The bizarre traditions and norms of the United States Senate will be on display today in a manner that they rarely are, as members of the chamber gather to consider advancing legislation that would repeal, or repeal and replace, or slightly alter the Affordable Care Act -- nobody really knows.
Senator John McCain of Arizona, recently diagnosed with an extremely aggressive form of brain cancer, will be flying in to Washington today to help shore up Senate Majority Leader Mitch McConnell’s shaky majority, which at this point will be able to declare an interim victory if it can hold together long enough to cast a vote to even start talking about an ACA replacement.
Much of the criticism being leveled at McConnell over his handling of today’s expected vote is at least slightly unfair. The complaint is that senators are being asked to agree to debate on a bill without knowing what that bill is. But that’s not precisely true. To understand this, it helps to step back and look at how any debate over a health care bill is likely to play out.
On its face, the battle over whether to even begin discussing a measure seems profoundly undemocratic. In a chamber that bills itself as “the world’s greatest deliberative body,” one would expect the default position to be a preference for open debate.
The vote McConnell will call this afternoon, on a measure known as a motion to proceed, requires a bare majority of Senators under the expedited “reconciliation” rules that McConnell is trying to use to fulfill the party’s long-held goal of repealing and replacing the ACA. (Outside the reconciliation process, the measure would be subject to a Democratic filibuster requiring 60 votes to block, a threshold McConnell couldn’t possibly clear.) With a 52-48 majority and the knowledge that Vice President Mike Pence can be relied on to break a 50-50 tie in his favor, McConnell can only afford to lose two votes.
Opponents are looking to rally support for blocking the vote on the suggestion that the Kentucky legislator is trying to manipulate his colleagues into voting for some secret plan that he has stashed in his back pocket.
But in truth, it’s almost certain that what McConnell will ask his colleagues to begin debating is a piece of legislation that is widely known: the House-passed American Health Care Act.
It’s what happens after debate begins that has people worried.
If the AHCA were coming to the Senate floor for a vote on final passage, its failure would be a near certainty. But that’s not how the Senate operates. Once the debate on the bill begins, members of the Senate will be free to offer amendments to it. And the first of them is likely to come from McConnell himself as an amendment “in the nature of a substitute.”
That is to say, McConnell’s plan is to open debate on the House bill, but to immediately try to gut that bill of everything except its title, and replace it with new legislation crafted by the Senate. That’s what some Senators who have considered blocking the motion to proceed are concerned about.
There are multiple possible replacements, and if McConnell and his leadership team are able to open debate, members of the Senate may see more than one of them. They range from a measure that would repeal huge swathes of Obamacare without replacing them to comparatively mild changes to the law that leaves many of the ACA’s requirements and structures in place.
All of them would drastically cut Medicaid, and while they would reduce health insurance premium payments on average, they would raise out-of-pocket obligations for deductibles and increase the number of Americans without health insurance by more than 20 million after a decade.
None of those bills has clear majority support in the Senate, but the members of the GOP most likely to block a motion to proceed are worried about McConnell’s ability to cobble together 50 votes once the process begins.
One method, for example, would be to call for votes on each of the various replacement proposals that have been floated in the past several months, beginning with the least popular. This, in theory, could create a series of votes in which senators who are concerned about their relationship with party leaders as well as their constituents health care needs, could gain political cover.
McConnell could allow some members to vote down multiple alternatives in favor of “improved” bills to create a narrative in which members are seen as bucking their leaders until they obtain a better deal for their voters.
The process, however it plays out, will be a fraught one. Some of the potential replacement measures have yet to receive budget scores from the Congressional Budget Office -- an ostensible requirement in the Senate before a vote on final passage. It is also unclear whether the proposals all comport with the rules of the reconciliation process, which is limited to bills that directly affect federal spending, and which have a demonstrable connection to the policy measure being debated.
(For example, a plan to slash funding for Planned Parenthood, contained in several versions of the Senate bill, stands a good chance of being disallowed by the Senate Parliamentarian.)
However, as the Senate lumbers toward a possible vote, it’s important to remember that whatever happens today is almost certainly not the end of the story.
For a bill to become law, the House and Senate must agree on identical language, and the bill that passed the House is almost certainly unacceptable to a considerable majority of the upper chamber. If the Senate passes something different from the AHCA, the two houses would have to come together in a conference committee to agree on common language.
On the House side, though, the AHCA passed with the slimmest of majorities, and members dragged along reluctantly have made it plain that dramatic changes in the Senate version will likely cost their support.
This is not to say that the Republican effort to repeal and replace the ACA is dead -- only that for all the attention today’s drama in the Senate is going to get, it’s still not even close to being the final stage of the process.