But this strategy might put Republicans on a course that, to succeed, might require them to “go nuclear” on Senate rules, which could do untold damage to the institution, congressional experts told me this morning.
House GOP leaders had previously said that they could not insert the provision repealing the essential benefits package because such a measure could be filibustered by Democrats and could not pass the Senate by a simple majority under the “reconciliation” process, which can be used only for provisions with a budgetary dimension. Because Republicans have only 52 Senate seats, they probably can’t pass anything that requires a 60-vote supermajority.
But the conservative House Freedom Caucus has been demanding that GOP leaders insert the provision anyway to win their votes. And now House GOP leaders — under immense pressure to win conservative holdouts to pass the bill — are saying that the procedural impediment is no longer operative. The Post reports:
That stance appeared to shift late Wednesday, when separate aides in the White House and the House GOP leadership said a new interpretation of Senate rules had raised the possibility that acceding to the Freedom Caucus’s request might not threaten Senate consideration of the whole bill.
It is not clear where this “new interpretation” came from, but the bottom line is that Republican leaders are now saying that they may send something to the Senate that would raise the question of whether the Senate can pass the repeal of “essential benefit” regulations by a simple majority. This is a complicated question that would ultimately require the Senate parliamentarian to declare what is permissible under the “Byrd Rule.” And conservative Sen. Mike Lee (R-Utah) has said publicly that he was told by the parliamentarian that the rules might indeed permit such regulatory repeal.
This question is central to the prospects of the GOP repeal strategy right now. If it is possible for Senate Republicans to pass essential benefits repeal via reconciliation, then House Republicans can put that in their bill and potentially win over enough conservatives to pass it.
But this creates a tactical opening that Democrats can exploit right now, two congressional experts told me. Senate Democrats can go to the parliamentarian, Elizabeth MacDonough, and themselves ask whether repeal of the essential benefits is possible under reconciliation. If the answer is no, that would throw a huge wrench into the current House GOP strategy (unless their only goal is to pass something regardless of its prospects in the Senate, which may ultimately be their default play).
“If the parliamentarian operates the way other parliamentarians have, then she would say, ‘No, this doesn’t fit under the rules,’” congressional scholar Norm Ornstein told me. “Now is the time to go to the parliamentarian. Now is when you want to highlight reality, which is that Republicans are going to try to bend the rules into unrecognizable shape.”
“Competing teams can go to the parliamentarian to try out alternative arguments to see what would be kosher under the Byrd Rule,” added Sarah Binder, a political science professor at George Washington University. Democratic aides declined to detail their strategy to me.
Of course, as both Ornstein and Binder noted, it’s not clear whether the parliamentarian would give a definitive answer. But she might give some guidance. And Binder added that if she indicated the answer might end up being no, then Republicans might be facing a difficult prospect later: whether to discard her advice and go forward with a simple majority vote anyway, which would be driven by the Senate’s presiding officer, Vice President Pence. Some conservatives are urging that latter course.
But then all heck would truly break lose. “It would be nuclear if the presiding officer ruled counter to the parliamentarian’s advice,” Binder said. “The Senate is a precedent-driven institution. This would put up for grabs any future question about how senators decide to legislate.”
Added Ornstein: “The bottom line is that if the majority wants to blow up the norms, they can.”
Of course, Republicans could argue, with some justification, that Democrats blew up a norm when they got rid of the filibuster on nominations. But circumventing the parliamentarian would come amid a process in which Republicans are rewriting the new health bill and voting on it in an incredibly condensed time frame, potentially without a new Congressional Budget Office score to gauge its effects on an enormous swath of the U.S. economy. Making this snowballing deterioration even worse, all this would be coming at a time when President Trump is already eroding democratic norms and processes to a truly unprecedented degree.
WILL SENATE REPUBLICANS OVERRULE THE PARLIAMENTARIAN? Roll Call’s Niels Lesniewski explains that some Senate GOP aides are reluctant to pursue this path:
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.
We’ll see how long this reluctance lasts.
GOP MODERATES BREAK AWAY FROM HEALTH BILL: Politico reports that the efforts by GOP leaders to win conservative support by eliminating the essential benefits package has driven away some House moderates. Here’s Rep. Charlie Dent of Pennsylvania:
“I believe this bill, in its current form, will lead to the loss of coverage and make insurance unaffordable for too many Americans, particularly for low-to-moderate income and older individuals.”
One big question here is whether enough moderates will bolt to sink the bill even if most of the conservative Freedom Caucus ultimately gets on board.
WHIP COUNTS SHOW GOP BILL IS IN TROUBLE — FOR NOW: The Upshot has a useful roundup of many of the whip counts from major news organizations tallying up the likely No votes on the GOP health bill. The numbers range from 24 to 32.
If 23 vote No, it’s likely to fail. But there’s still a long, long way to go.
THE BIG PROBLEM WITH THE GOP’S LATEST CHANGES: Vox’s Matthew Yglesias explains that health experts believe eliminating the essential benefits package will actually raise federal spending, because more people will avail themselves of the substandard plans that result
Because the tax credits aren’t that generous and [the plan] would allow premiums for older customers to rise sharply, in practice the uptake of the tax credits would be relatively low. Millions of people would lose insurance, and the federal government would end up subsidizing a small group of people. Eliminate the essential benefits and that’s reversed. Absolutely nobody will have access to a quality plan, but the unfettered market will come up with something for everyone to buy, so spending might end up rising quite a bit.
Yet this is supposed to appeal to conservatives by bringing down costs.
STUDY: MIDDLE-AGED LESS-EDUCATED WHITES DYING YOUNGER: The Associated Press reports on a new study by two Princeton economists that should be relevant to the current health-care debate:
Middle-age white Americans with limited education are increasingly dying younger, on average, than other middle-age U.S. adults … the loss of steady middle-income jobs for those with only high school diplomas or less has triggered broad problems for this group. They are more likely than their college-educated counterparts, for example, to be unemployed, unmarried or afflicted with poor health.
And it’s likely that they overlap with the people who will lose out under the GOP health bill.
THE TRUMP QUOTE OF THE DAY, CRAZY ALTERNATIVE FACTS EDITION: Trump, in a remarkable interview with Time magazine, is now explaining away his charge that Obama wiretapped him this way:
“When I said wiretapping, it was in quotes. Because a wiretapping is, you know today it is different than wire tapping. It is just a good description. But wiretapping was in quotes. What I’m talking about is surveillance … I have articles saying it happened.”
Okay … Trump has “articles saying it happened.” But the head of the FBI and senior Republicans privy to the intelligence community’s classified information say it didn’t.