Right now, Senate Republicans are desperately attempting to pass something—anything—that can plausibly be called Obamacare repeal so they can then sit down with their colleagues in the House and craft a piece of compromise legislation both chambers will vote on. The plan is to keep making forward progress and hope that sheer momentum carries this whole shambolic legislative effort over the goal line.
There are many reasons why this strategy could fail. But one of the most important, and perhaps most underappreciated, is that it seems unlikely any bill capable of passing the House right now will also be able to pass the Senate purely due to procedural reasons.
For this we can thank Senate Parliamentarian Elizabeth MacDonough, who since last week has ruled that several key pieces of the GOP’s plan to replace Obamacare would not be eligible for a vote using the budget reconciliation process, which Republicans are banking on to pass their bill. Reconciliation is designed to pre-empt filibusters on tax and spending matters, allowing them to be enacted with a bare 51-vote majority (the GOP has 52 seats in the Senate, plus Vice President Mike Pence to break ties). But it is not supposed to be used for purely regulatory changes. MacDonough has advised lawmakers that many of their proposals don’t pass muster under the procedure, including provisions that would defund Planned Parenthood and bar Americans from using government subsidies to buy insurance that covers abortion. The rule that would make people wait six months to purchase a health plan if they have a lapse in coverage—Republicans’ proposed replacement for the Obamacare’s individual mandate—is also a no-go, as is a change allowing insurance carriers to charge older customers up to five times what younger enrollees pay.
A repeal bill could conceivably survive Congress without these pieces. The broader problem is that the parliamentarian appears to be interpreting the reconciliation rules strictly, which means she may force the Senate to strip other key conservative regulatory demands, such as Sen. Ted Cruz’s amendment allowing insurers to sell bare-bones health plans or waivers giving states the right to opt out of Obamacare’s market rules.
Losing the waivers, especially, would be an enormous, possibly insurmountable obstacle for Republicans. Right now, the Senate is expected to try to pass a stripped-down “skinny repeal” bill that would kill off Obamacare’s tax penalties for Americans who don’t buy insurance, the requirement that employers offer their workers insurance, and the tax on medical devices. The idea is to advance a piece of legislation that almost everyone in the Senate can agree on—there’s been a lot of talk about settling on the “lowest common denominator,” which, yeesh—and then go into a conference committee with the House to negotiate a final compromise. Already, House conservatives are telling the media that they won’t simply accept the skinny repeal option and move on. “You’ve got to give freedom to the states at a minimum,” Rep. Raul Labrador told the Daily Beast. “In my opinion, we should get rid of the entire bill—the entire Obamacare—but that’s not going to happen. … This is our one chance to repeal Obamacare and to give the states flexibility.”
But what if the parliamentarian decides that “state flexibility” is a no-can-do under reconciliation? At that point, Republicans have two options.
On the one hand, hard-liners could choke back their frustrations and just vote on whatever milquetoast piece of legislation the Senate is capable of producing.
On the other, Republicans could choose to overrule the parliamentarian, and thus more or less end the Senate as we know it. Technically, MacDonough’s rulings are only advisory. Vice President Pence gets the actual final word on whether a bill meets the requirements for reconciliation, and he could choose to simply greenlight any bill Congress produces, allowing it to pass with 51 votes. But this would be a tectonic rupture in Senate history. No vice president has overruled the parliamentarian since Nelson Rockefeller in 1976, and choosing to do so in today’s political climate would amount to gutting the filibuster, since pretty much any legislation could pass with 51 votes so long as it had the veep’s blessing.
Would Republicans actually go this route? It’s hard to say. Sen. Mitch McConnell, who would almost certainly make the final call on this issue, has resisted the idea of ending the legislative filibuster out of concern that, one day, a President Bernie Sanders might be able to pass single-payer or nationalize Trump Tower with fewer than 60 Senate votes. But despite his reputation as an “institutionalist,” the majority leader has shown himself more than willing to obliterate the Senate’s procedural precedent during this year’s secretive and rushed health care push. If he has to choose between fulfilling a seven-year pledge to blot out Barack Obama’s legacy and preserving Senate traditions, it’s not at all clear to me which McConnell would pick.