Senate Democrats acting in bad faith on the public option? The proof isn’t there, yet

Here is where the Open Left public option whip count stood in the Senate as of late November, 2009:

  • Oppose bill with any public option (3): Mary Landrieu; Joe Lieberman; Blanche Lincoln
  • Open to an opt-in public option (1): Ben Nelson.

    –Note: Not a worthwhile public option to support
  • Wouldn’t filibuster an overall bill with a public option (2): Evan Bayh; Kent Conrad (never threatened to filibuster).

    –Note: Neither would vote for a public option either as an amendment or stand alone bill.
  • Liked the opt-out (1): Mark Pryor.

    –Note: Unclear if Pryor would support non-opt-out
  • Wouldn’t vote against an overall bill with negotiated rates public option (3): Mark Begich (“not a dealbreaker,” via constituent letter); Max Baucus (claims to want public option, supposedly voted against it only because it doesn’t have 60); and Mark Warner.

    –Note: Never promised support as an amendment or as a stand-alone, but wouldn’t vote against a bill with one
  • Support negotiated rate public option (50): The rest.

    –Note: See Washington Independent scorecard.  Add Tom Carper, subtract Mark Warner

Even now that Paul Kirk is no longer in the Senate, this count shows 49 supporters for a negotiated rates public option, plus one more if it is an opt-out (Pryor).  With Biden, that is enough for passage.

Further, if the public option was included in the bill sent to the floor, rather than added as an amendment, three more votes–Begich, Baucus and Warner–could be counted on.  That leaves room for defections, such as the one Jay Rockefeller recently made (although I still think Rockefeller is a potential “yes” vote).

Given this count, in theory, there should be plenty of votes to pass a public option through reconciliation.  This is especially the case if an opt-out, negotiated rates public option was included in the bill sent to the Senate floor–something which Harry Reid did back in 2009.  So, why doesn’t it appear that Senate Democrats will pass a reconciliation bill with a  negotiated rates public option?

Glenn Greenwald argues this is an example of bad faith.  Senators Dick Durbin’s office claims they are not going to allow any amendments to the bill the House sends them, but would whip for a bill that included a negotiated rates public option.  The basic idea is that they don’t want to blow up any deals on votes once the bill reaches the floor, and they don’t want to give Republicans an opening to filibuster the bill through endless series of amendments.

While I am well aware that the White House is not pushing for the public option at all, I am still not willing to call it bad faith just yet.  This is because no one has proven that there are 216 votes in the House for a reconciliation “fix” to the Senate health reform bill that includes a negotiated rates public option.  There were 220 proven votes in the House back in November, but since that time three “yes” votes are no longer around, and an undetermined group of Stupak voters has also been lost.

Until someone proves that the House has 216 for a reconciliation fix with a public option, then the argument coming out of Durbin’s office cannot be disproven.  Adding a public option to the reconciliation bill in the Senate might well blow up a deal with the House, and cause the package to go down.  This is especially given that in order to pass the bill, House leaders are going to have to cull about a dozen votes from the 37 remaining Democrats who voted “no” in November.

So yeah, it is possible that the Democratic leadership is acting in bad faith on the public option, but it hasn’t been proven yet.  The post shows that the votes should be there in the Senate.  No one has made the same case for the House, but that will be the focus in the last-ditch effort for the public option over the next few days.

55 thoughts on “Senate Democrats acting in bad faith on the public option? The proof isn’t there, yet”

  1. The result is predetermined but specific blame is avoided.

    Was it the Senate?  No, the House didn’t have the votes.  Was it the House?  Didn’t matter, the White house was against it.  So it was the White House?  No, the White House had to make sure it cleared the Senate.  And round and round we go . . . .

  2. As you say, Greenwald may yet be proven right; but he’s too quick, imo, to attribute bad faith and hypocrisy.  It certainly seems plausible, at this point, that the House may not be able to pass a PO.

  3. White House: We’ll fight for the PO if the Senate votes on it.

    White House: Sadly the votes aren’t there.

    Durbin: I’m going to have to urge liberals in the Senate to vote against the PO (but but but I thought the votes weren’t there?)

    Pelosi: Sadly the PO isn’t in the House bill, because the votes aren’t there in the Senate.

