Senate Steps Into The Health Care Abyss: What Happens Now?

Tierney Sneed contributed reporting. 

With an assist from Vice President Mike Pence and an appearance by a post-cancer surgery Sen. John McCain (R-AZ), Senate Republicans narrowly pushed through the motion to proceed to debate on repealing the Affordable Care Act. As they cast their votes, senators admitted to reporters that they have no idea which of many health care proposals they would be voting on in the end of a free-for-all amendment process that could last the rest of this week. But former holdouts, both moderate Republicans from Medicaid expansion states and hardline conservatives, said they relented and voted to advance into the unknown because they were promised they would have a fighting chance at passing their preferred policies in the end.

The Senate’s health care process has become a Rorschach—every lawmaker sees what they want to see in it.

But an end-product that satisfies both Sen. Ted Cruz (R-TX) and Sen. Shelley Moore Capito (R-WV) may not exist. Additionally, many of the key provisions that senators have declared necessary for winning their votes in the end have been flagged by the Senate parliamentarian as forbidden under the rules of reconciliation, meaning they would need a probably insurmountable 60 votes to pass.

Still, senators earnestly insisted to reporters following the tense, drawn-out vote that they can all get their way.

Cruz said he was promised by leadership that his controversial “Consumer Freedom” amendment would be in the Better Care Reconciliation Act (BCRA), which is one of the main bills the Senate will debate this week. But because the amendment has not been scored by the Congressional Budget Office, it would need 60 votes to pass the Senate, meaning it’s dead for all intents and purposes.

“At this point it’s not clear what the final product will be, which amendments will be adopted and which will be rejected,” Cruz admitted. “But I think the key to uniting Republicans is to honor our promise to the voters to repeal Obamacare and focus on lowering premiums.”

Sen. Rob Portman (R-OH), who has been officially undecided for weeks, also agreed to vote to proceed on Tuesday because he was promised his amendment—an extra $100 billion for insurance market stabilization—would be included in the bill. But senior members confirmed to TPM that Portman’s amendment, like Cruz’s, is likely killed by the 60-vote rule.

“The amendments that haven’t been scored yet will be subject to a 60-vote threshold, so it’s not possible during this exercise for some of the broader amendments to pass,” Sen. Bob Corker (R-TN) bluntly noted.

The parliamentarian has similarly ruled that many of the core provisions of the BCRA—from the 5:1 ratio insurers can charge older and younger patients to the 6-month lockout that encourages people to maintain health insurance—can’t be passed by a simply majority, meaning the bill that ultimately comes to the floor could look like a Swiss Cheese version of the legislation they originally drafted, published, and analyzed.

“Hey, this is a fluid process,” Sen. John Thune (R-SD) told reporters. “We don’t know what the end-game is. We’ll be discussing with our members what can pull 50 Republicans together.”

Many Republicans emphasized Tuesday that their main goal is just to pass something, anything, that can get the Senate and House to the conference stage, at which point they can theoretically hash out a new bill that would then have to pass both chambers before reaching the president’s desk.

“At the end, you end up in a situation where you vote on the lowest common denominator,” Corker explained wearily as he trooped off the Senate floor following the procedural vote. Asked if there is any one policy on which 50 Republicans can agree—seeing as all previous health care bills this year have failed to reach that threshold, he replied: “There’ll be enough votes for something.”

The “something” many Republicans discussed Tuesday that has any prayer of passing the chamber is a stripped down set of policies with the unfortunate moniker “skinny repeal”—a bill that would only repeal Obamacare’s individual and employer mandates and one if its major taxes, but leave every other regulation and the Medicaid expansion in place.

“Everybody has voted to repeal the medical device tax. Everybody wants to get rid of the mandate,” Thune said. “The question is: what is the sweet spot?”

Though “skinny repeal” would likely send the individual insurance market into a death spiral, it’s the only proposal on the table that doesn’t gut Medicaid, and thus may appeal to lawmakers like Sen. Shelley Moore Capito (R-WV) who caved and voted for the motion to proceed even though she supports neither the GOP’s repeal-and-delay or repeal-and-replace plans. In the days ahead, she said: “I’m certainly going to be putting my focus where I have before, on those in the Medicaid expansion space and those with opioid issues.”

But leaving Obamacare’s regulations and Medicaid expansion in place could lose the votes of lawmakers like Sen. Ron Johnson (R-WI), who said “it would be tough” for him to vote for a “skinny repeal” that keeps Obamacare’s insurance regulations on the books, regulations he says “artificially drive up premiums.”

He told reporters Tuesday his priorities are to “bring down premiums and make traditional Medicaid more sustainable,” two goals a “skinny repeal” would not accomplish.

Just like on Tuesday’s motion to proceed vote, any three Republicans can get together and kill any of the health care bills that come up for a vote, and there is no guarantee that any plan under consideration has the potential to pass.