Senate Democrats believe there are still outstanding questions whether the House bill to repeal and replace the 2010 health care law complies with the budget procedure Republicans are employing to move the legislation with just majority support. 

Emails obtained by Roll Call show that while the Senate parliamentarian initially weighed in on a key provision that Democrats said could be fatal for the bill, that decision was later clarified to only address a small portion of that overall section. And the potential decisions by the parliamentarian on the outstanding questions, Democratic aides say, could significantly set back the GOP effort to overhaul President Barack Obama’s signature domestic achievement.

It’s not clear, however, that any of the objections still being raised by Democrats would be fatal to the bill’s ability to move through the Senate. 

Senate Majority Leader Mitch McConnell on Wednesday jumped a procedural hurdle to move to the House bill, invoking a rule that allows the legislation to bypass the regular committee process. This comes after Republicans on the Senate Budget Committee announced Tuesday that the legislation complies with the rules governing the fast-track budget reconciliation procedure that the GOP is using to advance the bill.

Democrats had argued with the Senate parliamentarian that a section of the legislation fell outside the purview of both the Senate Finance and Health, Education, Labor and Pensions Committees, the two panels charged with writing the Senate counterpart health care bill.

And while the parliamentarian’s decision on that argument was in the GOP’s favor, Democrats say there are lingering questions whether the legislation as a whole actually does adhere to the instructions that would allow the bill to bypass a filibuster and pass the Senate with a simple majority.

“The parliamentarian has ruled in favor of the Republicans on one narrow procedural issue, but it remains to be seen whether the House-passed bill qualifies for reconciliation in the Senate,” a spokesman for Sen. Bernie Sanders of Vermont, the ranking member of the chamber’s budget panel, said in a statement.

In an email to Senate staffers obtained by Roll Call, the parliamentarian said the section in question that would repeal the law’s so-called cost-sharing subsidies is within the jurisdiction of the HELP committee. But a clarifying email sent later Tuesday evening said the ruling was “overbroad” and HELP’s jurisdiction on the matter was limited strictly to the section that addressed those payments within the parameters of the Indian Health Service.

Democrats believe that means there has not yet been a decision made by the parliamentarian that the bill as a whole complies with the reconciliation process.

A Senate GOP aide disputed that notion.

“It is over. No matter what they say,” the Republican aide said. 

An aide said Senate Democrats are expected to meet this week with the parliamentarian on the outstanding questions on the legislation. No bipartisan meetings have been scheduled, the aide said, a possible roadblock for Republicans as they look to try to vote on the legislation in the coming weeks. 

Deficit reduction issues

The instructions for the current process, detailed in the fiscal 2017 budget resolution passed by Congress at the start of the year, mandates that both HELP and Finance achieve $1 billion in reductions to the federal deficit through the provisions in the legislation within each respective panel.

Democrats plan to argue that the section that would repeal the law’s cost-sharing subsidies, beginning in 2020, falls under the purview of the Senate Finance Committee, despite the parliamentarian’s decision on the narrow section, aides tell Roll Call. The nonpartisan Congressional Budget Office has said that provision in the bill would save $98 billion over 10 years.

If the parliamentarian were to side with the argument by Democrats, it could leave the GOP on very shaky grounds. In addition to the section affecting the cost-sharing subsidies, Democrats also plan to argue that a last-minute amendment from Rep. Tom MacArthur, R-N.J., falls within the Senate HELP panel. One aide said that measure could cost up to $69 billion.

Should the parliamentarian side with Democrats on both arguments, it is possible the provisions in the bill within the HELP committee would not achieve $1 billion in savings over 10 years, thus violating the rules governing the fiscal 2017 reconciliation process. Senate Republicans would then need 60 votes to overcome procedural blockades and pass the bill out of the chamber. That is an unlikely scenario given that no Democrat is expected to support it.

Republicans, however, believe the House repeal bill was found to comply with the reconciliation instructions. The GOP aide said the Senate Budget Committee determines whether the reconciled committees have achieved the required amount of deficit reduction. The aide said Sen. Michael B. Enzi of Wyoming, the panel’s chairman, found that it does indeed satisfy the instructions for both the HELP Committee and Finance Committee. 

Should Republicans be wrong, McConnell’s decision to begin the procedural process for the legislation in the Senate could complicate any effort by the House to fix the bill. Democratic aides say a ruling in their favor by the parliamentarian could force the House to bring a new version of the legislation through the committee process again before it could be brought up for a vote on the chamber floor.