Friday, May 5, 2017

Don’t Count on Senate Rules to Save Obamacare

Many people are counting on the Democrat’s invocation of the Byrd Rule in the Senate to save Obamacare.  What’s the Byrd Rule?  

Adopted as part of the Congressional Budget Act of 1974, the Byrd Rule—named after then Senator Robert Byrd of Virginia—allows a senator to block legislation or parts of legislation from being passed with 51 votes rather than 60, if the legislation or item in the legislation is “extraneous” to the Federal budget.  The Byrd Rule states that a item is “extraneous” if it meets one of more of the following conditions:
  1. if it does not produce a change in outlays or revenues;
  2. if it produces an outlay increase or revenue decrease when the instructed committee is not in compliance with its instructions;
  3. if it is outside the jurisdiction of the committee that submitted the title or provision for inclusion in the reconciliation measure;
  4. if it produces a change in outlays or revenues which is merely incidental to the non-budgetary components of the provision;
  5. if it would increase the deficit for a fiscal year beyond those covered by the reconciliation measure, though the provisions in question may receive an exception if they in total in a Title of the measure net to a reduction in the deficit; and
  6. if it recommends changes in Social Security.


A number of provisions in the bill the House recently passed to “repeal and replace” Obamacare, very likely will not pass the Byrd Rule tests.  In particular, the provision to allow states to seek waivers from some of the Obamacare regulations probably violate the Byrd Rule since waivers don’t produce a change in outlays or revenues or if they do, the changes are merely incidental to the non-budgetary parts of the legislation.  Since the waivers are key to the Republican strategy to unravel and kill Obamacare, a ruling by the Senate Parliamentarian that they don’t pass Byrd Rule muster and must be stricken from the bill in order for it to pass without 60 votes and the Democratic Party support would gut the Republican bill.  Obamacare would survive.

So, will the Democrats by able to save Obamacare by invoking the Byrd Rule?  Don’t count on it.  Here is why.

Republican’s can get around the Byrd Rule in three ways.

First, they can word the legislation to pass the Bryd Rule test.  For example, instead of repealing the Individual Mandate which the Parliamentarian told them would not pass the Byrd Rule, they simply made the fine $0.00.  There is still an Individual Mandate but your fine for not having insurance is zero.

Second, if the Parliamentarian rules against the Republicans, the Senate Majority Leader, Mitch McConnell, can fire the current Parliamentarian and choose a new one who will rule differently.

Finally, the President of the Senate (Vice President Pence) can simply overrule the parliamentarian.  He does not have to take the Parliamentarian’s “advice” about what does and does not meet the Byrd Rule test.

Bottom Line: The Byrd Rule can’t stop Republicans from killing Obamacare and taking health insurance away from millions of Americans.  

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