    Bowers: Although I fancy myself a legislative expert, I seem not to understand that the votes will never be there for the PO until the leadership fights for it and it’s put to a vote, and I’ll go so far to claim it’s the job of outside groups to prove the votes are there.

    Call it bad faith, call it cowardice, whatever.

    I’ve never though the PO was the end all-be all, but I’m sick of the shell game.

    All this makes me a little less hostile to Lieberman ’cause at least his opposition to the PO was upfront.  

  4. To buy your position that there is no certainty regarding the con job by the Democratic leadership is to require us to be extremely naive.

    The prior bad acts alone are damning of the White House and Democrats. Burying those bad acts under “process”  does not change what they are. There will never be a smoking gun. Most cases are won through circumstantial evidence. The circumstantial evidence regarding Glenn Greenwald’s position is overwhelming when looking at a chronological breakdown of what has been said and done.  

  5. of bad faith:

    a) Reid inexplicably taking the reconciliation off the table last year and us being told it is not an option. Now, suddenly it is, but it can’t be used to include the PO. When that failed, changing the requirement yet again. There are two choices either they are complete idiots or they are gunning for a certain result through manipulation of process.

    b) The president telling the whopper in which he said he never campaigned on the public option

    c) The continue game of whip counts that are required just to consider the idea, but once the whip counts come close, suddenly some new hurdle magically appears.

    d) The on again and off again urgency to pass the bill now when it looks like the non-po version of the bill will pass over the last year, but slowing it down once things like PO get any momentum.

    e) The passing of the buck itself by the various members of congress is itself bad faith behavior. THeir motivation is irrelevant to the subject. Whether fear or selling out or whatever- the result is that they are not being honest in trying to push forward with the PO and they know what they are doing.

    These are broad categories rather than a chronology. I simply don’t want to spend a huge amount of time trying to refute what is obvious to anyone who has been paying attention for the last year.  

  6. I don’t want to get personal on this.  Those who have been fighting for HCR deserve credit for their hard work, yadda, yadda, yadda. I’m just calling it as I see it.

    But liberals have gotten totally schooled on this.  No public option.  No Medicare buy-in.  Not even a trigger (which we all agreed was terrible back when the Progressive Caucus was drawing lines in the sand, but would look like a much better deal now).  Nothing.

    If Durbin wasn’t acting in bad faith, he would be fighting for ways to include something — again, even a trigger — that could satisfy PO advocates.

  7. taking on Durbin’s claim that the Senate can vote on the PO only if it’s in the House bill. I’m no legislative expert but I found it convincing.

    This excuse is pure nonsense because the House simply can never get assurances that the reconciliation bill that they pass will pass the Senate unchanged. It is almost guaranteed that it will need to go back to the House for one final vote.

    It is basically impossible to create a Byrd-rule-proof reconciliation bill. No matter how hard you work on it, there will almost always be one small provision on which Republicans could call a legitimate Byrd rule point of order. That would cause the provision to be removed unless it gets 60 votes to waive the Byrd rule. Since all 41 Republicans said they will never vote to waive a Byrd rule, that means any small offending provision could be removed. That would slightly change the bill, and force it to return to the House to be voted on again so that both chambers pass the exact same bill.

    The only way you could assure the House that the reconciliation bill would pass the Senate unchanged is if Vice President Joe Biden declares that he is prepared to play real hardball, using his power as President of the Senate to ignore the parliamentarian’s decision and reject all Byrd rule points of order, legitimate or not.

    Of course, if Joe Biden is prepared to do that, effectively nullify the Byrd rule, there is zero reason the House Democrats need to vote for the politically toxic Senate bill as is. They could pass a “new,” merged comprehensive health care reform bill that deals with all the House’s problems using reconciliation, with Biden nullifying the Byrd rule, so it can pass the Senate unchanged with only a simple majority.


  8. “Public option” is vague.  The two public option variants are less popular, harder to pass, and most importantly, worse policy than a Medicare buy-in.  As such, I have two questions.

    One, if by “public option” we mean “Medicare buy-in”, why don’t we call it a “Medicare buy-in”?

    Two, if by “public option” we mean “robust public option” or worse yet “level playing field public option”, why on earth are we fighting for that rather than our preferred policy?

  9. Sadly, one of the areas where liberals have really fallen down on the job is by failing to hold PO opponents accountable for their position.

