Tuesday, July 25, 2017

How Does This Work? The Senate and Health Care Reconciliation

David Super

     Now that the Senate, defying many pundits’ expectations, has voted to begin debate on a reconciliation bill to repeal large parts of the Affordable Care Act (ACA), it may be useful to review the procedural rules and tactics likely to shape this debate. 

     First, and most obviously, a bill considered under reconciliation rules is immune from filibuster.  Instead, the Congressional Budget Act limits debate to twenty hours, equally divided between supporters and opponents.  Thus, Republicans do not need sixty votes to invoke cloture; they only need fifty votes plus Vice President Pence to break ties. 

     Second, the scope of permissible amendments is quite limited.  Considerable attention has focused on the Byrd Rule, which prohibit provisions with no fiscal effect or whose fiscal impact is merely incidental to their non-budgetary policy purposes.  The Byrd Rule also could cause problems for amendments that have a clear fiscal impact but that change the savings projected from the underlying bill and possibly those that have the effect of taking money from one committee’s jurisdiction and placing it in that of another.  These rules were written on the assumption that bills being debated would be reported out of the various relevant authorizing committees; how they fit with the extraordinary path Majority Leader McConnell has chosen is less clear. 

     Also significant are the Senate’s germaneness rules for reconciliation legislation.  A full treatment of germaneness in the reconciliation context would glaze over eyes faster than a CLE course on parking law, but suffice it to say that the ability to add entirely new material to the bill is limited.  Motions to strike, on the other hand, are liberally permitted.  That means that no senators can excuse their vote for a bill containing a troubling provision by claiming that they had no way to get that provision removed.

     Perhaps most important is the timing of amendments.  Although senators are free to offer amendments at any time, few truly significant amendments appear until the very last moment.  That is true in an ordinary year, and that is emphatically true this year with the Majority Leader placing a premium on stealth.  Once the time for debate has expired, the Senate holds one roll-call vote after another until all amendments have been addressed or withdrawn.

     If you wait for all, or virtually all, of the twenty hours of debate to be exhausted before seeking a vote on your amendment, you can force senators to vote with almost no public information about what is in the amendment.  Typically, senators unanimously consent to extend debate for two minutes (one each for proponents and opponents), but that allows for little more than sound-bites.  Amendments accepted in a “vote-a-rama” can profoundly transform the underlying legislation yet, absent any meaningful debate, senators retain plausible deniability if troubling consequences of such an amendment later emerge. 

     This process allows Majority Leader McConnell to wait until the very end to offer the amendment he believes will get him to fifty votes and leave opponents no time to mobilize opposition (much less get a score from the Congressional Budget Office).  The Majority Leader may file several different amendments, or may have allies file several amendments, and only disclose which one he wants to receive a vote at the very end. 

     It was the fear that he would do just this that caused several Republicans across the ideological spectrum to take the unusual step of declaring that they would vote against the motion to proceed to debate a health care reconciliation bill.  The fact that all but Sens. Susan Collins (ME) and Lisa Murkowski (AK) voted for the motion to proceed suggests that Sen. McConnell has offered some assurances about what might be in his amendments or substitutes at the end, but we will not know what he promised until much later. 

     Vote-a-rama also commonly features numerous “message” amendments, offered to give senators a chance to vote for or against something to provide cover for their final votes on the underlying legislation.  Thus, one can imagine that the Majority Leader has arranged for amendments to be offered that would hit Medicaid even harder, or pound Planned Parenthood even more resolutely, so that senators wishing to be seen as moderates can claim that they voted to save those programs.  Perhaps far-right senators also will get a vote on their ideal bill so that, when it fails, they can argue that the votes just were not there to do the “right thing” and they had to vote for Senator McConnell’s bill as the best they could do. 

     It is important to recognize the trap Senator McConnell has adroitly laid for ACA’s defenders.  News coverage and punditry for the past several weeks has obsessed over which bill the Majority Leader would bring to the floor (to the extent the health debate has not been drowned out by the President’s WWE-worthy feud with his own attorney general).  All this commotion implies that which bill comes to a vote is an extremely important question, that some are “bad” bills and others are “good” or at least “moderate” bills.  This, in turn, empowers Republican senators to claim credit for blocking all the “bad” bills as cover for voting in favor of the final legislation.  Opponents will have no chance to explain that the final bill is “bad” until it is too late. 

