There are lots of things brewing in the House's version of Trumpcare, which has now passed out of both the Energy and Commerce and Ways and Means committees, that are going to be a big problem for the Senate. Like the newly emerged plan from the extremists, designed to attract Freedom Caucus maniacs, to screw over people on Medicaid and the states they live in now instead of in two years. That's not going to go over well. There will be a lot of those kinds of things, probably, that crop up in amendments. But there's one big thing that even Paul Ryan has kind of acknowledged. They are using the process called budget reconciliation to pass the bill. They're doing that because it only takes 51 votes in the Senate—it's not subject to a filibuster.
There's what could be a fatal flaw in the bill because of that, one you'd think Paul Ryan would have been enough of a wonk to recognize as such when he drafted the thing. When a bill is considered under budget reconciliation, the Senate rules say, all the changes have to have direct impact on the federal budget. One big one doesn't, as Sen. Chris Murphy points out.
That's the 30 percent surcharge the bill allows on the first year of premiums for people who are signing up after their insurance lapsed. That's what Republicans are using in place of the individual mandate in Obamacare that makes people who haven't signed up for insurance pay what's basically a tax. That's federal revenue—it's related to government spending. The Trumpcare surcharge is not—it's paid to private companies, and under the Senate rules, is subject to a 60-vote threshold.
There are a couple of other problems with the bill, as identified by Sarah Kliff, once it gets to the Senate. In addition to this one, the provision that allows companies to charge older people as much as five times more for insurance is a regulatory thing, not a budget issue. The other one is Planned Parenthood defunding, which Republicans could argue is related to federal spending by saying it's preventing federal spending from going to an organization, but that's kind of a stretch. Here they run up against another problem—existing law that's very recently been upheld in a number of states that says individual providers can't be banned from getting Medicaid unless they've committed fraud or endangered patients.
These things are overseen by the Senate parliamentarian, an independent sort of overseer of the rules. Democrats can—and undoubtedly will—challenge these provisions to the parliamentarian who determines whether or not something can proceed under the reconciliation rules. If she decides that it can't, there's a way around it for the Republicans. They can choose to break the rule—they can overrule her and proceed on their merry way. As Kliff points out, Sen. Ted Cruz (R-TX) who loves to throw his bombs, has advocated for just that, which tells you that it's a kind of radical approach.
Congressional procedure experts Sarah Binder and Greg Koger tell Kliff that it is "incredibly rare for the parliamentarian to be overruled. Binder couldn't think of a recent example. … 'It is a norm,' says Koger. 'And everybody understands there are costs to violating the norms.'" We might just soon see how committed Mitch McConnell is to blowing up the Senate.