    Whether you think the PO is a great idea or not, whether you think it will hold down costs directly or indirectly, it is frankly unacceptable to me that a Democrat in Congress could possibly vote against this bill because of the inclusion of the PO.  How is that remotely an acceptable position for a Democrat to have?

    What is the argument against the PO?  That it wouldn’t work?  That isn’t a reason to vote AGAINST an HCR bill with a PO?

    I am so sick of Democrats — including liberals — whining about “the perfect can’t be the enemy of the good?”  Really?  Why does that only apply to Dennis Kucinich and the liberal blogosphere?  Is anyone going to tell that to Mary Landrieu or Blanche Lincoln or Evan Bayh?  Is anyone going to ask the Blue Dogs what is so bad about the PO that would cause them to kill HCR over the inclusion of the PO?  It seems like that is sort of an important question to ask.

    Look, we all know the true answer:  PO opponents are corrupt whores for the insurance industry who will sell out their constituents at the drop of a hat.  Don’t ask me to treat their arguments as legitimate.  They aren’t legitimate.  This entire process is wrapped in bad faith.

  10. She’s saying the votes aren’t there in the Senate = passing the buck = bad faith.

    “I’m not having the Senate, which didn’t have a public option in its bill, put any of that on our doorstep,” she said. “It did not prevail. What we will have in reconciliation will be something that is agreed upon, House and Senate, that they can pass and we can pass… It isn’t in there because they don’t have the votes.”

  11. Pelosi: Sadly the PO isn’t in the House bill, because the votes aren’t there in the Senate.

    Here is where your argument breaks down.  The problem with the House including PO is that the votes aren’t there in the House.

    I haven’t seen any quotes from Pelosi saying what you say she is saying.

  12. Just saw your link to HuffPo.  That is odd.  I still haven’t seen any whip count that would indicate the votes are there in the House, but I stand corrected on this one.

  13. behind the scenes the president is actually not supporting it at all, and from news reports with unnamed sources we discover that the White House decided in the spring of 2009 that they were not going to include the PO as a part of the bill, etc. Or, the drug re-importation deal that the president claimed did not exist but later they fought in the Senate to kill. Or the way some of these people are ardent supporters until it is close to being a viable chance of passing, etc. And on and on and on and on. The weight of the evidence is just brutal here. I can not imagine for one second that were this Bush anyone would be here arguing they don’t buy the evidence. This alone bothers me outside of the policy issues. We should not be treating these people differently than Bush or any other politician who is manipulating and lying to us or else we can not hold them accountable.  

  14. since it already passed the House once. On top of this, reading what you quote, it sounds like  more hot potato. It’s your fault. No it’s yours.

  15. First of all, it’s hardly clear what Pelosi is saying.

    But more importantly, regardless of what Pelosi has said, it remains apparent that the vote in the House will be close, and it is reasonable to question whether any essential votes will be lost should the PO be included.

    Even if the votes in the House ARE there, that does not mean that one acts in bad faith by believing to the contrary.  It is possible to have an honest difference of opinion on this point.

  16. She’s tried as hard as she could to get a PO in. IMO the votes aren’t there in the House. She’s trying to put the blame on somebody else, but it’s not acting in bad faith with us, and probably not with the Senate either. Reid, Pelosi, and the majority of the caucus in both houses seem largely on the same page – pro-public option but strongly preferring reform without a public option to nothing at all. Given that the caucus minority can stop the public option (apparently) they probably do want to diffuse responsibility.

    Anyway, we can push for Grayson’s standalone later. Passing the current reform sans public option will increase the public pressure for a public option, so I’m content to wait a few weeks and push then.

  17. the trigger would probably be designated so it would never be pulled. but they wouldn’t want to allow the ‘the po is coming’ perception be created.

    like in obama’s ‘we will start pulling out of afghanistan in 06/2011’. that’s why they’re trying to walk that back.

  18. I must say I always assumed we would get a “Public Option” (in quotes).  The question in my mind was whether it would be real or not.

    That said, I believe co-opts and required non-profits are in the Senate bill, so they do have options that could have been inaccurately labeled a “Public Option”.  In that sense, they did better than I expected; they were honest.

  19. I don’t see how the votes are there for the PO.  With retirements/deaths, vote switches, we are at minumum looking at a 215-216 loss if the same House bill from November came up for a vote today.

    That is even before the whole Stupak issue.

