A good time to familiarize yourself with critical procedural rules in the other chamber while you’re trying to pass the most momentous bill of Trump’s presidency is obviously the night before you bring it to the floor, I think we can all agree.
BREAK: House leadership now open to changes to the AHCA after learning new info about EHBs/the reconciliation process, per leadership aide
— Phil Mattingly (@Phil_Mattingly) March 22, 2017
I mentioned the reconciliation problem in this morning’s post. The GOP’s dilemma, and the reason for the weird “three stage” repeal that Trump and Ryan keep mentioning, is that they can only use the 51-vote reconciliation process in the Senate to repeal budgetary provisions. Anything that doesn’t count as “budgetary” — like the regulations that set forth ObamaCare’s “enhanced health benefits” (EHBs) — must be excluded and repealed separately, either by Tom Price rescinding those regs via an HHS order or by the GOP somehow finding 60 votes in the Senate for a second bill that would repeal them. That’s been a major sticking point for House conservatives like the Freedom Caucus. They want to get rid of those regulations right now! No can do, though, says Paul Ryan. If we stick them in a bill that needs to pass the Senate via reconciliation, that part of the bill will be excluded under the Senate’s rules because it’s trying to undo non-budgetary measures via a process that’s explicitly limited only to budgetary stuff.
But wait. What if reconciliation … did let you repeal some non-budgetary regulations so long as you could make the case that they’re kinda sorta budgetary after all? Mike Lee’s been consulting with the Senate parliamentarian about it and, well, while she hasn’t definitively said that they can do it, she hasn’t said that they can’t either:
“What I understood her to be saying is that there’s no reason why an Obamacare repeal bill necessarily could not have provisions repealing the health insurance regulations,” Lee said in an interview with the Washington Examiner, relating a conversation with parliamentarian Elizabeth MacDonough about reconciliation he had on Tuesday.
Lee also said that the parliamentarian told him it wasn’t until very recently, after the unveiling of the House bill, that any Republican even asked her about the possibility of repealing regulations with a simple majority…
“One of the things we’ve been told over and over again is the bill was no more aggressive than it has been… in part because of Senate rules,” Lee said. “And the Senate rules are something those defending the bill have repeatedly pointed to in defense of why they wrote it the way they wrote it. The parliamentarian said, there’s not necessarily any reason that would categorically preclude you from doing more, both on the repeal front and the replacement front, all sorts of things are possible.”
It depends on how you write it up, the parliamentarian allegedly told Lee. The argument has been made before that ObamaCare’s regs should be includable in the reconciliation process; if they are, and suddenly the “essential health benefits” mandated by law went out the window, plans offered under the House bill could be much cheaper and more variegated, including low-premium catastrophic coverage plans. That would make the bill more appealing to House conservatives, who as of this evening comprise the bulk of the “no” votes in the House. (The bulk, but not all.) Democrats, naturally, say it can’t be done under reconciliation rules. E.g., Chuck Schumer’s spokesman:
Just one tiny problem with this plan: it violates the Senate rules and won't happen. House Rs aren't being straight with @freedomcaucus https://t.co/IoXxOWrYBi
— mattwhouse (@mattwhouse) March 22, 2017
It’s up to the parliamentarian, who will end up making a decision — although Politico notes that, according to Republican sources, “when Republicans wrote the blueprint for the repeal bill in 2015, the parliamentarian made clear that insurance regulations would not comply and the issue wasn’t put under significant scrutiny.” If that’s what happens this time, the Senate will need to remove the regulatory parts of the House bill and use reconciliation to pass only the budgetary parts. But maybe that’s okay from Trump’s and Ryan’s perspective: The first, largest hurdle is clearing the House, and if clearing the House requires convincing conservatives that a little procedural hocus pocus can be done in the Senate to repeal all of the ObamaCare regulations in one fell swoop, why not convince them and let them pass the bill? Then, if the bill comes back to the House having passed the Senate with the part about repealing the regulations having been stripped out, hopefully momentum will convince a majority of House Republicans to suck it up and pass the Senate bill anyway, knowing that Tom Price will be able to step in afterwards (in stage two) and get rid of many of those regulations on his own. Just get the bill through the House, plain and simple. Whatever happens in reconciliation is a problem for tomorrow.
In lieu of an exit question, go watch Mike Lee on CNN yesterday trying to nudge Paul Ryan about potential flexibility in the reconciliation rules. Don’t worry about our procedures, he says; repeal as much of O-Care as you can and we’ll worry about getting the bill through here. By the way, as I write this, the New York Times whip count has 27 House Republicans planning to vote no on the bill, a fatal number unless Ryan can scrounge up a few Democrats, which is unlikely. Needless to say, this is why they’re suddenly thinking outside the box on reconciliation: Their only chance of flipping some of those 27 votes may be by adding something to the bill that eliminates ObamaCare’s regs, whether that’s kosher in the reconciliation process or not.
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