This was ostensibly a vote on a motion to waive the Senate's budget rules with respect to an amendment by Sen. John Ensign (R-NV) prohibiting lawsuits against doctors if those lawsuits concern medical services provided for free. The measure Ensign sought to amend was a “companion bill” making a number of changes to health care reform legislation already signed into law by President Obama. The underlying context was that Republicans were trying to attach amendments to the companion bill in order to send it back the House, where it had passed by a narrow margin. CNN reported that Republicans had chosen to offer a slew of amendments in order to “undermine the measure,” while the Associated Press characterized the amendments as “a final drive to thwart President Barack Obama's health care remake.”
Ensign urged support for his amendment: “We talk about making health care more affordable. One of the ways to do that is to encourage people to give away health care….What this amendment says is…if a health care provider is giving their services away out of the compassion of their heart, they cannot be sued.”
Sen. Max Baucus argued that an amendment relating to such lawsuits against physicians “is not the jurisdiction of the relevant committees.” In other words, the committees responsible for drafting the reconciliation bill (the Finance Committee and the Health, Education, and Labor Committee) did not have authority over medical liability issues. Thus, Baucus argued, the amendment violated the Senate’s budget reconciliation rules. Ensign then made a motion to waive those rules. Motions to waive budget rules require 60 votes for passage.
After the House and Senate both passed their respective health care reform bills, the two chambers had intended to reconcile those two bills into a final package. After the House and Senate passed that final package, it would have been sent to President Obama, who would have signed it into law. Sen. Scott Brown (R-MA), however, won a special election to replace the late Sen. Ted Kennedy (D-MA) before the final health care bill could be brought up for a vote. Brown's victory gave Republicans 41 votes in the Senate, leaving Democrats with 59 members – one vote short of the 60 votes they needed to defeat a unanimous Republican filibuster against the final health care bill.
In order to pass comprehensive health care legislation without a 60-vote majority in the Senate, Democratic leaders devised a plan in which the House would pass the Senate health care bill (H.R. 3590), thereby enabling the president to sign it into law. The House would then pass a separate companion bill (H.R. 4872) to make changes to the Senate health measure under a process known as "budget reconciliation." Bills considered under budget reconciliation cannot be filibustered under Senate rules. This process allowed the House to make changes to Senate-passed health care legislation without sending the entire health bill back to the Senate, where it could have been filibustered indefinitely. The companion bill incorporated changes to the Senate health care legislation desired by House Democrats. The House passed the companion measure, and sent it to the Senate, where Democratic leaders hoped to defeat all amendments -- thereby avoiding a second vote in the House on a substantively changed bill; a vote that Democrats might have lost given the already tight margin when it was voted on the previous week.
The Senate rejected the motion to waive its budget rules by a vote of 40-55. All 40 Republicans present voted “yea.” All 55 Democrats present voted “nay.” As a result, the Senate effectively rejected an amendment Democratic leaders feared could have torpedoed the entire companion health care bill and would have prohibited lawsuits against doctors if those lawsuits concern medical services provided for free.