Will Obamacare Ever Be Safe?

Senate Finance Committee Chairman Orrin Hatch of Utah held a hearing on the Graham-Cassidy health care bill yesterday despite declaring, “Everybody knows that’s going to fail.” Why did he bother?

Here’s about 95 percent of the explanation.

Senate Majority Whip John Cornyn (R-Tex.) did not rule out the possibility of holding a vote on the [Graham-Cassidy] proposal despite clear signs that it did not have sufficient support to pass. Many Republicans feel pressure from voters to keep pushing to repeal the ACA before moving on to other issues.

“There are a lot of people who want to vote yes and be recorded as voting yes,” Cornyn said, adding that the Republican conference would decide the matter Tuesday, when lawmakers will meet for the first time since leaving for recess last week. “I think there is some advantage to showing you’re trying and doing the best you can.”

In truth, the entire Republican strategy since the repeal effort first failed in early spring has been to get some advantage out of “showing” that they’re doing “the best they can.” I can’t say who among the Republican leaders allowed themselves to believe that they might actually succeed, but I can say rather confidently that this has been a major effort at passing the buck and avoiding consequences. It has also repeatedly provided opportunities for scores of Republican lawmakers to record a vote in favor of bills that they desperately and secretly hoped would never become law.

When Paul Ryan realized that he could not pass an Obamacare repeal bill out of the House, he was at first inclined to give up. But when he realized how unacceptable that would be, his new goal was to transfer the blame for failure to the Senate. To that end, he convinced his caucus to pass a bill that very few members thought was any good, based on assurances that the bill would either die in the Senate or come back in such an altered form that it didn’t matter what the House had originally proposed. This argument won over moderates and hardliners alike, and it succeeded in taking the pressure off Ryan and putting it on McConnell.

McConnell couldn’t pass anything either, and he was also inclined to give up. But the pressure was so great that he pushed forward with a bill he called the “skinny repeal.” He attempted to get the House to promise not to pass it. This was important because he had no way of getting the votes he needed from his own caucus if the thing had any chance of actually becoming a law. But Ryan knew a skunk when he smelled it, because he had tossed the skunk to McConnell in the first place. So Ryan made a very lukewarm promise that convinced no one, and the bill thus became something close to useless. McConnell didn’t want to live with the consequences of throwing 25 million people off their health insurance. He just wanted a bill that would pass his chamber and die in the other one. That’s also what the deciding votes in his caucus wanted. His bill failed because the risk was too great that the House might just be crazy enough to vote for it.

Personally, I don’t think the House would have voted for it, but we’ll never know.

It should have ended there, but the pressure was still too high, which is why the Graham-Cassidy thing happened. Officially the effort was humored, still on the basis of “showing” that they were making their best effort. In reality, the Senate leadership was annoyed that more energy was being diverted away from tax reform and a lengthy list of must-pass legislation.

Where does Graham-Cassidy stand today? Yesterday, Sen. John Kennedy of Louisiana was quoted saying, “I think we need to move onto tax reform. I think this bill’s dead.” And it almost definitely is. It was just for show anyway, and the show is almost over.

But the base simply doesn’t understand why a Republican president and a Republican Congress could not repeal Obamacare, and that means that no one wants to admit defeat. So the next stage in this game is to raise the prospect that they’ll try again.

Now, I have written about budget reconciliation, Obamacare, and tax reform many, many times. I really don’t want to do it all over again. But I have to address the latest reporting that the Republicans might use the process once again in another effort to repeal Obamacare.

The common wisdom is that the repeal effort will essentially expire with the end of the fiscal year on September 30th.  This is because the process they’ve been using to avoid a filibuster in the Senate is tied to last year’s budget bill that was supposed to authorize spending for this year.  The Senate parliamentarian recently ruled that they can’t keep using a budget bill past the end of the fiscal year for which it applies.

What some Republicans are suggesting is that this is really a fake deadline because they can just go ahead and attach the same budget reconciliation instructions to the next budget for the next fiscal year.  And technically, of course, they can do that. But there’s a big problem, and I am going to cheat and have the Center on Budget and Policy Priorities explain it to you:

How Many Reconciliation Bills May Congress Consider Each Year?

