June 1, 2017

Senate Procedure Meets Healthcare Reform

Marty Paone

The recent Washington Post article on the Senate Parliamentarian, Elizabeth MacDonough, was well done and I commend it to you. There are a few questions, however, how much of an impact will she have? Is there a timeline for her to make decisions? How does this effect the tax reform through reconciliation effort?

As the article noted, the Parliamentarian will decide questions about possible Budget Act points of order based on precedent. This is the traditional way of coming to decisions on these rulings and is the method utilized by her predecessors. (Note: the assistant parliamentarians join in the decision-making process but she is chief among equals and if a joint decision is not possible her decision stands). While precedent is very important, some still hold out hope that new information can result in a new decision.

Case in point: the bar of funding for Planned Parenthood contained in the House bill. This bar was also contained in the reconciliation bill the Senate passed in December of 2015 and was vetoed by President Obama in January 2016. The generic wording of the funding ban for abortion clinics meets the requirement that the provision effect federal revenue or outlays, but recent studies of the provision’s impact and statement by its proponents, show that the prohibition was, and is, meant to only bar funding for Planned Parenthood. The opponents will make the case to the Parliamentarian’s office that as such, this provision is purely political in nature and the federal outlay effect is merely “incidental” to its policy, thus it should be considered to violate the Byrd Rule’s ‘incidental’ threshold. We’ll see how this plays out.

For the most part though, the Parliamentarian will rely on precedents; where there are none, she and her colleagues will listen to the argument’s pro and con regarding a provision, then will render a decision as to what seems to make the most sense in adhering to the intent of the Budget Act and how it’s been interpreted over the years. There is no time limit for her to render these decisions, but you can rest assured the process will not be held up due to her office. What will hold up the process, is constructing a healthcare bill that can be portrayed as repealing and replacing the ACA, and still get 50 votes in the Senate, at which point the VP breaks the tie.

Meanwhile the legislative train meant to carry the tax reform reconciliation bill – the FY 18 Budget Resolution – remains in limbo. Action cannot be completed on the FY 18 Budget Resolution while the FY 17 Health Care Reconciliation is not completed. Sort of like sci-fi stories of not encountering yourself if you travel back in time—bad things happen. They can abandon the health care effort and move on to the FY 18 Budget Resolution, and this seems to be intimated by Republican comments guaranteeing a health care bill will at least come to vote by the August recess. A failed vote would allow them to move on to the next Budget Resolution. If not completed by October 1 and the beginning of FY 18, that too could result in other complications for the FY 17 effort; such impacts are still being studied.

What about the Cruz/Paul idea of the Presiding Officer, the VP, ignoring the Parliamentarian’s rulings? That certainly is possible, but it would irreparably alter the way the Senate functions, akin to a nuclear option type of action, and it’s a Rubicon that Leader McConnell has indicated he is not yet willing to cross.

Where do you draw the line in ignoring the Parliamentarian? Do you cut off debate on an appropriations bill when convenient for the majority? Do you unilaterally rule minority amendments out of order? The list of possible abuses is infinite. While ignoring her ruling is far “cleaner” than firing her, there is no need to find a replacement, assuming she wouldn’t resign should this occur. But, firing her is also an option. One of her predecessors, Bob Dove, was fired in 2001 by Majority Leader Trent Lott over an inconvenient reconciliation ruling though his replacement, Alan Frumin, adhered to Bob’s ruling.

Leader McConnell has been known to play the long game very well – he killed Merrick Garland’s nomination to the Supreme Court, for example – and if he fires the Parliamentarian or ignores her ruling, it could have a ripple effect and allow future Democratic majorities to follow suit. Either scenario could lead the Senate to politically appoint parliamentarians and the tradition of a neutral Rules arbiter lost forever. Leader McConnell often decried Senator Reid’s use of the nuclear option and the damage it did to the Senate, though he followed suit for the Supreme Court nomination. He has also pushed back against recent calls to reduce the threshold for legislative cloture to a majority vote, so we’ll see if he reacts to the President’s most recent plea. Using reconciliation’s majority vote path for Health Care and Tax Reform obviates the need for such drastic action; his bigger problem is finding 50 republican votes for these packages.

If the process continues on the current track, the first order of business is deciding if the House passed bill – the one they haven’t sent to the Senate yet – meets the Senate’s reconciliation instructions. That means of the $119 billion in savings, there needs to be at least $1 billion of savings over 10 years in the Finance Committee’s jurisdiction and $1 billion in the HELP Committee’s jurisdiction. Assuming the bill meets that criteria then it can be sent to the Senate, placed on the Legislative Calendar and called up by Leader McConnell, by majority vote, when he believes they are ready to act on a Senate companion.

The Finance and HELP Committees can each report out bills that meet the reconciliation instructions, and if so their bills then go to the Budget Committee, which basically puts a rubber band on them and reports out one bill. The Budget Committee does not amend their work product. That bill would also go to the Legislative Calendar and would be the basis for the Senate substitute amendment, which would be offered from the floor once the House bill is called up. They need to ultimately act on a House passed bill since there are tax matters involved. Under this scenario then the basis for germaneness would be the two chamber’s work products, the House bill and the Senate substitute.

The alternative would be to avoid the Committees having to cast a number of votes in order to report out their bills, and simply call up the House bill and offer a floor substitute amendment which meets the instructions. Under this scenario the basis of germaneness would be “matter within the Finance and Help Committee’s jurisdictions.”

As they craft a Senate alternative, they will run their language by the Parliamentarians to see if there are any points of order problems with any of its provisions. If the bill is called up and a provision is found that violates part of the Budget Act, then a point of order can be raised on the floor against the offending provision. The proponents can attempt to waive the Budget Act to keep the provision in the bill, but that takes 60 votes, so is an uphill battle; hence the reason for the pre-scrubbing, “Byrd bath,” they go through before the bill is called up.

There is a statutory time limitation on consideration of a reconciliation bill of 20 hours for debate, equally divided. But at the end of that time, amendments can still be offered and voted on without debate – the “vote-a-rama” – which sometimes can entail 18 straight hours of votes, averaging three votes an hour.

It remains to be seen if the Senate can pass a bill that lowers rates, but does not have the negative side effects of the House bill; it will take a lot more money than the House bill provided to adequately fund risk pools for those with preexisting conditions. If they are successful, then the bill goes back to the House and Speaker Ryan must corral a majority vote to concur in the Senate amendment so it can be sent to the President for his signature, or he could further amend the bill and send it back to the Senate.


Marty Paone

Martin P. Paone is a Senate Procedure expert and serves as a Senior Advisor at Prime Policy Group. Marty rejoined the firm after a two-year hiatus spent working for President Obama as his Deputy Assistant for Legislative Affairs and Senate Liaison. Marty served on Capitol Hill for 32 years, including 13 years as Democratic Secretary