The Senate’s procedural rules are part of the problem (or is the solution)?
As the volume of concern about the new health care bill increases, such noise tends to drown out critical thinking and common sense. Everyone needs to step back and understand that the bill that passed the House isn’t likely to become law.
It’s not yet clear whether this bill will bear any resemblance to what, if anything, will eventually become law. The purpose of the May 4 House bill was to save face from the failure of the March 24 House bill, which Speaker Paul Ryan, R-Wisconsin, pulled from the calendar before President Trump could suffer the humiliation of his own party voting against him.
Pulling the bill didn’t stop the humiliation, of course, but hence the purpose of the May 4 bill was simply to give the White House a “win” –not to actually make law. It gave Trump a few gloating tweets.
Now the bill has been delivered to the Senate, where it is languishing rapidly. Senate Republicans have declared the bill dead, and many of them are trying to write a new bill from scratch. But Democrats have 48 votes in the Senate, and they only need 40 votes to filibuster. They have vowed to filibuster any and all health care legislation regardless of its merits. If the GOP were to put forward a non-binding resolution calling for Americans to brush their teeth after meals, Senate Minority Leader Chuck Schumer probably wouldn’t let it get out of committee.
Senate Republicans pinning their hopes on the budget ‘reconciliation’ process
Republicans know this, of course. They’ve pinned all their hopes on the budget reconciliation process, which cannot be filibustered under current Senate rules. The problem with ramming health care through the so-called “reconciliation” process is that the rule don’t allow you to attach any old nonsense to the budget. It has to be budget-oriented nonsense.
According to the arcane Byrd Rule, named after a former Democratic Senate leader, budgets cannot be larded up with any “extraneous” material. What’s extraneous? Well, that’s up to the unelected Senate Parliamentarian to decide. The Parliamentarian’s decisions interpret Senate rules, and it’s likely that sweeping changes to the Affordable Care Act are likely to be “extraneous.”
So, of course, Congress’s first rule is to ignore rules it doesn’t like. That leaves open the possibility that the Byrd Rule could be overturned. If that happened, Republicans could attach anything they want to a budget, from healthcare reform to “build the wall” to to free balloon rides with elephants.
Donald Trump would certainly like that kind of a rule change. But Senate Majority Leader Mitch McConnell, R-Kentucky, would not. And in spite of screaming and tweeting by Trump, Mitch McConnell says he’s not going to be moved. And that’s even though he eliminated the filibuster for Supreme Court nominees, which was itself a reaction to the decision by former Senate Majority Leader Harry Reid, D-Nevada, to eliminate filibusters of lower-court nominees.
Be careful what you ask for: You might get it
Wise Republicans and Democrats alike recognize a number of truths scattered amid the wreckage of Senate procedural niceties. The most pressing is the reality that majorities don’t last forever.
McConnell may not like filibusters when he’s the majority leader, but when he’s the minority leader, he knows that it will be the only tool he’s got. And, given Trump’s imploding presidency, Republican minority status may arrive sooner rather than later.
Far all the handwringing, what happens next on health care legislation?
What is likely to happen is that the Republicans will have to cobble together something tepid to satisfy the Byrd Rule, not unduly antagonize Democrats, and still keep the Freedom Caucus in the House happy.
That sort of law will probably not extend too far beyond tooth-brushing recommendations. President Trump will almost certainly declare a victory vastly out of proportion with what actually gets done, and Obamacare will continue to limp along, essentially unchanged, until it eventually collapses under its own weight.