The Public Option's Last Stand: A Matter Of Will, Not Votes

The public option faces its last stand. With more than 40 senators publicly willing to vote for a health care reform reconciliation package that includes the option, the opportunity to reinsert it into the final bill has never been greater, though the battle is nearly over without having been fought.

Sen. Dick Durbin, the Democrat in charge of rounding up votes for the health care reconciliation bill, said on Thursday that he will whip support for whatever package comes through the House. With 50 Democratic votes, Vice President Joe Biden could then break the tie and send the bill directly to the White House. If any amendments are adopted, it slows the process down by requiring the House to vote once again.

That balance of power gives House Speaker Nancy Pelosi (D-Calif.) extraordinary leverage of a historical nature. Pelosi, however, has yet to concede in negotiations that it is the obligation of the House to go first. And the deal that is being reached is driven largely by the White House. But both the Senate and the White House need Pelosi. And the House, of course, has already passed a health care bill with a public option.

If the House does move first, the Senate would essentially face an up-or-down vote on whatever Pelosi sends over. Durbin was asked by HuffPost if he would whip a reconciliation package from the House that included a public option. An analysis of past statements and positions taken by members of the Democratic caucus indicates that there could plausibly be 53 votes for a public option and perhaps several more.

Durbin, in response to the question, said at first that it was hypothetical, but then answered, "I think there will come a time when we reach agreement on what the reconciliation package includes, with the understanding that any changes in the House or Senate could slow down or stop the process."

So whatever comes from the House, that's what you will whip?

"That's basically it," he said. "I hope that what comes from the House is what we agree on going into this debate."

Has that been agreed to yet?

"Not yet," said Durbin.

"Dick Durbin just offered Nancy Pelosi a rubber stamp, something that will never happen again -- especially in a 50-vote reconciliation environment," said Adam Green, when told of Durbin's remark. Green is a co-founder of the Progressive Change Campaign Committee, which has been pushing for a public option.

If the public option is going to work its way back into health care talks, it will have to do it in the next day or two, before the parties finalize negotiations.

The White House and congressional leaders have not taken much notice of the revived debate over including a public option in the last several weeks, other than to insist, as the administration did, that it doesn't have "political support."

Yet without any whip effort from the Senate or the White House, 41 individual senators have publicly said that they are willing to support a public option through the reconciliation process. The full list is here.

That list does not include several senators who have said they support the public option but may not want to upset the delicate political balance, including Sens. Jay Rockefeller (D-W.Va.) and Tom Harkin (D-Iowa), both vocal public option backers.

Sen. Max Baucus (D-Mont.) has not taken a position on supporting the public option through reconciliation, but he has previously said he supports it. What's more, as Finance Committee chairman, he has called this health care reform the most important public policy effort he has ever been involved in. He would be unlikely to kill it over the public option, especially given his state's support for it.

Rockefeller, Harkin and Baucus make it 44.

HuffPost also spoke to Sens. Mark Begich (D-Alaska) and Kay Hagan (D-N.C.) this week. Hagan has previously said that she supports the public option and told HuffPost she'd be open to voting for it through reconciliation, but had to see the details. Begich said that he wouldn't let the health care bill overall "live or die" over the issue of the public option. Sen. Herb Kohl (D-Wisc.) declined to answer when asked by HuffPost about the public option, but he is a reliable Democratic vote and it is difficult to imagine him bucking his leadership on such an important vote. Kohl has previously stated his support for the public option.

Adding Kohl, Begich and Hagan to the total gets Durbin and the White House to 47.

Sen. Claire McCaskill (D-Mo.) told HuffPost she wasn't sure how she would vote, but she has been a reliable supporter of the president going back to the campaign. She would be the last person to kill health care, Obama's signature domestic policy priority.

Her vote would give Democrats 48.

Sen. Mark Warner (D-Va.) has said in the past that he would support a health care bill with a public option.

His vote would bring the number to 49 - one shy.

Sen. Bob Byrd (D-W.Va.) said he would support health care reform done through reconciliation. Sen. Evan Bayh (D-Ind.), who is retiring, has said he's open to using reconciliation to pass health care. Either of their votes would put Democrats over the top and both are gettable with an effort from leadership and the White House.

That would allow senators such as Mary Landrieu (D-La.), Blanche Lincoln (D-Ark.), Mark Pryor (D-Ark.), Jim Webb (D-Va.), Kent Conrad (D-N.D.) and Tom Carper (D-Del.) to vote no.

And if both Byrd and Bayh refused to support the final bill, there's always Sen. Ben Nelson. The Nebraska Democrat badly wants to vote to change the "Cornhusker Kickback," for which he's been pilloried at home and across the nation. Voting for reconciliation is the only way to do it.

In that case, Ben Nelson makes 50 -- or, with Bayh and Byrd, 52.

UPDATE: If true, the news that the Senate parliamentarian told Senate Republicans that the bill must become law before any amendments can be made through reconciliation alters the equation. The House, however, could still pass the Senate bill into law and then send the Senate a reconciliation fix with a public option. The Senate could torpedo that legislation without the concern that no reform package at all will get passed, giving the Senate added leverage.

The underlying dynamic, however, remains unchanged: In the next few days, as the White House and congressional leaders meet to hash out the way forward, the votes appear to exist to include a public option. It's only a matter of will.

CORRECTION: An earlier version of this story erroneously suggested that Adam Green saw Durbin's statement as a positive sign. That is demonstrably not the case. Green's point is that Durbin has now put the ball in Pelosi's court.

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