One of the most powerful indictments of the Republican health-care strategy is that, after its plan underwent large, involuntary revisions Friday evening, party leaders did not even pause. In case you missed this news, which my colleague Ed Kilgore summarized, the Senate parliamentarian ruled out of order numerous elements of the Republican plan to repeal and replace Obamacare. Some of the rescinded elements, like a ban on funding for insurance covering abortion, are ancillary to the bill’s major purpose. Others are central: The bill’s idea to replace the individual mandate, a six-month lockout period, is now scrapped.
Any remotely conscientious governing party, faced with a setback on this scale, would take a few weeks, or at least a few days, to develop a fallback design. Instead they are plunging ahead, on schedule. There is probably no example in American history of Congress and a president attempting to pass major social legislation on this scale with such manifest disregard for its design and effect. It is the domestic equivalent of invading Iraq without a plan for the occupation.
A large part of the cause of disarray in the Republican plan is the fact that it is being passed through an abuse of the process. The Senate has a 60-vote supermajority voting requirement that would prevent the chamber’s 52 Republicans from passing bills without at least 8 Democrats. The exception is budget bills that can be passed on a simple-majority basis. The catch is that, according to Senate rules, these measures, called “reconciliation” bills, can only address fiscal policy. (The Senate could eliminate that restriction, and allow reconciliation bills to change non-fiscal legislation, but that would be tantamount to eliminating the filibuster altogether, a move most Senators oppose.)
The notion of passing health-care reform through budget reconciliation was the subject of fierce controversy eight years ago. Many reform advocates, despairing of bipartisan negotiations, urged Democrats in Congress to pass reform by a simple majority vote. The counterargument against doing so was that a reconciliation law could not really overhaul the insurance system, since it would be restricted to changes in taxes and spending. It couldn’t prohibit insurers from charging higher prices to people with preexisting conditions, set minimum standards for insurance, and so on.
Congressional Democrats took these warnings seriously, and passed their reforms through a painstaking, regular process — first in the House, and then in the Senate, which mustered the 60 votes needed to overcome a filibuster in December, 2009. One month later, a special election in Massachusetts gave Republicans a 41st vote in the Senate. This forced Democrats to enact health-care reform by having the House pass the Senate bill. Then the two chambers used a reconciliation bill to adjust the levels of taxes and spending in the Senate bill.
Even the mere fact that Congress was using reconciliation for this small, supplementary function made it the subject of almost hysterical anger. Republicans accused the majority party of “ramming through” the bill with a “trick” or a “nuclear option.” Mainstream news accounts called this a “controversial budget maneuver.” It is almost impossible to imagine how large a role this imagined procedural offense played in the imagination of the conventional wisdom at the time. David Brooks summarized the prevailing belief that the use of a budget bill to slightly adjust the health-care bill had dealt a fatal blow to the health of the republic. “We have a political culture in which the word ‘reconciliation’ has come to mean ‘bitter division,’” he lamented.
Under Trump, as has so often happened, Republicans turned the thing they falsely accused Democrats of doing into their own blueprint. Where the Democrats only used a reconciliation bill to make small adjustments to legislation that had passed through normal channels, Republicans are using it to pass the entire thing. And while its incidental use became a kind of scandal attached the the passage of Obamacare, it has largely receded into the background of the effort to repeal it.
And yet the substantive problems that scared Democrats off from using this method to write their bill remain in place. The Republican Congress has made a mockery of the legislative process in large part because they have used reconciliation to avoid committee hearings and normal law-making steps.
The exercise will reach a nadir of sorts later this week, if things go as planned. The Senate is scheduled to begin debate on a measure whose contours are unknown to the senators voting on it. Mitch McConnell’s plan is to introduce the House version of Obamacare repeal, then subject the bill to a lengthy series of amendments, after which he will introduce as a substitute a new bill that cannot be debated. Senators do not know what features this new bill will contain. The Congressional Budget Office will not have time to analyze it, nor will any outside experts. The strategy to pass it rests on subjecting a handful of holdout senators to intense partisan pressure, combined with reassurances from the Trump administration’s advisers that they have added in new money or new protections to alleviate concerns about blowing up the insurance markets and throwing millions off their coverage. The Senate is flying blind into a social catastrophe.
Donald Trump is widely known for his ignorance of, and indifference to, policy substance, and for his simple desire for a “win.” Traditional Republicans have quietly shifted the blame for their haphazard legislative record onto the president and his chaotic team of novices and hacks. But the shambolic rush through which Trumpcare may become law is a pure creation of Mitch McConnell and the institutional party.