While that effort was quickly sidelined after some outcry, the Republican leadership in the Senate was otherwise unfazed in its push to craft a bill that would expose its members to as little negative public attention as possible. No repeat of the town hall meetings that drew angry constituents who yelled at House Republicans and, they clearly hope, no weeks and weeks of swamped office phone lines.
In an article for the Monkey Cage, George Washington University’s Sarah Binder explained the four ways in which the Senate effort was unusually secretive. Sure, members of Congress would always rather pass legislation without dealing with negative criticism, but rarely have they gone so dark on such a big effort.
The question that arises, though, is what Democrats could actually do about it. Binder told me that the answer was probably a simple one.
“I have a hard time seeing a real avenue for successful obstruction by the Democrats,” Binder said. The situation is unusual enough that making hard and fast predictions is tricky, she said, but “Republicans have been so aggressive on procedure here that I’d expect them to … get this through without any heed of what the Democrats were raising.”
In particular, Binder addressed a proposal outlined in a series of tweets last week by Ezra Levin, a former deputy policy director for House Democrats. Levin suggested that the Democrats could introduce an almost infinite number of amendments that would choke the Senate calendar indefinitely until they got what they wanted.
The plan hinges on the way in which the bill is being moved through the Senate. To avoid the need for Democratic votes — which the Republican majority wouldn’t get — the Obamacare replacement is being advanced using what’s known as the reconciliation process. That process involves a special set of rules that are meant to fast-track debate over the budget, but, given that it also means legislation can avoid a filibuster in the Senate, it has also been used to pass controversial bills. (Several fixes essential to the passage of Obamacare were moved using the reconciliation process, for example.)
Those rules, defined by law, include allowing only 20 hours for debate but it also includes a process called “vote-a-rama,” in which amendments may be proposed and must be voted on before the final passage of the bill. That’s where Levin’s idea comes in: He proposed introducing tens of thousands of amendments that would need to be voted on before the Senate’s bill could be passed. In theory, Levin figured, Democrats could introduce enough amendments to shut down the Senate for a year.
“In reality, that’s not going to happen,” she said. What was more likely, she said, is that someone would make a point of order that the Democrats were being “dilatory” — that is, slowing down the process unnecessarily. The presiding officer — the Republican senator on duty to manage floor debate — would be asked to rule on whether that was the case and would likely agree. Democrats could appeal the decision, but a majority vote would end the process.
It’s not just partisan politics that would lead to that outcome, either, Binder said. If the presiding officer were to appeal to the Senate parliamentarian — the resident expert on the rules of order — the recommendation would likely be the same. “The parliamentarian’s job is really to make the Budget Act work, and everybody knows that the Budget Act has time limits in it,” she said. An infinite vote-a-rama might be in keeping with the letter of the law, but not, importantly, the spirit.
“The weight of the law here is toward no filibusters,” she said. But she also noted that there was no “hard and fast precedent” for such a scenario since, normally, the two parties agree in advance on how long the process will extend.
Asked if the Democrats had any other recourse, Binder was skeptical.
“I don’t really see an escape valve for Democrats to delay it,” she said. The only question is whether the Senate bill — once it’s finalized — meets the rules for reconciliation and if the House accepts it as written. If it’s not eligible for reconciliation or if the House doesn’t want to agree to the Senate bill as written, then more traditional minority obstruction efforts might kick in. If, however, the Senate Republicans pass a measure that the House Republicans agree to in whole cloth, that’s it.
Senate Majority Leader Mitch McConnell (R-Ky.) is no doubt very well aware of his options. He’s betting that drafting the bill in secret and pushing it through the Senate with limited debate will give his caucus enough cover to vote yes — and that the House will agree to the bill. If he’s right, that means that only one group could stand in his way: Republicans on Capitol Hill, by defecting in the Senate or objecting in the House. The Democrats can probably only watch.