This obscure Senate rule could let VP Mike Pence fully repeal ObamaCare once and for all • The Hill
As House Republicans push to pass the American Healthcare Act (AHCA), many members are concerned about the long game and whether this bill, along with the subsequent companion actions, will actually lead to full repeal, lowering costs, and saving and improving health care for all Americans. But there is a solution to their dilemma, and Vice President Pence, along with a better understanding of Senate rules, is the key.
The first thing to understand, for those who haven’t been keeping score at home, is that normally it takes 60 votes to clear the filibuster threshold that first permits debate (rarely used before the 1980s) and then ends debate (the classic one you think of when you hear “filibuster”) to allow a vote in the Senate.
The exception is when you have a budget bill, which passes the “Byrd Rule” attesting to its budgetary impact. A bill so qualified, under a procedure called reconciliation, end runs the filibuster and goes straight to needing only 51 votes.
There are 52 GOP senators. That’s not enough to overcome a 60 vote threshold. So the GOP is doing as much repealing of the Affordable Care Act (ACA), also known as ObamaCare, as they were able to do when they passed partial repeal in 2015.
Unfortunately, that partial repeal leaves in place all the main ObamaCare regulations that have made insurance so expensive. At the same time, it takes away the subsidies that were the sweeteners that kept (fewer and fewer) insurance companies in the exchanges.
That means GOP members are being buffeted — by those who argue that passing this bill as Phase 1 (along with HHS making what regulatory changes they can in Phase 2, and then passing additional legislation in Phase 3) is the only way to get to repeal, while their base is upset that this isn’t full repeal and don’t believe they’ll get it this way.
With the strategy of passing the AHCA under the present reconciliation limitations, the GOP are facing two daunting obstacles, both in the Senate. The first is that the AHCA fails to pass the Senate. That’s a rough way to start a new administration.
The second is that it passes the Senate. But then because of Senate rules Sen. Schumer and the rest of the democrats won’t let the “Phase 3” flight of legislation even get to the floor (remember: there is an anti-deliberation filibuster to get past before something can be discussed). That means the balance of repeal (the part that actually lowers costs) and any of the other reforms they want to see, will languish without a vote, all while ObamaCare collapses even faster and Democrats pretend that is entirely due to the GOP’s repeal.
Ideally Republicans will get smart and do as Sen. Harry Reid said he planned to do once the Democrats had both the presidency and a Democratic Senate majority: simply change the rules of the Senate so you only need 51 votes to get legislation to the floor.
After all, as Vice President Nixon said in 1959 when presiding over the Senate and enabling a rules change, "It is the opinion of the Chair that while the rules of the Senate have been continued from one Congress to another, the right of a current majority of the Senate at the beginning of a new Congress to adopt its own rules, stemming as it does from the Constitution itself, cannot be restricted or limited by rules adopted by a majority of the Senate in a previous Congress."
But there are not the votes in the Senate at this time to make such a rules change.
Fortunately, there is another way.
The House Rules Committee, which is taking up AHCA, should adopt an amendment to the existing bill to broaden the repeal to be true and full repeal of ObamaCare, along with all the transition assistance already there. There have been numerous recent analyses showing that the assumptions in 2015 about what had budget impact were too narrow, and CBO’s own footnotes about its assumptions about the regulations show that the entire bill has budgetary impact and should pass the Byrd test.
That allows GOP members to both tell their constituents they voted for full repeal, and that they also ensured that the protections were in place to prevent any more harm from this law while setting us on a path to a better functioning approach to health insurance and care.
Once that passes the House, there will certainly be a challenge that the bill is too broad — that question will go to Vice President Pence, as president of the Senate.
Pence, drawing on the compelling arguments that have been made, can rule that this legislation indeed passes the “Byrd bath.” That will be challenged.
But what most people don’t understand is that it takes 60 votes to overrule the chair, and only 41 to sustain.
Overturning Pence’s ruling would require 12 GOP Senators to vote against Pence. They would have to make the argument to their constituents that they prevented full repeal because they didn’t believe the regulations had budgetary impact. Yah right.
VP Pence will be a populist hero, and full repeal, along with the necessary steps to transition to a new and better way, can get to President Trump’s desk with just 51 votes.
Heather Higgins is President and CEO of the Independent Women's Voice.