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GOP Might Buck Senate Rules to Pass Health Care Overhaul

Parliamentarian decision still pending on House bill compliance with reconciliation

Senate Budget ranking member Bernie Sanders, I-Vt., left, and Budget Chairman Michael B. Enzi preside over the panel that finds itself overlooking many of the questions concerning the reconciliation process. (Bill Clark/CQ Roll Call File Photo)
Senate Budget ranking member Bernie Sanders, I-Vt., left, and Budget Chairman Michael B. Enzi preside over the panel that finds itself overlooking many of the questions concerning the reconciliation process. (Bill Clark/CQ Roll Call File Photo)

Republicans appear ready to make a small, but significant change to historic Senate procedure in order to advance their legislation to rework the U.S. health insurance system, a move that could have notable impact on the future of the chamber’s operations.

GOP leaders are sending signals that, if necessary, they plan to invoke a seldom-used rule included in the Congressional Budget Act that would allow Senate Budget Chairman Michael B. Enzi to skirt a decision from the chamber’s parliamentarian, a key gate-keeper for the budget maneuver known as reconciliation that Republicans are using to advance their health insurance measure.

Such a decision would have ripple effects far beyond the tenure of Senate Majority Leader Mitch McConnell, a careful practitioner of the chamber’s procedural rules, and open the door for future leaders to more easily advance legislation under a 51-vote threshold.

“It is the Parliamentarian’s office that determines whether or not a reconciliation bill is in compliance with the rules of the Senate. This is not a function of the chairman of the Budget Committee,” Sen. Bernie Sanders, the ranking member on the Budget panel, said in a floor speech this month. “I am extremely concerned that the chairman of the Budget Committee, in an unprecedented manner, appears to have made that determination himself with regard to the Trump-Ryan health care bill.”

The Senate could vote as early as next week on the health measure. Reconciliation permits legislation to pass the Senate with only a simple majority of members supporting it, but the bill must also comply with a set of chamber rules governing the process.

Congress set up this process earlier this year when it passed the fiscal year 2017 budget resolution. That measure included reconciliation instructions that laid out the requirements any bill must meet in to advance under the simple majority threshold.

In this case, that was $1 billion in deficit savings over 10 years from the provisions in the legislation under the jurisdiction of four committees: the House Ways and Means and Energy and Commerce committees and the Senate Health, Education, Labor and Pensions and Finance committees.

Under ongoing debate with the Senate parliamentarian is whether the House bill would actually achieve the required savings under the HELP Committee. The Senate parliamentarian has yet to make a formal decision on the matter.

Democrats argue that a provision to repeal the 2010 health care law’s  cost-sharing subsidies falls within the jurisdiction of the finance panel.

Republicans have yet to formally submit an argument to the parliamentarian outlining why they believe the section that would end those payments should be considered under HELP’s purview, one senior democratic aide said. The GOP is expected to submit that argument on Wednesday, a senior Republican aide said, and the decision by the parliamentarian is expected to come before the Senate votes on the measure.  

A spokesman for the Senate Budget Committee did not respond to a request for comment.

The jurisdiction in this case is critical. If the parliamentarian was to side with Democrats in her decision, then the House bill as a whole may not comply with the fiscal 2017 reconciliation instructions.

While the Senate is writing its own bill, McConnell must first introduce the House measure on the floor to file a substitute amendment to it with the new language. If the House bill were deemed to be noncompliant, however, then the GOP would need the standard 60 votes instead of 51 to advance it, a likely impossible task given no Democrats are expected to support it.

But Republicans appear ready to invoke a section of the Congressional Budget Act that they say would effectively give the Senate Budget Chairman authority to determine whether the legislation meets the required deficit reduction levels.

“Final decision on the score rests with the majority Senate Budget Committee Chairman, but it has to be within reason, I can’t just pick a number out,” Enzi, a Republican from Wyoming, told Roll Call.

A spokesman for the Budget panel previously told Roll Call that the chairman has “reviewed the House-passed legislation and found that it satisfies the instructions for both the HELP Committee and the Finance Committee.”

And a senior GOP aide said compliance calls have been made repeatedly by Budget chairmen over the years on matters inside and outside the reconciliation process.  

Such a move will almost surely fire up Democrats, who during the 2009-2010 debate over the Affordable Care Act had to prove that their own health care legislation complied with the rules governing reconciliation.

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