    The point is we need conservadem votes like Boucher and Altmire to pass this thing, and they won’t go for the PO.  

  20. To my knowledge no Representative has come out against the Senate bill because it has a PO, which makes sense because it doesn’t have a PO.  That shows that their concerns lie elsewhere.

    Adding a PO wouldn’t mean their vote would necessarily switch but with nothing to lose it’s worth a shot.  And we could try convincing them of how popular it is among their constituents.

    Right now it seems like even without the PO and the Stupak bloc, the bill can’t pass the House.  That suggests that there’s even deeper fundamental issues that are turning Representatives away.  Adding a PO probably wouldn’t hurt.

  21. They are either there or not there, and in which case, we can hold people accountable.

    Process and activism here is being used as a sham to avoid accountability rather than serve as a means to improve accountability.

    The point is that I don’t want to hear anymore excuses because that’s all they are. Do an amendment. if it fails, we know who is where on these issues, and the voters fo the districts can decide what they think of their representatives voting against the voters interests. We don’t have to theorized under my argument.  

  22. Remember, PO was always low on the list of concerns for House Blue Dogs, as long as it had negotiated rates.

    Also, the Senate bill is already having a really tough time getting enough votes and it doesn’t even have a PO.  The PO doesn’t seem to be the issue here.  On the other hand, you could convince wavering Blue Dogs to support the PO based on its popularity (again, in their districts and among their constituents).

  23. Why not use Grayson’s Public Option Act to hold members accountable?

    That would be just as effective (perhaps moreso) and doesn’t jeopardize passage of the comprehensive bill.

  24. Once the HCR bill passes and the insurance industry has gotten their giveaway into law, what incentive do politicians have to pass something that the people want?

    There will be little pressure to get the Medicare buy-in through, unless regular citizens generate it (but good luck with that).

  25. OF COURSE they would want the PO to not be triggered.  My question is why aren’t the former advocates of the PO agitating for at least a trigger?

    If you are going to argue that it is important to “get a foot in the door” or “a nose in the tent” or “the first step” or whatever metaphor to argue in favor of passing a bill with no PO, then AT LEAST get a tangible hook to hang future hope upon.  With a trigger, at least can say “look, we have a commitment in principle that if this current bill doesn’t do what Obama and the Blue Dogs promise with regard to competition and premium rates then we will have a PO.”

  26. because a trigger would never get pulled.

    They should more rightly be called trigger locks, because the whole reason they exist is to not get pulled.  

  27. My question is why aren’t the former advocates of the PO agitating for at least a trigger?

    see below, too much fine print

    If you are going to argue that it is important to “get a foot in the door” or “a nose in the tent” or “the first step” or whatever metaphor to argue in favor of passing a bill with no PO, then AT LEAST get a tangible hook to hang future hope upon.  With a trigger, at least can say “look, we have a commitment in principle that if this current bill doesn’t do what Obama and the Blue Dogs promise with regard to competition and premium rates then we will have a PO.”

    I agree with you on a trigger-that will-be-pulled po  

  28. The co-ops are doomed to fail because of arcane limits put on them by Reid and Baucus. They will flounder and the more successful ones will eventually be subsumed by big insurance corporations. Same with the non-profits.

    Did you not know that, under the new law, Wellpoint can apply for money to start a co-op? You really think these big crooked corporations won’t just gobble up any co-op that threatens them?

    In a sense, you are willfully blind.

  29. I’m not an idiot.  OBVIOUSLY the whole idea of a trigger is to avoid actually implementing the PO.  That doesn’t mean that you have to agree to a trigger that never gets pulled.  It isn’t like it is impossible to draft a meaningful trigger.  All you have to do is tell Landrieu “Fine, you will agree to a trigger?  Here’s what the trigger will be.”

    Personally, I have been entirely consistent.  I wouldn’t vote for the Senate Bill.  I wouldn’t vote for the House Bill.  I wouldn’t vote for ANY bill without real competition and real price reductions.  Most likely that would be either a PO or Medicare buy-in.

    There is no doubt in my mind that a trigger is a lame substitute for a PO.  But compared to nothing?  No PO?  No Medicare buy-in?  Nothing?  In what universe is the risk of a trigger being too weak worse than nothing?  

    Because that is what I am hearing (alleged) Democrats fighting for now.  “Pass the Senate Bill and pray it gets fixed in the future.”  Prayer is now better than a trigger.

