Conservative GOP Sens. Ted Cruz and Rand Paul are pushing to test the limits of how much of Obamacare can be repealed under Senate rules, setting up a potential “nuclear” showdown.
The firebrands want to overturn long-standing precedent for what can be done under reconciliation, the fast-track budget process the GOP is using to dismantle the Affordable Care Act. They argue Republicans are allowing stale Senate norms to tie their hands and are forfeiting a chance to completely abolish the law.
The key factor in allowing reconciliation to proceed is whether each provision in the bill has a direct impact on the budget — a question typically put to the Senate parliamentarian, a nonpartisan staffer named Elizabeth MacDonough.
But Cruz, of Texas, and Paul, of Kentucky argue that it is up to whoever is presiding over the Senate at the time, which can be Vice President Mike Pence as president of the Senate. Under their argument, Pence could make the call about whether certain parts of Obamacare can be scrapped or whether new policy, such as allowing insurers to sell across states lines, can be enacted — and he would presumably be more aggressive than MacDonough.
“The original law says the [person in the] chair decides — it doesn’t say anything about the parliamentarian,” Paul said.
But as the Senate drafts its health care bill, Cruz and Paul are finding themselves on a virtual island. Many other Republicans interviewed by POLITICO say they have no interest in testing the Senate’s procedural bounds, arguing that doing so would undermine the institution and quickly lead to the end of the legislative filibuster.
“I don’t think it’s the best approach, and I think there would be resistance to that,” said Sen. Roger Wicker (R-Miss.). “It’s tempting, but it’s also the proverbial slippery slope.”
Most Senate Republicans liken the strategy to eliminating the legislative filibuster, which would allow most bills to become law with only a simple majority instead of the 60 votes needed today.
The potential intraparty conflict could isolate Paul and Cruz, the latter of whom — to the surprise of some colleagues — is working with other Republicans on a repeal plan as part of a 13-member working group. Any parliamentary conflict would presumably come to the fore only after a bill is written and has enough GOP support for Majority Leader Mitch McConnell to bring it to the floor.
Sen. John Cornyn of Texas, the Senate’s No. 2 Republican, said the rules are in law — so they can’t be easily overruled.
“We’re not at liberty to do that,” he said. “We can’t just change a law that way.”
Even Sen. Mike Lee (R-Utah), a frequent ally of Paul and Cruz, isn’t on board. “Sen. Lee is against it,” his spokesman Conn Carroll said.
Cruz says the strong Democratic opposition to the GOP health care plan, including policies Republicans want to implement in regulatory and legislative “buckets” down the road, should encourage Republicans to be expansive in their use of reconciliation. Republicans would need at least eight Democratic votes for any health care provisions that aren’t included in reconciliation. So far, Democrats have shown no interest in helping Republicans implement their health care plans.
“We’re not getting eight Democrats on anything,” Cruz said. “And so what I’ve been urging for the past several months is take everything in bucket three and everything in bucket two and put it in bucket one. That the only thing passing is reconciliation.”
For the Cruz-Paul plan to work, they’d need their Republican colleagues to go along. Senate Democrats would surely challenge a ruling from Pence on nonbudgetary provisions, and Republicans would need 50 or 51 votes — depending on the way the challenge is worded — to keep Pence’s ruling.
Perhaps the top policy priority for Republicans would be allowing insurance companies to sell across state lines. Senate GOP sources say they don’t believe the parliamentarian would allow that in a reconciliation bill.
But for now, it’s not important enough a goal for Senate Republicans to effectively deploy another variation of the “nuclear option.”
“I just would be concerned about the path that puts you on in terms of the future,” said Sen. John Thune (R-S.D.). “But these are all things that we’re working through, and everybody’s got different opinions and views. And so hopefully we won’t wreck the place while we’re here.”
Most other Republicans cite reluctance about overturning Senate precedent, which dictates leaving the decision to the parliamentarian.
“There’s always loose talk about overruling the parliamentarian,” said Sen. Jeff Flake (R-Ariz.). “I can’t see supporting that. I’d be hard-pressed to do that. I like precedent, custom, tradition.”
Sen. Jim Inhofe (R-Okla.), however, left the door open to overruling the parliamentarian, arguing that former Senate Majority Leader Harry Reid (D-Nev.) started the process of unwinding Senate rules when Democrats lowered the threshold for most presidential nominations from 60 to 51 votes in 2013. Last month, Republicans nuked the filibuster for Supreme Court nominees to confirm Neil Gorsuch.
“You can overrule the parliamentarian with a vote. That’s what we did before. It’s something we can do. Whether it’s proper or not is the other thing,” Inhofe said. “Now, if Harry Reid had not taken the action that he took, then that would’ve been in my opinion improper to do that. But since he did, we’re doing what he did.”
Burgess Everett contributed to this report.