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The Senate’s referee-in-chief will have a key role in the fate of Trumpcare

A former Senate parliamentarian explains the crucial decisions that will shape the health care debate’s third act.

Senate parliamentarian Alan Frumin is seen walking towards the House Office Building on Tuesday, March 16, 2010 on Capitol Hill. Frumin has been known to sleep in his office, on call 24/7 CREDIT: AP Photo/Lauren Victoria Burke
Senate parliamentarian Alan Frumin is seen walking towards the House Office Building on Tuesday, March 16, 2010 on Capitol Hill. Frumin has been known to sleep in his office, on call 24/7 CREDIT: AP Photo/Lauren Victoria Burke

Senate Majority Mitch McConnell (R-KY), who will spend the remainder of this month struggling to push through the most recent iteration of Trumpcare, may currently hold the second-hardest job in Washington. But first place likely goes to Elizabeth MacDonough, the Senate parliamentarian. As the chamber’s day-to-day adviser on internal rules and procedures, she’ll be tasked with laying out the ground rules for a legislative battle that will be both extremely high stakes and incredibly convoluted. And she’ll have to do it in the face of intense pressure from both sides of the debate to bend the rules in their favor.

Alan Frumin has held MacDonough’s post twice: from 1987 to 1995 and again from 2001 to 2009. MacDonough, his longtime assistant, took over in 2012. During his time on the job, he refereed both the contentious fight over Hillarycare and the extended congressional brawl that finally ended with Obamacare’s passage. Now his successor is set to play a pivotal role in yet another climactic struggle over the future of health care in America.

“[MacDonough] is the one person who is paid to represent and defend the procedural integrity of the body,” Frumin told ThinkProgress. “Everybody else that comes to her is paid to advance a partisan agenda.”

MacDonough and her team, made up of three floor assistants and one intern, are currently issuing guidance on whether health bills or amendments meet jurisdictional standards within Senate reconciliation instructions. Just Wednesday, she said the House-passed bill met reconciliation requirements.

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“There is nothing in the Senate more complicated than reconciliation,” said Frumin. Senators are currently looking to pass health care legislation using this process because it allows bills to bypass the threat of a filibuster and move forward with a simple majority. Senators have sought the parliamentarian’s approval as part of the reconciliation process since its conception in 1980.

The past couple months of health care reform have been muddled, at best — in part because health care is being overhauled through reconciliation. Even if this version of Better Care Reconciliation Act (BCRA) is killed by sundown, the process by which the Senate hopes to achieve Obamacare repeal and Medicaid cuts is unchanged. As the reconciliation gatekeeper, MacDonough is the only person who can serve as a check to a cumbersome process. But according to her friend and former colleague Frumin, her advice is only good if the Senate takes it.

Senate Parliamentarian Elizabeth MacDonough (center). CREDIT: U.S. Senate
Senate Parliamentarian Elizabeth MacDonough (center). CREDIT: U.S. Senate

Passing health care through reconciliation is bad policy practice

“You can pass some things using reconciliation but if you try to pass something as comprehensive as health care reform, it’s going to look like Swiss cheese,” said Frumin.

But don’t take Frumin’s word for it; the Swiss cheese analogy comes from a 2010 Washington Post op-ed written by then-Senate Budget Chairman Kent Conrad (D-ND), in which he argued that reconciliation should not be used to pass health care reform legislation. He was citing the advice of the Senate parliamentarian at the time, one Alan Frumin.

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“My staff [which included MacDonough] and I told the Democratic leadership that they had to do everything in their power in considering the [Affordable Care Act] to keep 60, and to work on a non-reconciliation bill,” Frumin told ThinkProgress.

Though the Affordable Care Act (ACA) was initially filibustered, it was later signed into law. Eventually, a secondary bill was passed through reconciliation, but that bill primarily had to do with a few Obamacare tax provisions.

“The ACA was not a reconciliation bill,” Frumin said repeatedly. “The ACA is 906 pages long.” To this day, he finds himself needing to explain this, privately, publicly, and by way of the Washington Post’s ‘Letters to the Editors’ section.

Trumpcare is not only drastically changing the Affordable Care Act marketplace, but making changes to the 1965 Medicaid program; 27 percent of Americans gets health insurance through means. Two major overhauls to health care are being made through an arcane, confusing Senate procedure.

Motion to proceed on a “pig in a poke” bill

Senators are currently threatening to object to a motion that would allow the health bill to head for a final vote by the Senate. If McConnell loses three senators, then this iteration of the health care debate is over.

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But remember, senators are threatening to vote no on a motion to proceed to consider the House-passed bill, HR 1628, not the revised BCRA. Why is this important? Frumin explained that because HR 1628 was the only bill introduced on the Senate calendar, and later fast-tracked through committee, BCRA could very well change until HR 1628 is introduced to the Senate floor for debate.

