The world’s greatest deliberative body has some really strange rules. Many of these rules can be easily conflated, especially when referring to a “simple majority” which is comprised of only 51 votes. Since there are now 52 Republicans in the U.S. Senate and the effort to repeal Obamacare has reached a fever pitch, I thought it apropos to help clarify the difference between two of the most conflated U.S. Senate rules. They are the “Nuclear Option” and the “Byrd Rule”. The former is used for presidential appointees and the latter is used to pass or repeal laws. Although the two are similar, the latter is a much more difficult rule to follow because it involves the interpretation of the Senate Parliamentarian. Her name is Elizabeth MacDonough. Below I will address some common misconceptions in an effort to clarify the difference between these two rules.
“Republicans got a full repeal bill through in 2015! Why can’t they do the same thing now?”
No, they didn’t. Those who argue that they did need to understand that the 2015 supposed ‘full repeal’ legislation DID NOT PASS the Senate as it was written. Why? Because the Senate Parliamentarian (Elizabeth MacDonough) blocked repeal of IPAB and other non budgetary items because they were considered non budgetary in nature and as such stricken by her as extraneous. Why was Senator Cruz forced to follow the Byrd Rule via Budget Reconciliation in 2015? Because a FULL repeal vote would have required 60 votes in the U.S. Senate under Rule 22 which would require 8 senate Democrat votes which we DID NOT HAVE THEN and we DO NOT HAVE NOW. This is the necessity of following the same rules to pass the Senate’s “Better Care Reconciliation” Act.
“Just shove it through using the Nuclear Option!” Fantasy versus REALITY.
The other bogus argument is that we can just “use the Nuclear Option” to “shove it through“. This is NOT possible because the “Nuclear Option” used most recently by Harry Reid to shove through former President Obama’s judicial appointees IS NOT USED to pass LEGISLATION. A SEPARATE senate rule was created to pass legislation passed with only a 51 vote simple majority. It’s called the Byrd Rule (mentioned earlier) which is how we were going to attempt to pass the American Health Care act. This brings us to the next fantasy “well let’s just change the Senate rules then!” Changing a Senate rule requires 67 votes which would require 15 Democrat votes in the Senate which we also DO NOT HAVE.
And lastly, the total fantasy argument being made which says Mitch McConnell should just render the 60 vote majority rule or the 67 vote rule to change Senate rules “unconstitutional” which according to this fantasy requires only a simple majority vote (at least 51 Republican senators). In order to make this fantasy a reality, those who propose it actually believe that we would somehow get the support of John McCain and his life partner Lindsey, Jeff Flake, Susan Collins, Lisa Murkowski, Rob Portman, Shelley Moore Capito and Cory Gardner (the last four want to KEEP Medicaid expansion under Obamacare). If you REALLY believe that’s possible, I have some ocean front property in Arizona to sell you.
So, we have to live within the REALITY of how the U.S. Senate works. That’s WHY the Budget Reconciliation process is being used in an effort to pass the “Better Care Reconciliation Act” which if passed will provide desperately needed relief to millions of Americans who are suffering under Obamacare, even though it isn’t a ‘full repeal‘ bill.
Why can’t we just shove it through like the Democrats did in 2009 via Reconciliation?
Because that didn’t happen. The Democrats had 60 votes to pass the Patient Protection and Affordable Care Act (Obamacare). They met the 60 vote threshold. That bill passed with 60 votes. It was sent back from the Senate to the House and it was signed by former President Obama on March 23, 2010. Where they used reconciliation was shortly thereafter to add things to the PPACA and that bill was also restricted to budgetary items and they had more than a simple majority to pass it at the time. So they were restricted by the same Senate rules as we are today. The difference is they simply had larger majorities in the Senate at that time than we do now.
There is merit to Senator Ted Cruz’s idea of replacing the Senate Parliamentarian
There is one idea that might actually work and it comes from the brilliant legal mind of Senator Ted Cruz. After tangling with the Senate Parliamentarian back in 2015 when she stripped non budgetary items from what was originally a ‘full repeal‘ bill, Senator Cruz came up with the idea of REPLACING Elizabeth MacDonough (Senate Parliamentarian) with Vice President Mike Pence so that items that were non budgetary in nature may actually pass since they would now have to pass muster of Mike Pence and not her. The question is would Mitch McConnell allow this? He used the “Nuclear Option” earlier this year to seat Justice Neil Gorsuch on the U.S. Supreme Court so he is certainly no stranger to “extreme” Parliamentary maneuvers. If Senate Republicans can’t come to an agreement soon on a final bill, we may just find out how far he’s willing to go.