Democrats seem to have an unsolvable legislative problem on their hands. It does not seem that their current strategy of passing the Senate bill as is and then arranging some fixes through reconciliation will work. Bart Stupak (D-MI) and his anti-abortion gang want changes to the abortion language before voting on the bill, and Senate Republicans have promised to make sure that can't happen. It would appear like the Gordian Knot this is a mess the Democratic leadership simply can't untie. But if they follow the historic example of Alexander the Great they can pull out their sword and cut straight through the knot instead.
Below are just four hardball strategies Democrats could employ to pass health care reform, if they were truly willing to do everything possible to pass a bill:
1) A New Reconciliation-Only Solution: Create a brand new reconciliation-only Byrd-proof bill that would rely on expanding current public health insurance programs and offering a buy-in to the Federal Employee Health Benefit Program. Despite complaining by Kent Conrad (D-ND), it is completely doable. Reconciliation can be used to provide coverage to 31 million Americans, just not with the exact same weird step-up in the current Senate bill. This solves the Stupak problem because current public programs and the FEHB program are already covered by the Hyde Amendment. It might also appeal to other reluctant House members because it would be a “new” bill without deals like the “Cornhusker kickback.”
2) Nullify Byrd Rule for Just Abortion: Pass the reconciliation measure first with a self-executing rule. The abortion changes can be added to this reconciliation measure. To protect abortion changes from the Byrd rule, Vice President Joe Biden as President of the Senate can use his power to ignore the parliamentarian and declare that abortion changes don't violate the Byrd rule. This would solve the Stupak problem. On the other hand this might not be workable because it could easily cause a revolt among pro-choice House and Senate Democrats. Most importantly if Joe Biden was willing to take the bold step of nullifying the Byrd rule for one provision, why not do it completely to make life much easier for Democrats.
3) Nullify Byrd Rule For the Whole Bill: Instead of nullifying the Byrd rule and other rules of reconciliation for just one provision, Biden could do it for the whole bill. Senate Democrats could take up the House health care bill under reconciliation, have Biden rule against any Byrd rule point of order and pass the bill as is. It would go straight to the President's desk and become law.
Similarly Democrats could write a “new” bill which would just be a traditional merge bill between the House and Senate bill. They could put this new bill through reconciliation with Biden ruling against any Byrd rule point of order raised by Republicans. This would allow Democrats to pass a whole health care bill through reconciliation with only a simple majority vote.
4) The Actual “Nuclear Option": It is funny Republicans have attacked the traditional use of reconciliation as the nuclear option. The whole reason Democrats are tying themselves in knots is because Senate Democrats refuse to actually think about using the real “nuclear option.” If Democrats really wanted to, fifty senators plus Biden could use the “nuclear option,” like Republicans threatened to in 2005, to kill the filibuster. This would allow them to pass the current House bill, a new merged bill, or an abortion sidebar bill with only a simple majority in the Senate.
The difference between what Senate Democrats say they can do and what they actually could do.
Democrats have tied themselves into knots, gotten themselves into a seemingly inescapable legislative standoff, and will possibly fail on a top goal because of their weird allegiance to Senate rules. Rules the Republicans have exploited to maximum efficiency to ruin Democratic legislation, cripple the Senate, deny help to millions of Americans in need, and hurt the re-election bid of Democrats.
Democrats might allow themselves to fail at health care reform simply to protect Senate rules that now every top member of Democrat Senate leadership says need to be changed. Senate Democrats plus Joe Biden do technically have many tools at their disposal to pass health care reform, if only they have the will needed to play hardball. This is something Democrats should keep in mind because constituents will ask “what have you passed to help us?” not “how well have you protected the stupid broken traditions of Congress that we hate and don't even understand?”
Remember, if health care reform fails, it is not solely the fault of House Democrats. Senate Democrats could pass health care reform without members of the House taking another action.