Republicans' last-ditch effort to repeal Obamacare is thisclose to being doomed, thanks to two rather vague words: regular order.
Sen. John McCain (R-Ariz.) announced Friday morning that he cannot “in good conscience” vote for a bill to repeal the Affordable Care Act that the Senate was planning to vote on next week with only nominal hearings. It's a position that puts the bill's chances in grave danger, and McCain's opposition isn't rooted in policy, it's rooted in process.
“I would consider supporting legislation similar to that offered by my friends Senators Graham and Cassidy were it the product of extensive hearings, debate and amendment,” McCain said in a statement. “But that has not been the case. … As I have repeatedly stressed, health care reform legislation ought to be the product of regular order in the Senate.”
The other 'no' vote is Sen. Rand Paul (R-Ky.)
Two other senators on the fence, Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska), have also criticized their party for rushing through a repeal bill before a Sept. 30 budget deadline. Three no votes means that Republicans' attempt to repeal the Affordable Care Act, also known as Obamacare, fails again.
So if regular order may have killed Republicans' last, best chance for Obamacare repeal, what is it?
A good question, to which we have an unsatisfactory answer. There is no agreed-upon definition of regular order. And it's open to a much wider interpretation these days, because, well, everything in politics is open to interpretation right now.
“In my view, there's no such thing as 'regular order,' " Sarah Binder, a procedural expert at George Washington University and the Brookings Institution, said in an email Thursday to the Fix. It can mean whatever senators want it to mean.
Binder said that for some senators, “regular order” is a callback to the past, a time when they perceived governing was smoother and less partisan. For some, it's a direct reference to allowing committees to craft policy rather than leadership. For others, it means they can offer amendments to a bill. For still others, “regular order” is a call on their colleagues to stop filibustering every vote. And on and on.
Lots of lawmakers on both sides complain about regular order. But McCain has made it a Big Deal after he was diagnosed with a deadly form of brain cancer in the summer.
He voted against his party's repeal efforts in July, a surprise vote that helped kill the legislation, because, he said, it wasn't done under regular order. (Senate leaders had crafted a version of an Obamacare repeal bill in secret.)
McCain's version of regular order seems to be an amalgamation of a lot of stuff that irks senators about their chamber: He wants leaders to let bills rise up from committee rather than the other way around, he wants senators to stop using parliamentary tricks to stop or pass bills, and he wants senators to make a good-faith effort to compromise.
“We seem convinced that majorities exist to impose their will with few concessions and that minorities exist to prevent the party in power from doing anything important. That’s not how we were meant to govern,” he wrote in a Washington Post op-ed in August, headlined “It's time Congress returns to regular order.”
A couple of days before his surprise vote helped sink the Obamacare repeal bill, he said this in a Senate floor speech with all 99 other senators and the vice president at his attention:
“Let’s trust each other. Let’s return to regular order. We’ve been spinning our wheels on too many important issues because we keep trying to find a way to win without help from across the aisle. That’s an approach that’s been employed by both sides, mandating legislation from the top down, without any support from the other side, with all the parliamentary maneuvers that requires.”
" … The most revered members of this institution accepted the necessity of compromise to make incremental progress on solving America’s problems and to defend her from her adversaries.”
That all sounds lovely in theory. But it's not very realistic, Binder said: “Those notions of a more fluid, collegial Senate don't fit the contemporary Senate very well.”
Congress is a sharp-elbowed place these days, and there's no one magic button that lawmakers can push to calm everyone's nerves. There are a lot of reasons, including:
— The Republican Party is so ideologically spread out that many analysts think it's more accurate to think of it as two parties rather than one.
— The digital era has elevated and exacerbated outside groups' (and regular people's) interest and influence on politics.
— Because of who votes in elections, and how House electoral districts are drawn, many lawmakers have an incentive not to compromise.
— Over the past couple of years, senators have become so frustrated with the other side that they've done away with centuries-old protections for the minority party.
— The president of the United States is egging them on to jettison more rules.
There's not much “regular” about this moment in time in politics.
(Actually, was there ever a “regular” moment? In the 1850s, a congressman nearly killed a senator by beating him with his cane on the Senate floor. A couple of years after that, Southerners resigned their seats as the country literally went to war with itself.)
This health-care bill will have two preliminary hearings early next week, but it will be just days before lawmakers will have to vote on it. On Thursday, we asked if that was enough “regular order” for McCain. On Friday, we got our answer: A hard no.