Slick Play

Here’s an amazing little article from Politico.

The Roman Catholic bishops signaled Thursday that if agreement is reached with House leaders on anti-abortion language, the church would work to get the votes needed to protect the provisions in the Senate — and thereby advance the shared goal with Democrats of health care reform.

What are they talking about? Well, the bishops want the Stupak amendment, which would effectively end coverage of abortion services in all insurance markets over time.

Never mind that the federal government already subsidizes abortions through the employer deduction for coverage that almost always includes reproductive choice. Never mind that the Nelson compromise in the Senate bill would probably do exactly what the Stupak amendment does, because the requirement of two separate payments – one for your health insurance and one for the portion that covers abortion services – “would be cumbersome for insurers and objectionable to customers.” Never mind that Linda Blumberg, a health policy analyst for the Urban Institute, said that “There will not be abortion coverage in the exchanges. There just won’t be.” Never mind that the design of two separate payments singles out insurers who offer abortion coverage, opening them up to anti-choice protests. Never mind that under the bill, employer-based coverage is meant to move to the exchanges over time, as the eligibility for the exchanges expand, meaning that this restriction in the individual and small-group markets will eventually be brought to everyone. And never mind even that Ben Nelson, who authored the Senate version, “tried to figure out language that would be as close to Stupak as you could be without repeating the language,” according to his spokesman.

No, the Catholic bishops want to show a measure of dominance over the US government, and they want their way on this. And they have convinced Stupak to reject the “third bill” strategy, which House leaders offered to him.

What they want to do is to put the changes to the abortion language in a reconciliation sidecar bill, the second bill. This ensures that it will get passed as part of the package, since the President and Senate leaders have already promised that the sidecar will become part of the agreement.

But wait, you say. Reconciliation is intended only for budget-related items. How could the Stupak amendment language on abortion survive the inevitable point of order on the Byrd rule? Well, the bishops want to break that rule, and get 60 votes from the Senate to waive the point of order.

“We would strongly urge everyone, Democratic and Republican, to vote to waive the point of order,” Richard Doerflinger, an associate director of the U.S. Conference of Catholic Bishops, told POLITICO. “Whether it would be enough to get to 60 votes, I can’t predict. We would certainly try.”

“I think it’s something we should explore,” said Rep. Dale Kildee (D-Mich.), a longtime opponent of abortion. “It could be something that could carry out the bishops’ objective.”

In a March 4 interview, ABC News' George Stephanopoulos asked Rep. Bart Stupak (who leads the somewhat dishonest pro-life opposition to health care reform) how the change Stupak desires could possibly be included in a budget-reconciliation bill. Under Senate rules, reconciliation can deal only with matters relating to the budget, and the Congressional Budget Office has already determined that replacing the Senate language on abortion with Stupak's more restrictive language would have no budgetary impact. Stupak's reply was a head-scratcher. "You can do it," he said. "If there's a will, there's a way. That's just an excuse that they're giving." Stupak said the same thing to Greta Van Susteren of Fox News (adding the additional possibility of a third bill, which would meet parliamentary requirements but which would probably render an already-politically-difficult maneuver impossible). "They have strange rules over there," Stupak told Van Susteren. But he suggested those rules could be got around.

I stopped wondering what Stupak meant when I read a March 5 article in Politico by David Rogers ("Bishops Offer Help With Senate"). Richard Doerflinger, associate director of the U.S. Conference of Catholic Bishops, told Rogers, "We would strongly urge everyone, Democratic and Republican, to vote to waive the point of order. Whether it would be enough to get to 60 votes, I can't predict. We would certainly try." Allow me to explain. Under a rule devised in the mid-1980s by Sen. Robert Byrd, D-W.Va., the Senate parliamentarian decides whether this or that item in a reconciliation bill is sufficiently relevant to the budget. If it isn't, the parliamentarian advises Senate leaders to toss it out. The parliamentarian's rulings carry great weight with the Senate, but they are not in themselves determinative. If Vice President Joe Biden, in his capacity as president of the Senate, decided to ignore any such ruling, he could. (As I've reported previously, Vice President Hubert Humphrey did so more than once back in the 1960s.) If he did so, however, some member of the Senate could raise a point of order opposing that decision. Apparently Biden would need 60 votes to override it, even though the bill itself would require, under reconciliation rules, only 51 votes to pass.

So here's the play. The parliamentarian, observing correctly that altering the bill's abortion language would not affect federal spending, gives the Stupak language a thumbs-down. Biden ignores him, and a point of order is raised. The bishops then work the Senate floor madly to cobble together a 60-vote coalition of pro-health-reform Democrats and pro-life Republicans. As Rogers notes, they did a pretty good job of this in November when the Stupak amendment came to the House floor, where it passed 240-194. Even hard-core health reform opponents like House Republican Leader John Boehner, R.-Ohio, and House Republican Whip Eric Cantor, R-Va., voted for the Stupak amendment. They did this knowing it would smooth the path toward health reform's House passage. They did it because they couldn't cast a vote that would be seen as pro-choice on abortion.

I hold no reverence for Senate canon law on reconciliation. Indeed, I've suggested in the past that Biden might overrule it. But to do so in this instance would require Senate Democrats to flout the parliamentarian on a matter that lacks any ambiguity whatsoever. The health reform's abortion language will not affect federal spending, because neither the Senate bill nor any language acceptable to Stupak would allow the federal government to spend taxpayer dollars on abortion. (See "Why Stupak Is Wrong.") Moreover, the bishops would be urging Democrats to overrule the parliamentarian in order to do something most of them consider morally abhorrent—prohibit many private insurers from covering abortions. Finally, overruling the parliamentarian in a fashion so blatantly illegitimate would invite the health reform bill's opponents to challenge the parliamentarian's favorable rulings on other reconciliation items, which might conceivably unravel health reform altogether. For these reasons, I consider this strategy highly unrealistic.