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Because the Republican Congress had to pass their Obamacare repeal and "replacement" bill with just Republican votes, they had to resort to budget reconciliation, a process that allows for passage with just 51 votes. But there's a catch in that—the Byrd Rule, which means basically the provisions of the bill have to have a direct impact on either spending or revenue to be ruled in order.
The person who determines if the bill's provisions past muster is Elizabeth MacDonough, the Senate parliamentarian, in what's colloquially known as the "Byrd Bath," and in the case of Trumpcare she's decided big chunks of it don't. Her ruling significantly complicates Senate Majority Leader Mitch McConnell's life, which is no more than he deserves.
The biggest casualty would be the GOP’s replacement for Obamacare’s individual mandate, which required people to buy insurance or face a penalty. Under the Senate GOP’s bill, people who went more than a month without health coverage and then bought insurance later on would have to wait six months for their coverage to take effect and cover their medical bills.
The provision was considered necessary in order to encourage people to sign up for health insurance and keep the market stable. Without such a provision, experts fear the insurance market could be sent into a death spiral—only the sickest people, who cost insurers the most, buy coverage, and premiums and costs continue to rise.
Another key provision for market stability—the funding of Obamacare’s cost-sharing reductions, currently in limbo because of an ongoing Republican lawsuit—was also said to be out of order under the Senate rules, according to a summary posted on the Senate Budget Committee website. The cost-sharing reductions are payments to insurers that help them meet a requirement that low-income people get help with their copays and deductibles.
Two provisions crucial for social conservatives, the defunding of Planned Parenthood and the restrictions on federal tax subsidies paying for health insurance that covers abortion, would also require 60 votes to overcome a filibuster and pass—and with no Democrats willing to vote for them, those provisions appear effectively dead. Without them, it could be even harder to win conservative support for the bill.
The loudest of the House Freedom Caucus maniacs immediately chimed in, saying that without Planned Parenthood defunding, passage in the House is "almost impossible." But the Cruz amendment to allow insurance companies to sell policies that don't comply with Obamacare's regulations as long as they sell one plan that does hasn't been considered yet. Conservatives are dead set on this one, but it hasn't actually been added yet—possibly to avoid a bad CBO score, possibly because they haven't been able to craft it so it would pass through the Byrd Bath. A few more of the provision that are still under review are "Enhanced waivers for some Affordable Care Act regulations; A provision allowing small businesses to establish association health plans; The provision allowing insurers to charge older people more than younger people compared to the ACA; and The option for states to receive a block grant instead of a per-person funding cap" in Medicaid.
The Planned Parenthood ruling is the big political problem for McConnell. He does have an option, with that and everything else declared out of order and requiring 60 votes, which is to overrule her on the floor. That would be the job of Vice President Mike Pence in this case. But as long as the Byrd Rule has been in effect, the Senate has abided by the Parliamentarian's judgment. Overruling here here would be another one of those "nuclear options" for McConnell. He's perfectly capable of doing so, but that might be a step too far for a big swath of his caucus who is already pissed at McConnell for completely abandoning the normal legislative process on this bill and for shutting them out.
With enough continued, loud, unrelenting opposition on our part, this all might be moot. The goal for us now is to make sure there aren’t 50 votes for McConnell to move forward on the bill, so that they don’t even get to the point of having a rules fight.
Make your Republican senator feel the heat. Call their office EVERY DAY at (202) 224-3121 to demand that they say NO to repealing Obamacare and ripping health care away from millions of Americans. After your call, tell us how it went.
