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Schumer goes around McConnell to set up vote defending Obamacare

Some Republicans promised provisions like protections for preexisting conditions regardless of the law's fate

Minority Leader Charles Schumer, shown Wednesday, is forcing a vote regarding the 2010 health care law.
Minority Leader Charles Schumer, shown Wednesday, is forcing a vote regarding the 2010 health care law. (Tom Williams/CQ Roll Call)

Minority Leader Charles E. Schumer is rattling the Senate cage, exercising a right every senator has — though one rarely utilized — in an effort to put Republicans on defense on health care in the home stretch of the 2020 campaign.

“As soon as tomorrow, [Senate Majority Leader Mitch McConnell] and all my Republican colleagues will have an opportunity to set the record straight with their vote,” Schumer said at a news conference Wednesday, discussing his procedural move to set up a vote on a measure to block the Justice Department from intervening in support of lawsuits involving the 2010 Affordable Care Act.

On Tuesday afternoon, the New York Democrat filed a cloture motion to proceed to such a bill. The move puts Republicans who say they support pre-existing condition protections in a bind, particularly those in tight reelection races. The 2010 law guarantees coverage of pre-existing conditions, which is in danger of being struck down in a major case that comes before the Supreme Court just days after the November election.

“It’s directly related to, we think, the critical issue both in the election and the Supreme Court nomination, which is the Republican efforts to destroy health care in a pandemic,” Virginia Democratic Sen. Tim Kaine told reporters Wednesday.

Members of both parties say they support protections for pre-existing conditions, the most popular part of the 2010 health law, but Democrats on the campaign trail are seeking to use the risks to those provisions against Republicans who previously voted to weaken them.

Republicans in close races have told voters that they believe protections for people with pre-existing conditions would be preserved even if the law were struck down.

Sen. Cory Gardner, R-Colo., considered one of the most vulnerable incumbents, cut an ad with his mother, who has had cancer, reminding voters he sponsored a bill to preserve coverage to those with preexisting conditions, “no matter what happens to Obamacare.”

One option for McConnell would be to make a motion to table the Democrats’ measure. His office did not respond to a request for comment on what comes next.

Later Wednesday, the chamber was voting on related legislation, including procedural motions involving a proposal by Sen. Thom Tillis, R-N.C., on pre-existing conditions. The Senate rejected a motion, 47-47, to table the amendment. The vote could be used by Republican senators to show the GOP is in favor of protecting pre-existing conditions.

The effort appeared to provide a Republican alternative to the measure on which Schumer filed cloture.

Democrats argue that Tillis’ proposal would not go far enough since it would not address provisions included in the 2010 health care law like requiring insurers to cover essential health benefits and preventing insurers from imposing lifetime and annual caps on coverage costs. Tillis’ office counters that the measure isn’t meant to be a replacement for the health law, but “demonstrates the commitment of Republicans to protect Americans with pre-existing conditions, regardless of the future of Obamacare.”

Schumer’s move is atypical because senators typically defer to the majority leader to decide floor agenda and the timing of filing procedural motions. Any senator can do so; it is just rare to actually see that happen.

In 2011, Oklahoma Republican Sen. Tom Coburn used a similar procedure to try and get an up-or-down vote on ending ethanol tax subsidies.

Procedural gambits

The tension between the two parties has ratcheted up after the GOP began moving to push through the Supreme Court nomination of Amy Coney Barrett ahead of the election.

Democrats have begun employing procedural tactics to make it more difficult for the Senate to do regular business and in an effort to label the nomination proceedings as illegitimate.

To avoid Democrats potentially invoking the so-called two-hour rule, McConnell delayed the Senate from convening until noon Wednesday. That rule restricts Senate committees and subcommittees meetings to the first two hours of a Senate session or before 2 p.m. without an agreement, which is typically granted by unanimous consent.

It’s unclear whether Schumer’s move is part of a Democratic strategy to slow down the chamber in response to the nomination, get endangered Republicans on the record on health care in the middle of a pandemic, focus on a case that Barrett might help decide, or some combination.

The party can’t do much to stop Barrett’s confirmation, and has instead suggested to voters already casting ballots in this year’s elections that her addition could eliminate the health care law, among other court-affirmed protections like a woman’s right to an abortion.

“It’s very clear what her position is on the Affordable Care Act,” Sen. Mazie K. Hirono, D-Hawaii, said to reporters at a press conference Wednesday. “That’s why she’s being pushed in time to be sitting in the court.”

Mary Ellen McIntire contributed to this story.

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