Under Senate interpretations of the Congressional Budget Act, the Senate can consider the three basic subjects of reconciliation — spending, revenues, and debt limit — in a single bill or multiple bills, but it can consider each of these three in only one bill per year (unless Congress passes a second budget resolution). Consequently, in the Senate there can be a maximum of three reconciliation bills in a year, one for each of the basic subjects of reconciliation.

This rule is most significant if the first reconciliation bill that the Senate takes up affects both spending and revenues. Even if that bill is overwhelmingly devoted to only one of those subjects, no subsequent reconciliation bill can affect either revenues or spending because the first bill already addressed them.

That explanation should be simple, but it’s not. First, there’s that parenthetical aside about “unless Congress passes a second budget resolution,” which sounds like an easy out. But it’s actually a reference to the Republicans’ plan to pass two budget reconciliation bills this year, something that has never been done before. It was only possible because Congress passed no budget at all last year, so they were able to use the shell of last year’s budget to create the reconciliation instructions for repealing the Affordable Care Act. The plan was to follow that up by attaching budget reconciliation instructions for tax reform to this year’s budget. For several reasons, the Republicans won’t have the option of passing two budgets next year. Using that trick (see below) was a one-time offer.

The second complication relates to the reason they went to these lengths to set up this unprecedented and convoluted process up in the first place. They needed to have one budget for repealing Obamacare and one budget for tax reform because they’re not allowed to have more than one budget reconciliation bill in a single year that affects both spending and revenues. The only way around that was to pass two budgets in a single year, which obviously makes no sense but was possible because the first budget was only an empty shell.

What they never seriously considered was that they could avoid all this nonsense if they just combined Obamacare repeal and tax reform into a single large bill. For one thing, they wanted the Affordable Care Act repealed quickly and they knew tax reform would be a long process. For another, it’s kind of an insane idea to combine two totally different pieces of major and incredibly difficult legislation. But that’s what their fallback plan is now.

Here’s how it could be done: While the Senate parliamentarian has ruled that the repeal push under fiscal 2017 must die after Sept. 30, Republicans could provide reconciliation instructions for both health care and tax reform in the fiscal 2018 budget resolution that Congress must pass to again unlock the fast-track procedural powers. That might entail some procedural hurdles, but one GOP aide said Monday that because the Finance Committee has jurisdiction over about 95 percent of health care policy, “it’s not like we couldn’t slip it in anyway.”

That part in there about “fast-track procedural powers” is primarily a reference to the filibuster and how to avoid it. Now, as I said above, it’s technically true that the Republicans can lump Obamacare repeal and tax reform together in one big package with special rules that allow them to avoid any compromise with the Democrats. But then both bills will live or die together. If the Obamacare parts of the bill are opposed by three or more Republican senators, then the tax reform won’t pass. And if the tax reform is opposed by three or more Republican senators, then the Obamacare repeal won’t pass. Each bill can become a hostage for the other, which would greatly complicate the Republicans’ efforts to get the votes they need.

This is what Finance Committee chairman Orrin Hatch is obliquely referring to here:

“We’ve got to do both,” Senate Finance Committee Chairman Orrin Hatch (R-Utah) said of tackling both Obamacare repeal and tax reform next year. “They’re complicated by necessity. So I don’t think [bundling them] takes away the complications. But I think we’re supposed to be able to handle complications.”

Hatch added, however: “If it’s used to screw everything up, I’m not for that.”

It’s an odd quote, right? He says that they have to combine tax reform and Obamacare repeal in next year’s budget reconciliation instructions and that even though it will be complicated, they should be able to handle it. But then he acknowledges the likely truth of the matter, which is that it’s a stupid idea that would doom both efforts. To top it off, he’s the chairman, so if he is “not for that,” then it shouldn’t happen. Yet he’s saying that it has to happen.

This is an indication of how paralyzed the Republicans have become on this issue. And it’s only one indication.

Remember that the entire premise here is that the congressional Republicans will succeed, unlike last year, in passing a budget. Without a new budget, there can be no new budget reconciliation instructions and therefore no vehicle for passing bills that are not subject to the legislative filibuster.  So far, it’s not at all clear that the GOP can achieve consensus on a budget. The prospects are complicated by this new dispute:

Sen. Lindsey Graham (R-S.C.), the namesake of the GOP’s latest repeal effort which is now opposed by at least three Republican senators, has already vowed to vote against a budget resolution that doesn’t allow for the health care battle to go on. So has Sen. Ron Johnson (R-Wis.), another lead backer of the Graham-Cassidy bill. With just 52 GOP senators, Senate Majority Leader Mitch McConnell (R-Ky.) can only afford two defections on a budget measure.

