So where are we? All eyes remain on the Senate. While you only need 50 votes for final passage of a bill in the Senate, you need 60 to bust a filibuster and actually get to that final vote. On one hand, we should be grateful--the threshold for cloture was actually higher when Medicare passed in 1965 and prior to 1917 there was no rule allowing a cloture vote. On the other hand, perhaps we should be outraged that a Catch-22 lies at the heart of national policy-making: Senate Rule V declares that, unless changed, Senate rules exist in perpetuity (by contrast, the House votes on rules at the beginning of every Congress) but changing the rules to eliminate filibusters is itself subject to a filibuster.
Regardless, the filibuster is a reality. The assumption seems to be that everyone who would vote against a health care bill containing a public option would also vote against cloture (i.e. vote against actually voting on the bill); I haven't seen it explained to my satisfaction why that's necessarily the case but all the recent talk of using filibuster-proof budget reconciliation rules to pass the bill indicates that Senate leadership seems to have reached the conclusion that this is indeed the case. So, leaving aside talk of reconciliation, Democrats need 60 votes. Let's assume for a moment no Republican will vote with the Democrats. Okay, then they've already lost.
A few weeks ago, on paper there were 60 Democrats in the Senate. Well, not really--there were 58 Democrats and two Independents who vote with the Democrats. Now Senator Kennedy has passed away. Senator Byrd's vote isn't a slam dunk because he has numerous health problems, though we can assume he'll make it into the chamber to vote. However, I should note that there's little doubt he'd have serious problems with using budget reconciliation to pass health care reform--the rule that creates so many difficulties for this course of action is Byrd's rule and he's a staunch defender of only using the reconciliation process for its intended purpose of shepherding through budget-related matters that reduce the deficit. Other Senators like Lincoln and Lieberman have indicated publicly they don't support a public option. Many Senators who swing a bit more conservative seem unlikely to support a public option: Kent Conrad, Ben Nelson, Evan Bayh, Mary Landrieu, and Mark Pryor are all likely no votes.
If all these Senators voted against a public option, it would pass with 52 votes, though it wouldn't even reach that point if they refused to vote for cloture. If there are others I haven't named who also oppose a public option and the public option can't reach the 50-vote threshold, then it doesn't matter--it won't pass, no matter what tricks are employed (e.g. reconciliation). That brings us to the trigger. As I explained in previous posts, the trigger is an idea that seems to appeal to moderate Maine Republican Senator Olympia Snowe. The trigger sets up a sort of conditional time-released public option: if certain conditions aren't being met by some date, then the public option is "triggered" and goes into effect.
The statements of the Senators who have publicly opposed the public option seem to allow a little latitude in accepting a trigger.
Here's Blanche Lincoln:
For some in my caucus, when they talk about a public option they're talking about another entitlement program, and we can't afford that right now as a nation ... I would not support a solely government-funded public option. We can't afford that."
And Joe Lieberman:
If we start this out and three years from now a case can be made that the private market is not working effectively, I would support the public option.
Lincoln incorrectly describes the public option as an entitlement program that is "government-funded." Both statements are false and one has to wonder why she set up a straw man to rail against. A cynic might suggest she did it for the same reason Republicans do it: it's easier to vote against the bill if you lie about what it's likely to be. On the other hand, this leaves a backdoor open for Lincoln. She can still vote for it--or a trigger--and save face by claiming what she voted for is not what she said she'd vote against. Bit of a tightrope there, though. Lieberman's statement, on the other hand, seems tailor-made for a trigger.
Much of the left seems dismayed by the possibility of a public option trigger. For example, read this: Why The Trigger Is So Dangerous. All valid points. Make no mistake, I'm under no illusions: this is dangerous. But it may be the only option.
Ideally, a trigger would take the public option set out in the original draft of H.R. 3200 and, if premiums have risen too quickly in the first three years or so after the bill's provisions go into effect, automatically create it. But there are some interesting (to me, anyway) points to consider about what's already happened in committee markups of H.R. 3200.
Let's step back a few weeks. H.R. 3200 had passed out of two of the three committees it was referred to but became tied up in the Energy and Commerce Committee. Conservative Blue Dog Democrats, eager to burnish their fiscal conservative credentials, wanted to make the bill slightly cheaper so eventually Chairman Waxman sat down to negotiate with them. Some great theatrics ensued--shouting matches!--but the Blue Dogs ended up getting some cost-cutting measures through. This, in turn, alarmed progressives who then threatened to withdraw their support from the bill. So they all got together and rolled out three amendments: a Blue Dog amendment and two "unity" amendments. Or, officially, the Ross amendment, the Baldwin amendment, and the Schakowsky amendment.
