When John McCain announced that he wouldn’t support Graham-Cassidy, the Arizona senator’s latest betrayal of his constituents rendered it obvious that the most promising Obamacare repeal and replace bill produced by the GOP was in trouble. Then, after Texas Senator Ted Cruz added his name to the list of doubtful votes, it seemed a sure goner. Kentucky’s Rand Paul will only vote for repeal and replace bills that have no chance of passage, Maine’s Susan Collins is a confirmed RINO who announced Monday evening that she would not support the bill, and Alaska’s Lisa Murkowski will probably follow Collins’ lead.
And there weren’t any new votes to be had, as of Monday evening, not even from Democrat Senators sure to get the bum’s rush next year in states that Trump won by huge margins. People like Senator Joe Manchin of West Virginia, which went for Trump by 42 points last November, are so terrified of breaking ranks with Chuck Schumer that they’re willing to join the pile of rotting Democrat corpses already mowed down by Obamacare. Graham, Cassidy, et al., did their best to tailor the repeal and replace bill enough to get a few “Yes” votes from anywhere they could get them, but at the end of the day their efforts were in vain.
So Graham-Cassidy, barring divine intervention, is probably dead. As it happens, however, that does not necessarily mean repeal and replace is ready for Forest Lawn. Many observers, including yours truly, have used the September 30 deadline to emphasize the urgency of taking another shot at repeal and replace now. The Republicans aren’t legally bound to that deadline, however. Senator Cruz, whose understanding of Senate rules is certainly on par with that of the leadership, calls it a “bogus deadline” and insists: “We can do budget resolutions, and budget reconciliation, at any point. We can do it after Sept. 30.”
That date was the brainchild of the Senate parliamentarian who, as I pointed out a few weeks ago was installed in that “nonpartisan” position by former Majority Leader Harry Reid. Her name is Elizabeth MacDonough and her background suggests her rulings might not be as even handed as one might wish: The most important public controversy in which she has played a significant role was the 2000 Florida recount, and she wasn’t on the side of the angels in that episode: “Here I was, just a few years out of law school, helping to advise Vice President Gore on the procedure for counting the ballots in his own election. It was very exciting.”
This is the person who set the September 30 deadline. But the Parliamentarian is ultimately a Senate staffer answerable to the Senate leadership, which can simply disregard her advice. Because that’s all her rulings are — advice. If the President of the Senate (i.e. Vice President Pence), or any other Senator who happens to be presiding over the Senate at any given point in time wishes, he can simply ignore her “ruling.” Even if the presiding officer agrees with the Parliamentarian, both can be overruled by a simple majority of Senators. In other words, what Senator Cruz said about the September 30 deadline was dead on: It is and always was “bogus.”
How does that get us any closer to repeal and replace? First, it means that there is no legitimate danger of a more politically doable GOP bill being filibustered. But if attempting to pass another bill via reconciliation instructions for Fiscal 2017 creates an uproar in the Senate — and it’s easy to imagine Democrat theatrics and claims that the GOP has somehow created a constitutional crisis — there is a less messy path: Pass a new budget for Fiscal Year 2018 with reconciliation instructions that include tax reform and another shot at Obamacare repeal and replace. How exactly would this work? Christopher Jacobs at the Federalist explains:
Congress could still pass multiple budget resolutions in a given year, along with a reconciliation measure for each. Congress could pass a Fiscal Year 2018 budget resolution with reconciliation instructions for Obamacare repeal this month, complete work on the Obamacare bill, then pass another budget resolution with reconciliation instructions for tax reform.
Mere facts, however, will not forestall the deafening ululations with which the Democrats and the “news” media will inevitably make the welkin ring in response to any further attempt to repeal, replace or otherwise alter Obamacare. They will claim that September 30 was the end of the line and that Obamacare is now eternal (until they try to replace it with single-payer). The real challenge is coming up with some repeal and replace plan that will garner 50 Republican votes in the Senate before November 2018. Graham-Cassidy was the best of the bunch so far and it’s disappointing that it didn’t even come close to the magic number.
But it ain’t over until it’s over, and the GOP congressional majority still has 13 months to live. They still have time to produce, but they better get it done before November 2018. The upcoming midterms, in theory, should be good for the Republicans. The Democrats will be defending 26 Senate seats, many of them in states Trump went through like Sherman went through Georgia. Meanwhile the GOP is only defending 8 Senate seats. In the House, things are not quite this rosy for the Republicans, but they aren’t bad. The problem is the voters are angry. With Trump in the White House they expected action at last.
What’s the moral of the tale? For Obamacare repeal, there is life after September 30, 2017. However, there is no life for the GOP after November 6, 2018 if they have nothing to show on this issue by that time. The voters who gave them both houses of Congress will sit at home and eat popcorn while Republicans lose enough seats to make Chuck Schumer Senate Majority Leader. One hesitates to even contemplate what will happen in the House. Think 2006.