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By Jay Cost

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Bart Stupak Has Problems

Michigan Democrat Bart Stupak has problems.

Big problems.

Here's the situation. He and his bloc of pro-life Democrats want Stupak's pro-life language in the final health care bill. The talk of late is that this might be done by inserting the Stupak language into the reconciliation bill that is currently being negotiated. Here's how this scenario would go down: the House votes for the Senate bill, which does not have the Stupak language; then it votes for the reconciliation "fixer," which does have the Stupak language; then the Senate votes for the reconciliation fixer; in the end, the Stupak language becomes law.

That's a mess.

For starters, Stupak has to hold his anti-abortion coalition through the House. He did this in November - convincing the Speaker that he had enough votes to kill the House health care bill unless he got his pro-life language inserted into it. He has to do this again now.

But then he has an even bigger problem: the Senate.

Senate Republicans want us to believe that they'll move to strike any Stupak language from the reconciliation bill. One of the best Captiol Hill reporters in the business, David Drucker, has the details on GOP bluster:

Republicans, hoping to sow doubts among House Democrats about reconciliation's prospects for passing the Senate, revealed Tuesday they intend to raise procedural objections over any abortion language that shows up in a reconciliation package -- even if it toughens prohibitions against federal funding. Specifically, Republican Senators plan to raise a budget point of order, a procedural move objecting to the reconciliation process that requires 60 votes to defeat.

This is what is known as a non-credible threat. Don't believe this for a minute.

The reason is simple: Senate Republicans will not have an opportunity to kill the main health care bill. By the time the reconciliation bill comes to the floor of the Senate - the main bill that they hate will have passed the House and likely will have become the law of the land (assuming that the Democrats don't find some Rube Goldberg legislative device to make the Senate act on reconciliation first). Thus, Senate Republicans will face the following choice: health care reform with the Stupak language or health care reform without the Stupak language.

That's really no choice at all.

We can represent this graphically with a decision tree:

GOP Non-Credible Threat.jpg

The idea here is that the House goes first. If they fail to pass the main bill and the reconciliation "fixer" bill, health care reform dies. If they pass them, then only the reconciliation bill goes to the Senate. Senate Republicans have no opportunities to attack the main bill. Thus, they are faced with a choice: main bill plus Stupak language or main bill minus Stupak language. A large majority prefer the Stupak language, so they do not raise a Point of Order on this.

Remember, we must always assume that members of Congress only care about process insofar as it affects policy. When faced with a choice between retaining the Stupak language or maintaining the integrity of the Byrd rule (ha!), they'll go for Stupak seven days a week and twice on Sunday.

Importantly, the GOP will raise a Point of Order if and only if it expects that the objection will move the final product closer to the party's preferences. So, if you're a House Democrat who wants a certain liberal provision to get into the reconciliation bill, but you're worried that it might not survive the Byrd rule, you do have reasons to worry. The GOP will probably raise a Point of Order against your provision. But Stupak wants to move the package to the right. The Senate Republicans are not his problem.

The Senate Democrats are.

Steny Hoyer has a negotiating advantage in dealing with the Stupak issue in the House. He can bring the liberals together with Stupak and say, "Look, guys - we all want health care reform. If we don't find common ground, we're not going to get anything!" This is probably why Stupak said he is more optimistic - Hoyer has indicated a recognition of the problem and a willingness to talk with Stupak.

HOWEVER

Suppose that the House Democrats agree to put Stupak's language into the reconciliation bill. As I said, the Senate GOP will likely go along with it when it gets to the Upper Chamber - but Senate Democrats likely will not. After all, by the time the reconciliation bill has come up for a vote in the Senate, the main bill will already be the law of the land. Thus, the Hoyer pitch of "We have to find common ground or else there's no bill" will be inoperative. Senate Democrats will thus face this choice: they can have health care with Stupak language or health care without Stupak language.

That's really no choice at all.

Senate Democrats are bound to reject the Stupak language, just like they did in December. Specifically, somebody like Barbara Boxer will raise a Point of Order against the Stupak language to get it stricken from the reconciliation bill. The parliamentarian will presumably advise that the objection is valid - and 60 votes will be required to overturn the ruling to strike it. A majority of Senators will probably vote to overturn it - just as a majority voted for Stupak language in December - but it will fall short of the needed 60 vote supermajority. (Side prediction: the liberals who have been huffing and puffing about the supermajority requirements in the Senate will not be terribly upset by this.)

Graphically, the decision tree looks like this:

Dems Empty Promise 2.jpg

This is Stupak's real problem. Lots of Democratic House members have expressed concerns about the trustworthiness of the Senate. Stupak has the most reasons to worry.

I think the only solution for Stupak is somehow to find a way for the Senate to act first on abortion. This is the most important point: when Stupak and his bloc cast their votes in the House, their leverage is completely gone. That's the only power they have in the process. If they are induced to go first, they will lose to the Senate liberals.

Follow me now on Twitter, and be sure to check out my health care whip count, updated as new information comes in.

-Jay Cost