Democrats on the Senate Budget Committee posted a document Friday that they say reflects the various provisions in the GOP Obamacare replacement bill that the Senate parliamentarian has ruled to be not eligible for reconciliation, the process by which Republicans can avoid a Democratic filibuster.
The Senate parliamentarian’s office did not immediately respond to attempts to confirm the parliamentarian’s rulings on the bill, which were expected Friday.
The document, according to Democrats, is the result of the so-called “Byrd Bath” — referring to Senate rule known as the Byrd rule, that imposes limits on when reconciliation can be used. The parliamentarian is tasked with making the call on which provisions comply with the rule. If they do not, they need 60 votes to pass, and Republicans only have 52 senators.
A Republican aide on the Budget Committee told TPM that the list was guidance for a prior draft and not a formal ruling from the parliamentarian. Senate Republicans also have the option of overruling the parliamentarian, but that comes at a risk of gutting a Senate norm in a way that may come back to haunt them when Democrats are back in power.
A spokesman for Majority Leader Mitch McConnell (R-KY) on Twitter resurfaced a quote from McConnell in March suggesting he would not be inclined to overrule the parliamentarian.
The provisions were from the draft legislation from June, so the fate of revisions made in later iterations of the bill — such as Sen. Ted Cruz’s controversial proposal to allow insurers to waive some Obamacare regulations — remains unclear.
Nonetheless, the list suggests that key provisions in the GOP repeal legislation are in jeopardy if the bill, the Better Care Reconciliation Act, comes to the floor. The embattled legislation has for weeks lacked enough GOP votes to pass, and the list of provisions that may need to be left out to comply with Senate rules adds another wrench in Republicans’ efforts.
Among the list of problematic provisions are anti-abortion measures that defund Planned Parenthood and ban the use of tax credits on insurance plans that cover abortion. Some conservatives have stressed that those provisions were crucial for their support.
A continuous coverage provision in the Senate bill that would serves as a lesser version of the Obamacare individual mandate is also not eligible for reconciliation, according to the Dems’ list. Insurers have stressed that imposing no penalties on people who avoid insurance will allow people to game the system.
The so-called “Buffalo Buy Out,” a provision that tampered with New York’s state Medicaid system in order to win votes of certain New York-based House members, was also deemed ineligible for reconciliation, according to the Democrats’ description of the parliamentarian’s ruling. Democrats pointed to that decision as a problem for Republicans who have since sought to make other states-specific deals to earn support for the bill. (The carve-out for Alaska in a more recent draft was not in the legislation being considered by the document).
“The ruling that will probably have the greatest effect on Republicans’ ability to pass this bill is the provision affecting New York because the parliamentarian made clear that state-specific provisions are Byrdable,” Minority Leader Chuck Schumer (D-NY) said in a statement. “This will greatly tie the majority leader’s hands as he tries to win over reluctant Republicans with state-specific provisions. We will challenge every one of them.”
Other key provisions survived the Byrd bath, the document said, including a stabliziation fund that GOP leaders are using to negotiate the support of some Medicaid expansion senators. Other parts of the legislation remain still under consideration, the document said.