Senate Parliamentarian Deals GOP Repeal-Only Plan A Blow

The Senate Parliamentarian has ruled that the Senate’s bill that would repeal the Affordable Care Act without providing for a replacement cannot proceed under the Senate’s reconciliation rules, making it even less likely that the body will be able to pass any health care form bill before the beginning of the summer recess:

Several key provisions in the Senate’s Obamacare repeal and replace bill, including language targeting Planned Parenthood, may have to be stripped or could be eliminated on the Senate floor by Democrats because they don’t comply with budget rules, according to Democrats on the Senate Budget Committee.

The Senate parliamentarian advised Friday in an informal and preliminary ruling that key conservative agenda items, including defunding Planned Parenthood for one year and banning coverage of abortion in Obamacare insurance plans, do not comply with Senate rules on reconciliation, the fast-track procedure the GOP is using to repeal Obamacare.

Republicans plan to vote next week on whether to begin debate on Obamacare repeal, but it is unclear whether the Senate will vote on the repeal and replace bill. The other option for the GOP is to bring up a repeal-only measure that passed the Senate two years ago and was vetoed by President Barack Obama.

The 52 Senate Republicans would need to muster 60 votes to preserve each provision flagged by the parliamentarian for potentially violating the so-called Byrd rule. But Democrats have united in opposition to the GOP repeal effort. In addition to the Planned Parenthood and abortion language, other provisions identified by the parliamentarian would fund insurance cost-sharing subsidies and impose a six-month waiting period for individuals attempting to enroll in coverage for the first time.

The parliamentarian’s guidance — provided as part of a process known on Capitol Hill as a “Byrd bath” — amounts to a significant win for Democrats, who are aiming to eliminate as much from the health care bill as possible. But Republicans cautioned that the rulings apply to a prior version of the Senate bill, and GOP aides are already reworking some of the provisions flagged by the parliamentarian, according to one source familiar with the effort. GOP lawmakers faced similar obstacles over language eliminating Obamacare’s individual and employer mandates when they drafted the 2015 repeal bill but overcame them through rewrites.


Democrats now believe the state-specific provisions in the Senate version of the measure — including language that may benefit Alaska, Louisiana and Florida — would not pass muster, either, although sources said MacDonough has not yet ruled on those particular measures.

“Republicans have given up on good policy, so they turned to legislative giveaways instead,” said Sen. Chris Murphy (D-Conn.). “Today’s ruling by the parliamentarian means they can’t count on the Polar Payoff, Bayou Bailout, or Sunshine Sellout to do their whipping for them.”

Even without the Parliamentarian’s ruling, it’s unlikely that Senate Republicans would be able to proceed even under the more relaxed reconciliation rules that only require 51 votes, with or without a Vice-President’s tie-breaking vote. Earlier this week, McConnell was forced to initially abandon plans to vote on a repeal-only bill when he lost enough GOP votes to put him under 49 votes. This happened only hours after he had been forced to abandon a vote on the revised repeal and replace bill he had introduced shortly after returning from the July 4th recess when it too lost the support of enough Senators to fall under even the relaxed fifty vote threshold allowed by reconciliation. Despite that fact, McConnell appears committed to a plan that will mean a vote on some bill as early as Tuesday, although it’s not entirely clear which one:

Talking is no longer working. It’s time to vote.

Senate Majority Leader Mitch McConnell is taking the rare step of forcing his members to take a tough vote on an Obamacare repeal bill, H.R. 1628 (115), that is on track to fail, making them own their votes.

Senior Senate Republicans believe the high-profile vote expected Tuesday — followed by conservative backlash over the GOP’s failure to fulfill its seven-year campaign pledge — might provoke enough heat from the base to bring senators back to the negotiating table.

It seems like a long shot. But McConnell may be playing the long game — making his members walk the plank not as an act of desperation but as part of a strategy that just might work. He’s used it before to get what he wants.

If the vote fails, “I don’t think it’s over,” said Sen. John Thune (R-S.D.), a member of the Senate leadership. “We’re going to need a little longer runway to get to 50 votes on something.”

“Even if we fail on the procedural vote next week,” Thune added,” all that really does is say ‘OK, we’ll regroup and then take another run at this.'”

Sen. Rand Paul (R-Ky.), who has been demanding McConnell hold a vote on a repeal-only bill, agrees. “We can do this for quite a while,” he said.

McConnell has used this approach before. In May 2015 he forced multiple votes that ultimately granted then-President Barack Obama fast-track trade powers during negotiation of a massive Pacific Rim trade deal.

This time, the vote comes after months of discussion on repeal legislation that hasn’t garnered support from 50 senators.

If the strategy doesn’t bring senators back to the table, the vote could demarcate a decisive end to at least the public Obamacare repeal debate for some time. That would allow the Senate, which has already spent two months trying to dismantle and replace the health law, to move on and notch some legislative wins. Many are more than ready to turn to other priorities, like tax reform.

Still, holding a doomed vote is unusual for McConnell, who typically goes to great lengths to protect his members from politically difficult votes.

“Everybody has to be held personally accountable,” said Sen. John Cornyn (R-Texas), who has been furiously whipping the repeal effort. “Everybody is a good enough politician that if they’ve got a reason to justify their vote, they’ll be able to sell that.”

The vote Tuesday will be to start debate on Obamacare repeal. But it is unclear as of now which bill would serve as the actual policy — an extremely unusual move. McConnell said earlier this week the Senate would vote on a repeat of a 2015 bill that repealed much of the health care law. Since then, senators have floated the idea of voting on multiple options, including repeal, the Senate’s repeal-and-replace measure or a combination of these and other policies.

That would be moot if the Senate doesn’t even vote to start debate.

With at least two senators having announced they would oppose proceeding to the bill — and the expected absence of Sen. John McCain (R-Ariz.), who was diagnosed with a brain tumor — the vote is likely to fail without major last minute changes. Leaders have opened the door to the idea that if the margin is narrow, they could vote again when McCain could return to Washington. Given his diagnosis, it’s not clear when that could happen.

McConnell appears to be banking on the idea that Senators who voted for the repeal bill two years ago will somehow find it difficult to do so this time around, but that doesn’t appear to be the case at all. Instead, it seems likely that we’re headed for a failed vote in the Senate that will mean that efforts to ‘repeal and replace’ the PPACA will be placed on the back burner, at least for now.


FILED UNDER: Congress, Healthcare Policy, US Politics, , , , , , , , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Stormy Dragon says:

    Can’t the chair overrule the parliamentarian with a simple majority vote?

  2. OzarkHillbilly says:

    Their is no low too low for these scumball mf’ers.