A few weeks ago, we brought you a story about an obscure, 40-year-old provision known as the Byrd Rule. This budget rule, part of an amendment to the Congressional Budget Act of 1974, enables any Senator to block legislation when the Reconciliation Process is employed. Now that the fate of the Affordable Care Act is going to be in the hands of the GOP-controlled Senate, the Byrd Rule could blow up any chances of repeal.
Like so many of the issues the GOP now faces, this is a situation of their own making. It began the moment Republicans vowed to get rid of the ACA at the earliest opportunity – which supposedly arrived with the dubious ascension of Trump to the White House. Unfortunately, Republican majority in the Senate is thin – so they decided to use reconciliation, which enabled them to pass their version with only 50 votes. There was a tradeoff, however: because of budget rules, there were many restrictions on the bill, meaning it is unlikely to pass muster when it comes to the complexity of the federal budget.
Next, the plot to destroy health care in the U.S. ran into a few snags in the House of Representatives as lawmakers in that august body were forced to push through a compromise bill that is now likely to come up against that reconciliation process in the Senate. Ironically, that whole process was designed to make it easier to pass bills affecting the Federal budget without having to worry about a filibuster from the minority party. However, as is usually the case, there are conditions. These will determine what the GOP will be able to do – and what they won’t be able to do.
It all has to do with balancing the budget, which has been the GOPs obsession for years. The Senate version of Obamacare repeal will have to result in savings that will either match or exceed those of the House version. This is where the Senate is bound to run into problems. On one hand, Senators (still stinging from their constituent’s outrage) want to keep some subsidies for low-income people in place, which will increase the budget. This means that they will have to take that money from something else. One possibility is to repeal of taxes that have financed the ACA.
Furthermore, the final “replacement bill” must be demonstrated to be an actual money saver. Last week, there was uncertainty over whether or not the House bill achieved those savings. This brings us to the details of the Byrd Rule, under which any budget-related legislation must meet a number of conditions. One of these states that provisions of a spending bill:
- Must have an impact on federal income or outlays.
- If the bill does not reduce the deficit, provisions that affect federal income or outgo must be taken out until they budget requirements.
- Said provision can only have an impact on polices under the jurisdiction of the committees that wrote the bill in the first place (in this case, the Ways and Means committee and the committee on Energy and Commerce).
- The effects of the provision on revenues and expenditures must be directly related to its impact on Federal policy.
- The provision cannot increase the Federal deficit beyond a ten-year evaluation period.
- The provision cannot have an impact on Social Security.
In most cases, provisions that don’t meet one or more of these conditions are simply stripped out of the bill and the remainder of the legislation goes forward. However, that third condition – jurisdiction – can be a sticky one. For example, remember when Congress decided to exempt itself from its own health care bill? They later backed down – but it wasn’t because of outrage on the part of constituents. The reason was, as always, self-serving: since health care plans for the privileged lawmakers fall under the jurisdiction of a different committee, the bill would be in violation of that third requirement and would thus be subject to a filibuster.
Now that the bill is moving to the Senate, it will be put under a microscope to see which provisions pass muster under the Byrd Rule, and which ones fail one or more of those tests. One of the problems the GOP may run into is the provision that would allow individual states to opt out of the ACA’s insurance rules, such as penalizing people who suffer from health issues. While that provision got it through the House (barely), Democrats and legal experts say that since such waivers have no impact on the Federal budget – or such impacts would have nothing to do with Federal policy – “Trumpcare” is likely to find itself dead in the water. Specifically, the controversial provisions involve insurance markets but do nothing to raise Federal revenue or reduce expenditures.
It will be difficult to make the argument that something affecting state or industry regulations have an impact on the Federal budget. Ultimately, it will come down to the results of a cost analysis by the Congressional Budget Office (CBO), estimating what states are likely to request waivers and what the costs will be. Those results will be released on Wednesday.
There is the danger that the Senate could overrule the parliamentarian, who makes the final decision. This has happened only eight times over the past four decades. The President of the Senate, in this case Mike Pence, could simply disregard the parliamentarian and make a unilateral ruling. However, this could run into problems with a number of senior Republicans who understand that such a maneuver is a slippery slope. If senators overrule the parliamentarian and manage to shove their bill through, they open the door for their successors in the future to do the same thing – and that would kill the 60-vote “supermajority” rule required for moving legislation forward.
It appears that the GOP has bitten off more than it can chew. It is also becoming apparent that President Obama’s razor-sharp legal mind anticipated Republican efforts to dismantle his signature legislation, making certain that any such attempts would meet serious obstacles.
The ACA has been criticized for its sheer complexity, but it is that complexity that may very well save it – at least until the current Trump and GOP reign of terror has passed and we can get down to the task of joining the rest of the world by creating a public single-payer system that guarantees health care to all.