The Stupak Sidecar

There are reports going around that there might be a third bill for health care reform. There is the Senate bill, which has passed the Senate and will be the basis for any action by the House. And there will be the reconciliation bill, that alleviates concerns that House Dems have with the Senate Bill. But the Senate bill is slightly looser on abortion coverage than the House bill (although it does not provide federal financing for abortions, despite Stupak's claim), which has left Stupak opposing the current Senate bill and looking for a fix.

The problem is that abortion almost certainly can't be adjusted through reconciliation: it has no direct effect on the budget, and so wouldn't survive the 'Byrd Bath'. So there has been talk of a third bill, this one not put through reconciliation, to bring the Senate language on abortion into alignment with Stupak's preferences.

The question though is how this would work, and specifically, the ordering of the votes: presumably Stupak doesn't trust the left-wing of the Democrats on abortion, nor--as a House member--is he likely to trust the Senate, especially a Senate that he sees as having passed a bill with looser restrictions on abortion financing. This suggests that he'll likely want his bill to be voted on before the health care bill is passed. But there are two problems with this: (1) I don't see how you could amend a bill before it is passed, which is what this would entail (the courts would presumably argue that the most recent law is the holding law), and (2) the Republicans would see that this is a bill necessary for mustering a Democratic majority, and would vote against it. It becomes a killer amendment, because there is no way that the Democrats could pass an abortion restriction amendment on their own. The votes just aren't there.

So if that is out, then maybe it can be passed after the Senate bill is passed by the House but before it becomes law. This seems a plausible option, as Republicans, seeing that the Senate bill has passed regardless, would likely vote with Stupak. But would Stupak, who already blames the leadership for bringing abortion into the debate in the first place (I have no idea whether or not this is true, but this is his claim and I'll accept it for the moment), is unlikely to accept this as there is nothing binding the leadership to follow through. The Weekly Standard reports that Stupak has taken this option off the table as well

Stupak affirmed that he will not settle for an agreement to pass the bill now and fix the bill's problems on abortion later: "If they say 'we’ll give you a letter saying we'll take care of this later,' that’s not acceptable because later never comes."

 So what's left? I think it is very difficult to pass a Stupak amendment before the Senate bill becomes law, for reasons both legal and political. And Stupak does not trust the leadership to follow through at a later date, meaning that it becomes very difficult to pass the bill and then pass the amendment.

I see one way out, but it's going to take some major action on the part of the President, and more importantly, it will require that Stupak and the12 democrats Stupak claims to have on board place a great deal of trust in the President. Step 1. Pass the Senate bill in the House. Step 2. Pass the Stupak Amendment in the House and Senate. Step 3. Pass the reconciliation bills in the House and Senate. Step 4. Obama signs the health care bill into law, followed by both the reconciliation bill and the abortion bill.

That is you pass the Senate bill, and then pass the abortion bill prior to signing the Senate bill. You then sign the bills in that order as well. This overcomes the legal problem of amending a bill that hasn't passed and so is similar to the second option that I outlined, but with one difference: Obama needs to be able to credibly commit to Stupak that he won't sign the health care bill unless the abortion bill is also passed. This though doesn't necessarily overcome the political difficulty: Obama needs to be able to commit to Stupak that his bill will not be left high and dry. But he needs to be able to do this without the Republicans believing that he would drop health care reform if Stupak's bill doesn't pass, or else they would have a strong incentive to vote against Stupak. This is a tough assignment, and I don't see how he could do it. The most likely outcome would be that the Republicans and left Dems vote against Stupak, killing his bill, and the President goes ahead and signs health care reform into law. But of course Stupak would assume that this would happen and so wouldn't agree to this voting schedule in the first place. The only way it could work is if (1) Stupak believes that Republicans wouldn't vote against his bill even if it meant killing health reform, and (2) Stupak trusts Obama enough to follow through on his bargain and wait for the vote on the Stupak amendment before signing anything.

All in all an unlikely set of events. Maybe the GOP would vote for the Stupak amendment even if it meant that health care was likely to pass. Maybe the administration could convince Stupak to settle for a vote, rather than a passage, and if the GOP votes against to really hammer at them for voting for the (slightly more) pro-choice position. And maybe Stupak was simply posturing with his refusal to accept a promise for legislative action after the bill has passed. But unless they can figure this out, the leadership might be headed for a vote it can't win.