The assault on Senate tradition may not have stopped with Mitch McConnell’s nuclear option on filibusters against Supreme Court nominees. According to Politico, two of the upper chamber’s conservatives will take aim at reconciliation as well, in an effort to push through a complete repeal of ObamaCare. If Ted Cruz and Rand Paul succeed, it might end up bypassing filibusters altogether:
The firebrands want to overturn long-standing precedent for what can be done under reconciliation, the fast-track budget process the GOP is using to dismantle the Affordable Care Act. They argue Republicans are allowing stale Senate norms to tie their hands and are forfeiting a chance to completely abolish the law. …
Cruz, of Texas, and Paul, of Kentucky argue that it is up to whoever is presiding over the Senate at the time, which can be Vice President Mike Pence as president of the Senate. Under their argument, Pence could make the call about whether certain parts of Obamacare can be scrapped or whether new policy, such as allowing insurers to sell across states lines, can be enacted — and he would presumably be more aggressive than MacDonough.
“The original law says the [person in the] chair decides — it doesn’t say anything about the parliamentarian,” Paul said.
Presumably, the method for making this change would follow the same path as the Harry Reid option used by McConnell last month. Wait for the cloture vote to fail, then object to the filibuster as out of order under the rules, and then challenge the parliamentarian’s ruling on it with a roll-call vote. That still requires a majority, though, and as Politico goes on to report, Cruz and Paul don’t have many Republicans on board this proposal.
Why not? It certainly would allow for a much broader repeal of ObamaCare, perhaps without the need for a multi-stage operation that will hamper unity even under reconciliation. However, it opens up a Pandora’s box for future legislation in single-party governance. Practically anything that a White House wanted passed could get shoehorned into a reconciliation package if the vice president gets to decide what qualifies, and his/her party controls the agenda. Reid used reconciliation to back-door ObamaCare’s passage, but that at least had one ostensibly non-partisan hurdle to overcome in the parliamentarian. If that gets eliminated, then one can easily foresee every appropriations bill, and potentially every other piece of legislation, being declared germane to deficit reduction and allowed on a majority-only basis.
That certainly would work out well for Republicans … at the moment. When Democrats eventually get their next turn at single-party governance, we can then look forward to single-payer health care, massive reductions in military spending, and so on. Even if Republicans never pushed the precedent to that extent, one can be certain Democrats would still feel free to do so, especially if they need to appease a rabid base. At that point, Republicans and conservatives especially might be nostalgic for the good ol’ days of minority protections in the Senate. If they doubt that, they should ask their colleagues across the aisle who’ve been unable to stop Donald Trump’s appointments.
John Thune seems to be among those looking a few moves down the line on the chess board:
“I just would be concerned about the path that puts you on in terms of the future,” said Sen. John Thune (R-S.D.). “But these are all things that we’re working through, and everybody’s got different opinions and views. And so hopefully we won’t wreck the place while we’re here.”