A Look at the Procedural Madness Ahead As the Senate Messes With Your Health Insurance

Nobody knows for sure but Mitch McConnell (if he even does), but the arcane process for debating and voting on the Senate health-care bill could definitely involve senators catching naps as the talk drones on. Photo: Chuck Kennedy/MCT via Getty Images

Now that Mitch McConnell has won (against most recent expectations) his motion to proceed to consideration the GOP’s health-care legislation, we have entered a new, incredibly complex phase of the process that may or may not lead to repeal or replacement of Obamacare. Keep two things in mind before reading my efforts to shine a light on this process. First, Senate rules ultimately come down to what a majority or a supermajority (depending on the situation) says they are. Second, it’s an even bet as to whether McConnell has already plotted a devious path to the realization of his devilish wishes, or is simply winging it.

Even though the legislation in question is all about Obamacare, Medicaid, and tax cuts, it is technically a bill to implement the fiscal year 2017 Congressional Budget Resolution. Packaging it this way puts the bill under the Senate’s budget rules, which would allow it to pass by a simple majority and avoid a Democratic filibuster. But it also makes it subject to other provisions of those peculiar rules.

Those rules provide for 20 hours of debate over the bill — which uses the House-passed American Health Care Act as a starting point. When those 20 hours have expired, voting begins. But the 20 hours are 20 legislative hours, which could take as long as McConnell chooses, so long as he is willing to keep the Senate in session. If he’s in a hurry, you could see around-the-clock sessions, cots being set up in the halls for weary lawmakers, and all the other the emblems of what was once called “the world’s greatest deliberative body.”

Most of the 20 hours of debate will probably be devoted to all kinds of bloviation about health-care policy, with special emphasis by Republicans on the alleged horrors of Obamacare, and special emphasis by Democrats on the unfairness and secrecy of the process in which the Senate is engaged, and the very negative estimates the Congressional Budget Office has made of various GOP proposals. One wrinkle is that Mitch McConnell has decided to begin the debate by offering two sweeping substitutes for the House bill that are almost certain to fall short: the Better Care Reconciliation Act (the bill partially repealing and replacing Obamacare that the Senate’s been working on the last two months); and a straight repeal of Obamacare without a replacement (a vote on that was the price Rand Paul demanded for his essential vote for the motion to proceed). Democrats are forcing Republicans to read the full texts of both substitute bills, which is a potential sign of hard feelings to come.

At the end of the 20 hours, any amendments that have not already been voted on will be literally stacked into a pile and voted on with very limited debate in what is known as a “vote-a-rama.” The number of amendments is unlimited, at least up until the time votes begin. Democrats will file many, many amendments designed to force Republicans to take difficult or politically embarrassing votes. Republicans may interrupt all the Kabuki theater with actually significant amendments aimed at influencing the ultimate bill. In other cases, Republicans may, for symbolic purposes, offer amendments they know will be ruled out of order by the chair on the advice of the Senate parliamentarian because they violate the rules limiting budget bills to items strictly affecting federal spending and revenues, or violate the budget resolution that set up the whole process. There are actually some pretty big issues politically (e.g., the “defunding” of Planned Parenthood) that could run afoul of the parliamentarian, and in theory the presiding officer of the Senate could overrule her. But that would be a big violation of Senate precedents that McConnell has repeatedly ruled out, so it probably won’t happen.

If the cots aren’t pulled out for the 20 hours of debate, they may appear during the vote-a-rama, particularly if Democrats file so many amendments that around-the-clock sessions are necessary to dispose of them.

Even though the vote-a-rama is mostly a rhetorical exercise, at the end it will all become very real, when McConnell determines what the final vote will really be “about.” Assuming the “straight repeal” and BCRA substitutes have both failed to achieve the 50 votes necessary to become the underlying bill (which is what most observers currently expect), then McConnell will probably offer a final substitute that is one of two very different things: (1) some new version of BCRA with enough sweeteners to bring recalcitrant conservatives (via repeal of Obamacare regulations) and moderates (via more money for people hurt by BCRA provisions — particularly its Medicaid cuts) to “yea” votes; or (2) a so-called “skinny repeal” measure that just kills Obamacare’s individual and employer mandates and repeals some of its tax cuts. A revised BCRA, if it gets the votes, could be quickly sent to Donald Trump’s desk after a planned rubber-stamping by the House. A “skinny repeal” would conversely shift most of the contentious issues in the whole health-care debate to a House-Senate conference committee, with future votes by both chambers being necessary to get a bill to Trump’s desk.

To recapitulate: Two of the three most likely outcomes of this whole crazy Senate process would be somewhat anti-climactic — passage of a “skinny repeal” or failure to pass anything. Only passage of some BCRA variation would end the long saga of congressional consideration of health-care legislation and allow Republicans to move on to the other items on their agenda.

When will the deal go down? No one, perhaps not even McConnell, knows right now, though it’s hard to imagine the vote-a-rama will begin before Thursday. Given how unpredictable and secretive McConnell has been throughout this process, it’s hard to know whether he will move slowly to work through patient lobbying of Republican senators, or move quickly to preempt negative public pressure on them. There are always imponderables ranging from unexpected parliamentary rulings to new CBO estimates of this or that proposal to a tweetstorm from the president of the United States. It would be a good week to pay attention to breaking news, unless you want your heath coverage to go away as you blissfully snooze.

A Look at the Madness Ahead As Senate Debates Health Care