How Republicans Could Nuke the Rules to Pass Trumpcare

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Senate parliamentarian Elizabeth MacDonough is enforcing obscure budget rules that limit the scope of GOP health-care legislation. Photo: U.S. Senate

All the talk of Paul Ryan, House Freedom Caucus members, Senate “moderates,” and even Donald Trump as key Republicans involved in the rolling disaster of the party’s effort to repeal and replace Obamacare misses one key GOP hireling who could have as much impact as any of them: Senate parliamentarian Elizabeth MacDonough.

She’s the professional referee who (among other duties) advises the Senate leadership about what can and cannot be included in the “budget reconciliation” bill that is being used by Republicans this year to repeal and replace Obamacare. The key issue is enforcement of the so-called Byrd Rule (named after the late Democratic senator and procedural stickler Robert Byrd), which creates a point of order against “non-germane” items in reconciliation bills — i.e., matters that do not directly produce fiscal consequences. Waiving that point of order requires 60 votes, which is the equivalent of allowing a filibuster. Since the whole point of using reconciliation is to avoid filibusters and pass legislation by a simple majority, senators will go to a lot of trouble to avoid Byrd Rule conflicts. Indeed, there is a procedure informally known as a “Byrd bath” where lawyers for both parties debate hypothetical provisions in the presence of the parliamentarian, and design their bills accordingly.

All this arcane stuff matters a great deal right now because Paul Ryan and other GOP congressional leaders are citing Byrd Rule problems as the reason more of the Republican “vision” for health care isn’t included in the American Health Care Act. More specifically, the repeal of Obamacare regulations involving minimum benefits and preexisting conditions exclusions are left alone, and such conservative policy fetishes as Health Savings Accounts, interstate insurance sales, and high-risk pools are left out, on grounds they might trigger a Byrd Rule point of order and screw everything up when the bill goes to the Senate.

And that has a bad effect on the provisions that are left, as conservative health-policy wonk Philip Klein explains:

Largely because of the regulations it keeps in place, the Republican plan, according to the Congressional Budget Office, does not do much to lower premiums and even raises them in the short-run. At the same time, dictating the type of policies that insurers must offer inhibits choice. Yet the core Republican message for years had been that they want to lower premiums and improve choice.

So Republicans, and especially conservatives who hate anything that looks like a continuation of Obamacare, are stuck defending a bill they don’t much like, and muttering vague promises about additional “prongs” of their repeal-and-replace initiative that fall outside reconciliation and sound a lot like “we’ll do it mañana.” Indeed, even AHCA could yet have Byrd Rule problems, despite “Byrd bath” simulations that guided its drafting.

Ted Cruz, among other rebellious conservatives, has an answer, which he has been voicing repeatedly like Cato the Elder intoning “Carthage must be destroyed.” He expressed it most recently in a Wall Street Journal op-ed he signed along with House Freedom Caucus chairman Mark Meadows:

We cannot give voters a procedural excuse for why we couldn’t get the job done …

[T]he Senate parliamentarian does not ultimately determine what is allowable under reconciliation. That authority falls to the Senate and the vice president, the chamber’s presiding officer. As the former Senate parliamentarian Robert Dove once explained, the vice president is “the ultimate decider” on reconciliation: “The parliamentarian only can advise. It is the vice president who rules.”

In other words, if AHCA fails to fully repeal and replace Obamacare to conservatives’ satisfaction, Cruz and Meadows will blame not just Paul Ryan or Elizabeth MacDonough, but the vice-president of the United States, and through him Donald Trump. The message is not subtle: Trump should tell his junior partner to let Senate Republicans do whatever the hell they want.

The response, as Klein describes it, is the ever-popular “floodgates” argument:

Leadership sources, however, warn that were Republicans to disregard the advice of the parliamentarian, in practice, it would end the ability of the minority party to filibuster legislation. In the future, Democrats with unified control of government would be able to pass anything through reconciliation (even full-fledged government-run healthcare) by simply having the presiding officer of the Senate ignore the determination of the parliamentarian. Thus, in the long run, they argue that deferring to the parliamentarian is the more conservative, limited government position.

You have to figure Mitch McConnell, who reveres Senate traditions he has not chosen to disregard for partisan purposes, is the real “leadership source” for that argument.

The real question is whether McConnell, Pence, and Ryan will wind up deciding the risk of gutting the filibuster is acceptable if the only alternative is the complete collapse of the Obamacare repeal-and-replace process, leading to angry “red-state” mobs inspiring a new tea party movement, and perhaps a fatal intra-party split. They could always spin the squashing of poor MacDonough as the People’s Representatives stopping a power grab by an unelected bureaucrat who may well secretly watch Samantha Bee late at night.

If nothing else, this approach could be a “break glass in case of an emergency” fallback if all else fails, as it certainly looks like it may.

How Republicans Could Nuke the Rules to Pass Trumpcare