Why the Senate Would Be an Even Higher Hurdle for the GOP Health Plan
Policy + Politics

Why the Senate Would Be an Even Higher Hurdle for the GOP Health Plan

REUTERS/Jason Reed

President Trump is facing a do-or-die vote in the House Friday afternoon in an improbable bid to win passage of a Republican plan to repeal and replace the Affordable Care Act in the face of strong resistance from the conservative Freedom Caucus and more moderate Republicans.

Yet, even if Trump and House Speaker Paul Ryan (R-WI) were to pull out a victory with the American Health Care Act, the controversial measure brimming with last-minute side deals to sweeten the pot would face an even tougher challenge in the Senate.

Related: Trump Prepares His Plan B If Health Care Reform Fails

Senate Majority Leader Mitch McConnell (R-KY) has promised swift action on the plan if it reaches the upper chamber. McConnell is eager to resolve the health care battle as soon as possible to make way for the debate and vote on Supreme Court nominee Neil Gorsuch before a spring recess. But as many as a dozen or more Republican senators – both hard-edged conservatives and moderates – have either come out against the House GOP plan or are leaning heavily against it.

The Republicans currently hold a narrow 52 to 48 seat majority in the Senate, with the Democrats united in opposition to the plan. That means that McConnell can afford to lose no more than two Republican senators and still pass the bill, assuming that Vice President Mike Pence, the presiding officer, casts the tie-breaking vote to approve the plan. By contrast, House Republicans could afford to suffer 22 defections and still prevail in the floor vote.

The ever-evolving House GOP plan would repeal most of the Obamacare mandates, taxes and subsidies and replace them with a new approach, including a system of refundable tax credits tied to beneficiaries’ age. The plan would also freeze and roll back expanded Medicaid coverage for the poor under the Affordable Care Act and would overhaul how states funnel Medicaid funding to the states.

In an effort to gain additional support from conservatives, House leaders have proposed a number of late-inning amendments, including a work requirement for able-bodied adults receiving Medicaid and a measure repealing Obamacare’s requirement that insurers cover 10 “essential” medical services.

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But the plan has come under withering fire in the Senate from all sides.  

Staunch conservatives -- including Sens. Ted Cruz of Texas, Rand Paul of Kentucky, Mike Lee of Utah and Tom Cotton of Arkansas -- don’t think the plan goes far enough in rapidly repealing Obamacare mandates and taxes. Paul has dismissed it as “Obamacare Lite.”

Meanwhile, moderates -- including Susan Collins of Maine, Lisa Murkowski of Alaska and Rob Portman of Ohio -- worry that the bill will ultimately strip tens of millions of Americans of their health insurance under Obamacare and expanded Medicaid and that premiums will end up being much higher than the House Republicans promised.

“This is not a bill I could support in its current form,” Collins told the Portland Press Herald this week. “It really misses the mark.”

The latest analysis of the plan by the non-partisan Congressional Budget Office warns that as many as 24 million Americans would be without health care coverage by 2026 if the repeal and replacement plan became law. The analysis released on Thursday also reaffirms an earlier finding that premiums on average would be 15 percent to 20 percent higher in 2018 and 2019 under the plan, before beginning to drop.

However, the report provides an incomplete picture because the CBO didn’t have time to include a number of last-minute deals struck by Trump and Ryan to try to win passage in the House, including some that might further reduce the number of Americans with coverage down the road or add to the overall cost of the program.

Related: Trump and GOP Flailing as Obamacare Repeal Stumbles

According to Politico, senior Senate Republicans are dubious that the House GOP plan could survive a test in the Senate – both because of the strong opposition within the party and parliamentary landmines that could blow up in the Republicans’ face during the floor debate.

Republican senators have largely watched from afar as House Republicans engaged in internecine warfare over the health care replacement plan, while more quietly debating an issue with profound political implications heading into the 2018 mid-term elections.

Senators from both sides of the aisle have complained that Ryan and Trump have been hasty in pushing for swift passage of a bill, with little understanding about the long-term effects it might have on the health care system. “It’s more important to finally get health-care reform right than to get it fast,” Cotton has said repeatedly.

Related: Costs, Coverage of Latest Health Bill Revision a Mystery as Vote Looms

Unlike in the House, where the leadership can pretty much dictate the rules to be followed in debating legislation, the Senate is encumbered by scores of long-standing rules that can ensnare controversial legislation and open the flood gates to challenges.

Republican leaders chose a fiscal 2017 budget resolution as the principal vehicle for passing legislation to repeal and replace Obamacare because it would enable them to invoke special “reconciliation” provisions in the Senate to circumvent a Democratic filibuster and pass the legislation with a simple majority. Without reconciliation, Republican leaders would have to amass a 60-vote super majority to pass the major legislation – an impossible task with the Democrats united against it.

The Congressional Budget Act of 1974 permits the use of reconciliation for budgetary and fiscal measures that impact the size of the deficit or surplus, as in the case of major tax bills or long-term budget agreements. However, the so-called “Byrd Rule,” authored by the late West Virginia Democratic senator Robert Byrd, allows senators to object to elements of the legislation that either significantly increase the deficit over a ten-year period or are “extraneous matters.”

Those extraneous matters can include such things as measures that do not result in a change in spending or revenues that only incidentally impact outlays and revenues or that are deemed outside the jurisdiction of the budget committees. Senate Minority Leader Chuck Schumer (D-NY) and other Democrats have vowed to invoke the Byrd Rule to challenge some of the last-minute add-ons to the House bill that were aimed at placating conservatives.

A likely prime target for the Democrats would be the amendment negotiated by President Trump that would end the insurance mandates in the Affordable Care Act that require that requires health care plans sold to individuals cover 10 essential services, including maternity care, mental health and addiction treatment, prescription drugs and preventative care.

Other likely targets for challenge include a proposed ban on federal funding for Planned Parenthood and a work requirement for many able-bodied adults receiving Medicaid coverage for the poor. If the Senate parliamentarian rules in the favor of the Democrats on any of these challenges, the Republicans would have to muster at least 60 votes to override the ruling – an impossible feat given the stark partisan divide in the chamber.