Last December, I
wrote about how the strange world of congressional procedure, and particularly
budget reconciliation, was likely to shape the agendas of Speaker Ryan,
Majority Leader McConnell, and President Trump.
Quite a bit has happened since then, but budget process rules remain
pivotal. It therefore seemed time for an
update.
Shortly after the
new Congress convened, it passed a budget resolution for Federal Fiscal Year
2017 – the one that was already about one-third completed. This budget resolution was a necessary
prerequisite to moving health care legislation through the Senate under special
“reconciliation” rules that preclude Democrats from filibustering it.
Initially,
Republicans planned to repeal the Affordable Care Act now, with a two- or
three-year delay, and pass replacement legislation later, likely after the
mid-term elections. A simple repeal of
the Affordable Care Act would have been procedurally straightforward, although
passing a replacement bill in a subsequent Congress might have been
problematic. In any event, broad criticism
of that approach, as well as Members and the President making costly promises
about what would be in that legislation, forced the congressional leadership to
shelve that plan and move a single repeal-and-replace bill.
The House of
Representatives, after several tries, passed its repeal-and-replace legislation
last month with a two-vote margin after the Leadership and most moderates bowed
to the Freedom Caucus’s demands to allow states to reduce or eliminate insurance
rules prohibiting bare-bones policies and protecting people with pre-existing conditions. Because House rules do not allow filibusters,
the bill’s status as reconciliation legislation did not matter much there.
The legislation then
moved to the Senate. With the ability to
lose only two of his senators’ votes, Majority Leader McConnell elected to have the
House bill held at the desk for consideration by the full Senate rather than
referred to committee. The final Senate
bill was likely to be a McConnell substitute in any event, but a committee
mark-up would have forced release of the Senate bill’s details much earlier and
would have allowed Democrats to force Republican senators to take embarrassing
votes or to commit themselves to positions that could make compromise within
the Republican caucus difficult.
What has happened
since then has been marathon negotiating sessions, initially among a task force
of thirteen Republican senators, more recently with others becoming engaged, seeking
a version of the bill that can gain fifty Republican votes. In tandem with these negotiations, and also
in deep secrecy, three other processes have been proceeding. First, staff from Senator McConnell’s office
and the chairs of the key committees have worked with Senate Legislative
Counsel to draft legislation. Second,
the drafts have been shared with the Congressional Budget Office (CBO) to
enable CBO to produce a cost estimate for the legislation as quickly as
possible. And third, Republican and
Democratic staff have been meeting with the parliamentarian, Elizabeth MacDonough,
to determine which provisions in the House bill, or which provisions that might
be in the McConnell substitute, comply with Senate rules. This last process, which is crucial to the
final legislation, deserves some elaboration.
To prevent the
evisceration of the filibuster, Senate rules strictly limit the content of
bills granted “reconciliation” status to those whose primary impacts are
budgetary. Anything else, including a provision
that has fiscal impacts “which are merely incidental to the non-budgetary
components of the provision”, is deemed extraneous and subject to a point of
order. 2 U.S.C. § 644(b)(1)(D). Because points of order under this “Byrd Rule”
can only be overruled with sixty votes – the same number required to end a
filibuster – this nullifies the benefits of proceeding under reconciliation
rules. It would appear that many
provisions of the House bill, as well as many provisions that various
Republican senators have said that they want in the McConnell substitute, would
have little or no fiscal impact and hence would be “Byrdable”. Most obviously, the loosening of insurance regulations
might have enormous impacts among private parties, but it would have little if
any impact on the federal fisc. (This
assumes that the McConnell substitute, like the House bill, does not vary the
subsidies households receive for buying coverage by the cost of the insurance
policy.) Even if one could conjure up
some indirect fiscal impacts, regulatory changes ought to fall to a “merely
incidental” point of order. Yet they may
not.
Lawyers are
accustomed to using judicial analogies to persons deciding legal
questions. In this case, however, those
analogies may be misplaced. Ms.
MacDonough is by all accounts a smart and capable lawyer. Nonetheless, she serves at the pleasure of
the Majority Leader, Senator McConnell. A
prior Republican Senator Majority Leader fired one of her predecessors for
making unwelcome rulings, and some current Republican senators have already
called for Ms. MacDonough’s firing. This
year, she has departed from longstanding practice by meeting with Republican
staff ex parte to discuss
parliamentary objections rather than allowing Democratic and Republican staff
to argue their points before her in a joint meeting. Therefore, Republicans may know which items
she will hold violate the Byrd Rule – and how to modify those items to achieve
a favorable ruling – but Democrats do not and may not until the very last
moment.
If the
parliamentarian allows Republicans to change insurance rules in a
reconciliation bill, that would set up an odd asymmetry. The Affordable Care Act, which established
those rules, passed the Senate through the regular legislative process, before
the special election in Massachusetts deprived Democrats of their 60-vote
majority. Those rules included drafting
errors as well as other features that soon drew criticism, but with Republicans
prepared to filibuster any regular legislation and the Byrd Rule barring any
correctives through reconciliation bills, the Democrats could not fix them and paid
the price in public support. If the
parliamentarian reinterprets the Byrd Rule to allow Republicans to amend those
same rules without getting sixty votes, they will have a far easier time crafting
a deal that can pass.
Several other
points of order under the Byrd Rule depend on a bill’s estimated fiscal
effect. Senate Republicans, unlike their
House counterparts, therefore will have to release a CBO score of their
legislation prior to final passage. But
they may release that score, and the text of the final McConnell substitute,
very much at the last minute. Senate
debate on reconciliation bills, including all amendments to those bills, is
limited to a total of twenty hours. 2
U.S.C. § 641(e)(2). Once time for debate
is exhausted, any remaining amendments are disposed of through a series of
back-to-back votes, commonly known as a vote-a-rama. Senators typically grant unanimous consent
for supporters and opponents of each amendment to speak for one minute each,
essentially just identifying the amendment and offering a few soundbites. Senator McConnell could unveil his final
substitute, and the CBO scoring of that substitute, just as the Senate is about
to enter vote-a-rama. That would give
Democrats, as well as Republicans uncomfortable with the bill, little practical
opportunity to propose amendments.
Because Senator
McConnell elected to bring the House bill directly to the Senate floor, rather
than follow the usual path through the Senate Budget Committee, any changes
that he or others might make to that bill will be subject to rules against
floor amendments that reduce the deficit reduction effect of the underlying
legislation. Therefore, hopes that the
Senate bill will cut Medicaid, or subsidies to purchase private insurance on
exchanges, less than the House bill are likely unrealistic. Indeed, rumors suggest that the current draft
of the McConnell substitute cuts Medicaid even more deeply than the House
bill. This may be an effort to appease Republican
critics of Medicaid or a way to raise funds for special provisions intended to
win the votes of hold-out senators, such as a fund to treat opioid
addicts. With Medicaid already the
primary source of treatment for many vulnerable populations, cutting it further
to fund care for those populations seems likely to prove self-defeating but could gain
favorable headlines.
If the Senate does
pass a bill allowing states to waive the ACA’s insurance regulations and cutting
Medicaid and premium tax credits as or more deeply than the House bill, the
result could be a fairly easy conference committee negotiation between the two
chambers. Alternatively, the House could
short-circuit that process by simply taking up the Senate version of the bill
and passing it, sending it directly to President Trump.