Evan Bayh acknowledges that 50 Democratic senators can get a public option using the budget reconciliation process. And that is probably true, depending on how the parliamentarian rules on the germaneness to the budget deficit of a public option. Until very recently, I always thought the Obama administration was carrying out a careful strategy of planned failure. They would try to get Republicans to support a good bill, but blame them when the effort failed and use the reconciliation process to pass what they campaigned on. That became a bit harder to pull off once the Democrats seated Senator Kirk and Senator Byrd returned to health. With sixty available members of the Democratic caucus, it simply wasn't possible to blame a successful filibuster on the Republicans.

It would be preferable to pass a bill under regular order for a whole host of reasons. We can see how hard it is for Pelosi to round up a majority for a robust public option. It won't get any easier in reconciliation. And the Byrd Rule can play havoc with efforts to pass a lot of the reforms. It would also put less members at risk and give the reform more stability if it passed without the maximum amount of drama and controversy. But, having said that, a good bill is better than a bad bill. Using reconciliation has to be 'on the table.'

My question for Bayh is, why not make things easier for everyone by getting what you can (in this case, a break for medical device manufacturers) in return for your cloture vote? Why force this process to be as lengthy and painful as possible? Sure, the administration can do this in the most divisive way possible. But what is the advantage of forcing them to do that?

The biggest risk we face is that the Obama administration will cut a deal to pass something unacceptable because the downside of using reconciliation is so high. I guess that is what Bayh is banking on. But I find it unconscionable that he, or any other member of the caucus, would hold reform hostage. If he wants to dare Obama to use reconciliation, there isn't much I can do about it, but I think it is a pure dick move on Bayh's part.

Since Reid and Durbin are openly calling Bayh's bluff, I hope they are willing to play some serious hardball. I know Bayh wants to strip out the tax on medical device manufacturers, and Landrieu wants more Katrina-aid, and Lincoln and Lieberman want to keep their committee chairs. Maybe they can get what they want in return for their cloture votes, and lose it if this has to go to reconciliation.

The biggest downer is definitely Pelosi's failure to get a robust public option. My hope was that we could get that much easier using reconciliation. But it appears that we might have 50 votes for it in the Senate but not 218 votes for it in the House. Therefore, it doesn't appear that we can get it no matter what strategy we use. I think that is very pathetic.