Tag Archives: Lisa Murkowski

What You Need to Know about the Senate’s Obamacare “Vote-A-Rama”

It’s not a carnival ride—although it might prove even more adventurous. The Senate’s consideration of health-care legislation will soon result in a grueling series of votes dubbed “vote-a-rama.”

After 20 hours of debate on the budget reconciliation measure, equally divided between the majority and minority parties, the Senate will complete consideration of all pending amendments, with the process’ conclusion typically determined when senators exhaust all the amendments they wish to offer—not to mention themselves.

Here’s what you need to know about “vote-a-rama.”

1. It’s Physically Demanding

The “vote-a-rama” process during consideration of the 2010 reconciliation bill that “fixed” Obamacare provides an example. On Wednesday, March 24, senators began voting on amendments at 5:32 PM. Nearly nine hours later, at 2:17 on the morning of Thursday, March 25, senators had completed votes on 29 amendments. The Senate then took a brief break, re-convened at 9:45 the same morning, and disposed of a further 12 amendments over an additional four-plus hours, with a vote on final passage at 2 PM on March 25.

For 20-something or 30-something staffers—let alone senators several times their age—this lengthy process can prove grueling, with long hours, late nights, lack of sleep, and little food (or bad food) the norm.

2. It’s Mentally Confusing

Between votes on amendments, senators usually allow for brief one-minute speeches by the amendment’s proponent and an opponent (generally the majority or minority floor manager of the bill). However, as Senate procedural expert James Wallner notes, that habit has derived from custom and unanimous consent, not any formal rule. If any senator objects to the brief “well speeches” as part of “vote-a-rama,” then the Senate will vote on amendments without any debate or a summary of what the amendment does.

Even with the brief summaries by amendment sponsors, it’s often difficult for senators—and particularly Senate staff—to understand exactly what’s going on down on the Senate floor. Amendment text can occasionally change at the last minute, as can the sequence of amendments offered. On occasion, senators may have to “fly blind” without clear guidance or recommendations from their staff on how to vote. Coupled with the long hours and lack of sleep (for members and staff alike), it’s a recipe for mistaken votes and confusion.

3. It’s Hard to Pass Amendments with a Simple Majority…

As Wallner noted in an article earlier this week, the Senate’s rules essentially give preferential treatment to the underlying reconciliation bill, making it difficult to craft amendments that can pass with a simple (i.e., 50-vote) majority. The amendment must be germane (i.e., relevant) to the underlying bill, and cannot increase the deficit.

Moreover, to pass with a simple majority, an amendment must also comply with the six-part “Byrd rule” test. For instance, an amendment may not have only an incidental fiscal impact, make programmatic changes to Title II of the Social Security Act, or exceed the jurisdiction of the committees who received the reconciliation instructions (in this case, the Senate Finance and Health, Education, Labor, and Pensions committees). Other than simple motions striking particular provisions, amendments will face a difficult time running the procedural gauntlet necessary to pass on a 50-vote threshold.

4. …But It’s Easy to Get Amendment Votes

Even if an amendment does not comply with the budget reconciliation rules, senators can still offer a motion to waive those rules. The motion to waive requires the approval of three-fifths of senators sworn (i.e., 60 votes), which often does not materialize, but the motion to waive provides a way to get senators on the record on a specific issue. Many votes in a “vote-a-rama” series consist of a “motion to waive all applicable budgetary discipline”—i.e., the “Byrd rule” and other restrictions that make passing an amendment with a simple majority difficult.

5. It Will Result in Messaging Amendments

Perhaps the classic example comes from the Obamacare “vote-a-rama” in March 2010, when then-Sen. Tom Coburn (R-OK) offered an amendment that included the following language:

(b) Prohibiting Coverage of Certain Prescription Drugs—

(1) In general.–Health programs administered by the Federal Government and American Health Benefit Exchanges (as described in section 1311 of the Patient Protection and Affordable Care Act) shall not provide coverage or reimbursement for—

(A) prescription drugs to treat erectile dysfunction for individuals convicted of child molestation, rape, or other forms of sexual assault;

The “No Viagra for Sex Offenders” amendment drew no small amount of attention at the time, and led to political ads being run against the Democrats who voted against it (as some predicted prior to the amendment vote).

Democrats will almost certainly offer similar messaging amendments this year, including amendments unrelated to the bill, or even health care. They may offer amendments regarding the Russia investigation—those would likely be subject to a 60-vote threshold, as foreign policy is not germane to a budget reconciliation bill, but if Democrats wish to get Republicans on record, any vote will do.

Doubtless Democrats will offer amendments related to Donald Trump’s taxes—the reconciliation bill is in the jurisdiction of the Finance Committee, so these amendments could theoretically prove germane, but amendments specifically targeting the president (i.e., making policy, with only an incidental fiscal impact) could violate the “Byrd rule,” making them subject to a 60-vote threshold. For Democratic political consultants, the possibilities are virtually endless.

6. It May Lead to Chicanery—and ‘Strategery’

Senate Republican Leader Mitch McConnell (R-KY) has generally opposed allowing reimportation of prescription drugs from Canada or other countries, with one noteworthy exception. In December 2009, McConnell, along with several other Republicans, supported one of two reimportation amendments offered on the Senate floor.

While opposing reimportation on the merits, some Republicans supported these particular amendments because they wanted to break up the “rock-solid deal” between Democrats and Big Pharma—whereby pharma agreed to support Obamacare in exchange for a promise from Democrats not to support reimportation of prescription drugs.

As it happened, Democrats spent an entire week—from December 8 through December 15, 2009—without floor votes on amendments to Obamacare. The delay—effectively, Democrats filibustering their own bill—came in part because party leaders could not persuade fellow Democrats to vote against the reimportation amendment—and could not afford to allow the amendment to pass.

One can expect similar gamesmanship by the Democratic minority this time around, as evidenced by their tactical decision to abstain from voting on Tuesday’s motion to proceed to the bill until Republican senators mustered a majority solely from within their own ranks. If only three Republicans defect on an amendment, Democrats could have the power to play a decisive role in that amendment’s outcome. It’s an open question how they will do so.

For instance, will some or all of the 12 Democrats who voted against reimportation earlier this year—during January’s “vote-a-rama,” when the Senate passed the budget enabling the current reconciliation process—switch their votes so the amendment will pass, causing Republicans heartburn with the pharmaceutical lobby? When and how will Democrats use other tactical voting to gum up the process for Republicans? The answers range from possible to likely, but it remains to be seen exactly how the process will play out.

7. It Will Inflict Political Pain

Consider for instance a flashpoint in the reconciliation bill: Whether to defund Planned Parenthood. Two Republican senators, Susan Collins and Lisa Murkowski, have already stated they oppose defunding the organization. If one more Republican defects, Democrats would likely have the votes to strip the defunding provision. (While Democratic Sen. Joe Manchin previously supported defunding Planned Parenthood two years ago, in the immediate aftermath of sting videos featuring organization leaders, he has since reversed his position, and will presumably vote with all Democrats to strip the provision.)

To put it another way: Sen. Dean Heller (R-NV) may not just have to be the 50th vote supporting the underlying bill, he may also have to provide the 50th vote to keep the Planned Parenthood defunding provision in the legislation. Will Heller vote to defund the nation’s largest abortion provider—and what will happen to the bill if he, and the Senate as a whole, votes to strip the provision out? Senate leaders will face several of these white-knuckle amendment dramas during “vote-a-rama,” any one of which could jeopardize the entire legislation.

8. It Could Unravel the Entire Bill

Ultimately, with no agreement among Republicans to preserve the underlying bill text, and no clear roadmap on how to proceed, “vote-a-rama” could resemble pulling on the proverbial thread—one good tug and the whole thing unravels. What if Heller ends up helping to strip out Planned Parenthood defunding—and conservatives respond by blocking more funding for Medicaid expansion states? What if moderates vote to strip the “consumer freedom” amendment offered by Sen. Ted Cruz (T-TX), and conservatives retaliate by taking out the “side deals” included to assuage moderates’ concerns?

At the end of “vote-a-rama,” senators could be left with an incoherent policy mess, legislation that no one would readily support. It’s the big potential downside of the freewheeling amendment strategy—but a chance that McConnell apparently feels he has no other choice but to take.

9. It’s Why Senate Leadership Is Talking about a Conference with the House

In recent days, Senate Majority Whip John Cornyn (R-TX) and others have floated the idea that, rather than having the House pass the Senate’s bill whole, sending it straight to the White House, members may instead want to have a House-Senate conference to resolve differences between the two chambers. Some have gone so far as to propose the Senate passing a “skinny” bill—repeal of the individual and employer mandates, along with the medical device tax—as a placeholder to get the reconciliation measure to a conference committee.

This strategy would have one beneficial outcome for the Senate’s Republican leadership: By allowing congressional leaders to re-write the bill in conference, it would save them from having to abide by the results of “vote-a-rama.” If, for instance, senators vote to strip out Planned Parenthood defunding, or to add in reimportation language, congressional leaders could re-write the bill in conference to negate the effects of those votes—presenting a new measure to both chambers with a binary choice to approve the bill or not. (In other words, rather than a “wrap-around bait-and-switch” on the Senate floor, senators could instead face a bait-and-switch in conference.)

That leadership has mooted a conference committee speaks to the nature of the “vote-a-rama” ahead. Despite the complaints on both ends of Pennsylvania Avenue about the lengthy nature of the health-care process, Senate leaders are now looking to extend the process further via a House-Senate conference—because they may need to regain control of the legislation after a wild and unpredictable debate on the Senate floor.

This post was originally published at The Federalist.

Why Lindsay Graham’s “State Flexibility” Plan Falls Short

Shortly after more Republican senators announced their opposition to the current “repeal-and-replace” measure Monday evening, Sen. Lindsey Graham (R-SC) took to Twitter to promote his own health-care plan. He claimed that “getting money and power out of Washington and returning it to the states is the best hope for innovative health care,” adding that such moves were an “antidote to 1-SIZE FITS ALL approach embraced in Obamacare.”

There’s just one problem: Graham’s proposal doesn’t get power out of Washington, and it doesn’t fundamentally change the one-size-fits-all Obamacare approach. It also illustrates moderates’ selective use of federalism in the health-care debate, whereby they want other senators to respect their states’ decisions on Medicaid expansion, but want to dictate to other senators how those senators’ states should regulate health insurance.

Pre-Existing Conditions Are the Problem

A summary of Graham’s proposal claims it would block-grant current Obamacare funds to the states, ostensibly giving them flexibility. But the plan comes with a big catch: “The Obamacare requirements covering pre-existing conditions would be retained.”

When it comes to one of Obamacare’s costliest insurance regulations, Washington would still be calling the shots. That significant caveat echoes an existing waiver program under Obamacare, which in essence allows states to act any way they like on health care—so long as they’re implementing the goals of Obamacare. The Graham plan continues that tradition of fraudulent federalism of Washington using states as mere vassals accomplishing objectives it dictates, but perhaps with slightly more flexibility than under Obamacare itself.

This Is Not Repeal

As I have written before, the repeal debate comes down to an inconvenient truth for many Republicans: They can repeal Obamacare, or they can keep the status quo on pre-existing conditions—but they cannot do both. Keeping the requirements on pre-existing conditions necessitates many of the other Obamacare regulations and mandates, which necessitates subsidies (because otherwise coverage would become unaffordable for most Americans), which necessitates tax increases to pay for the subsidies—and you’re left with something approaching Obamacare, regardless of what you call it.

There’s no small amount of irony in moderates’ position on pre-existing conditions. Not only is it fundamentally incongruous with repeal—which most of them voted for only two years ago—but it’s fundamentally inconsistent with their position on Medicaid expansion as well. Why do senators like Lisa Murkowski want to protect their states’ decisions to expand Medicaid, yet dictate to other states how their insurance markets should function, by keeping regulation of health insurance at the federal level?

True Federalism the Solution

If senators—whether Graham, Murkowski, or others—want to promote federalism, then they should actually promote federalism. That means repealing all of the Obamacare mandates driving up premiums, and letting states decide whether they want to have Obamacare, a free-market system, or something else within their borders.

After all, New York did an excellent job running its insurance market into the ground through over-regulation well before Obamacare. It didn’t even need a guide from Washington. If states decide they like the Obamacare regulatory regime, they can easily re-enact it on the state level. But Washington politicians shouldn’t presuppose to arrogate that power to themselves.

In 1947, the McCarran-Ferguson Act codified a key principle of the Tenth Amendment, devolving regulation of health insurance to the states. Barring a few minor intrusions, Washington stayed out of the health insurance business for more than six decades—until Obamacare. It’s time to bring that principle of state regulation back, by repealing the Obamacare insurance regulations and restoring state sovereignty. Graham has the right rhetoric. Now he just needs the policy deeds to match his words.