Among other things, the Blue Dog amendment changed the way the public option pays for services. Originally, the bill said that for the first three years the public option would reimburse at Medicare rates (Medicare sets fee schedules that determine how much it pays for different services) with practitioners being reimbursed at Medicare rates plus five percent. The Blue Dog amendment requires the HHS Secretary to negotiate payment rates with health care providers independent of Medicare's rates. So that's not quite as good (its intent is to put the public option on a more "level playing field" with private insurers). The two unity amendments try to find cost savings to avoid cuts in the subsidies paid out to lower-income families but, notably, the Schakowsky amendment contains this:
(a) IN GENERAL.--The annual increase in the premiums charged under any Exchange-participating health benefits plan may not exceed 150 percent of the annual percentage increase in medical inflation for the 12-month period ending in June of the prior year, unless the plan receives approval for a higher rate increase in accordance with subsection (b) or (c).
The (b) and (c) mentioned there make exceptions in cases where insurers are required to provide additional benefits or where compliance will destroy the insurance company.
The important thing to note here is that with this amendment the bill is already limiting the allowed growth in health insurance premiums.
Which brings me to my main point: the public option isn't about the public option. It's about the private insurance companies. Certain folks on the left don't like to admit this because they actually do think the public option will eventually evolve into a single-payer system (a very unlikely prospect). The Congressional Budget Office--unlike the industry-owned Lewin group--projects that about 11 million people or so will be choosing the public option. So clearly the point here isn't to get everyone to drop their private insurance and join the public option. Rather, as President Obama himself is fond of saying, the public option would keep the insurance companies honest. The threat of angry consumers voting with their feet and heading over to an inexpensive, well-run alternative to the private insurance companies is supposed to encourage those insurance companies to control costs and focus on quality. The influence of an alternative thus extends far beyond the relatively-few customers who actually choose that alternative--its mere existence reshapes the landscape in which the health insurance industry operates.
Now, there are alternatives. We've chosen the incremental approach--preserving and encouraging private, mostly employer-based health insurance coverage--that much is clear. But supporters of dropping the public option from these health reform efforts sometimes point to the Swiss health care system: "They don't have a public option and it works fine," they point out. And they have a point. The Swiss regulate their private insurers to such an extent that a public option is unnecessary. They do through regulatory coercion what we meeker Americans hope to accomplish through altering incentive structures with the introduction of the public option. But H.R. 3200 is all about increasing regulations on insurers (though not quite to the extent that the Swiss do it) and it's not completely absurd to suggest that the bill, coupled with a trigger, could accomplish the same things we expect from a public option.
H.R. 3200 creates a Health Insurance Exchange where insurers compete side-by-side in a transparent marketplace. It calls for a committee of health care experts to design a comprehensive "essential benefits package" that every insurer has to offer as its minimum level of coverage. It forbids the essential benefits package from imposing "any annual or lifetime limit on the coverage of covered health care items and services." It structures the affordability credits that subsidize lower-income families in such a way that their holders are encouraged to shop for the least expensive plans in their area; this in turn encourages private insurers to be the company that offers the cheapest premiums if they want a piece of that government money. It prevents insurers from discriminating against people on the basis of pre-existing conditions--they can't turn you down or charge you different premiums from everybody else. As we saw above, the Schakowsky amendment limits the annual increase in premiums.
In other words, H.R. 3200 puts a lot of new limits on the practices of health insurance companies. If political forces won't allow a public option to go forth right now but they will allow a trigger, we shouldn't despair. A trigger could still put the fear of God into insurers. If they prove unwilling or unable to meet the standards laid out by Schakowsky, hit the trigger. If they are skimping on their responsibilities as laid out by the new law, hit the trigger. Is the threat of creating a public option as good as the threat of privately insured customers migrating over to an already-existing public option? Probably not. But, in the unlikely event that a public option were as poorly-run and low quality as opponents like to pretend that it would be, a trigger would actually be a more effective device. Unfortunately for that prospect, reports of the incompetence of the government have been greatly exaggerated.
Policy doesn't exist in a vacuum from politics. A good policy that's bad politics isn't a policy at all; it's a piece of paper. If a public option isn't going to come out of the Senate then we need to take stock of where we are and figure out how to get equivalent or almost equivalent results without a public option. If at least one Republican and the conservative Democrats could get on board with a well-designed (i.e. not impotent) trigger, then that may well be the way to go. The idea certainly has potential pitfalls but if it becomes clear that preferable alternatives are off the table then you've got to get what you can get. Remember, when he found out about Orr's ruse, Yossarian escaped his Catch-22 by heading for Sweden; we might have to settle for Switzerland-lite in our bid to escape the Catch-22 of the Senate filibuster.
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