Darling: Speaker Paul Ryan’s Parliamentarian Straw Woman

House Speaker Paul Ryan speaks at news conference after the Republican Conference meeting on Capitol Hill on November 15, 2016

House establishment Republican leadership would have you believe that Obamacare can’t be repealed because one Senate staffer has declared that a full repeal of Obamacare runs afoul of the Budget Act.

They are lying to you.

Can you imagine if Republicans ran for office in 2012 and 2014 by saying the following?

“I promise to fully repeal Obamacare – root and branch – every single word – as long as a staffer that the Senate has hired does not tell me that it violates her interpretation of the Budget Act reconciliation rules.”

The voters, rightly, would have tarred and feathered the politician. At a minimum, that politician would have been voted out of office.

Instead, many Republicans lied to voters claiming that they were for 100 percent repeal of Obamacare. They made the promise real by forcing a number of votes for full repeal and cosponsoring full repeal bills over the past six years. These Republicans ran ads against Obamacare. Now they are taking actions that will fix Obamacare and put a final nail in the coffin of the effort to fully repeal Obamacare.

Republicans have a once in a lifetime opportunity to repeal Obamacare right now, yet they have drafted up a bill that saves Obamacare known alternatively as Ryancare and Obamacare Lite. Ryancare is a partial repeal and repair bill, not repeal. Ryancare creates a brand new entitlement program with refundable tax credits. Speaker Paul Ryan’s (R-WI) bill sets a date in the future for repeal of two of the most expensive programs in Obamacare to expire – the Medicaid expansion and Obamacare subsidies.

Ryancare is drafted in a way that expires these programs in Trump’s next election year 2020. It will be easy for Congress to undo that major reform because the date is far in the future and they can always change the expiration date in the next Congress. Any time Congress sets a date in the future for a program to expire, expect that expiration to never happen.

The actions of Republicans in House leadership to pass Ryancare proves what many conservatives feared – establishment Republicans never intended on a full repeal of Obamacare. They used the repeal issue to trick conservatives into supporting them.

Don’t get me wrong. There are a handful of honorable Republicans who actually believe the promise of full repeal. Senators Rand Paul (R-KY), Mike Lee (R-UT) and House Freedom Caucus Chair Rep. Jim Jordan (R-OH) are following through with the promise of full repeal, but where are the other conservatives in the Congress who wrongfully benefitted from promises of full repeal.

The choice will be made soon by these Representatives and Senators who have a binary choice.

Are you for full repeal of Obamacare or are you for Ryancare?

House Republicans are making believe that Ryancare is the only way for them to get something passed this year that qualifies under reconciliation special rules.  They have set up the Senate Parliamentarian as a Straw Man to excuse themselves from writing a squishy bill. They are not being honest.

First, Speaker of the House Paul Ryan (R-WI) pushed a bill last year called the Restoring Americans’ Healthcare Freedom Reconciliation Act. Ryan bragged in December of 2015 that “next week, for the first time, Congress will send the president a bill repealing Obamacare” and promised that “this bill effectively repeals the mandates and taxes at the heart of the law.” President Obama predictably vetoed the bill and the following election resulted in unified control of the executive and legislative branches of the federal government. One would think that the same bill repealing large swaths of Obamacare would have been the first order of business for a new Congress. It clearly passes the reconciliation tests because it has already passed the House and Senate as part of the last reconciliation effort. Yet that bill was not even considered.

One piece of Fake News that has permeated the news media is that the Senate Parliamentarian “makes rulings” on what is consistent and not consistent with the Senate’s rules regarding reconciliation. The Parliamentarian can recommend rulings to a Senator or the Vice President, but that staffer has no constitutional, nor statutory power, to make any rulings.

Politico reported on March 9, 2017:

House Republican leaders narrowly tailored their Obamacare repeal bill to avoid violating Senate rules, but conservatives are pushing back with advice of their own: tear up the rulebook.

A growing number of conservative lawmakers on Thursday urged GOP leaders to push the limits of how much of the health law they can reshape under a powerful procedural maneuver known as budget reconciliation — and to overrule the Senate parliamentarian if she doesn’t decide in their favor.

This is incorrect factually because the rulebook would not be shredded if the Vice President ruled and the Senate voted that a repeal bill was consistent with the reconciliation rules.

The Hill reported on March 9, 2017:

Sen. Ted Cruz (R-Texas), emerging as a key player in negotiations to repeal and replace ObamaCare, says Vice President Pence should exert his power over the Senate to significantly expand the scope of the House healthcare reform bill.

Cruz, who had dinner with President Trump on Wednesday evening, says that Pence, who by virtue of his office also serves as president of the Senate, should be prepared to overrule the chamber’s parliamentarian to bulk up the controversial measure.

This is #FakeNews, because the Parliamentarian is not an officer delegated this power by the Constitution, statute or the Senate’s rules who needs to be “overruled.”

I don’t blame Politico and The Hill because senators and representatives are the ones propounding these falsehoods.  They know that the Senate Parliamentarian, Elizabeth MacDonough, has no real power. The parliamentarian does have important expertise and should be consulted because she has a wealth of precedents and knowledge about the Senate that is necessary to make an informed decision. Yet, under the Constitution, the Vice President is President of the Senate and has the ultimate power to make rulings that may be challenged by any Senator.

Richard Arenberg, co-author of an excellent book titled “Defending the Filibuster” and a veteran of Senate leadership, wrote an Op-Ed in The Hill on March 13, 2017 where he argued the following:

In 1985, Sen. Robert Byrd (D-W.Va.), one of the great defenders of the integrity of the Senate rules, and an author of the original reconciliation language in the 1974 act, became alarmed by the way in which reconciliation was growing into an ever-increasing loophole in the Senate’s rules that threatened the Senate’s historic role as the protector of the legislative minority.

The Senate adopted the Byrd rule, which narrows the loophole. It permits non-budgetary provisions to be stripped from a reconciliation bill. Overcoming the Byrd rule requires a supermajority of 60 votes in the Senate, thus closing the loophole.

Decisions about which provisions can and cannot be protected from filibuster under reconciliation, because of the Byrd rule, then fall into the lap of the Senate’s parliamentarian. While these decisions may seem obscure, they often have critical public policy impacts.

With all due respect to the author, he is not being totally honest. The Senate’s parliamentarian does have expertise and can help the Vice President work through some of the tough issues, but this staffer does not make the ultimate decision.

The bottom line is that Ryancare is a bill that violates a sacred promise of Republicans to fully repeal Obamacare. Conservatives are right to point out that allies of Speaker Ryan are using the Senate parliamentarian as a Straw Man excuse to block a bill that comes closer to repeal. There still is a chance for Republicans to grow a set and fight for something that resembles full repeal, unlike Ryancare that resembles repair and replace.

Brian Darling is former Counsel and Sr. Communications Director for Sen. Rand Paul (R-KY).  Darling is also a former Sr. Fellow for Government Studies at The Heritage Foundation.  He can be followed on Twitter @BrianHDarling


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