How Congress could pass Obamacare changes now, or change the filibuster rules

Sen. John McCain, R-Ariz., was one of three GOP senators to join Democrats in voting down the Senate leadership's "skinny repeal" of the Affordable Care Act on July 28, 2017.
Sen John McCain, R-Ariz., leaves the Senate chamber after a vote on a stripped-down version of Obamacare reform on July 28, 2017. (Zach Gibson/Getty Images)
Sen John McCain, R-Ariz., leaves the Senate chamber after a vote on a stripped-down version of Obamacare reform on July 28, 2017. (Zach Gibson/Getty Images)

After months of efforts to repeal and replace the Affordable Care Act -- efforts that ran aground in the Senate in the wee hours of July 28 -- the combatants are exhausted.

One major reason why is the seat-of-the-pants procedure used to put a viable bill on the floor.

Bills were written behind closed doors by select members of the Republican majority, and, on the climactic day, the final legislation was only released publicly a few hours before the vote.

"Senators had little time to read the bill, or understand its implications," said Josh Ryan, a political scientist at Utah State University. When that’s the case, "legislation inevitably comes out half-baked, yet if something goes wrong, they are all held accountable for the vote they took."

In the meantime, President Donald Trump repeatedly urged Senate Republican leaders on Twitter to change the 60-vote threshold required on much of the chamber's legislative business.

One way or another, many observers (and senators) would be relieved to bid adieu to the high-wire legislating of the last few weeks and return to what is commonly called "regular order."

Here’s what that means.

What would a more traditional procedure for enacting bills look like?

It would look more like it did when the Democrats originally passed the Affordable Care Act, Ryan said.

Under the most familiar template for regular order, a bill would be developed in the House and Senate committees that have jurisdiction over the issue area. For the Senate, that would likely be the Finance Committee, with help from the Health, Education, Labor and Pensions Committee. Those two committees were involved early in the process of putting together the Affordable Care Act, although extensive efforts led by then-chairman Max Baucus, D-Mont., to get buy-in from Republicans fell apart. In the House, the Energy and Commerce Committee has jurisdiction. Party leaders would also be heavily involved behind the scenes.

The committees in both chambers would hold hearings and markup sessions, and if a bill clears the relevant committees, it would be referred to the floor, debated, amended, and voted upon. If it passes both chambers, a conference committee would be empaneled to resolve House-Senate differences, which are then approved by both chambers. (We discussed how conference committees work here.)

"The point of ‘regular order’ is not necessarily to generate bipartisan support, but to generate a bill that would be well-thought out," Ryan said. Hearings would air the views of a range of lawmakers, stakeholders and outside experts.

Another option would be to create a select committee.

"Because the health care law touches on the jurisdiction of multiple committees, it would not be beyond the conception of ‘regular order’ for the two leaders to construct a hybrid process involving members of more than one committee," said Steven S. Smith, political scientist at Washington University in St. Louis. "A select committee could be appointed in each chamber, and a select joint committee could be named to write a bill that is then reported to both houses for debate and amendment."

How likely is it that the Senate would use the "reconciliation" process again?

Reconciliation is a special process in the Senate for legislation that only deals with taxing and spending. For the sponsors of a bill, the attractive part of using the reconciliation process is that it it requires only 51 votes, rather than 60. That’s a much easier lift, and it’s what Republicans had been trying to use to pass their health care overhaul. It does carry one risk -- that matters extraneous to taxing and spending can be challenged and stripped from the bill before consideration. (This is known as the Byrd rule.)

Experts said that a new reconciliation process could theoretically be possible, but they aren’t holding their breath.

Smith said that "in principle, bipartisan negotiations could produce a new reconciliation bill and be subject to a simple majority vote in the Senate. But that is not what McCain or the Democrats mean when talking about regular order, so they may not be willing to participate in a new reconciliation process on health care reform."

The consequence of moving to a 60-vote threshold is that any bill enacted would need to have more to offer to both parties.

Could the Senate move to install a 51-vote threshold for ordinary legislative business, as they have already done for judicial and other appointments?

Trump advocated this idea after the failure of the health care bill, tweeting, "If Republicans are going to pass great future legislation in the Senate, they must immediately go to a 51 vote majority, not senseless 60."

He repeated this desire in a series of tweets the following morning.

Could the Republicans do this? Yes. Would they? Probably not.

The process to make the switch is known as the "nuclear option," which we’ve discussed in greater detail here.

Here’s how it would work: The majority would try to cut off debate, also called invoking cloture. It would fail, because 60 senators do not vote for it. The chair would rule the motion not agreed to. A member of the majority would make a point of order saying that this is inconsistent with the rules. The chair would reject that argument, because it is consistent with precedent and procedure. At that point, the senator would appeal the chair’s ruling to the entire body. The Senate then votes, needing only 51 votes to overturn the chair's ruling. This establishes a new procedural norm that invoking cloture only takes 51 votes rather than 60.

However, Ryan said that procedural dance is not likely to happen based on comments from McConnell and other Republicans.

"There's a reason they call it going ‘nuclear,’ " he said. "It would have profound implications on lawmaking in this country, and that it isn't something senators from either party take lightly."