The long and winding road to health reform took another turn today as Senate Majority leader Harry Reid (D-NV) announced he had decided to include a public option in the bill he will take to the Senate, perhaps as early as next week. The key element that may make it acceptable to enough senators to merit consideration is including a provision allowing states to "opt out" of the public plan. For the Reuters story on this development click here, or check the Washington Post on it here.
The way this could work is like this: it takes 60 votes in the Senate, not to pass something but to close debate so they can vote whether to pass it or not. The 60 vote threshold is actually to permit an up or down vote that would only need a majority. Since the Democrats have exactly 60 votes it might be very difficult for any of them to vote with the Republicans to prevent a vote, especially if a Senator's home state could turn down the plan if it wanted to. Once a filibuster attempt was defeated by the 60 votes, then the plan itself could pass with 51 votes, or even 50, with Vice President Joe Biden voting to break a tie. There probably are not 60 votes for a health plan with the public option in the Senate, but there certainly are 50. There is even talk that perhaps only two or three Senators might be iffy on a plan with a public option if their state would have the right to turn it down. Blanche Lincoln of Arkansas, Ben Nelson of Nebraska and Mary Landrieu of Louisiana are among those mentioned.
Reid said that according to the prospective plan a state would have until 2014 to nix the arrangement. How that would happen remains a mystery. Would it be by majority vote of the state legislature, or some other means? And what kind of precedent would that set? We can go all the way back to 1828, when South Carolina Senator John C. Calhoun made the case for "nullification" in his famous article Exposition and Protest, arguing that his state ought to have the authority not to enforce a federal tariff it disagreed with. President Andrew Jackson ended that controversy by threatening to invade the state and hang the nullifiers who would flout federal law.
One can imagine how the privilege of states being allowed to selectively scrap federal legislation unpopular within their borders would have operated in the South had it been incorporated into the Civil Rights and Voting Rights Acts of the 1960s. Jim Crow would prevail there to this day had that been the case. It is a very, very dangerous precedent to set.
That being said, if politics is the "art of the possible" then this may be what makes progress on a bill that truly does something possible. Reid mentioned he "clearly" believes the bill would have "the support of my caucus." President Obama released a statement saying he was "pleased that the Senate has decided to include a public option for health coverage, in this case with an allowance for states to opt out."
Of course, the move might turn out to be one of the shrewdest ploys seen in the capitol in many a year. Once available, it is difficult to imagine many governors or legislatures in any but the most extreme right wing states denying their eligible citizens such a choice. It is remindful of the handful of Republican governors, all with apparent presidential ambitions at the time (Sanford of SC-there's that state again-, Pawlenty of MN, Palin of AK and Jindal of LA for instance) who tried to turn down part of the stimulus money this year but were overwhelmingly overruled by their own state legislatures in every case.
A couple of months ago my wife mentioned this possibility for the public option jokingly. "Why don't they pass it for the blue states and not for the red states?" she quipped. She then went on, "Of course then everybody would move out of those states to someplace they could get affordable health insurance." Exactly. It'll be a riot to see what happens next. As Lewis Carroll would have said, things just keep getting curioser and curioser.
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