Version 2.0 of the American Health Care Act likely will not even come to a vote in the Senate, at least not in its present form. The reasons have as much to do with politics as they do with a little-understood law, arcane Senate rules that deal with budget reconciliation and how many votes are needed to approve legislation. And the politics are not easy either. Even a version modified to Senators liking faces difficult odds. Either way, repealing Obamacare faces major hurdles in the Senate.

The House crafted the AHCA as a budget reconciliation measure so that it would only have to be approved by a simple majority of 51 Senators to pass, not the usual 60 vote super-majority needed to invoke cloture (or cut off debate). But, in doing so it subjected the bill to an arcane set of rules that restrict what can be in it and how it is considered.

The AHCA – an earlier version of which previously preciously fell short of enough support to win House passage – only passed by a 217-213 vote after a last minute amendment. The amendment authored by Rep. Fred Upton added language to the Social Security Act, and mandates that the “amount otherwise appropriated [under the Act] . . . shall be increased by $8,000,000,000 for the period beginning with [fiscal year] 2018 and ending with [fiscal year] 2023, to be allocated to States with a [pre-existing condition] waiver in effect” for the establishment of high-risk pools for people who have pre-existing conditions.  This laid the foundation for a big problem.

First Hurdle: Byrd Rules & U.S. Law

The first issue the AHCA faces in the Senate are what are known as the “Byrd Rules” – after the late Senate President Pro Temp Robert Byrd. Adopted into law in 1985, the rules state what can and cannot be in a budget reconciliation measure. U.S. Code Title 2, Section 644 prohibits including any “extraneous” provisions from a reconciliation bill.

Put into plain English, reconciliation legislation must not change revenues or spending for the fiscal year it covers; cannot increase the deficit beyond the fiscal year covered by it; nor make any changes to Social Security. The AHCA does all of the above.

The Upton Amendment adds language to the Social Security Act. It makes $8 billion in appropriations for FYs 2018-2023, with no spending cuts or revenue increases. The original version of the AHCA changed some of the Affordable Care Act’s insurance regulations, and the second changed even more. All of those provisions, on their face, could be considered extraneous under the Byrd Rules and U.S. Code.

Second Hurdle: Possible Objections on Extraneous Provisions 

Under the Byrd Rules and the law, “Notwithstanding any other law or rule of the Senate, it shall be in order for a Senator to raise a single point of order that several provisions of a bill, resolution, amendment, motion, or conference report” are extraneous.

A point of order is a non-debatable motion. Before he either affirms or overrules the motion, the Presiding Officer generally consults with the Senate Parliamentarian. However, the Presiding Officer can consult with Majority Leader Mitch McConnell rather than the Parliamentarian. In addition, the Vice President can overrule the parliamentarian, but this has not happened since Nelson Rockefeller did it in 1975.

Any Senator can seek to overturn the Presiding Officer’s ruling. Once again, that motion cannot be debated. But it requires 60 votes – the same to close off debate. The same number McConnell would need in order for the Senate to approve the AHCA if it came up during the regular course of business.

The only way around objections is if the Senate considers the AHCA anew, and the Chairman and Ranking Minority Member of the Budget Committee  certify that everything in the AHCA is germane. Considering Democrats’ unanimous opposition to the bill, the likelihood of that happening is zero to nil.

Third Hurdle: How Long It Will Take CBO to Score  

The third issue is that of timing. And that could be fatal. As the report on the legislation makes clear, it is being consider as a budget reconciliation measure for fiscal year 2017 – the current fiscal year.

The Congressional Budget Office has not yet scored the approved AHCA, and that may take up to three weeks. Senate insiders said that chamber’s parliamentarian cannot rule on whether any provisions violate the Byrd Rule.

A House member told Roughly Explained that a reconciliation measure cannot be taken up after the President submits his next fiscal year budget to Congress. White House officials publicly have said President Trump plans to submit his FY 2018 budget within the next two weeks.

By the time CBO has a cost estimate for the AHCA, the time for the Senate to take it up may have passed.

Fourth Hurdle: The Calendar & Numbers

The fourth issue is how long Congress has to act on a budget reconciliation measure. A report by the Congressional Research Service notes that, under the Balanced Budget and Emergency Deficit Control Act of 1985 (which first took effect for FY1987 and still remain in effect), all budget reconciliation measures must be approved by June 15.

Even assuming CBO can score the bill before President Trump’s budget gets to Congress, and no Senator raises a point of personal privilege about extraneous provisions, there is little doubt that the AHCA will undergo a major rewrite before it reaches the Senate floor.

That’s where the calendar comes in. Rewrites take time. There are only six weeks before the statutory deadline for considering budget reconciliation measures. But The House has recesses scheduled for the week of May 8th and the 29th. In reality, there are just four weeks for the Senate to recraft the AHCA send the bill back to the House, and have it approve the new measure. And depending on how the rules shake out, they could need eight Democrats willing to repeal President Obama’s legislative legacy to do it,

Final Hurdle: Not Enough Support in the Senate 

The final, and probably fatal, problem in the Senate is arithmetic. It takes the votes of 50 senators plus Vice President Pence to pass a budget reconciliation measure. Republicans have a 52-48 majority. They have only a two-vote margin.

At least four Republican senators either have expressed opposition to the AHCA or have grave doubts about it. They are: Alexander (chairman of the health committee), Collins, Murkowski, and Paul. Sources say that Rubio likely is a “no” vote because the AHCA will hurt Florida’s elderly population. In addition, Cruz and Lee may not support it.

Political Theatre 

So why would the House approve a measure they must have realized had no chance in the Senate? Because they had to. Since Obamacare came into existence, Republicans have run on a platform that they would repeal and replace it. The House voted more than 40 times during the Obama presidency to do just that, knowing full well it was a futile gesture.

Since Republicans took control of the White House and both houses of Congress, their base has been demanding that they repeal and replace Obamacare. The House tried and failed. It could not afford to fail again. House members can now say they did their part, blame the Senate, and possibly keep control of the House.

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