Photographer: Andrew Harrer/Bloomberg

These Are the Few Defenses Obamacare Has Left

Democrats defending Barack Obama’s health-care initiative will have to be creative or desperate -- or both -- if they hope to alter the Republican plan heading to the floor of the U.S. Senate. Even then, the chances of succeeding are slim. That’s because the Republican majority is employing a process called budget reconciliation, a tool for enacting highly partisan legislation. Though the Senate is considered the more deliberative and consensus-seeking house of Congress, the majority party can use budget reconciliation to pass legislation without any support from the opposition. With it, all that stands in the way of a new health-care law, delivered to the desk of President Donald Trump, is Republicans failing to stick together.

1. What is budget reconciliation?

It’s a fast-track legislative process created by Congress to speed decisions on taxes and spending. Lawmakers have employed it more than two dozen times since 1980. Normally, a supermajority of 60 votes is required to end debate in the Senate and move on to a vote; otherwise, one opponent of a measure can talk a bill to death, the process known as a filibuster. Measures that qualify for reconciliation require only a simple majority to advance. 

2. What does that mean for health care?

With 52 seats, Republicans can suffer two defections and still achieve a 50-50 tie to scrap Obama’s Affordable Care Act and replace it with their alternative, now called the Better Care Reconciliation Act. Vice President Mike Pence, in his role as president of the Senate, would cast the tie-breaking 51st vote.

3. How does health care qualify as a budget bill?

That requires some artful dodging by Republican leaders. In order to enjoy budget-reconciliation treatment, a bill must meet certain taxing and spending instructions set out in a House-Senate fiscal blueprint called a budget resolution. Democrats have already challenged whether the Senate’s Republican health-care legislation fully meets reconciliation qualifications.

4. How so?

Here’s one example. As written, the reconciliation instructions say that the Senate finance and health committees must each come up with $1 billion in savings in the new health-care law. Democrats say Republicans are violating the rules by crediting some savings that would normally be under the finance committee’s jurisdiction to the health committee so it can hit its target. Democrats may also say that a key provision, allowing states to waive certain requirements for insurers, is not primarily fiscal in nature, and therefore out of place in a reconciliation process. If Democrats win such a dispute, Republicans wouldn’t be able to offer their health-care legislation in its lump-sum entirety under the eased constraints of budget reconciliation.

5. Who settles such disputes?

Officially, that’s up to the Senate parliamentarian, currently Elizabeth MacDonough. Though the parliamentarian’s rulings are advisory, they’re rarely overruled, and Republican leaders have said they don’t plan to do so this time. Until and unless the parliamentarian issues a ruling, the chairman of the Senate Budget Committee -- currently Mike Enzi, a Republican from Wyoming -- decides what can be part of a reconciliation bill.

6. Can Democrats propose amendments?

Debate on a reconciliation bill is limited to 20 hours. After that, Democrats will be allowed to offer unlimited amendments, with no debate, in a legislative frenzy known as a vote-a-rama. The only way to end it is through exhaustion, so it’s typically scheduled late at night. Republican leaders say they want to start these back-to-back votes late on June 29, with a final vote early in the morning of June 30. 

7. What’s the point, if Democrats don’t have the votes?

They’ll surely craft amendments that will force politically painful votes meant to embarrass the majority. Republicans can challenge amendments as not being germane or not being budgetary in nature. But, in the end, it’ll be faster for Republicans to simply vote down amendments they don’t like. Of course, Democrats could actually alter the legislation if they propose amendments that get at least a few Republicans on board.

8. How much say did Democrats have in the House?

Virtually none. House Republicans provided all 217 votes to pass their reconciliation bill, the American Health Care Act, on May 4. Senate Republicans then decided to take up the House reconciliation bill instead of moving their own bill through committees. Behind closed doors, leaders developed the Better Care Reconciliation Act and released it to the public on June 22. If Senate Republicans win passage of their bill, House Republicans could then pass it, or the two sides could meet to resolve the differences between the two bills. Then it would go to the president for his signature.

9. What happens if the reconciliation bill is rejected?

If the Senate votes down the underlying House-passed bill, both chambers would have to start over -- unless Senate Majority Leader Mitch McConnell of Kentucky uses a parliamentary maneuver. He could change his own vote to "no," which would preserve his right to reconsider the bill. Another scenario comes from budget specialist Bill Hoagland of the Bipartisan Policy Center: Since the Senate measure is being offered as an amendment to the House-passed bill, if it’s voted down, the underlying bill would still be before the Senate. McConnell could then continue negotiating with his members in search of a new consensus amendment.

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