The Republican health-care bill stood in a legislative Catch-22 late Wednesday, held hostage to demands that the White House and Republican leaders wish that they could grant but insist that they cannot.
That is not a particularly controversial stance among Republicans. Almost all GOP members — conservatives, moderates and otherwise — would like to undo more off the ACA’s “essential health benefits,” a litany of services that insurance plans are required to cover by law. They include things such as emergency-room visits and hospital stays, but they also include mental health, maternity, preventive care and prescription drug coverage that not all people will necessarily utilize.
Democrats argue that without the requirements, many Americans would be forced to buy bare-bones plans that would leave huge gaps in coverage and expose them to severe financial risk. But most Republicans say that requiring insurers to cover all those benefits is a major factor in driving up premiums — and that if consumers want to buy bare-bones plans, they should be able to buy bare-bones plans.
But the policy debate is not the issue. The Congressional Budget and Impoundment Control Act of 1974 is the issue.
That is the federal law that lays out the procedure congressional Republican leaders are using to pass the American Health Care Act — the “reconciliation” process that will ultimately allow them to pass the bill without Democratic votes. And that law dictates that not just anything can be passed by reconciliation; matters that are “extraneous” to the budgetary nature of the bill are excluded.
House leaders, including Speaker Paul D. Ryan (R-Wis.), are insisting that any provisions rolling back the ACA’s essential health benefits are indeed extraneous. And not only are they extraneous, Ryan argued Wednesday, but if the House adds them to the bill, the Senate couldn’t just strip them out — it could no longer consider it as a privileged reconciliation bill needing only a simple, Republican majority to pass.
“Look, our whole thing is we don’t want to load up our bill in such a way that it doesn’t even get considered in the Senate,” Ryan told radio host Hugh Hewitt on Wednesday morning. “Then we’ve lost our one chance with this one tool we have, reconciliation. It doesn’t last long. But if the Senate can add things to the bill, then we’re all for that.”
That, according to several Freedom Caucus members and GOP aides, is exactly what Ryan and White House officials — including Vice President Pence — have offered the Freedom Caucus: a commitment that the Senate will seek to add a repeal of the essential health benefits to the House bill once it arrives in that chamber. If at that point the Senate parliamentarian rules that the provision is extraneous, it will simply be dropped and the rest of the bill will remain.
As Ryan put it to Hewitt: “We want to beta-test these ideas in the Senate — we want that. . . . But the last thing we want to do is load our bill up and they don’t even get a chance to do that.”
That argument has convinced one conservative hard-liner. Rep. Steve King (R-Iowa), who is not a Freedom Caucus member, said Wednesday that he would support the bill based on “a firm, firm commitment from the majority leader in the Senate, Mitch McConnell, that he will offer a manager’s amendment to strike out the mandates that are written into Obamacare.”
Freedom Caucus members, however, aren’t taking yes for an answer. Their position, rooted in the wishes of their conservative activist base and years of mounting distrust of GOP leaders, is that the repeal of essential health benefits must be included in the House bill — they are unwilling to take on faith that it will be pursued in the Senate. And they flatly do not accept the argument that it would be procedurally fatal to the legislation.
“They have made clear that is their belief,” Freedom Caucus Chairman Mark Meadows (R-N.C.) said Tuesday. “But I have talked to senators who say that not only has it not been adjudicated, but it hasn’t even really been presented in a meaningful way, so that narrative is simply not a narrative based on fact. It’s based on conjecture and belief — which I think it’s a deeply held belief for them, but it’s not based on fact.”
And that is where the dispute stands: The White House and GOP congressional leaders have told the Freedom Caucus that meeting their demands would essentially kill the American Health Care Act before it is born, but the Freedom Caucus, egged on by several conservative Republican senators, refuses to believe that is the case.
The decision on what is permissible in a reconciliation bill — and what House provisions would be fatal — lies in the hands of the Senate parliamentarian, Elizabeth MacDonough. Numerous Freedom Caucus members subscribe to an argument, most prominently advanced by Sen. Ted Cruz (R-Tex.), that even if MacDonough were to rule against repealing the insurance mandates, she could be overruled by Pence, who is the president of the Senate.
Sen. Mike Lee (R-Utah) stoked Freedom Caucus doubts even further in a Wednesday interview with the Washington Examiner in which he cited personal conversations with MacDonough that he said undermined the leadership claims: “What I understood her to be saying is that there’s no reason why an Obamacare repeal bill necessarily could not have provisions repealing the health insurance regulations.”
“What matters is how it’s done, how it’s written up,” he added. “There are ways it’s written up that perhaps make it not subject to passage through reconciliation, but there are other ways you could write it that might make it work.”
Several House and Senate aides said this week that provisions under consideration in the House have been routinely presented to the Senate parliamentarian’s office for review to make sure the legislation passes muster under reconciliation rules, and they said they were confident that including a broader repeal of insurance mandates would render the AHCA ineligible for reconciliation.
Senate leaders, meanwhile, generally dismissed the idea that Pence could unilaterally decide to override the Senate budget rules. While the rules governing the reconciliation process originated as the “Byrd rule,” after former senator Robert C. Byrd (D-W.Va.), they have since 1990 been incorporated into the Budget Act itself — meaning it cannot simply be overturned by changing the Senate rules.
Sen. Roy Blunt (R-Mo.), vice chairman of the Senate Republican Conference, said Wednesday that overruling the parliamentarian on a Byrd ruling would virtually guarantee that the GOP health-care law would be challenged in court.
“The vice president, and even 51 senators without the vice president, can’t decide what the law says,” Blunt said. “If you want to for sure wind up in court, the way to do it is to decide that we’ve redefined the law.”
Conservatives could promise to ignore that law, he added, but doing so would only lead to disappointment: “It is always a mistake to try to convince people do something you can’t possibly do.”
Kelsey Snell contributed to this report.