The decisive moment is at hand.
President Donald Trump is demanding a vote Friday in the House on the Republican plan to repeal and replace Obamacare, White House Budget Director Mick Mulvaney said. If the bill fails, Trump is prepared to move on and leave Obamacare in place, Mulvaney said.
That’s as clear as you can get in calling an opponent’s bluff. What’s Mark Meadows’s move now? Cave, or kill the bill and accept the inevitable “the tea party saved ObamaCare!” narrative?
Speaking of which, Quin Hillyer has a memo for Meadows and the Freedom Caucus: You’re not voting on a final bill here. Whatever the House ends up passing will be significantly altered by the Senate, assuming it survives the Senate at all, at which point it’ll return to the House and then you can start making hardball demands. For now, just hand the ball off to McConnell and let him run.
They show no understanding that whatever they vote on in the House will absolutely be altered in the Senate and that they in the House will, therefore, get another chance to vote yea or nay on final passage. In effect, the first floor vote in the House amounts, de facto if not de jure, to a procedural vote. Without this vote, they absolutely will not be able to meet their campaign pledges to replace Obamacare. And they will make the Republican Congress and the new White House look hopelessly inept, destroy any political momentum from the election, explode comity within the House and Senate Republican caucuses, and badly hobble the entire conservative agenda in a flurry of mutual recriminations.
Passage in the House will put pressure on the Senate, and if the Senate passes something then you’ve got real momentum for a compromise. So why not just pass whatever’s on the table right now and be done with it?
Well, for one thing, the more conservative you make the bill in the House, the more conservative the starting point is likely to be in the Senate. Centrist Republicans in McConnell’s caucus are going to push to make the bill more moderate; how moderate it ends up depends in part on where it starts from. Collins and Murkowski won’t push as hard for centrist reforms — in theory — if Meadows has made clear that only a firmly conservative bill can pass the House. Beyond that, Meadows and every other Republican in the House need to weigh the fact that voting for this thing means having it hung around their necks in 2018. If they vote for any old piece of crap purely in order to move the bill to the Senate and then the Senate ends up killing it, they’ll still be made to answer for their vote in the midterms — and not just by Democrats. A House Republican from a deep red district may worry that he’ll leave himself open to a primary challenge from the right if he supports a bill that isn’t aggressive enough in repealing ObamaCare. That seems … unlikely given that Trump has endorsed the bill repeatedly, which should provide cover in a primary to any incumbent who ends up holding their nose and voting for it, but it’s a consideration.
There’s another reason, though, why Meadows and the Freedom Caucus might be leery of settling for less on the first iteration of the House bill. Namely, what if it actually does pass the Senate? What if Trump and Ryan agree to add something to the bill repealing all of the regulations having to do with “essential health benefits,” which would earn some Freedom Caucus votes, and then that bill heads over to McConnell’s chamber and gets 51 votes? Until recently, the GOP didn’t need to worry about that; the assumption was that a bill that targeted non-budgetary regulations like EHBs couldn’t be passed via reconciliation, which is supposed to be limited to budgetary measures. (A.k.a. the “Byrd rule.”) But that assumption is now in doubt, according to Mike Lee. And even if the Senate’s parliamentarian rules that the GOP can’t repeal the EHBs via reconciliation, there’s a nuclear option available to Republicans. What if … they overrule the parliamentarian by bringing in Mike Pence to preside over the vote? Pence could declare that the EHB regulations do qualify as budgetary and therefore can be repealed with just 51 votes. Rand Paul is already imagining it, in fact:
“Are we going to let the parliamentarian decide what should be in the bill or are we going to let the vice president?” Paul questioned during a call with reporters…
Conservatives argue that Pence, who is also the president of the Senate, can decide what is and what isn’t eligible for the so-called reconciliation process, which allows Republicans to pass legislation with a simple majority…
Asked about Pence or even the parliamentarian ignoring the Byrd rule, Sen. John Cornyn (R-Texas) downplayed the chances of that happening.
“I’m deeply skeptical of that because the Byrd rule is not just a precedent, it’s not just a rule of the Senate, it’s a law. … What we need to do is spend our energy and time trying to build consensus around something that can pass,” he said.
Yeah, the Byrd rule limiting reconciliation to budgetary matters was part of the COBRA bill that became law in 1986. Imagine the nightmare if the GOP went through hell and passed an ObamaCare replacement under legally dubious reconciliation procedures, only to have the Supreme Court strike it down three years from now (with Neil Gorsuch as the deciding vote!). On top of that, Senate Dems can always go to the parliamentarian for her opinion on whether EHBs can be successfully repealed via reconciliation. If she says no and Mike Pence swoops in to allow it anyway, Democrats will use that to delegitimize the bill publicly, however esoteric these procedures may be. “It would be nuclear if the presiding officer ruled counter to the parliamentarian’s advice,” said one expert to WaPo’s Greg Sargent. “The Senate is a precedent-driven institution. This would put up for grabs any future question about how senators decide to legislate.” Yeah, how would Senate traditionalists like McCain and Orrin Hatch tolerate the idea of Pence summarily dispensing with the parliamentarian’s opinion?
But we needn’t overthink this. Even if there’s a chance under the reconciliation rules that the House bill might pass the Senate as is, which means the Freedom Caucus should fight for every concession it can get right now, that chance is so slim as to not be worth bothering about. The irony of conservatives like Lee and Paul gaming out whether they can repeal essential health benefits via reconciliation is that they wouldn’t have 51 votes to do it even if the parliamentarian said they could. Moderate Senate Republicans already hate the House bill because of how far it’s gone to scale back Medicaid. Repealing the EHBs, even in the name of making premiums less expensive, would make it even harder for them to swallow because of the effect it would have in making coverage more expensive for sick people. If the Senate can pass anything at all, which is in grave doubt, it ain’t gonna be something that looks like the House bill, especially if the Freedom Caucus gets Trump to bend on EHBs.
In which case, yeah, Hillyer’s right that Meadows and his crew could vote for the bill as is with no fear that that bill would become law. The only thing they need to worry about is, er, the fact that voters think the bill is garbage.
Join the conversation as a VIP Member