The headlines today are about the claimed defeat for Republicans and, especially President Trump, when Paul Ryan pulled down the Obamacare Repeal Bill.
This is just wrong as the Republicans are playing this difficult game perfectly, they are Kasparov in this matter. I’ll explain why.
President Trump and many Republicans ran on the promise to repeal and replace Obamacare, which is collapsing. Obamacare is “owned” by the Democrats. It was passed without a single Republican vote and voters hate it. The Republicans absolutely had to take early action to repeal and replace this failed program but faced some very real problems due to the numbers required to pass repeal and replace and Senate rules that made it impossible t use budget reconciliation to pass it with 51 votes. Without reconciliation, it would take 60 votes to pass and the Democrats would block it. There are 52 Republicans in the senate, 46 Democrats, and 2 independents. ( who are really Democrats.)
The particular problem is the Byrd Rule below. The actionable section is in bold.
SUMMARY OF THE BYRD RULE
Under the Byrd rule, the Senate is prohibited from considering the extraneous matter as part of a reconciliation bill or resolution or conference report thereon. The definition of what constitutes “extraneous matter” is set forth in the Budget Act; however, the term remains subject to considerable interpretation by the presiding officer (who relies on the Senate Parliamentarian). The Byrd rule is enforced when a Senator raises a point of order during consideration of a reconciliation bill or conference report. If the point of order is sustained, the offending title, provision or amendment is deemed stricken unless its proponent can muster a 3/5 (60) Senate majority vote to waive the rule.
Subject matter – The Byrd rule may be invoked only against reconciliation bills, amendments thereto, and reconciliation conference reports.
Byrd rule tests – Section 313(b)(1) of the Congressional Budget Act sets forth six tests for matters to be considered extraneous under the Byrd rule. The criteria apply to provisions that:
- do not produce a change in outlays or revenues;
- produce changes in outlays or revenue which are merely incidental to the non-budgetary components of the provision;
- are outside the jurisdiction of the committee that submitted the title or provision for inclusion in the reconciliation measure;
- increase outlays or decrease revenue if the provision’s title, as a whole, fails to achieve the Senate reporting committee’s reconciliation instructions;
- increase net outlays or decrease revenue during a fiscal year after the years covered by the reconciliation bill unless the provision’s title, as a whole, remains budget neutral;
- contain recommendations regarding the OASDI (social security) trust funds.
Exceptions to the Byrd Rule – Section 313(b)(2) allows certain otherwise covered Senate-originated provisions to be excepted from the Byrd rule if the provisions are certified for exemption by the Senate Budget Committee chairman and ranking minority member, as well as the chairman and ranking minority member of the committee of jurisdiction. The permitted exceptions are:
- a provision that mitigates direct effects attributable to a second provision which changes outlays or revenue when the provisions together produce a net reduction in outlays;
- the provision will result in a substantial reduction in outlays or a substantial increase in revenues during fiscal years after the fiscal years covered by the reconciliation bill;
- the provision will likely reduce outlays or increase revenues based on actions that are not currently projected by CBO for scorekeeping purposes; or
- such provision will likely produce a significant reduction in outlays or increase in revenues, but due to insufficient data such reduction or increase cannot be reliably estimated.
Effect of points of order – The effect of raising a point of order under the Byrd rule is to strike the offending extraneous provision. If a point of order against a conference report is sustained, the Senate may consider subsequent motions to dispose of that portion of the conference report not subject to the point of order.
Waivers – The Byrd rule is not self-enforcing. A point of order must be raised at the appropriate time to enforce it. The Byrd rule can only be waived by a 3/5 (60) majority vote
Because of the limitations placed on legislation that can pass under reconciliation, the actual repeal and replace can’t be accomplished as desired by all Republicans.
the dilemma then is that a partial “repeal” can occur but it would not correct Obamacare’s major flaws, would cause damage, leave Republicans open to the charge that the problems were caused by them In short, they would own healthcare and its problems.
This is the particular problem the Republicans faced and they knew it. In short, they could not achieve true repeal and then replace with a program that works with the Byrd rule in place. So what were they to do? Any attempt to partially repeal, Obamacare lite, for example, would result in a plan that was badly flawed, but the flaws would be seen as Republican flaws-a political death wish. The result of the non-vote on the American Health Care Act is that Obamacare is still the law of the land, is a disaster, and is owned by the Democrats.
The Republicans know that to have a proper healthcare law, the repeal and replacement of all of Obamacare is required to get there, they need either a 60 vote majority in the Senate or Democratic support. That’s what they are playing for! If Obamacare continues to be a problem and it will, they will campaign in 2018 on that issue and hope to get a 60 vote Senate Majority. That’s actually a very desirable goal and the Democrats seem to be oblivious to the risk they are taking by opposing repeal and replace, and, for that matter, the Gorsuch nomination. the first indication that this is the Republican plan is that President Trump asked for Democratic help in the repeal, replace effort. The Democrats haven’t gotten back to him yet!!!
It’s a wonderful trap and there is no escape for his prey.