One Small Step for Repeal and Replace; One Giant Leap for Normalcy

One Small Step for Repeal and Replace; One Giant Leap for Normalcy

On Tuesday, the Senate voted to proceed with debate on the controversial Repeal and Replace of the Affordable Care Act (Obamacare). The vote came after earlier efforts to force the bill, in one form or another, failed due to a lack of required votes for final passage. The move was praised by Donald Trump, made breaking news and analyses, and was panned by liberal critics. But, was the vote to proceed with debate really a big deal? The short answer is that yes, the vote was a big deal. However, I contend that this move was a big deal for reasons that largely went unreported, and was not a big deal in the way that all the media attention would have you believe.

What Is A Motion To Proceed?

A motion to proceed, also called a motion to proceed to consider or a motion to consider, is a parliamentary procedure that brings a bill to the floor so that it may be considered by the full chamber. The bill can be debated; amendments can be offered from the floor, which themselves can be debated; and Senators are given a public outlet to state their cases for or against the bill so that their constituents know where they stand. In the simplest of terms, all a motion to proceed is, is just that. It is a motion to proceed to consideration of the bill.

Because of the way the Senate works, a bill must be viewed by at least a simple majority of the chamber to be worthy of debate to even be called up to the floor. In the case of many trivial bills a request for unanimous consent may be entered and, hearing no objections, the bill may receive some limited debate but it is ultimately going to go forward to a vote for final passage. In the case of a motion to proceed, the bill in question may not have enough support for final passage even though it is considered important enough to be debated, and so it is called to the floor. In effect, this is the majority leader asking the rest of the chamber for their permission to bring up the bill for debate.

A motion to proceed can usually be filibustered, and with the current rules of the Senate, a filibuster can only be broken by 60 votes. Could Democrats have filibustered the motion to proceed? Sure. But, this likely would have caused McConnell to push forward with a completed bill and limit interaction so as to avoid any debate or amendments before a final vote. Since the votes aren’t there for a final passage, McConnell ultimately had no choice but to bring the bill to the floor for a full debate. Prior to Tuesdays events, McConnell had tried, unsuccessfully, at least three times to bypass committees, the full chamber, and meaningful debate of any kind and bring the bill to a vote without any input from the Democrats or even the moderate Republicans.

Knowing that the Republican plan would not pass as it currently stands, Democrats could have filibustered, but there is little chance that McConnell would have allowed for a Democratic alternative, a bill that would seek to fix the problems with Obamacare, to ever come to the floor. By not filibustering the motion to proceed, even though they unanimously voted against the motion, Democrats are now in a position to help shape the bill that will eventually come for a final vote – or perhaps not. It remains unclear what any final bill would look like, and it remains unclear that any final bill will pull enough support from the coalition of far right conservatives and moderate Republicans to pass a final vote with or without the Democrats. In this sense, part of the motion to proceed is strategy and part of it is theater. It allows all the Senators to go on the record as being for or against a repeal and replace plan, while allowing the talks to go forward.

Why Is It Such A Big Deal?

So, if no actual legislation was passed with regards to Obamacare on Tuesday, why is it such a big deal? Because it marks a return to normalcy and the acceptance of political norms that the Senate has not seen since for nearly seven years. Since Republicans took control of the House of Representatives in 2011 during Obama’s first term, Congress has largely been gridlocked. While it is true that the Senate remained under Democratic control until 2014, the amount of Democratic Senators has dwindled since the first midterm under Obama. Due to the rules of the Senate, it is difficult to pass legislation without a strong majority. This may seem like a bug, but it’s actually a feature. It is supposed to be difficult to pass legislation, particularly sweeping legislation, in the Senate. The Senate, after all, represents the States, not like in the House, which is supposed to be closer to the people.

During the Obama years, Senate Republicans frequently abused the rules to their benefit. For the most part, Harry Reid, as Majority Leader, adhered to the norms and allowed the Republicans to abuse the rules; ostensibly out of respect for the rules and probably with an understanding that Democrats would not always control the chamber. Changing the rules to benefit the Democrats by removing minority party leverage would only create a situation down the road where the Democrats as a minority party had no leverage. This would eventually come to pass when Reid used the nuclear option in 2013 to push through several appointments and smaller pieces of legislation. The result was that Democrats had little, if any, leverage in the Trump cabinet approval process.

Since McConnell took over as Majority Leader, this problem of the Senate behaving badly has only worsened. During the last two years of Obama’s second term, the Senate ground to a halt. The most publicized and politicized result of this was the refusal to even grant Merrick Garland a hearing for his nomination to the Supreme Court. Of course, it was well within the rules and the authority of the Senate to deny Garland the appointment, but McConnell, having been rebuffed in his quest to make Obama a one-termer, abused the power of the Senate to refuse even a hearing.

