This is the property of the Daily Journal Corporation and fully protected by copyright. It is made available only to Daily Journal subscribers for personal or collaborative purposes and may not be distributed, reproduced, modified, stored or transferred without written permission. Please click "Reprint" to order presentation-ready copies to distribute to clients or use in commercial marketing materials or for permission to post on a website. and copyright (showing year of publication) at the bottom.

Health Care & Hospital Law,

Jul. 27, 2017

Senators duel over health care

While Senate Majority Leader Mitch McConnell indicated that the Senate would vote on health care legislation on Tuesday, it was anyone’s guess as to what legislation would be presented for vote.

0727 ldj parme
Sen. Susan Collins (R-Maine), who declared that she would not vote to repeal the Affordable Care Act without a replacement, steps onto the Senate Subway on Capitol Hill in Washington, July 18. (New York Times News Service)

While Senate Majority Leader Mitch McConnell indicated that the Senate would vote on health care legislation on Tuesday, it was anyone’s guess as to what legislation would be presented for vote. After much speculation and uncertainty, McConnell made a motion to proceed on the House-approved American Health Care Act of 2017. In the days prior to the vote, all eyes were on Sens. Shelley Moore Capito, R-W.Va., Lisa Murkowski, R-Alaska, Jerry Moran, R-Kan., Dean Heller, R-Nev., Mike Lee, R-Utah, Rand Paul, R-Ky., Rob Portman, R-Ohio, and Ron Johnson, R-Wis.

Paul, Lee, Capito, Portman and Heller made statements earlier in the day confirming they would vote in favor of a motion to proceed. This left uncertainty only as to Johnson, who was likely to support the motion, and Murkowski, who had signaled she might withhold support. The vote played out in dramatic fashion with impassioned remarks by McConnell to his Republican colleagues, urging them not to “let this moment slip by.” Moments later, dozens of protesters could be heard from the Senate floor yelling, “kill the bill” and “shame.” The drama continued into roll call as Sen. John McCain, R-Ariz., recently diagnosed with brain cancer, entered the chamber to a bipartisan standing ovation. While Murkowski voted “no,” Johnson, as many thought he might, succumbed to the mounting pressure to vote “yes” just as many of his colleagues had. This yielded the 50-50 split that allowed Vice President Mike Pence to cast the deciding vote in favor of the motion to proceed, but the Senate then failed to pass a version of the Better Care Reconciliation Act shorty after.

What Happens Now?

Having obtained the necessary votes on the motion to proceed, a number of options remain on the table as the Senate will continue to debate and consider amendments. Late Tuesday, the Senate voted on a version of the Better Care Reconciliation Act containing the controversial Cruz Amendment as well as an additional amendment offered by Portman. Since the amendments had not been scored by the Congressional Budget Office, the measure required a 60-vote count. It failed on a vote of 43-57.

While Paul and other hardliners are likely to support a full repeal of the Patient Protection and Affordable Care Act (ACA) — aka Obamacare — those senators whose constituents rely heavily on Medicare, Cupito, Heller, Murkowski, Portman and others, are not likely to support such an effort. On Wednesday, the Obamacare Repeal Reconciliation Act, introduced by Paul on Tuesday, failed by a vote of 45-55. The next step may be a similar “repeal only” proposal.

In fact, it is reasonable to assume that Sens. Murkowski and Susan Collins, R-Maine — who both voted against opening debate to repeal Obamacare — will remain opposed to any proposed legislation, meaning Senate Republicans may be in the uncomfortable position of needing consensus without any further defections to obtain the 50 votes they need to pass a bill. Practically speaking, this means the Senate will have to craft legislation during the limited time, with only 20 hours allotted for debate, that appeases both moderate and hard right Republicans in the Senate. Despite the challenge ahead, there is continued momentum toward a “skinny” repeal bill. While the term is vague, a “skinny” repeal would essentially repeal key provisions of the ACA, such as the individual mandate and employer mandate, while leaving in place other provisions such as the ACA’s medicaid expansion provisions. While Senate Republicans may debate how “skinny” the measure should be, this appears to be the most likely path to getting 50 votes for any legislation.

If a “skinny” repeal bill passes, the Senate would then go to conference with the House of Representatives, where representatives from both chambers would work on a final bill. Once completed, both chambers would then have to vote on the reconciled bill. In short, there are still many additional hurdles to be surmounted before we see a final vote on repeal legislation.


Ben Armistead

For reprint rights:

Email for prices.
Direct dial: 949-702-5390

If you would like to purchase a copy of your Daily Journal photo, call (213) 229-5558.

Send a letter to the editor: