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“The opposite of poverty is not wealth; the opposite of poverty is justice."--Bryan Stevenson

Wednesday, May 03, 2017

"Arcane rules"


I really just want to pass on this article, with a few comments of my own, because I think this is the soundest explanation for why the GOP is still trying to pass the AHCA.

First, it helps to understand something my Procedure professor said on the first day of class in my second year of law school.  Procedure is the rules of conduct in a trial.  The rules affect what happens before the courtroom, what happens in the courtroom, and what happens after the verdict.  I learned an important lesson on that first day, one what won me the few small successes I had in the courtroom in my brief and unspectacular legal career.  "I'll give you the law," he said as I remember it, "and I'll take the rules; and I'll beat you every time."

Reporting on the efforts to pass a repeal bill all focus on the facts (the "Law" in my professor's statement):  how the bill will affect people, what provisions the bill has.  Important as that is, it doesn't explain why the GOP tried to run this bill through, why Paul Ryan declared it dead after the first vote was cancelled (it's easy to forget there has never been a vote on this bill in the House), and why they are still pressing it, even after Trump's "I want to cut taxes" memo was released.  But what's driving all this is Senate rules.

This gets into the weeds fast, and I won't try to improve on Andrew Prokop's explanation.  You may have heard, early on, that the House was going for "reconciliation" in an attempt to avoid the Senate filibuster.  But it isn't just the filibuster that is the point of health care reform; it's also tax law.  The idea in the GOP was that passing healthcare reform would make tax reform easier; so healthcare reform needs to pass in order to make tax reform possible.

How's that?

Well, first, reconciliation in the Senate can't be used to pass laws that will affect the deficit less than 10 years out.

So by splitting their preferred tax cuts between both reconciliation bills, one of which (Obamacare repeal) would include large spending cuts to offset lost tax revenue, Republicans would give themselves the ability to cut taxes even further than they would have with a single reconciliation bill, and to make those cuts permanent. This was an extremely important priority for them.
But here's the other important point of reconciliation:

Basically, to use budget reconciliation for a bill, you first have to pass a yearly budget resolution with “reconciliation instructions.” Once you do that, those reconciliation instructions can only be used for one bill that affects both spending and revenue (as Obamacare repeal does). 
The GOP has a strategy for getting around that.  The plan was a bit complex, and Prokop explains it well.  Suffice to say here it requires four steps which have to happen early and quickly in order for the Senate rules on reconciliation to allow another tax cut under reconciliation (got to avoid that filibuster!).

It is driven, in other words, by Senate rules more than political necessity or pressure, and it is all about getting two tax cuts through Congress under the rules for reconciliation, in order to avoid the 60 vote threshold problem.  They can't do it in one bill, that would affect the deficit.  They can't use reconciliation for two bills, unless they can engineer an "expiration" of the first bill.

In other words, the AHCA is not about healthcare reform; it's about tax reform.  If it was about healthcare reform, the GOP would take the time to hash out the disagreements between their own factions, and the Senate wouldn't be signaling they don't want that mess (the AHCA) in their laps.  That it has become about healthcare reform but on the schedule of reconciliation is more because Trump was stung by the loss (which he engineered by telling Ryan to pull the bill from the floor the first time) than because Ryan, et al., want to be going through this.  Then again, without the tax repeal of the AHCA, they can't get their complete tax reform through the Senate, because they can't do it on reconciliation.

In the end the GOP is hoist on their own strategy because they want to cut taxes so badly, and so deeply.  And they know they don't have the power to do that, which is why the budget compromise favors Democrats so much, and why Trump's offer to shutdown the government to get rid of the filibuster is falling on deaf ears in the Senate.  The GOP knows the price of another government shutdown.  Having obstructed the Democrats for 8 years, they have no choice but to play ball with them now.  Add to that the fact that Donald Trump is the most inept President in American history (Millard Fillmore is redeemed!), and you have what's going on right now.  Ryan wants a tax cut; Trump wants to erase the embarrassment of failure.

It has bugger all to do with healthcare or even repealing Obamacare.  Of course, once the House dumps it on the Senate's lawn (if they do), they will move on to tax "reform" in hopes the Senate will pave the way for it.  If they continue to fail,  it will be because if you give me the rules, I'll beat you every time.

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