Thursday, June 22, 2017

What to expect in the Senate on healthcare

The Senate will finally unveil its Obamacare "replacement" today (note the sarcastic quotation marks, given that they can only do a partial repeal under budget reconciliation rules...), and we have gotten some leaks about what will likely be in it, but it is worth spilling some more virtual ink about the current state of the politics.

The quick recap of how my assessments have vacillated is as follows: after John Roberts declared the individual mandate in the ACA to be Schrodinger's tax (see my comments in the other day's post on gerrymandering), and Obama won in 2012, I thought that Obamacare was basically safe because no major entitlement program has ever actually been repealed after going into effect, legislatively.  Once Trump won, I wondered here whether or not King Louis XVI would convince the GOP that they actually could get away with repealing an entitlement program because, hey, if you can get away with grabbin' 'em by the pussy, why not?

As the politics have played out, there have been three main obstacles for the GOP:

1)  Breaking up the Collins-Cassidy coalition.  Susan Collins and Bill Cassidy came out with a replacement proposal early on, and while it was obvious all along that if the GOP was going to appease House conservatives, they would need to throw Collins overboard, they couldn't afford to lose both Collins and Cassidy.  The Senate can only afford to lose Collins and Murkowski.  Any other GOP Senators who vote no cause the whole thing to fall apart.  So, breaking up that political marriage was going to be critical.

2)  Getting Portman, Capito and Gardner to back down on their demands to keep the Medicaid expansion.  Early on, these three (along with Murkowski, but she's with Collins, so the GOP were probably going to give her the shaft to keep the House conservatives happy anyway) signed a letter saying that the House version was too harsh on cutting the Medicaid expansion.  There was no way, mathematically, to pass a bill without them, so getting anything through required getting them to back down entirely.

3)  Either getting the Senate parliamentarian to play funny games with reconciliation rules on health insurance regulations, or getting House conservatives to back down on their demands to cut regulations...  I'll get to that momentarily.

4)  Getting something through conference.

The GOP looks like it has managed 1 and 2.  Cassidy hasn't made much noise, and Collins looks to have been successfully sidelined.  If she was going to push her version with Cassidy, she needed to do so much more aggressively.  Instead, she did jack fucking shit, and she's out of the game.  Cassidy will back whatever McConnell puts out today.  1 is done.  Portman and Capito also caved on their demands.  They basically said that as long as the Medicaid expansion is phased out a little more slowly, they're fine.  My guess is that the Freedom Caucus can probably live with that.  2 is done.  I don't see any policy-based obstacles to 50 votes, grumbling aside.  I could be wrong on this, but all of the incentives line up for 50 votes for something.  That doesn't mean they all line up for 50 votes on something that the House can pass, and I'll get to that too, but I'm talking about incentives right now.

As I have written before, though, there is no strategic game that can be played with the parliamentarian, who is just some bureaucrat.  The parliamentarian rules on whether or not changing or repealing Obamacare policies on health insurance regulations are "budgetary."  If a law says that insurance companies must offer coverage to people with "pre-existing conditions," and a new bill changes that, how do you argue that the provision is budgetary?  Yeah, kind of a stretch, and if the parliamentarian says no dice, this whole thing falls apart.  McConnell's only tool there is to declare the parliamentarian wrong, hold a majority vote to declare him wrong, and pass something that way, but that's a version of the nuclear option.  That's really dangerous.

And if the Senate can't get the parliamentarian to go along, then either the House (specifically, the Freedom Caucus) has to back down, or the whole thing falls apart, which brings me to 4.  We still have no idea whether or not anything can get through a conference committee, where the House and the Senate try to reconcile (yes, the same term as "budget reconciliation") their versions of the bill, and then pass a reconciled version through each chamber.  The Freedom Caucus could still throw a shit fit, and vote down a reconciled version.

Of these problems, the biggest one remaining, as I see it, is still 3.  The Senate parliamentarian is the one who decides whether or not changes to insurance regulations are budgetary.  If the parliamentarian says no, then this all falls apart, because I don't see the Freedom Caucus backing down on their demand to repeal the regulations.  After all, they blocked passage of the first version of Trumpcare/Ryancare/Whatevercare in the House because it didn't have that stuff.  So, if the parliamentarian says no to the regulation changes, then McConnell has to strip them from the bill, or they can't use reconciliation, meaning the bill is subject to a filibuster.  That means the provisions needed to get a bill through the House make the bill unable to get through the Senate under Senate rules, and the whole thing is doomed.  No amount of deal-making can cut through that process.  It is all on the Senate parliamentarian, unless McConnell is willing to go nuclear, and over-rule the parliamentarian on a party-line vote.

So, where do things stand?  In the hands of the Senate parliamentarian.  As far as I can see, any objection being raised by any Republican, save Collins or Murkowski, is just bluster right now, and the GOP can lose both and still pass the bill.  Then, even if the parliamentarian okay's the regulation changes, we'll see how amenable the Freedom Caucus is to deal-making.  Really, though, pay no attention to the bluster of Senate Republicans right now.  Wait for the parliamentarian.  After all, if Portman and Capito have already backed down, I don't see much other substantive opposition in the Senate.

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