Legislation & Regulation

The Heavy Hitters in the Senate as Repeal and Replace Moves On

Now it’s the Senate’s turn. The key players include Republican senators from states that expanded Medicaid and the upper chamber’s parliamentarian.

Richard Mark Kirkner
Contributing Editor

When the deciding vote was cast in the House to pass the American Health Care Act, Democrats in the chamber started singing “Na Na Na Na Hey Hey, Goodbye” to razz their Republican colleagues about their midterm election prospects. But even before Democrats sang their last goodbye, Republican leaders in the Senate had already decided they would call their own tune on health care.

What helped get the American Health Care Act over the finish line was an amendment crafted by Rep. Tom MacArthur, a New Jersey Republican, himself the subject of a contentious town hall meeting a week after the vote. MacArthur’s amendment loaded the House bill with state waivers from key ACA provisions like prohibiting insurers from charging higher premiums for pre-existing conditions and requiring coverage of certain essential health benefits. But how many states will want to take advantage of the waivers in the House bill and jump into getting involved in the vexatious nongroup health insurance market?

Not many, predicts Joseph Antos, a scholar at the conservative American Enterprise Institute, but the particulars of the House bill might give them pause. “I think states are very interested in waivers,” Antos says. “I just don’t think they’re going to be very interested in what was set up in the MacArthur amendment.”

When Wisconsin Gov. Scott Walker, a Republican, said he might be willing to seek a waiver to let insurers charge higher premiums for people with pre-existing conditions, his counterpart in Connecticut, Dannel Malloy, who is chair of the Democratic Governors’ Association, quipped, “He should run on that.”

Starting from scratch

Sen. Susan Collins of Maine

“The House bill is not going to come before us,” says Sen. Susan Collins of Maine. “The Senate is starting from scratch.”

But eventually, the MacArthur amendment may fall by the wayside or be significantly rewritten. “The House bill is not going to come before us,” Sen. Susan Collins, a moderate Republican from Maine, has said. “The Senate is starting from scratch.”

Sen. John Cornyn, the Senate majority whip who is also a member of the Senate Health Care Working Group, may have been purposely vague when he told the Hill that the health care bill would be finished before year’s end. But the controversy surrounding President Trump’s firing of FBI Director James Comey could derail efforts to craft new health care legislation—and just about everything else.

But presuming that it does go ahead, here are some of the people who are expected to play a major role in the shaping of the Senate’s health care bill:

Parliamentarian Elizabeth MacDonough. Perhaps overlooked by some, but MacDonough—not a senator but a lawyer who has held the position since 2012—determines what legislation complies with the Byrd rule, named for the late West Virginia Sen. Robert Byrd. The Byrd rule requires that legislation must only affect spending and revenue to qualify for reconciliation and a mere majority vote. Otherwise, it needs 60 votes and is subject to filibuster.

How MacDonough would rule on a Senate bill is anyone’s guess. In 2015, when the House sent over ACA-repeal legislation that would have killed the Independent Payment Advisory Board, MacDonough determined the bill did not meet the Byrd rule, effectively killing it because the Republicans did not have a filibuster-proof majority.

How far could the Senate bill go and still stay in the budget reconciliation/Byrd rule lane? Republican Sen. Mike Lee of Utah, a member of the Senate Working Group on Health Care, told the Washington Examiner that MacDonough told him that legislation could dig into the provisions that affect the private insurance market. “What I understood her to be saying is that there’s no reason why an Obamacare repeal bill necessarily could not have provisions repealing the health insurance regulations,” Lee told the newspaper.

Joseph Antos of the American Enterprise Institute

“I don’t think any of the insurance market changes in the House bill” would pass the reconciliation test, says Joseph Antos of the American Enterprise Institute.

But if certain pieces of the House bill make it into the Senate version, Antos isn’t so sure they would meet the reconciliation test. “I don’t think any of the insurance market changes in the House bill can make it through the Byrd rule,” he says. “That includes the age-rating markup moving from three-to-one to five-to-one, but it also includes the MacArthur amendment.”

At least in the early going, MacDonough’s calls as the parliamentary umpire could be crucial to the outcome of any Senate legislation. After all, even getting to 51 votes may not be something Republicans can do on their own. Planned Parenthood advocates could bail out over funding. Twenty Republican senators represent states that expanded Medicaid and getting every one of those votes could hinge on saving that program. Conservatives could balk at funding either one, which would make the votes of Democrats all the more important.

The Senate Health Care Working Group. This all-male, all-Republican group of 13 has been working on the Senate bill. Members include Majority Leader Mitch McConnell of Kentucky. It’s skewed to three conservative states with two members from each—Texas, Wyoming, and Utah. None of those states voted to expand Medicaid, from which the House bill would cut $880 billion over the next 10 years. But Mc­Connell and four other members— Rob Portman of Ohio, Tom Cotton of Arkansas, Cory Gardner of Colorado, and Pat Toomey of Pennsylvania—are from Medicaid expansion states.

Cornyn, who is from Texas, told the Washington Post that the health care working group was designed by McConnell to be a smaller group of people that represent the different perspectives and points of view in the Republican conference. “If that group can get to ‘Yes,’ then [we will] take it to the rest of the conference,” Cornyn told the newspaper.

Sens. Collins and Bill Cassidy of Louisiana. This duo introduced ACA repeal-and-replace legislation of their own, the Patient Freedom Act, back in January. Their bill would repeal the ACA’s individual and employer mandates but keep popular provisions like pre-existing condition coverage and allowing children up to age 26 to stay on their parents’ plans. It also preserves mental health and substance abuse coverage. Cassidy seems to understand that public opinion, amped up by social media, matters. He appeared on Jimmy Kimmel’s show last month and discussed “the Jimmy Kimmel test,” a reference to the late-night TV host’s tearful monologue about his infant son’s congenital heart defect and keeping health care affordable.

Collins has taken issue with several aspects of the House bill. For example, the tax credits to buy health insurance in the AHCA range from $2,000 to $4,000 annually and are based on age. Collins has said other factors need to be taken into account: “One of the problems with the House bill is that the tax credits are not adjusted for income or geographic region,” she said. “That really hurts a state like Maine where we have an older population living in largely more expensive rural areas.” She has also criticized the AHCA for giving states too much leeway in setting insurance rules.

“The difference between [the AHCA] approach and the approach in the bill that Sen. Cassidy and I have introduced is that we keep the ACA safeguards, the consumer protections for people with pre-existing conditions,” Collins said last month on one of the Sunday morning political chat shows.

GOP Planned Parenthood supporters. Collins and Alaska Sen. Lisa Murkowski have both said they would not support defunding of Planned Parenthood, which the House legislation does.

Other Republican senators from states that expanded Medicaid. This group includes Murkowski; Cassidy; Shelley Moore Capito of West Virginia, where one fourth of the population is on Medicaid; Dean Heller of Nevada, and Jeff Flake of Arizona. The latter two are up for election next year and are considered vulnerable.

A couple of Democrats. Minority Leader Chuck Schumer of New York will play a significant role just by virtue of his position as leader of the Democratic opposition.

Sen. Joe Manchin of West Virginia is another key Democrat because his state has so much riding on Medicaid. Manchin also is up for election next year and has a primary challenger, so don’t look for him to support legislation that would mean deep Medicaid cuts.

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