Can the Senate Push Aside the Saturday Deadline for Graham-Cassidy?

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Uh-oh: Lindsey Graham joining the fringe conservatives arguing that the Obamacare repeal-and-replace effort can continue in harness with tax cuts. Photo: Alex Wong/Getty Images

Most accounts of the current battle over the Graham-Cassidy health-care bill emphasize the fact that Republicans are running out of time to repeal and replace Obamacare using the special procedures authorized in the fiscal year 2017 budget resolution enacted by Congress back in January. Those procedures prevent a Senate filibuster against any “reconciliation” bill proposed pursuant to the resolution, which is what every one of the GOP health-care bills considered this year has been. Hard as it’s been for Republicans to find 50 Senate votes to enact health-care legislation, it’s assumed that overcoming the 60-vote Senate threshold they’d need without using reconciliation would be beyond impossible. And the Senate parliamentarian has most definitely ruled that the current budget resolution expires, along with FY 2017, on September 30.

So that’s it for Obamacare repeal-and-replace for the foreseeable future, assuming Graham-Cassidy doesn’t pick up 50 votes this week, right?

Maybe, maybe not. It’s worth noting that one of the bill’s two chief sponsors, and its main public advocate, Lindsey Graham, is now joining hard-core conservatives in arguing that the Obamacare-repeal drive should get yet another bite at the apple after September 30 via the next, FY 2018 budget resolution. Here’s the Washington Examiner’s explanation:

Graham, who is on the Senate Budget Committee, said he would press for passing another resolution on the budget that includes healthcare, saying he “will not vote for a budget resolution that doesn’t allow the healthcare debate to continue.” That would allow for a second pass at reconciliation in 2018, a midterm election year. Republicans had planned to use the resolution to pass a tax reform bill. 

Under the Congressional Budget Act, you are normally only allowed one reconciliation bill per budget resolution. So in effect Graham is talking about further complicating the already immensely difficult politics of the budget resolution needed to set up the GOP’s holiest agenda item, tax cuts. (There is a loophole whereby you could have separate reconciliation bills that only deal with taxes or with spending, but Graham-Cassidy and all the other Obamacare repeal bills have tax as well as spending provisions, so that probably won’t help.) Senate Finance Committee chairman Orrin Hatch has conceded a giant combo-platter reconciliation bill covering both health care and taxes — and if the House has its way, additional spending cuts — is possible, but he sounds very unenthusiastic about the idea.

Until Graham started talking about it, the main proponent for continuing the Obamacare-repeal measure into the FY 2018 budget process was Ted Cruz, who has called the September 30 deadline “bogus” because “we can do budget reconciliation or resolution at any point.” Again, that’s technically true, though the word “can” might be a tad too optimistic when talking about adding one issue that Republicans can’t reach internal agreement on to another. Before September 30 we may also hear Cruz revive his earlier argument for just rolling over the Senate parliamentarian whenever she issues an inconvenient ruling. At the Federalist, Christopher Jacobs raised this possibility last week:

There is literally no precedent on this particular Senate procedural question of whether and when reconciliation instructions expire. If the chair—either Vice President Mike Pence, Senate President Pro Tempore Orrin Hatch (R-UT), or another Senate Republican presiding—wishes to disregard the parliamentarian’s opinion, he or she is free to do so.

While that may be true, it is generally understood that setting the precedent of overruling the parliamentarian on this kind of issue might lead pretty quickly to abolition of the legislative filibuster, since any inconvenient exclusion of legislation from a budget bill could and probably would be brushed aside by the majority party in the Senate. That would be fine with Donald Trump, but the Senate itself has stoutly resisted this fateful step.

Rules aside, Republicans need to ask themselves the question of how much political capital they really want to spend on what appears to be an endlessly futile effort to repeal and replace Obamacare. If they give up on the current effort, they can always vaguely promise to come back to it some day, and then focus on the tax cuts that their big donors really want. That will be more than enough to occupy them until the big government shutdown crisis they may face in December. But if they begin acting as though the September 30 deadline for a health-care bill is no more than a speed bump, they may regret it almost immediately.

Can Senate Push Aside Saturday Deadline for Graham-Cassidy?