On December 24, 2009, 60 Democratic Senators approved a version of the Affordable Care Act. It was never meant to be the final version of the bill; rather, the purpose was to pass something so the House of Representatives could continue the process. Then the unexpected happened. Scott Brown, a Republican, won a surprise victory in the special election to replace Senator Ted Kennedy. Now, without a 60-vote filibuster-proof majority, the Senate would be unable to vote on a bill that returned from the House in the normal manner.
As I discuss in Unraveled, this dilemma forced Democrats to go down the budget-reconciliation route:
With Brown’s surprise victory, the road to the ACA took a sharp detour. Former Senate majority leader Tom Daschle (D-SD), who served as a close adviser to the White House, wrote that on election night, “the health care reform effort seemed to collapse. Obama and the Democrats in Congress had been on the verge of making history, and they were closing in on the finish line. Now, the finish line had vanished.” 30 Massachusetts, the home of the original Tea Party in 1773, had nearly empowered the modern Tea Party to dump Obamacare into the Potomac. Now, the Republicans would be able to filibuster the bill if there was another Senate vote. “The talks suddenly took on a greater sense of urgency,” Daschle recalled. 31
Although Senator Reid and his colleagues did not intend the Christmas Eve roll call to be the final vote they would take, the bill could not return to the Senate floor. If they tried, the forty-one vote GOP caucus would kill it with a filibuster. The much-ballyhooed conference was now out of the question. “I’m looking at the possibility of losing my sixtieth vote,” President Obama told top House and Senate Democrats. 32 “Can’t you work this out,” the commander in chief implored his caucus. Steven Brill recounted that at a January 22 dinner, Justice Antonin Scalia was seated next to Ezekiel Emanuel, who was the brother of White House Chief of Staff Rahm Emanuel, and an adviser on the pending health care reform. 33 “Scalia kidded Emanuel about the apparent collapse of Obamacare,” Brill wrote. “Zeke offered to bet him that they would get Obama’s reform package through, somehow.” 34 The gregarious justice would have been wise to decline the odds. Obamacare would not be stopped so easily. Speaker Nancy Pelosi (D-CA) devised a parliamentary strategy to salvage the process: The House would vote on the Senate bill, and then a separate reconciliation bill, in such a way as to avoid sending it back for a full Senate vote. Through the reconciliation process, the reconciliation bill could pass the Senate with only fifty-one, rather than sixty votes. Critically, there would be no conference. Because of Brown’s election, and the loss of a filibuster-proof majority, the New York Times observed, “a back-room conference, where changes could be considered in private, never happened.” 35 The House would pass the Senate bill, along with a separate act containing a number of “fixes” that remedied the problems House Democrats had with the Senate bill.
There was a cost to passing the ACA through reconciliation in 2010; it could be repealed in the same fashion, with only 51 votes in the Senate, in 2012. Many on the Romney transition team had a reconciliation bill ready for day #1. Alas, it was not meant to be. But now, with a 51-vote bloc in the Senate, and a majority in the House, the Republicans can kill Obamacare without a single Democratic vote.
Pelosi, Obama, Biden, and others who chose this route can complain all they want, but can do nothing to stop it. This is awful governance, but is enabled because of the shortcut they took in 2010.
Update: Allow me to clarify the above post. Republicans could use reconciliation in 2009, whether or not the Democrats used reconciliation in 2010. Rather, the decision to use the budget reconciliation in 2009 to enact something as wide-ranging as health care reform, that was not primarily about budget deficit reduction, set a new precedent. And that precedent can be relied upon by Republicans today.