An upset in the Bay State? The polls give an edge to Scott Brown; well respected political analyst Charlie Cook now rates this safe Democratic seat as leaning Republican; the GOP has the momentum.
Of course, tonight, we may not even know who has been elected the new senator from Massachusetts. It may take days — as military ballots, and other mail-ins are counted.
But let’s assume that the polls are right and Scott Brown wins.
The big question is how this will affect health reform. To date, the President’s strategy has depended on passing legislation solely along partisan lines. In December, in the Senate, he did just that: eking out exactly the 60 votes necessary. Should Scott Brown join the Senate, that majority will be down to 59.
What are the options for the White House?
Option One: the Democrats could simply delay the seating of Brown. The senator-elect would remain just that — a senator-elect. With Brown cooling his heels in Boston, the current governor-appointed senator from Massachusetts would then cast the 60th and deciding vote for the health legislation. As David Frum notes, Sen. Harkin and others have already embraced that approach.
But it seems unlikely that the White House would go along with such a thuggish strategy. Essentially, it would be overriding the wishes of voters in Massachusetts – it wouldn’t be illegal, but it would be undemocratic. The public backlash would be extraordinary.
Option Two: find a way around the 60-vote requirement. The obvious choice then would be to attempt to pass the legislation with just a majority; reconciliation is the way to do that. Reconciliation, as you may recall, was much discussed last summer when Democrats feared that they couldn’t secure a full 60 in the Senate. The process is clunky: it’s subject to many points of order, legislation needs to be crafted in a specific way, and the time-line would have to be tight.
And reconciliation would be deeply problematic at this point in time. While I’m not an expert on obscure Senate procedures, my understanding it that the process needed to be invoked in the fall; Republicans could raise a point of order on this. The whole legislation would have to be re-crafted and sent back to the committees. And entire sections of ObamaCare — like the insurance regulations — would be omitted (as they are ineligible for reconciliation). For a White House eager to pass something now, the process would stretch on for weeks, possibly months, as the debates and deal-making would start anew.
Option Three: reach out for Republican support. If Democrats lose a senate vote from Massachusetts, they could find one by looking to, say, a senator from Maine. And Olympia Snowe did vote for an earlier version of ObamaCare.
That said, September is long over. She voted against the Reid bill – and it’s difficult to see how she could be persuaded to vote for health reforms without significant compromises.
Option Four: drop the conference. The Senate passed a bill in late December, and the House would ordinarily then conference – working out the differences between their version and the Senate’s and, once a compromise bill is crafted, voting on it. But nothing requires the conferencing, provided that the House passes the Senate bill as is.
Of all the scenarios, this one seems the most plausible and there is evidence that the White House is giving it serious consideration. But it is also fraught with problems. It leaves House chairmen in the perfunctory role of simply rubberstamping the Senate bill, and let’s remember how unpopular some provisions of the Senate bill are to House members (like the tax on Cadillac health plans). It also requires solidarity among rank and file members at a time when doubt must be setting in. As Peter Wehner argues,
We will wake up to an entirely different political world on Wednesday if Scott Brown defeats Martha Coakley… It is hard to overstate the panic (and recriminations) that will ensue among Democrats. It will be massive. The entire political and legislative dynamic will change. And the warning many of us have long been sending to Democrats will finally have broken through: passing ObamaCare is worse than passing nothing at all.
If Scott wins, does House Speaker Nancy Pelosi have the votes?
With hours to go before polls close, and hours more before they’re counted, this much is clear: the people of Massachusetts are deciding more than simply who will represent them in Washington, they may well be deciding the fate of ObamaCare.