To support Joe's analysis (and Tim's agreement) as well, it is
impossible from afar to make sense of the micro-moves in American
politics on issues of this salience.  There are a number of possible
outcomes, not one of which is so dominant that you should bet the
downpayment of a house on it. But the passion, nastiness, and
uncertainty of it all will certainly have an effect on what the outcome
means politically.  When Medicare passed in1965---after years of
debate--it was a triumph, not a whimper. A whimper is one possible
outcome this time.

Ted 

-----Original Message-----
From: Anglo-American Health Policy Network [mailto:[log in to unmask]]
On Behalf Of Jost, Timothy
Sent: Monday, August 17, 2009 12:34 PM
To: [log in to unmask]
Subject: Re: Spotlight

Thanks Joe.  What I was going to say exactly.   It is far from over.
Tim
Timothy Stoltzfus Jost
Robert L. Willett Professor
Washington and Lee University School of Law
(540) 458 8510
fax (540 458 8488
[log in to unmask]
________________________________________
From: Anglo-American Health Policy Network [[log in to unmask]] On
Behalf Of Joe White [[log in to unmask]]
Sent: Monday, August 17, 2009 12:21 PM
To: [log in to unmask]
Subject: Re: Spotlight

I know I've been very negative, and I think rightly so, but let's not
take
any moment's headlines too seriously.

Kent Conrad opposes the public plan.  He isn't saying anything he wasn't
saying two months ago.  The fact that he opposes it is, of course, a bad
thing.

But: Let's say something passes the House.  Then something, presumably
something much worse, passes the Senate. Then it goes to a conference
committee, in which House and Senate negotiators, plus White House
negotiators, whack at each other for a while.

The House might back down.  But so might the Senate.  A good example is
what
happened in 2003, when Ted Kennedy supported the version of the
prescription
drug legislation that passed the Senate, it went to conference, and what
came back was closer to the House bill.  Kennedy opposed it, but the
bill
passed -- partly because the choice then was, the conference agreement
or
nothing.

So, in principle, the fact that the public plan won't pass the Senate on
the
first try is not dispositive.

In addition, all of the calculations, and certainly Conrad's, have been
based on the need for 60 votes to avoid a filibuster.  But lets say we
get
to October 15.  At that point, according to the deal that was made at
the
time the Congressional Budget Resolution was passed, the Democrats can
turn
to doing health reform through the Reconciliation process.
Reconciliation
bills cannot be filibustered, so you only need 51 votes.  More
precisely, 50
plus the Vice President to break a tie.

There surely are not 60 votes in the Senate for the public plan.  But 50
is
another matter.  I won't claim total knowledge, but I don't see more
than 20
of the 60 Democratic Senators whose votes are in doubt.  The other 40
will
support the public plan.  Of the 20, I figure from what they've said
that
Kent Conrad (North Dakota), Max Baucus (Montana) and Ben Nelson
(Nebraska)
are opposed to the public plan.  Maybe Jeff Bingaman (New Mexico) too,
because he's part of Baucus' negotiation group, but that doesn't fit
Bingaman's past record.  But it is certainly possible to imagine getting
a
total of ten of the twenty to support a public plan.

The problem with the Reconciliation approach is, it might not be
possible to
do some of the marketing regulation that is associated with the
Exchange.
This has to do with the vexed issue of what can be included in
reconciliation legislation according to the "Byrd Rule."  But the public
plan would surely be in order as I see it.

The more serious problem is who will be on the conference committee.  It
is
easy to imagine the conferees on the Senate side being tilted against
the
public plan.  Baucus as Chair of Finance would certainly have to be one
of
them, plus all the Republicans.  The composition of the conference is
one
reason the Senate yielded (somewhat) to the House in 2003, with Baucus
selling out Kennedy.  But, if Harry Reid (Senate Majority Leader) has
any
guts, he will appoint a set of conferees in which Baucus and the
Republicans
are outvoted. With 60 Dems in the Senate, the conferees can surely be
3-2
Democrat.  It's an important bill.  Appoint 15 conferees (yeah, that's a
lot
but, as I said, it's a big bill), 9 Dems and 6 GOP, and Dems-not-Baucus
have
8 votes.  Then whatever comes back is still a reconciliation bill and
still
can't be filibustered...

I'm not saying the Dems can get even the 50 votes they need in the
Senate.
I'm not sure they can pass something out of the House, the way things
are
going, for all sorts of reasons.  But neither we nor the Obama
administration should take the lack of 60 votes in the Senate THAT
seriously.  Or Kent Conrad, on this issue (he's quite an intelligent guy
on
others) seriously as a prognosticator at all.  He has a position and
he's
pushing it by saying it's inevitable.  But that doesn't mean he's right.

Best,
Joe White

-----Original Message-----
From: Anglo-American Health Policy Network [mailto:[log in to unmask]]
On
Behalf Of Adam Oliver
Sent: Monday, August 17, 2009 11:54 AM
To: [log in to unmask]
Subject: Spotlight

Looks like that's it then. At least now, perhaps people won't blame Mrs
C so
much for not managing to pass major reform in the 1990s. I guess there
are
some who will say that this can all be explained by path dependency
theory.
The trouble is, path dependency theory is so badly and broadly defined,
that
it can explain everything, and is thus, it seems to me, pretty useless.


SPOTLIGHT: SAYONARA, PUBLIC PLAN?
The Obama administration over the weekend indicated that it would be
willing
to accept health reform legislation that does not include a public plan
option. In an interview on CNN, HHS Secretary Kathleen Sebelius on
Sunday
said that the public option was "not the essential element" for reform.
She
also said that not-for-profit health cooperatives were being developed
by
the Senate Finance Committee as an alternative to a public option.
During a
town-hall meeting on Saturday in Grand Junction, Colo., President Obama
said
that a public option "is not the entirety of health care reform," but
rather
"just one sliver of it, one aspect of it." Sen. Kent Conrad (D-N.D.)
said on
"Fox News Sunday" that "the fact of the matter is there are not the
votes in
the U.S. Senate for the public option, there never have been. So to
continue
to chase that rabbit is, I think, a wasted effort." An unnamed Democrat
close to the administration will continue to attempt to persuade
lawmakers
of the value of a public plan.

Please access the attached hyperlink for an important electronic
communications disclaimer:
http://www.lse.ac.uk/collections/secretariat/legal/disclaimer.htm

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