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Does Obamacare Repeal Have a Senate Path Without the Mandates?

Cruz, Lee and Rubio have previously expressed concerns about a reconciliation bill that doesn't fully repeal Obamacare. (Tom Williams/CQ Roll Call File Photo)

The search is on for 51 Senate votes to repeal the Affordable Care Act, raising questions about whether the House’s attempt to use the budget reconciliation process to do so will succeed.  

Sens. Ted Cruz and Marco Rubio, both presidential candidates, and Sen. Mike Lee are on record that they “cannot support” a bill that doesn’t “fully repeal” the health care law. The offices of Cruz and Rubio referred CQ Roll Call back to a joint statement from three weeks ago when asked for a response to Parliamentarian Elizabeth MacDonough’s ruling this week that Obamacare’s employer and individual mandates fail the test for inclusion in a reconciliation bill. The budget reconciliation process is the only filibuster-proof option available to Senate Republicans, who control the chamber with 54 votes. That’s why there is little room to spare if Cruz, Rubio and Lee balk.  

"If this bill cannot be amended so that it fully repeals Obamacare pursuant to Senate rules, we cannot support this bill. With millions of Americans now getting health premium increase notices in the mail, we owe our constituents nothing less," Cruz of Texas, Lee of Utah and Rubio of Florida said in a joint statement issued on Oct. 22.  

Cruz also previously argued that since the parliamentarian works for the Senate with a Republican majority, there should be a means to get favorable rulings . However, the ultimate presiding officer is the president of the Senate and that's Democratic Vice President Joseph R. Biden Jr.  

One Senate Republican aide said work was continuing at the leadership level with the parliamentarian's office to find a mechanism to include the mandate repeals.  

But the office of Senate Minority Leader Harry Reid, D-Nev., on Thursday dismissed the idea that the GOP could develop a fix so the repeal of the mandates are not subject to a 60-vote threshold.  

"The Senate is not the House of Representatives. Based on the Parliamentarian's ruling, the Senate reconciliation bill will have to be more supportive of Obamacare's mandates than the House-passed bill," Reid's office said in a memo. "There is no way around this simple fact."  

Reconciliation is always complicated by the Byrd rule, which restricts the use of the process for legislation that is not budgetary in nature. MacDonough ruled eliminating the employer and individual mandate in the health law violate the Byrd rule.  

Senate Republicans, who discussed the reconciliation process during their conference lunch Tuesday, are planning to use a scrubbed-down substitute that addresses the parliamentary challenges. The goal for supporters of the strategy is to get lawmakers on record and force President Barack Obama to veto the bill.  

The other complication to getting 51 votes: There may be pressure from Republican moderates to further scale back the package because it would strip federal funds from Planned Parenthood.  

Sen Mark S. Kirk, R-Ill., was noncommittal when asked Tuesday about support for the bill, saying there was not yet final text to review. Kirk has been among a small group of Republicans to have opposed defunding Planned Parenthood, which has drawn fire from conservatives over videos that purport to show discussion of the sale of fetal tissue.  

Social conservatives, such as Tony Perkins of the Family Research Council, are insisting the budget reconciliation process be used to strip funding from the women’s health organization.  

"The eyes of the pro-life movement will now intensely focus on the U.S. Senate. There is only one congressional hurdle remaining in the effort to stop the flow of tax dollars to Planned Parenthood, which has been embroiled in controversy over the sale of baby body parts: a simple majority vote in the U.S. Senate," Perkins said Wednesday.  

Since reconciliation bills require a simple majority, attendance will matter for a Senate floor vote. That means Cruz and Rubio would need to be away from the campaign trail to vote "no" if they decide it doesn’t go far enough to repeal Obamacare.  

Related: Cruz: Senate Umpire Works for Us Rubio: GOP Needs 60 Votes to Repeal Obamacare See photos, follies, HOH Hits and Misses and more at Roll Call's new video site. Get breaking news alerts and more from Roll Call in your inbox or on your iPhone.