Add some deregulation, with a proviso that it can be severed if the Senate parliamentarian objects.
Frankenstein’s limbs are severable, and able to be reassembled, until the creature is finally brought to life. Speaker Paul Ryan and his leadership team should consider that when trying to garner conservative votes for the Obamacare replacement bill, or “Ryancare.”
Compared with a number of well-designed, conservative health-policy proposals over the past decade, Ryancare is a Frankenstein monster of disparate elements that don’t really work well together — including elements of Obamacare that ought to be excised completely rather than used as part of the new monster. The leadership surely could have done better.
But one good reason they felt obliged to reuse some bad parts of current law is that excising them could run afoul of the soon-to-be-famous rules on budget “reconciliation,” which enables the Senate to avoid a 41-vote filibuster against budget bills. Concerns about reconciliation are not illegitimate, and conservatives who dismiss them aren’t playing straight with the American public. (Critics are definitely bordering on demagoguery or hypocrisy in some of their other complaints, but that’s a different subject.)
As Philip Klein explains well in the Washington Examiner, a provision passes muster under reconciliation rules only if it has a clear and non-incidental impact on the federal budget. So, to invent an example, if the bill tried to outlaw gauze bandages, that provision would have no obvious fiscal impact and therefore wouldn’t pass the reconciliation test.
On the other hand, conservatives have a valid point that some of the Obamacare regulations they want to repeal but that Ryancare leaves standing would surely have at least as much a fiscal impact as the does “individual mandate,” which Chief Justice John Roberts spuriously decided was a “tax.” I would argue, for example, that the horrendous Independent Payment Advisory Board, whose entire anticipated existence is for the purpose of cost control (although it likely would, perversely, fail at that attempt), is clearly something that has a budgetary impact that fits within reconciliation guidelines. Why didn’t the authors of Ryancare at least try to eliminate IPAB? There seems to be no good reason.
That’s just one example. Health-policy wonks could list any number of other regulatory changes that the Senate parliamentarian might accept as being within reconciliation rules.
Most conservatives, of course, want to destroy the whole regulatory edifice of Obamacare, root and branch, and some even argue it all could be done in one bill. That’s a stretch. It’s also short-sighted: Some of the same people arguing in favor of blasting through reconciliation parameters are the ones who in other circumstances are most vocal about the sanctity of the legislative filibuster. Conservatives could rue the day they set a precedent that could make it easier for future Democratic-majority Senates to lard up budget bills with all sorts of objectionable liberal policies.
There is a middle ground between pushing discrete, targeted regulatory changes and trying to force a full Obamacare repeal into a reconciliation process not intended for non-budgetary items.
There is a middle ground, though, between pushing discrete, targeted regulatory changes and trying to force a full Obamacare repeal into a reconciliation process not intended for non-budgetary items. To secure more conservative votes in the House, keep Ryancare alive for further Senate improvements, and thereby avoid a defeat that the establishment media would play as a sign of unalterable incompetence, Ryan’s team should pick, say, three Obamacare regulations with the most obvious budgetary impact and add their repeal to the Ryancare package before Thursday’s expected up-or-down vote. Each of those provisions should be accompanied by a “fiscal note” that lays out exactly why and how the budgetary impact is significant rather than incidental.
Nervous Nellies might argue that this could bring the whole bill down because the Senate might decide that reconciliation rules have been busted in such a way as to make the whole Ryancare bill filibuster-able from the get-go. They are probably wrong — again, some regulations so obviously have a budgetary impact that their repeal would surely withstand scrutiny.
But there is a fairly simple way to be sure. The House should add language making any regulatory changes automatically severable from the rest of the bill if the Senate rules that the changes violate reconciliation parameters. (In a bit of procedural payback, the bill could say that regulatory changes should be “deemed” severable.) That way, it can both test a more aggressively anti-Obamacare posture and have the rest of the Ryancare bill as a fail-safe if the parliamentarian more narrowly circumscribes the budget rules.
Senate leaders could help even more if they publicly pledge to recalcitrant House conservatives that they will try to shoehorn even more deregulation into the package once the House passes it. “If you get us started with regulatory changes,” Senate Majority Leader Mitch McConnell should say, “we’ll see you and raise you with eliminating even more of them — and we’ll make sure we push as many fixes past the parliamentary goalkeeper as possible.”
House conservatives, and hardline outside pressure groups, should in turn stop their ideologically holier-than-thou routines. Donald Trump is right: If Republicans fail to pass something that topples the overall Obamacare system and replaces it with free-market solutions, they will all go down to crushing defeats in 2018. And, after seven years of pledging to replace Obamacare, they will deserve to lose if they insist on purity at the cost of failure to pass any reform at all.
House conservatives must understand that they will get another chance to vote on this package, once the Senate has worked its will. Killing the bill now would be not just foolish but asinine — especially if House leadership makes a few more moves in a deregulatory direction, with Frankensteinian severability part of the deal.