  30. they can vote on a a po amendment at the house. if they are for the po as they say, they will offer an amendment. then, if ‘the votes aren’t there’ mantra is true, the amendment in the house will fail. we’ll see.

  31. so you want a trigger that’ll be pulled. good. you will get the same excuses you get now.

    I think it’s easier to get bamboozled if you request a trigger. too much fine print. with a po a non-trigger you know the thing will start for sure.  

  32. I agree with you on a trigger-that will-be-pulled po  

    I agree with you a trigger-that will-be-pulled po would be nice

  33. I’m looking for something it what I wrote that disagrees with something you wrote and I’m not seeing it.  Near as I can tell, you noticed the words “Senate”, “co-opts” and “honest” were used in the same post and attacked.

    My statement that “they were honest” was totally limited to “in that sense”, meaning they didn’t call any of these other programs a “Public Option”.

    (Wow, far too many “quotes” for one post.)

  34. why would it be killed?

    who knows if it’s allowed to come in a vote? too many people (leadership, committees, wh) can kill it

  35. “Obama’s traded away the PO!  Pelosi wants to kill the PO!”

    Frankly, if leadership wants it dead, there’s not a chance it’s going to pass in any bill, much less this one.  All the screaming in the world isn’t going to bring it back.

    I’m not that cynical.  Pelosi would not have twisted so many arms the first time if she didn’t want it.  The fact that it isn’t there is a reflection that the votes aren’t either.

  36. if obama wanted it, he would have put it in his “initial proposal.” he didn’t. obama’s proposal isn’t a conspiracy theory. it’s 100% real.

    now, if pelosi/reid want it they’ll vote on it. a vote on an amendment doesn’t stop the bill.

    we’ll see if they do.

  37. It isn’t worth it because as I showed below if it comes to a vote, it has a high likelihood of killing this bill.  I am not OK with that because HCR is bigger than the Public Option.

    Now, once this happens and that amendment doesn’t get a vote, you have two choices.  You can take your ball and go home, screaming at Pelosi or Obama or whoever for “selling out” or whatever.  Or you can work with the rest of us to push for a vote on Grayson’s bill, call your members of Congress and Senators, and whip whip whip the shit out of everyone until we get a public option.

    Fact is, this vote won’t happen on this bill, and there are good reasons for that that don’t involve conspiracies against the PO on the part of the leadership.  It’s not cowardice or mendacity, it is about being pragmatic and effective.

  38. It isn’t worth it because as I showed below if it comes to a vote

    initial proposals don’t come to a vote. they are what the name says: initial proposals.

    and amendments that fail don’t defeat bills.

  39. As I wrote here, some in the pass-the-bill camp love to bully “purist” liberals instead of the acceptably rebellious centrists.  It makes them feel like they’re rational, level-headed and wise pragmatists who are slowly but surely saving the world around them.  And some of these people’s egos and condescension towards liberals simply have no bounds.

  40. How this:

    There will be little pressure to get the Medicare buy-in through, unless regular citizens generate it (but good luck with that).

    Is consistent with your comment here:

    generate pressure in their districts for one, then

    On the other hand, you could convince wavering Blue Dogs to support the PO based on its popularity (again, in their districts and among their constituents)

    Holding the HC bill hostage does nothing to get the Insurance companies to support a PO.  They are already working to kill the HC bill even without a PO.

  41. in the sense that, yes public pressure can potentially overcome special interest money (at the end of the day, politicians are still elected by the people, not bought by corporations), but, unfortunately, it seems very, very difficult and rare for this to happen in practice.

    The PO, for example, has 60-65% public support.  In a sane and rational world its inclusion in HCR would not even be a question.  In our world we clawed for every vote and still came up short.

    I do think that telling Blue Dogs that the public option is very popular and that the idea of introducing competition for the insurance oligopoly is popular in liberal and conservative areas alike could work in bringing them on board, especially since their biggest concerns don’t appear to include the PO, and especially if some of them are facing tough reelection campaigns.  It’s worth a try in any case.

    But a PO will be all but impossible to pass on its own in the near-future.  The HCR bill is a “must-pass” bill for all Democrats, regardless of whether they want to vote for it or not.  This bill is our best short-term chance to pass whatever we want.  Once this bill passes, it’s no longer there as a vehicle for us to pass what we need.

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