Frustrated conservatives are complaining that Congressional leadership isn’t being straight about the latitude that exists to repeal and replace Obamacare, which is quickly turning the GOP’s intraparty healthcare policy debate into a battle over the complex procedural rules governing the Senate.
At issue is a process known as reconciliation, which allows certain bills to pass through the Senate with a simple majority (rather than the typical 60 votes) as long as all of its provisions meet a certain series of tests, which were spelled out decades ago in a rule named after the late Sen. Robert Byrd.
Republican leaders have emphasized that they are working hard to get the best bill that they can through the Senate given the limitations, but conservatives argue that the current House bill favored by Speaker Paul Ryan doesn’t go far enough in fully repealing Obamacare and replacing it with a true free market alternative. And they say the authors of the legislation are hiding behind the vagaries of the reconciliation process to justify some of the policy decisions that have angered conservatives.
“As currently written, the House seems to be inconsistently applying its limited understanding of the Byrd rule,” a senior aide for one conservative Senator said. “These inconsistencies make us question whether they are using the Byrd rule as an excuse to leave out conservative priorities.”
Among other things, conservatives have a problem with the bill’s reliance on refundable tax credits, which they see as a form of government spending akin to Obamacare’s subsidies, and with the fact the proposal leaves many of Obamacare’s regulations in place.
For instance, the bill keeps Obamacare’s “essential health benefits” intact, which dictate 10 categories of benefits that every insurance policy must cover (such as for maternity care and preventative health). Though these mandates make insurance more comprehensive, they also make policies more expensive. Largely because of the regulations it keeps in place, the Republican plan, according to the Congressional Budget Office, does not do much to lower premiums and even raises them in the short-run. At the same time, dictating the type of policies that insurers must offer inhibits choice. Yet the core Republican message for years had been that they want to lower premiums and improve choice.
Conservatives Sen. Ted Cruz and Rep. Mark Meadows, in an op-ed for the Wall Street Journal, joined others in urging Republicans to repeal all the regulations and dismissed arguments saying that Senate procedure makes this impossible.
The key issue is that under one of the reconciliation tests, any item must have a budgetary impact, and that impact cannot be incidental. Obamacare’s regulations increase premiums, and when premiums go up under the law, government subsidies increase to help make up the difference. So, regulations clearly increase spending and thus have budgetary implications. However, it’s more debatable whether those budgetary effects meet the harder test of being more than merely incidental. Democrats would argue, for instance, that the primary purpose of the regulations is to make sure that all insurance policies meet a certain minimum standard of coverage.
Where things get tricky, and where conservatives have cried foul, is that it isn’t as if the House GOP totally avoided removing regulations. For instance, the House bill does change another Obamacare regulation – one that prohibited insurers from charging older Americans more than three times as much for policies as younger Americans. It ups the limit, known as age rating, to five times as much. So, why did the House believe that it was okay to make this regulatory tweak under reconciliation, but leave the costly essential health benefits untouched?
There are additional areas in the House bill that sources within several Senate offices said could run into Byrd rule problems due to being incidental to the budget. One is the provision that prohibits tax credits for health insurance from being used in some way toward funding abortions.
Other tests imposed by the Byrd rule are that every provision has to have cleared a committee that has jurisdiction over that matter and that it cannot make recommendations related to the Social Security program. Here, too, some argue that the House bill could run into problems. For instance, the way the tax credits are structured, they aren’t available to those who are eligible for other government healthcare programs, such as veterans’ benefits. Thus, will it be an issue that the bill won’t go through the Veterans’ Affairs committee? To limit fraud, credits rely on verifying information using data maintained by Social Security. Does that too potentially run into Byrd problems?
Offered a chance to respond to these concerns, Ryan press secretary AshLee Strong said, “We’ve worked closely with the Senate to carefully craft the bill to repeal and replace the law to the full extent allowed under the rules.”
Strong did not elaborate, but a senior Senate leadership aide affirmed this was the case. The aide pushed back against the suggestion that the House bill was the result of assumptions and guesswork, explaining that for months Senate Republican lawyers have been debating points with their Democratic counterparts in front of parliamentarian Elizabeth MacDonough to get a sense of what may or may not be allowable under reconciliation. That input has been passed along to the House as the bill was being written.
Another senior Senate leadership aide familiar with the process said that the discussions were ongoing, and Republicans were consistently pushing to get the most that they can. “We’re going to try to win the debate on all of them,” the aide said of regulations. “It’s our desire, at the end of the day, to get everything in there that we could possibly get past the goalkeeper.” Items not included in the House bill could be added as amendments in the Senate, but if the House isn’t careful in how the legislation is drafted, Republicans won’t even get to that point because the bill could be ruled out of order right off the bat.
In response to some of the specific concerns raised by skeptics about the House bill, the aide offered several explanations. For instance, regarding the credits, because the House bill is not making changes to veterans’ benefits or the Social Security program, but merely references them, it’s more likely to pass those Byrd tests. It’s also possible that the age rating regulation gets deemed more closely tied to the subsidies (and less incidental to the budget) than the benefit mandates.
Assuming the House bill makes it to the Senate floor, Democrats would be able to raise points of order to challenge different provisions, or amendments, as violating the Byrd rule. MacDonough, the parliamentarian, would then provide her advice to the presiding officer of the Senate, which could conceivably be any senator, or Vice President Mike Pence. It is the presiding officer of the Senate who makes the final ruling. It would be possible, therefore, for Pence (or whoever the presiding officer is) to disregard the advice of the parliamentarian and allow Republicans to do more through reconciliation. This reality, too, is already becoming the subject of the war among Republicans over how far to push the limits of reconciliation. In their op-ed, Cruz and Meadows emphasized that the ultimate authority resides with the presiding officer rather than the parliamentarian.
Leadership sources, however, warn that were Republicans to disregard the advice of the parliamentarian, in practice, it would end the ability of the minority party to filibuster legislation. In the future, Democrats with unified control of government would be able to pass anything through reconciliation (even full-fledged government-run healthcare) by simply having the presiding officer of the Senate ignore the determination of the parliamentarian. Thus, in the long run, they argue that deferring to the parliamentarian is the more conservative, limited government position.
Critics of leadership make a distinction between the so-called nuclear option, which would change Senate precedent to allow any legislation to pass through the Senate with a simple majority, with a situation during the reconciliation process in which the presiding officer of the Senate makes a ruling contrary to the parliamentarian’s advice. The part of the law that governs reconciliation (2 U.S. Code § 644) repeatedly mentions the authority of the presiding officer to make rulings, but does not mention the parliamentarian.
Given the wide gulf on healthcare policy among Republicans, they are already facing an uphill battle in crafting a bill that can pass the House, without losing more than two Republican Senate votes. The stark disagreements over how to approach the complex reconciliation process is becoming another major obstacle.
