Six Key Questions About the Senate Health-Care Bill As the Endgame Approaches

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If he gets the health-care bill to the floor, the biggest question for Mitch McConnell is whether he nukes the legislative filibuster to overcome procedural objections from the Senate parliamentarian. Photo: Brendan Smialowski/AFP/Getty Images

After a strangely quiet weekend, this week Senate Republicans are scheduled to push through votes on a budget-reconciliation bill designed to repeal and/or replace Obamacare. There are at least six big questions that are hanging fire at the moment:

Can McConnell find a formula for a version of BCRA that snags 50 votes? BCRA has been repeatedly buried, but so long as McConnell can keep conservatives (with the likely exception of Rand Paul) onboard, and has some money (according to CBO’s latest estimate of BCRA, there is about $200 billion generated by the bill in deficit reduction beyond the amount necessary to comply with budget rules) for deal-cutting, there’s always a chance. He may, in fact, have already “bought” one “moderate” senator, Lisa Murkowski of Alaska, with special provisions for her state. But attracting others like Shelley Moore Capito of West Virginia, Dean Heller of Nevada, and Rob Portman of Ohio, without alienating a single conservative (Mike Lee of Utah seems to be still on the fence) will be tough, particularly with each and every senator knowing she or he has the power to kill BCRA once and for all. And if John McCain does not return to Washington before the deal goes down, 50 votes for any particular Trumpcare bill may already be impossible.

Will an ailing John McCain show up to save McConnell’s bacon? At various points last week, it looked like the “motion to proceed” (MTP) math might be stuck at 49 votes. So it could matter a great deal whether the absent Senator John McCain — presumed to be a “yea” vote on a MTP despite some grumbling over the Better Care Reconciliation Act’s impact on Arizona — has sufficiently recovered from surgery and/or cancer treatment to return to Washington in time for the vote. McCain is making positive sounds about a quick return, but no one knows if his doctors have cleared a resumption of work.

Will Mitch McConnell go for broke on bringing up the bill even if he’s not sure he has the votes? The first step toward enacting health-care legislation in the Senate is a motion to proceed to consideration of the House bill, the American Health Care Act. That will require 50 votes. Up until now Mitch McConnell has repeatedly held off on that vote because he was short of the needed 50. But some observers think he’s not bluffing this time; that he wants to move on to the rest of the GOP’s agenda, and also thinks a vote is the only way to concentrate pressure on Republican waverers. A failed “motion to proceed” would in fact pretty much end the drive to repeal and replace Obamacare, for the time being.

Where are Paul and other wavering senators on beginning debate? The almost complete confusion over Rand Paul’s position on beginning the health-care debate epitomizes the fog that has descended over this legislation. A week ago the Kentuckian was the firmest of “no” votes on an MTP motion. Then he allowed that he was “open” to a MTP so long as senators would have an opportunity to enact a straight repeal of Obamacare. By the end of the week he was demanding that said straight repeal vote happen before any consideration of a repeal-and-replace bill. Perhaps McConnell can accommodate this sequencing, but technically, the “vote-a-rama” procedure for amendments on budget bills is wide open, and strange things could happen.

The other question is how many Senate “moderates” can be convinced to vote for the MTP even if they do not support any particular final bill. A key target for McConnell and company is Moore Capito, who will appear today with Donald Trump in her own state of West Virginia, which the president carried with 69 percent of the vote last year. Trump may be able to pull her across the line on the procedural vote even if she’s still negotiating with McConnell over some new version of BCRA.

Is a “straight repeal” of Obamacare truly doomed? Though you hear vague talk about “the base” forcing all those senators who voted in 2015 to repeal Obamacare without a replacement plan to do so again, that’s not the way the wind seems to be blowing now. Four GOP senators have flatly said they will oppose such an effort. Nine earlier opposed the very idea of repealing Obamacare without a replacement. The CBO “score” of a “straight repeal” makes it likely a political disaster. So it’s extremely unlikely to happen.

How will Republicans deal with potentially calamitous Senate parliamentarian’s rulings? Late Friday, Senate Democrats rolled a hand grenade into the Senate GOP bunker by releasing a summary of the Senate parliamentarian’s “guidance” on whether or not a long list of BCRA provisions comply with budget rules that exclude non-budget-germane items. If this is indeed an indication of how she will rule if and when BCRA comes to the floor, it is very likely fatal, barring some brilliant draftsmanship by Senate staffers to change her opinion. Two politically crucial anti-abortion provisions — including a Planned Parenthood “defunding” that passed muster in the 2015 “straight repeal of Obamacare” legislation — were on the parliamentarian’s hit list. So, too, was a substantively critical “six-month lockout” provision that was the GOP’s substitute for Obamacare’s individual mandate as a way to keep younger and healthier people participating in insurance risk pools. And in terms of the ultimate passage of this legislation, it is significant the parliamentarian frowned on the so-called “Buffalo Bribe” that probably won the bill six House GOP votes from New York; the “guidance” on that item might also apply to prospective McConnell deals to shower benefits on individual senators.

Unless something changes virtually overnight, the parliamentarian is messing with so many provisions (and could yet mess with more that she has not yet dealt with, including the Cruz amendment that is essential to a number of conservative votes for the underlying bill) that McConnell could well face the terrible choice of letting the bill die or going along with a wholesale overruling of the parliamentarian by the Senate chair. That step could make virtually any future legislation includable in budget bills and thus passable by a simple majority vote, in effect “nuking” the legislative filibuster, a revolutionary measure McConnell has vocally resisted up until now.

In theory, McConnell and his advisers will need to answer all six of these questions before he takes that first leap into a MTP, which at the moment is supposed to take place as soon as Tuesday. Considering how strange and unpredictable the whole process has been over the last six months, additional twists and turns could most definitely appear in the road just ahead.

Six Final Questions About the Senate Health-Care Bill