Since January, this abuse of the rules, and the power of the majority party has worsened even still. When it comes to the various attempts at a Senate version of a replacement for Obamacare, dubbed Trumpcare, this abuse has been on staggering display. The House bill was dead on arrival. Even McConnell knew that the bill would never fly. Senators after all, are accountable to the entire state rather than a district. Their seats cannot be gerrymandered into safety like they can in the House. To adopt the House bill would almost certainly doom the tenuous hold on the Senate that Republicans have now.

Nonetheless, McConnell was determined to draft the Senate bill. However, he did this by, again, abandoning political norms and changing the rules. The bill was crafted in secret; it was not submitted to a committee, and was never brought up for a full reading and debate by the full chamber. The bill was drafted by thirteen Republican Senators, all white and male, none of them doctors, and was purposefully created in a manner that excluded women – even Republican women – and of course, Democrats.

Ultimately, all of those versions of the bill failed to garner enough support to pass. Even if McConnell had pursued a unanimous consent agreement to bring the bill to the floor and hurry it along to a vote, it would not have passed a vote for final passage. Obviously, the bill would get no Democratic votes, but support among Republicans was also split. For some Republicans, those in swing states, it went too far. For other Republicans, those in safe states, it didn’t go far enough. This speaks to the problem that the Republican party faces for the first time in nearly a decade: How to govern with a coalition of different interests.

Regardless, McConnell and the Republicans had no choice but to pursue a motion to proceed to bring the bill to the floor so that it could be properly debated and would be subject to an open amendment process. While I have no doubt that this was not McConnell’s preferred course of action, it is nonetheless remarkable, and a big deal, that for the first time since 2011, the Senate is behaving as intended.

What Happens Next?

No one really knows.

Because of the rules in the Senate, a motion to proceed on a bill has to have a bill attached to it. The legislative vehicle that was used was the House bill, the American Health Care Act (AHCA, or Trumpcare). This bill remains extremely unpopular in the Senate and unpopular with the American voting public. It is extremely unlikely that the bill will pass as it is now, which is no real change from yesterday or any other day since it passed the House in May.

This speaks to the theater of the vote on Tuesday. The Republicans, and Trump, get to claim some sort of victory in that they got the bill to move forward to consideration. At the same time, the Democrats also get to claim a victory in that they are now in a position to potentially influence the direction of the legislation.

A major part of the problem for the future of any Republican bill, as mentioned above, is that if it is to be a purely Republican bill, it faces almost certain doom. To get the far right conservatives on board it will have to move further and further in one direction. This will cause the moderate Republicans to drop their support. To gain their support, it will have to move in the opposite direction. This will cause the conservatives to drop their support. In neither scenario does the Democratic Party get behind the bill.

It is possible that the moderate Republicans will work with the Democrats to craft a bill that will pass with some Democratic support. For this to happen, the bill will have to move towards the center. It will need to be conservative enough for the moderates on the right to show that they got a win or two, and it will have to be liberal enough for the moderates on the left to show that they got a win or two. This is also not a likely outcome as there are not enough moderates in either party to pass such a bill without putting all those moderates at risk in their next election.

Another possible, though extremely unlikely scenario, is that McConnell entertains Democratic amendments that bring the bill to the left. It would fix the problems with Obamacare without really granting Republicans any sort of a win, other than the ability to say that they got a bill passed. The hypothetical version of this bill would, however, doom any Republican who votes for it that isn’t a moderate. This would only ensure a further divided Senate, possibly with a slim Democratic majority in the future.

Since any bill only has until the end of this midterm, November (or, rather December when they adjourn) of 2018, the most likely scenario to play out, as it stands right now, is that Repeal and Replace (or even repeal and delay) is dead in the Senate. If it is dead in the Senate, it is dead period. The most obvious outcome of this, or really any scenario is that the myth of McConnell the master strategist might go ahead and die. McConnell cannot pass a bill on his own, and to bring Democrats on board to get the bill over the hump, will put him at risk to a primary challenger that just might win.

Due to the motion to proceed, we might end up with a decent healthcare bill, but it is more likely that we don’t end up with any bill at all. In that regard, the motion to proceed is probably the best thing that Democrats could have hoped for in the healthcare fight as, during the interim, Obamacare remains intact.

UPDATE: As this article was being written, the Senate voted on two amendments, offered by Ted Cruz of Texas and Rob Portman of my own state of Ohio. Both were rejected. Cruz’s amendment, dubbed in doublespeak as the Consumer Freedom Amendment, would have allowed for insurance providers to sell plans that did not actually provide coverage as long as they also sold other plans that did – for more money. Portman’s amendment would have actually lowered premiums for residents of states, such as Ohio, that accepted the Medicaid expansion in the event that those states, and subsequently those citizens, would lose their coverage in the wake of a full repeal.

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