes the reconciliation bill ultimately embodies are not really being done for the sake of these 38 members. They are instead meant to bring on board the House liberals. So, getting 50 votes in the Senate for a reconciliation bill is not directly related to securing any of these 38 defectors.

It's far too early to put any probability numbers on anything occurring. Instead, I think it's more worthwhile to highlight some salient political themes. There are a few that help the Democrats in their efforts to flip some of these members, and a few that hurt them.

Themes That Help

1. Pocket Votes? Among scholars of Congress, relatively few think that legislative parties operate primarily by influencing their members directly on roll call votes. That's not to say that the parties in the House are powerless. The most compelling work on party power in recent years has suggested that the party organizations are set up as agenda-setting cartels, making sure that items that would split the majority in half do not get brought for a vote on the House floor. Simply put, the leadership's job is to make sure that the floor vote always goes with a "majority of the majority."

Still, there has been research suggesting that "pocket votes" are indeed an important factor at the margins. An example of such a pocket vote, or option, is offered by David King and Richard Zeckhauser of Harvard in Legislative Studies Quarterly.

Marjorie Margolies-Mezvinsky (D-PA)...cast the deciding vote on President Clinton's 1993 budget-reconciliation bill. As the last legislator to vote on August 5, 1993, the outcome was hers to determine, and most observers expected a "no" vote. Margolies-Mezvinsky voted "yes" instead. Congressional Quarterly tells the story: "She had pledged during her campaign and even the day before the vote that she would vote against a bill that increased taxes. But Democratic leaders extracted a private promise from her to support the deficit-reduction package if her vote proved necessary to pass it" (CQ Almanac 1993, C39). This was a classic "if you need me" pledge, which we shall label an "option." Although it was widely predicted that the tax package would be handily defeated, President Clinton and House leaders got matters close enough that calling in the option on Margolies- Mezvinsky's vote was worthwhile; the bill triumphed by a single vote.

How many such "options" does Nancy Pelosi have among these 38 nay voters? That's the big question, and it is impossible to pin down a precise answer. However, it's important to note that the Stupak amendment is precisely the kind of bill that the party leadership does not allow onto the floor - it passed, but with a majority of the majority voting against it. That Pelosi allowed this to happen suggests that she needed the Stupak voters, which in turn suggests that they are (or at least, were) more numerous than however many pocket votes she had.

I would suggest, then, that Pelosi's pocket votes are probably not enough to get the bill to passage absent the Stupak language. Still, her pocket votes could cut down on the number of Democrats she has to flip. In particular, I'd look at the announced three retirees who voted against the bill in November - Brian Baird of Washington, and Bart Gordon and John Tanner of Tennessee - as the most likely pocket votes for the Speaker.

2. Lieberman Over Waxman. The Senate bill will inevitably form the bulk of the final product. Now that Scott Brown is the junior senator from Massachusetts, the Democrats can only hope to make modest changes to it. This means that the nominal price tag - as assigned by CBO - should be lower than what the House passed. It also means that the public option is gone. Lefty number crunchers want us to believe that this is in fact a bad thing for moderate Democrats because the public option is the biggest hit since Saturday Night Fever - but the data buttressing this argument lacks external validity. Oh sure, have the pollsters at ABC News/WaPo define the public option for people, and it does pretty well. But these moderate members didn't get to Congress by relying on the ABC News/WaPo poll. They know better than that. They understand that a public option opens the door for a full-blown GOP campaign about a "government takeover of health care." Take another look at that map, and ask yourself if the moderates who are scared of the public option are acting as irrationally as the polls and their diviners on the left have suggested. No way. The reality is that the public option is a political nightmare for many of these members - and it's a blessing for them that it has been removed.

So, having a bill whose guts are more like the Senate bill, i.e. more moderate, might make it easier to flip a few of these members.

Themes That Hurt

1. Reconciliation. In the last column, I identified myself as a procedural Hobbesian. I don't think "right" and "wrong" enter into considerations on procedural matters. That does not mean, however, that reconciliation is not going to give the GOP another political angle. It is. Scott Brown's office offers a sneak peak (h/t NRO's Critical Condition):

"If the Democrats try to ram their health-care bill through Congress using reconciliation, they are sending a dangerous signal to the American people that they will stop at nothing to raise our taxes, increase premiums and slash Medicare...Using the nuclear option damages the concept of representative leadership and represents more of the politics-as-usual that voters have repeatedly rejected."

