This One Senate Staffer Could Sink the GOP's Health-Care Plan

The parliamentarian may pose a threat to the deals Mitch McConnell is making. That's because she can reject provisions she deems unsuitable under Senate rules.

J. Scott Applewhite / AP

As Senate Majority Leader Mitch McConnell tries to negotiate his way to a health-care bill that can win at least 50 Republican votes, there is one woman in the Senate who could stop the bill cold.

She isn’t even a senator.

Elizabeth MacDonough is the Senate’s parliamentarian, the first woman to hold that post, which involves advising lawmakers on the chamber’s byzantine rules and procedures. She alone can decide what pieces of the emerging Senate overhaul of the Affordable Care Act can be included under the budget reconciliation process legislators are using. That process allows them to pass the measure with a simple majority vote rather than the usual 60. By virtue of her position, she has the authority to potentially reject the very deals McConnell is trying to cut.

By all accounts, MacDonough, who has spent almost her entire career working for the Senate and was appointed to her position in 2012, is scrupulously fair and trusted by both parties on the Hill. “Elizabeth is great,” said Rodney Whitlock, a former Republican staffer on the Senate Finance Committee, who has argued tricky legislative points before her numerous times. Democrats agree: “She’s a straight shooter and an honest broker,” said Bill Dauster, a longtime Democratic staff director for the Budget Committee.

It’s probably for the best that both sides like her, because on health care, MacDonough may need to make some tough decisions that could make one party or the other very unhappy.

MacDonough, along with her assistant parliamentarians, will be charged with deciding which pieces of the legislation violate the rules of budget reconciliation—in particular the “Byrd Rule,” which is named for its author, the late Democratic lawmaker Robert Byrd of West Virginia. His rule requires that everything in a reconciliation bill pertain directly to the federal budget. The idea is to prevent senators from loading up such bills, which get fast-track consideration, with unrelated items that belong in the regular, slower Senate process.

Byrd Rule judgments mostly involve parts of a bill that opponents argue don’t add to or subtract from federal spending, or whose budget impact is “merely incidental” to the purpose of the policy. Outside observers say the provisions in the Senate measure that are vulnerable under this rule include those that would defund Planned Parenthood and affect the rules for private insurance plans.

Generally, the “Byrd bath,” as this ruling process is called on Capitol Hill, involves a string of meetings between Senate committee staff and the parliamentarian. “The Democrats go in, the Republicans go in, then both of them go in together,” Dauster said. Each side argues whether certain language should or should not be allowed in the bill.

The parliamentarian’s office in the Capitol “is actually a small room,” Whitlock said. “And when they are ready to have you in, you’re standing around and all the assembled in the room have at it.” MacDonough does not make her rulings immediately after the arguments. “She has, of late, gotten back to people by email” with her decisions, Dauster said.

That has not always been the case. In the past, said Bill Hoagland, a longtime GOP staff director for the Senate Budget Committee, after making their arguments “we would wait until we went to the floor and [a senator] would raise a point of order” against some specific language. Senators and staff would learn the parliamentarian’s decision only then.

MacDonough’s decisions, depending on what they are, could prompt the bill’s authors to delete language before it comes to the Senate floor. But that could be a risky move for McConnell: Deleting language that was designed to appease Republican holdouts could cause them to yank their support—and put his vote count below 50.

Or lawmakers could keep the text as-is and opt to let the drama may play out in front of the C-SPAN cameras. Any senator can raise a point of order against a provision claiming it violates the Byrd Rule. It takes 60 votes to overcome such a point of order and let the bill proceed as written.

But ignoring MacDonough’s ruling entirely would have weighty consequences for the chamber, staffers say, even if it could hypothetically help Republicans hang onto their votes.

“That’s what scares the heck out of me,” Hoagland said. Under the Senate’s rules, the lawmaker who is serving as the presiding officer during the debate is not bound to act on the parliamentarian’s decision either. But if he or she goes against what the parliamentarian has advised, “I would argue that you have basically destroyed the Byrd Rule and you’ve destroyed the purpose of reconciliation at that point,” he said.

That’s because it would allow the majority party, which controls the Senate, to effectively include any provisions it wants in the fast-track budget bill with only a simple majority. “It’s another way to go nuclear,” said Dauster, referring to efforts to end the Senate filibuster, which requires 60 votes to break.

Will that happen with the health-care bill? It depends how MacDonough rules. And how badly the Republicans want their plan to pass.

This post appears courtesy of Kaiser Health News.