In other words, BCRA is a malleable amendment until the final vote. On vote day, the BCRA amendment could include suggestions from Sen. Ted Cruz (R-TX) and Sen. Mike Lee (R-AZ), who want to allow insurance plans to sell non-Obamacare compliant plans as long as they also sell at least one compliant plan. Or it could include Senator Lindsay Graham’s (R-SC), which strives to turn most of Obamacare federal funding into a block grant for states. Senator John McCain (R-AZ) didn’t get his Arizona-specific Medicaid assistance in Thursday’s revised bill either.

“The motion to proceed goes to the static language. Everything else is really a representation by the leadership that if we go through [with] this [House-passed] bill, this is what we intend to offer as an amendment,” said Frumin.

The Senate could get unanimous consent to attach an amendment to HR 1628 beforehand. “From a technical standpoint, that’s not required,” Frumin said. Without a unanimous consent, senators are agreeing to “a pig in a poke” because they wouldn’t know what’s in the bill until vote day.

Sen. Robert Byrd, D-W.Va., is pictured with American bald eagle “Challenger” on Capitol Hill in Washington. CREDIT: AP Photo/Charles Dharapak
Sen. Robert Byrd, D-W.Va., is pictured with American bald eagle “Challenger” on Capitol Hill in Washington. CREDIT: AP Photo/Charles Dharapak

The Senate’s biggest enemy is the Byrd Rule

Even after the House-passed bill is moved to the floor, the bill is subject to change because BCRA still needs to undergo a “Byrd bath.” Bills and proposed amendments under reconciliation need to comply with the Byrd rule. Named after the late Sen. Robert Byrd (D-WV), the rule subjects bills and amendments to six tests in an attempt to stop parties from abusing the reconciliation process.

To adhere to reconciliation, amendments also need to be germane, or relevant to the proposed bill. The interpretation of germaneness in this instance is loosely interpreted. Amendments to the House-passed bill will not be as difficult to attach since germaneness isn’t strictly defined.

Having led the parliamentarian’s office for over a decade, it was inevitable that Frumin would tell senators from time to time that they couldn’t pass policy proposals using reconciliation.

“I remember being yelled at by [Republican Senator from Alaska] Ted Stevens. I remember being yelled at by [Republican Senator from New Mexico] Pete Domenici. I’m trying to remember if they yelled at me for the same advice,” said Frumin. “It’s a difficult position to be in… I remember these issues incoherently, because frankly they are memories that, shall I say, I’m not terribly fond of.”

Senators on both sides of the aisle will be knocking on MacDonough’s door next week, hoping to persuade her that provisions within the BCRA adhere to the Byrd Rule. Don’t be quick to rule anything out, including the Cruz-Lee idea in BCRA. Senators can be persuasive.

The Senate parliamentarian doesn’t need a CBO score

Cruz and Lee could use a CBO score to their advantage. Currently, it’s a matter of whether the provision within BCRA is more of a budgetary change or market regulation change, the former being problematic to reconciliation.

“Cruz could certainly argue that [it’s a budgetary change],” said Frumin. “And to the extent that he gets a big number [in savings] from CBO.”

For Cruz to present a good argument citing CBO, he’d need to get the score. As of recent reports, the Senate is not intending to get the score from CBO. Technically that’s not forbidden under Senate rules, but it definitely breaks with the norm.

“The Senate Parliamentarian gets his/her budgetary data from the Senate Budget Committee under 312 of the Congressional Budget Act. Section 202 of that act specifies that the primary function of the CBO (its legal mandate) is to provide the information regarding that budgetary data to the Budget Committee,” said Frumin in a follow-up email to ThinkProgress.

Overruling the parliamentarian

At the end of the day, “the parliamentarian is just the staff person who gives advice,” said Frumin. “So I wouldn’t say the parliamentarian is overruled, I would say the parliamentarian is ignored.”

A Senate parliamentarian could be dismissed, and has been. Former Senate parliamentarian Robert Dove was fired due to Senate frustration over guidance he had given on tax and budget matters. After that, it was just Frumin and MacDonough in the parliamentarian office for most of 2001. It was a very demanding year, and morale had taken a hit because of Dove’s firing.

The job is as unforgiving as it is unrelenting. Frumin once had to get police protection at his house during tense health care negotiations in 2010. He has also faced his fair share of rage from some of the most powerful senators in D.C. When asked if senators could be overruled, he became more ardent about tradition than anything else.

“It would be a terrible thing to ignore the parliamentarian’s advice. That would be a terrible norm to shatter,” said Frumin.