The Democrats will push back, but (again) look at that map and consider the audience. Is the GOP argument going to have traction in these districts? I'd say yes.

2. Who Goes First? Somebody has to. Either the Senate passes the reconciliation fix first or the House passes the Senate bill first. House liberals will want the Senate to act first. They do not want to pass the Senate bill, then have the GOP use the Byrd rule to gut the major compromises in the reconciliation bill. That would be as bad as passing the original Senate bill all by itself, which they just cannot do.

Unfortunately for them, a key Senate Democrat is suggesting that the House has to go first.

(Kent) Conrad (Chairman of the Senate Budget Committee) threw some doubt Wednesday on the plan that House Speaker Nancy Pelosi has been pushing, and Senate Majority Leader Harry Reid has indicated he could accept -- to pass the sidecar reconciliation bill with the fixes before the House takes up the Senate bill, as a way to mollify House members who strongly oppose the more conservative Senate measure.

Conrad, who has been open to reconciliation as long as the fixes are limited, said the order must be reversed. The House must pass the Senate bill first -- before either chamber considers the reconciliation package, he said.

"I don't know of any way, I don't know of any way where you can have a reconciliation bill pass before the bill that it is meant to reconcile passes," said Conrad, who would be a central figure on the Senate floor if Democrats embark on the complicated process. "I don't know how you would deal with the scoring. I don't know how I could look you in the eye and say this package reduces the deficit. It's kind of got the cart before the horse."

The rules of the reconciliation procedure indicate that when multiple committees report bills for reconciliation, they all go to the Senate Budget Committee, and thus to Conrad. His opinion matters.

3. Declining Support. In November, CNN had net support for the bill at -3. Now, it is at -20. If you're a Senate Democrat who isn't up for reelection until 2012 or 2014, this is not a huge concern. But if you're a House Democrat, you have to stand before the voters in less than nine months. This is a major problem.

Similarly, President Obama's net job approval was +7.7 in the RCP average on the day the health care bill passed the House. Today it is at +1.6. You can imagine where it is in those 38 districts.

4. It's a Scott Brown World. We're Just Living In It. The Democrats might be able to sidestep the legislative effect that Scott Brown's election has had - but what about the political effect? A heretofore unheard of Republican state senator won a Senate seat in Massachusetts by explicitly running against this bill. Politically speaking, this was a major event. It raises an important question: if the GOP can win in Massachusetts by running against ObamaCare, where can't it win? Toss in some other big-ticket political events - Evan Bayh's resignation, Byron Dorgan's resignation, and Charlie Cook now suggesting that a GOP takeover of the House could very well happen - and there is a growing sense among House Democrats that this is going to be a tough election year. Not a good political context for a nay-to-yea flip-flop.

5. "We got something done..." Or "I stood up to my own party..."? Suppose you are one of those 38 nay voters, and you flip your vote. What's your argument to your constituents? It would probably be something like this: "Obviously, this bill was not my ideal - that's why I voted nay in November. But it was so important that we Democrats get something done, that we proved we were capable of governing - that I had no choice but to change my vote." Granted that could be an effective argument for reelection in Manhattan or San Francisco - but these 38 Democrats don't come from there. They hail from Alabama, North Carolina, Tennessee, and so on. Big difference.

Politically speaking, they would be much better off voting against the bill again, going back to their constituents, and saying something like this: "You voted for me because I promised to be an independent voice in Washington, D.C. That's exactly what I have been. The leadership and the President pushed me hard to change my vote, but I know how strongly opposed you are to this bill - and so I resisted them."

Final Thoughts

I've been thinking hard about this subject for a couple days. I tried my best to come up with as many political pro's and con's for passing the health care bill - and you can see that the final count is 5-2, con.

Again, I'm not willing to put odds on anything, but this should make clear that there are major political hurdles left to jump, even if they can get a reconciliation bill through the Senate. Ultimately, the best news for reform advocates is that they only need maybe 15% to 50% of these previous defectors to come on board. In other words, most of them can continue to defy the President, and the bill can still pass.

Still, it will be no little feat to get any of those who voted against the bill in the fall to support it in the spring. A lot of the political problems have to do with the decaying political environment Democrats face. House members are inherently more sensitive to politics. This is as it was designed to be all the way back in 1787. Forcing Representatives to stand for reelection every two years makes them more responsive to the desires of their constituents, i.e. to politics. It's one thing to pass a bill through the House in November, 2009. It's another thing entirely to try it in April, 2010.

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-Jay Cost