As House Republicans struggle to cobble together the votes to pass legislation to repeal and replace the 2010 health care law, members are already looking to navigate the Senate’s labyrinth of procedural rules that could make or break the measure.
Senate Democrats are already setting up for the battle with the parliamentarian about which provisions could run up against the Byrd Rule, which requires budget reconciliation bills that can pass with a simple-majority vote to be primarily about spending and revenues, without extraneous matter.
Since the House health care plan was developed as a budget reconciliation measure, the Byrd Rule will go a long way to determining its fate.
Senate Minority Leader Charles E. Schumer met Tuesday with the ranking members of the Budget, Finance, and Health, Education Labor and Pension committees to gear up for the process of taking any House product through what’s come to be known as the “Byrd bath,” which will scrub provisions deemed by the parliamentarian or by the Senate as violating provisions of the rule.
Speaking on the Senate floor Wednesday, Schumer said Republicans know they have to work as many provisions as possible into the reconciliation measure because Democrats won’t be cooperating on future legislation subject to procedural roadblocks like the filibuster.
“I think that’s why House Republicans have tried to jam some extra policy changes onto their bill, like the Medicaid work requirement and the restrictions on abortion, because they know they won’t be able to later on — and they need more conservative votes to pass this bill tomorrow,” the New York Democrat said. “There’s a serious question as to whether these changes are budgetary changes or policy changes.”
The closest available precedent might be from a 1995 reconciliation bill that sought to prevent taxpayer-funded abortion services. While that did score as a savings, the parliamentarian at the time, Robert Dove, determined that wasn’t the point.
“It was my view that the provision was not there in order to save money. It was there to implement social policy. Therefore, I ruled that it was not in order and it was stricken,” Dove told NPR. “That is a tough rule: to go into the motives of people who have either amendments, or have put provisions into bills.”
Maryland Sen. Chris Van Hollen, previously the ranking Democrat on the House Budget Committee, predicted the bill, if it arrives from the House, will need significant scrubbing.
“I think it’s a minefield on the merits,” Van Hollen said. “I think it’s going to destroy health care for millions of people. Beyond that, it’s also going to be a procedural minefield.”
“Right now, as you might imagine, I’d say the parliamentarian is probably the most powerful person in the Senate,” he added.
Some Republicans are arguing that Vice President Mike Pence, serving as the president of the Senate, should disregard the advice of the Senate parliamentarian and allow provisions to repeal more of the mandates of the 2010 health care law, such as what constitutes the essential benefits that an insurance plan must offer. Repealing that is at the top of conservatives’ wish lists.
“The Senate parliamentarian does not ultimately determine what is allowable under reconciliation. That authority falls to the Senate and the vice president, the chamber’s presiding officer,” Texas Sen. Ted Cruz and House Freedom Caucus Chairman Mark Meadows wrote in an opinion piece for The Wall Street Journal last week. “As the former Senate parliamentarian Robert Dove once explained, the vice president is ‘the ultimate decider’ on reconciliation: ‘The parliamentarian only can advise. It is the vice president who rules.’”
“I have talked to senators who say not only has it not been adjudicated but it hasn’t really even been presented in a meaningful way,” Meadows, a North Carolina Republican, said this week. “And so that narrative is simply not a narrative based on fact. It’s based on conjecture and belief, which I think [is] a deeply held belief for them, but it’s not based on facts.”
On Wednesday evening, Meadows expressed confidence anything added would pass muster.
“There is some real encouragement with regards to passing the [Byrd Rule] and not having a fatal problem where the bill is considered so fatal that it can’t be considered under the reconciliation vehicle,” he said.
Sen. Mike Lee, a Utah Republican who opposes the House bill, has said he has met with Senate Parliamentarian Elizabeth MacDonough.
“I recently discussed ideas and proposals with the Senate parliamentarian and she has not yet ruled on whether Obamacare’s regulations may or may not be repealed in the reconciliation process,” Lee said in a statement.
On some questions, there is no precedent, meaning they may need to be put to a vote. The argument in favor of repealing the mandates of the 2010 law is that they are inexorably tied to the subsidies, and that since the subsidies can be repealed through the reconciliation process, the restrictions on policy changes should be nullified.
Schumer’s top spokesman, Matt House, thinks that argument won’t fly under the Byrd Rule.
“What the proponents aren’t telling conservative House Republicans is that the plan to repeal essential health benefits will almost certainly not be permissible under Senate reconciliation rules,” House said. “It will require 60 votes to repeal these protections, and the votes just aren’t there in the Senate.”
That hasn’t stopped President Donald Trump from encouraging GOP leaders to include provisions striking down the mandates to court conservatives.
The problem with making clear policy changes, a senior Republican aide explained, is that the Byrd Rule is now enshrined in statute.
It was included in COBRA, the 1986 reconciliation law that created the benefit allowing people who lose their jobs to keep their health insurance.
There does not appear to be much appetite among Senate Republicans for overruling the parliamentarian on a matter of law, the aide said.
Senate Republican leaders are likely to avoid many of these battles from playing out with a barrage of points of order on the floor by laying down a substitute amendment on the front end, as has been past practice.
Senators are already seeking guidance on potential amendments for the vote-a-rama, the series of virtually nonstop votes on the budget measure, including how to make their proposals fit within the confines of the reconciliation process.
“I want to make an amendment to the bill, and you know, a substantial amendment,” Sen. Bill Cassidy told reporters Wednesday.
The Louisiana Republican has already crafted a health care rewrite with Maine GOP Sen. Susan Collins.
“We don’t know what the final bill is. We have a sense of that, but then more importantly, from our perspective, how does what we do graft?” Cassidy said of any possible Senate adds. “There’s a lot of moving parts here if one part doesn’t move, everything else falls apart.”
That was another reference to lawmakers needing to draft Senate amendments compliant with the chamber’s rules on reconciliation. If something seems off, it could trigger a point of order challenge. To overcome that point of order, 60 votes are needed. That’s all-but-sure to be insurmountable in this kind of environment. The Senate has 52 Republicans and wooing eight Democrats is unlikely, so anything Republicans want to do, they will have to do on their own. And that’s why the parliamentarian, and her rulings, are so important to the calculus.
Lindsey McPherson and Joe Williams contributed to this report.