(Bloomberg) — Ted Cruz is pushing a novel strategy to blow up the Affordable Care Act, but it just might blow up the Senate too.
The Texas senator is unhappy with what many conservatives consider a half-baked ACA defunding effort racing through the House, a plan that GOP House leaders say was narrowed to meet Senate rules. Cruz’s answer: lean on Vice President Mike Pence’s gavel to dodge those procedural limits and broaden the legislation’s scope.
It’s not at all clear whether Cruz’s colleagues will go along. The move relies on a radical interpretation of the vice president’s constitutional role as presiding officer of the Senate, where he could step in and effectively overrule the chamber’s parliamentarian. It would resemble the so-called nuclear option of ending filibusters and risk fundamentally altering the way Congress works.
The idea puts Cruz — the rabble-rousing firebrand who came in second to Donald Trump in the Republican primaries — back in his familiar territory of setting ablaze norms in pursuit of moving policy to the right. In 2013, he helped rally House Republicans to shut down the government in a failed bid to defund major ACA programs, over the objections of GOP leaders.
This time, Cruz has again found ready allies among conservatives in the House, who have panned House Speaker Paul Ryan’s plan.
Rep. Dave Brat of Virginia, the conservative who unseated then-House Majority Leader Eric Cantor in a 2014 primary, told reporters he doesn’t buy leadership’s excuse that they can’t pursue a far bolder plan.
He said Ryan is overstating the case that existing rules can’t allow an insurance overhaul. “He wants to be respectful of Senate rules, I do not,” Brat said.
“From what I understand,” Brat said, “whoever’s sitting in the chair has authority over the parliamentarian. So they can rewrite the rules.”
To speed passage of Obamacare changes — and circumvent Democratic opposition, Republicans opted for a budgetary procedure called reconciliation that requires only a simple majority in the Senate, but only if the legislation has minimal effect on the deficit.
GOP leaders, including Ryan, have said this is limiting their ability to include provisions popular with conservatives like selling insurance across state lines.
The Texas senator, who had dinner with Trump this week, said Ryan and Senate GOP leaders are wrong.
“You don’t need to override the parliamentarian or get a new parliamentarian,” he told reporters Thursday. “It is the vice president who rules.”
Having Pence rule against established norms for what is allowed in a reconciliation bill would undo decades of Senate tradition of deferring to the parliamentarian’s rulings. It could also potentially allow both parties far wider latitude in the future to avoid a 60-vote threshold for all sorts of provisions that don’t directly impact spending or taxes.
Related: Goodbye, budget reconciliation
Rep. Trent Franks of Arizona, another conservative, said trying to craft an Obamacare repeal bill to meet the Senate’s current interpretation of its rules is "untenable."
Vice President Mike Pence may have the authority to change the Senate budget reconciliation procedural rules. (Photo: Pence's office)
‘Giraffe through a keyhole’
"It’s essentially like trying to force a giraffe through a keyhole,” he said. “If you get the job done he looks a little differently on the other side.”
Cruz is advocating his strategy to anyone who will listen — House and Senate leaders and officials throughout the administration. Cruz wouldn’t say whether he raised the issue in his dinner with Trump.
"The House bill as currently drafted I don’t believe can pass the Senate but I believe we can fix it," he said.
Cruz said he wants to repeal all of the insurance regulations associated with Obamacare that have increased premiums, and add back Republican ideas aimed at increasing competition, like association health plans and loosening regulations on insurers.
“I think selling across state lines is an important piece of it,” he said.
“Under the Budget Act of 1974, which is what governs reconciliation, it is the presiding officer, the vice president of the United States, who rules what is permissible on reconciliation and what is not,” Cruz said. “And that is a conversation I have been having with a number of my colleagues.”
Cruz said each of the insurance provisions would impact the budget by billions of dollars and in some cases hundreds of billions of dollars — justifying their inclusion under reconciliation rules.
Cruz’s position, however, doesn’t yet have leadership backing and it’s not clear gutting insurance protections in the ACA would even win majority support, particularly in the Senate.
Two critical provisions of the current House bill could face procedural jeopardy in the Senate when it goes through the Senate reconciliation procedure, where provisions seen as extraneous to budget issues are excised from the bill.
One provision would impose a 30 percent penalty premium on people who go without insurance — the GOP’s replacement for the individual mandate tax now paid to the U.S. government. Another would allow insurers to vary premiums by a ratio of 5-to-1 rather than the 3-to-1 ratio in the ACA based on the consumer’s age.
Both are seen as essential to enticing young, healthy people to get insured and thus help stabilize markets. The two provisions in question are regulatory and not budgetary, which means they could both be disqualified under reconciliation, senators in both parties say.
Democratic Sen. Chris Murphy of Connecticut said any fair reading of the current rule, named the Byrd Rule after the late West Virginia Sen. Robert Byrd, would knock out the penalty premium paid to insurers.
"There’s no budget impact to that provision. It’s a payment from an individual to an insurance company," he said. "That has no meaningful impact on the federal budget. If that survives the Byrd Rule, then the Byrd Rule is meaningless."
And “if the penalty is gone, then the bill literally falls completely apart,” he said. “Then no insurance company would ever offer a plan in the exchange if there’s zero penalty for a healthy person to go off of insurance. So it’s basically an unworkable concept today that becomes laughably unworkable if the penalty doesn’t remain."
“We’ve been working closely with the parliamentarian, trying to make sure we address those issues. We’re still working,” said John Cornyn, the No. 2 Senate Republican. “I don’t know about those specific items. I’d say we’ve been doing a Byrd bath for the entire bill.”
Asked about the possibility his bill could fall afoul of the Byrd Rule, House Ways and Means Chairman Kevin Brady of Texas said it was crafted with input from Senate Republicans, and that both the individual mandate and insurer age-rating provisions are flawed.
“So we fix those flaws in Obamacare,” he said. “Frankly, it’s key to restoring the free market.”
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