The more acute problem for Senate GOP leadership is that both Graham and Johnson sit on the Senate Budget Committee, where Republicans hold just a one-seat majority. If Graham and Johnson both follow through on their threat, they would tank next year’s budget measure — and tax reform — even before it hits the Senate floor.

“My preference obviously would be to pass [Obamacare repeal] this week,” Johnson said. “But if that’s not the case, I agree with Sen. Graham. We’re both on the Budget Committee and we’ll insist on passing a budget that would have reconciliation instructions for both tax reform and health care reform.”

It’s obvious that Republicans have known for months that they were unlikely to ever bridge their differences on Medicaid expansion and come up with a palatable repeal bill. They’ve been desperately trying to convince people that they “did their best” and move on to tax reform. Now we have two Republican senators on the budget committee who are insisting not only that the battle continue, but that the fate of tax reform be tied to the fate of Obamacare repeal. And they seemingly have the power to force the leadership’s hand. If nothing else, their threat is going to deny the leadership’s ability to sell the idea that they’ve made every effort at repeal.

It’s a nightmare. And it’s even more complicated because way back in August, the administration essentially admitted that a successful tax reform would have to be done through regular order, meaning that it would have to involve concessions to win eight Democratic votes in the Senate. McConnell has ignored their advice and instructions and plowed ahead with his effort to use budget reconciliation. In doing so, he effectively admitted that health care reform was dead even before he lost his “skinny repeal” vote. McConnell also admitted back in early July that “if his party fails to muster 50 votes for its plan to rewrite the Affordable Care Act, it will have no choice but to draft a more modest bill with Democrats to support the law’s existing insurance markets.” That’s what Sens. Lamar Alexander and Patty Murray were working on when the Graham-Cassidy bill upended their apple cart.

And guess what? Insurance companies have until Sept. 27th, which is tomorrow, to decide whether to participate in the Affordable Care Act markets next year. Now they’ll have to make that decision without the benefit of a bill that shores up the exchanges and without any clarity about whether such a bill will be forthcoming. McConnell said he’d have to shore up the markets and then failed to do so by the deadline.

Now, if the Republicans fail to pass a budget again, maybe they can use the shell of a budget for their reconciliation instructions, just like they did last year. The problem with that is that the only way they got the Freedom Caucus to vote for a fake budget in January was to promise them they would not be asked to do so again. That’s why it’s highly unlikely that they will be able to do anything without a real budget this time around, and also why they likely cannot attempt to pass two budgets in one year for the second year in a row.

All of this could theoretically be clearer, and I’ve “done my best” here, but the truth is that it doesn’t quite add up because the Republicans’ strategy has never added up. You can’t understand what they’ve done or what they’re trying to do by examining procedure. They’re motivated by the fanatical desire to avoid compromise at all costs. They’re motivated by the desire to accomplish impossible things. And they will go to almost any length to avoid an accountability moment where they have to concede their mistakes or admit that they’ve been making false promises. They lie to themselves and each other almost as much as they lie to us, and most of them begin to believe their own propaganda.

The White House wants tax reform done under regular order but McConnell won’t allow it. McConnell wants to get past Obamacare repeal, but his base won’t allow it. They need a budget to do either of those things, but his own caucus won’t pass one. He needs to shore up the insurance markets, but he can’t do that either.

I suspect that Graham and Johnson will eventually back down and support a budget that doesn’t address Obamacare repeal. They’ll do it so that McConnell can pursue a partisan tax reform that the White House thinks is doomed and doesn’t want. But it’s pretty hard to figure out what will happen because the main players have no idea what they’re doing or how to work together. And they all want to avoid accountability past the point where it can be avoided.

I’d like to be able to tell people with preexisting conditions that they can relax, but the best I can do is point out how dysfunctional and confused the Republicans are and let people draw their own conclusions about how likely it is that they can come together to do something truly awful.

Martin Longman

Martin Longman is the web editor for the Washington Monthly and the main blogger at Booman Tribune.