This post was originally published at The Federalist.

A Reading Guide to the Senate Bill’s Backroom Deals

Buried within the pages of the revised Senate health-care bill are numerous formula tweaks meant to advantage certain states. Call them backroom deals, call them earmarks, call them whatever you like: several provisions were inserted into the bill over the past two weeks with the intent of appealing to certain constituents.

It appears that at least three of these provisions apply to Alaska—home of wavering Sen. Lisa Murkowski (R-AK)—and another applies to Louisiana, home of undecided Sen. Bill Cassidy (R-LA). Below please find a summary (not necessarily exhaustive) of these targeted provisions.

The Buy Off Lisa Murkowski Again Fund

Section 106 of the bill includes new language—page 13, lines 4 through 13, and page 18, line 12 through page 19, line 4—dedicating one percent of the new Stability Fund dollars to “each state where the cost of insurance premiums are at least 75 percent higher than the national average.” As a Bloomberg story noted, this provision currently applies only to Alaska, and could result in $1.32 billion in Stability Fund dollars automatically being directed to Alaska.

The Alaskan Pipeline

The revised Section 126 of the bill includes modified language—page 44, lines 9 through 17—changing certain Medicaid payments to hospitals based on a state’s overall uninsured population, not its Medicaid enrollment. As Bloomberg noted, this provision would also benefit Alaska, because Alaska recently expanded its Medicaid program, and therefore would qualify for fewer dollars under the formula in the original base bill.

The Moral Hazard Expansion

The underlying bill determined Medicaid per capita caps based on eight consecutive fiscal quarters—i.e., two years—of Medicaid spending. However, the revised bill includes language beginning on line 6 of page 59 that would allow “late expanding Medicaid states”—defined as those who expanded between and July 1, 2015 and September 30, 2016—to base their spending on only four consecutive quarters. Relevant states who qualify under this definition include Alaska (expanded effective September 1, 2015), Montana (expanded effective January 1, 2016), and Louisiana (expanded effective July 1, 2016).

The most recent actuarial report on Medicaid noted that, while the actuary originally predicted that adults in the expansion population would cost less than existing populations, in reality each newly eligible enrollee cost 13.6 percent more than existing populations in 2016. Some states have used the 100 percent federal match for their expansion populations—i.e., “free money from Washington”—to raise provider reimbursement levels. Therefore, allowing these three states to use only the quarters under which they had expanded Medicaid as their “base period” will likely allow them to draw down higher payments from Washington in perpetuity.

The South Dakota Purchase

The revised bill includes a new Section 138, which makes services provided by a state to Indian Health Service enrollees subject to a 100 percent federal Medicaid match. Under current law, only services “received through an Indian Health Service facility whether operated by the Indian Health Service or by an Indian tribe or tribal organization” are subject to a 100 percent match. South Dakota Gov. Dennis Daugaard has pushed this provision for over a year, saying he would expand Medicaid under Obamacare—but only if the federal government would agree to provide a 100 percent reimbursement for all Medicaid services provided to Indian Health Service enrollees.

The Buffalo Bribe

This provision, originally included in the House-passed bill, remains in the Senate version, beginning at line 12 of page 69. Originally dubbed the “Buffalo Bribe,” and inserted at the behest of congressmen from upstate New York, the provision would essentially penalize that state if it continues to require counties to contribute to the Medicaid program’s costs.

More to Come?

While the current bill contains at least half a dozen targeted provisions, many more could be on the way. By removing repeal of the net investment tax and Medicare “high-income” tax, the bill retains over $230 billion in revenue. Yet the revised bill spends far less than that—$70 billion more for the Stability Fund, $43 billion more in opioid funding, and a new $8 billion demonstration project for home and community-based services in Medicaid.

Even after the added revenue loss from additional health savings account incentives, Senate leadership could have roughly $100 billion more to spend in their revised bill draft—which of course they will. Recall too that the original Senate bill allowed for nearly $200 billion in “candy” to distribute to persuade wayward lawmakers. In both number and dollar amount, the number of “deals” to date may dwarf what’s to come.

This post was originally published in The Federalist.