     In fact, none of the bills that Republicans have floated this year are very different from one another in their end result:  huge losses of insurance coverage and steep increases in costs for many of those that remain nominally insured.  This is a function of the large amount of money being taken out of the health care system to pay for the bill’s tax cuts.  Even allowing a few of the ACA’s revenue provisions to remain would only provide enough money to very modestly lessen the damage. 

     One also might hear some senators saying that they will vote “yes” on this bill, flawed as it may be, to “move the process along” with the idea of “fixing” it in conference.  Such claims would be disingenuous for several reasons.  Most obviously, as noted, all the proposals are fundamentally similar in impact.

     In addition, conference committees are limited in the scope of what they may consider.  If a provision is in neither House nor Senate bill, rules prohibit included it in the conference agreement.  Some legislation moving with broad bipartisan support ends up outside the scope of the conference with a collective wink and nod, but this is emphatically not that kind of legislation.  Moreover, if a provision made it into neither chamber’s bill, it likely does not have enough support to get serious consideration anyway.

     But the most fundamental reason why “we’ll fix it in conference” is a fake is that this legislation likely will not be going to conference.  The usual path to conference is that the second chamber’s legislation is returned to the first chamber (here, the House), which then “insists on” its version and requests a conference.  But the first chamber can also simply pass the second chamber’s bill and send it to the President for signature.  That is what happened to the Civil Rights Act of 1964, whose sponsors doubted their ability to break a Senate filibuster a second time.  And that is very likely what Speaker Ryan would do here. 

     Finally, we may hear more claims that moving legislation to repeal core parts of the ACA, which various “repeal-lite” proposals floated recently would do, is the key to restoring bipartisanship.  The President and others have argued that doing so would “bring the Democrats to the table.”  One imagines that Senator McCain, who cast the decisive vote for the motion to proceed before and after denouncing the very process he was allowing to move forward, will offer that justification.  But this does not make much sense, either. 

     Expanding health care coverage from pre-ACA levels requires resources.  Not as many as some imagined, but a lot.  If the current legislation eliminates most of those resources by repealing most or all of ACA’s revenue measures, and if Republicans remain steadfastly opposed to any other tax increases, the money to cover the otherwise uninsured will not exist.  What is left is simply deciding which twenty-some million people will lose coverage.  It is not at all clear that Democrats have significantly better ideas about how to answer that grim question than Republicans.  And if they do not, they have little reason to engage in a process whose basic terms, and essential outcome, have been pre-ordained.

     A major part of this debate, and the vote-a-rama, is an allocational struggle within the Senate Republican caucus for two coveted prizes:  the ability to vote “no” on the final legislation.  Much of the posturing we have seen involves competing for that right.  Sen. Collins appears to have locked up one of those slots; until recently, it appeared that Sen. Rand Paul (whose state was one of the biggest winners under ACA) was in a strong position to take the other.  But that second “no” slot is now being aggressively pursued by Sen. Murkowski (whose state’s health care infrastructure would be devastated by repeal), West Virginia Sen. Shelley Moore Capito (whose state may be ACA’s single biggest per capita beneficiary), and Nevada Sen. Dean Heller (who faces an uphill reelection battle next year).  The bill will only fail if the party cannot resolve these competing claims.  Once it has been decided which senators must walk the plank and vote “yes”, much of the rest of the action will be holding votes in which they can cast whatever preliminary “no” votes they feel they need for political cover. 

     As such, conventional notions of momentum have no place in this process.  Majority Leader McConnell knows that only the final vote matters.  He is willing, indeed eager, to lose as many preliminary votes as his senators want.  The initial amendment offered Tuesday night – without any effort to address Byrd Rule violations that made it require sixty votes to pass – was obviously not intended to succeed:  it was merely an early opportunity for Republicans to vote “no” and perhaps give false reassurance to constituents.  Many more such votes can be expected along the way. 

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