Politics & Policy

Who’s Afraid of the Senate Parliamentarian?

House Speaker Paul Ryan (Reuters photo: Joshua Roberts)
On Obamacare repeal, Republicans have less to fear from reconciliation than from fear itself.

Ryancare suffers from a serious ailment: acute Senatitis.

Conservative lawmakers prescribe urgent intervention to correct this condition. They fret that leaving it untreated could make the entire Republican party gravely ill.

Why is Ryancare so sick? In short, it’s a House bill written under Senate rules. House speaker Paul Ryan of Wisconsin and the Republican leadership crafted the uninspiringly named American Health Care Act with an overabundance of caution. They have assumed that Senate Democrats would use a narrow reading of budget law to block major replacement ideas that would cut costs through consumer freedom and choice.

But why should the House GOP leadership be hogtied by Senate Democrats’ potential interpretation of the rules?

Under the Congressional Budget and Impoundment Act of 1974, the reconciliation process would allow Senate Republicans to avoid a Democratic filibuster and repeal and replace Obamacare with a simple 51-vote majority. Nonetheless, the House GOP-leadership bill excludes popular, important, conservative measures because Democrats might try to disqualify them for having a “merely incidental” budget impact.

Au contraire! Freeing Americans to buy insurance across state lines, encouraging them to launch association health plans (such as Rotarycare for the Rotary Club’s 330,000 members and their loved ones), and letting anyone buy catastrophic coverage would have a significant budgetary impact. If those three ideas alone (among many more) shifted Americans from Medicaid to private insurance or kept them in the free market and out of government programs, this would limit federal outlays — big league.

As this reconciliation question arose, Senator Ted Cruz (R., Texas) did something seldom seen on Capitol Hill: He read the relevant statute.

“The test for reconciliation is codified in the Budget Act of 1974,” Cruz said in an interview. “Repealing the Obamacare insurance mandates — which drive up insurance premiums by billions of dollars and impact the federal government by billions of dollars — is indisputably budgetary in nature.”

“Only a hyper-technical reading of the statute would prevent real repeal on reconciliation,” Cruz explained. “No Republican in Congress or the administration should accept the phony argument that we can’t repeal the insurance mandates, and we can’t drive down premiums, because the parliamentarian won’t let us. . . . We have no ruling from the parliamentarian to that effect.”

Cruz added: “And even if the parliamentarian arrived upon that erroneous interpretation of the statutory language, the Budget Act of 1974 gives the authority to resolve this question to the vice president of the United States, Mike Pence.”

In fact, the word “parliamentarian” appears nowhere in the Budget Act of 1974! Rather than run in fear from Senate parliamentarian Elizabeth MacDonough, Cruz proposes that the House send the Senate a genuine repeal-and-replacement measure. If the Republican-appointed MacDonough does not object, what’s the problem? But if she balks, Pence can overrule her. And, in turn, the Senate’s Republican majority can sustain Pence’s decision.

There is a major precedent for Cruz’s concept. The 1996 welfare-reform bill repealed and replaced Aid to Families with Dependent Children via reconciliation. That huge federal-assistance program’s budgetary and non-budgetary provisions were swept away through reconciliation. What’s good enough for AFDC is good enough for ACA.

Other Senate free-marketeers find Cruz’s approach alluring.

“I think there’s a strong argument that can be made for it, and I’d like to see us explore it,” Senator Mike Lee (R., Utah) told me. “I definitely like the policy, and I think it’s also unmistakable that it would have a budgetary impact and should therefore be something we explore through reconciliation.”

“There’s a statute that we should comply with because I believe in the rule of law,” said Senator Pat Toomey (R., Pa.). “The statute says that issues that have a budgetary impact that’s non-incidental pass the test of reconciliation. I think we should use that to the greatest extent possible.”

Free-market stalwarts like these have been mystified by the behavior of Speaker Ryan and his team. Despite their respectable conservative credentials, they are speeding a bill toward a Republican president’s desk that’s to the left of the more robust repeal measure that nearly unanimous Republicans sent Obama in January 2016.

Conservatives also question Ryan’s three-phase road to ruin for Obamacare.

They worry that Phase I, Ryancare, will do little or nothing to lower health expenses. The Congressional Budget Office predicts that Ryancare will boost average premiums by 15 to 20 percent by 2019. Eventually it would curb premiums by 10 percent, but not until 2026.

Phase II — efforts by Health and Human Services Secretary Tom Price, M.D., to amputate Obamacare’s regulatory legs — sounds inviting. But they could wind up in court. Also, Dr. Price has the statutory authority to do these things now, so why await Phase II?

As for Phase III, conservative observers have lowered their expectations. Future legislation would cut costs and boost patient power (e.g., malpractice-litigation reform, letting Americans purchase medical insurance through universal Health Savings Accounts, terminating the “Cadillac tax” on high-end plans, etc.).

These and other reforms supposedly must be excluded from Ryan’s Phase I bill because Senate Democrats will filibuster them. But if this is a problem in Phase I, why won’t the Democrats deploy their 60-vote hurdle against Phase III?

Conversely, if Phase III will be filibuster-proof, why not shift its vital, cost-saving, freedom-enhancing reforms to Phase I?

Which is it?

At best, the Senate will leave the House bill intact. More likely, it will amend it to the left. So House Republicans should send the Senate the most patient-centered, limited-government, pro-market bill that they can design.

Senate Democrats will resist, no matter what the House passes. If a Trump-backed House bill guaranteed every illegal alien a free weekly visit to the doctor of his choice, Democrats would explode in rage: “Racists!” they would erupt. “Trump is Satan and the Republicans are his demons! Weekly medical visits? Why not daily? And how dare these Nazis deny undocumented employees the pleasure of house calls?”

If the Senate parliamentarian agrees with the Democrats, Vice President Pence can ignore her advice and rule the bill in order.

When Senate Democrats bellow that the House bill violates reconciliation rules, the parliamentarian may disagree with them. If so, the measure would advance, and the Republican majority would pass it with 51 or 52 votes.

If the parliamentarian agrees with the Democrats, however, Vice President Pence can ignore her advice and rule the bill in order. If so, Senate Democratic leader Chuck Schumer of New York may attempt to overturn Pence’s decision with a three-fifths majority. Schumer would need to rally all 48 Senate Democrats and twelve Republican senators to reach 60 votes.

Not bloody likely.

The real risk is that President Trump will sign Ryancare as written today. Without the cost-reducing, pro-patient provisions that conservatives expect, Ryancare will trigger fresh chaos, including higher insurance premiums. Americans could open their insurance-renewal packets — and discover their rising premiums — in late October 2018. Imagine voters, eager for Obamacare repeal and replacement, feeling baited and switched as their insurance bills climb another 10 to 15 percent, just days before the midterm elections.

“If we pass a so-called Obamacare-repeal bill that leaves premiums still rising,” Senator Cruz warns, “the American people who elected us will rightly be ready to tar and feather Republicans who made false promises to them.”

Tar and feathers would be preferable to what actually may occur.

Ryancare and its discontents could demolish the prospects for securing a 60-seat, filibuster-proof GOP Senate majority. Even worse, Republicans could shrink or even sink their House majority, perhaps returning Nancy Pelosi to the speaker’s chair.

It is unfathomable that two months into a unified Republican government, such a nightmare scenario is being discussed. And yet it is, all because the highly intelligent, truly diligent, and dangerously cautious Paul Ryan has fallen victim to a virus that makes him think like a Senate Democrat.

Deroy Murdock is a Manhattan-based Fox News contributor, a contributor to National Review Online, and a senior fellow with the London Center for Policy Research.


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