The Senate voted down a 2015 version of an Obamacare repeal bill with provisions to block funding for Planned Parenthood Tuesday, just one day after the Senate voted down the Better Care Reconciliation Act, the Senate's version of Obamacare replacement. But more amendments, debate, and voting are set to continue Wednesday. The chamber's process to repeal Obamacare is fully underway after Senate Republicans voted on a motion to proceed with debate Tuesday, using a rare legislative gambit to move ahead despite reservations from some moderates. But unlike most Senate procedures, the final outcome of what that bill will be is unclear.
With 52 Republicans in the Senate, Republicans could only afford two defections on the motion to proceed to a debate, and that's what they had. 50 Senators voted to support the measure. Only two Republican Senators, Lisa Murkowski and Susan Collins, voted no. All Democrats were unanimously opposed. With a 50-50 split, Vice President Mike Pence broke the tie. But once debate was underway, Republicans were divided on their votes; 9 GOP Senators voted against the BCRA, and 7 voted against the amendment that would have repealed Obamacare with a 2 year delay.
The move to open debate appeared to have been designed to allow wavering moderate senators to vote to begin debate without seeming to support a version of the Obamacare replacement that they have criticized.West Virginia Senator Shelley Moore Capito, for example, has repeatedly said she will not vote to repeal Obamacare without an adequate replacement, and has repeatedly expressed reservations about the impact the Senate's version of the replacement bill would have on Medicaid recipients in her state. But Capito still voted to vote on a motion to proceed, noting in a statement that she would " continue to make decisions that are in the best interest of West Virginians."
Here's what you need to know about the process — what's happened so far and what happens next.
Step 1: Begin Debate
As expected, the Senate voted to proceed with a debate on health care legislation Tuesday afternoon, as shouts of "kill the bill, don't kill us" filled the chamber. When Senators voted on the motion to proceed, they were not voting for a final piece of legislation; they are merely voting to start debate. If three Republicans had voted against the motion, the process would have ended here. Only two did.
Step 2: Debate for 20 Hours
The motion to proceed was technically for debate on the House's American Health Care Act, the version of the Obamacare replacement act they passed in May. Per Senate rules, the debate will last 20 hours, with equal time—10 hours—provided to both Republicans and Democrats. But there are restrictions within these 20 hours. According to Senate rules, any debate over an amendment can only last two hours, and a debate over an amendment to an amendment just one hour.
Immediately following the vote, McConnell offered an amendment to repeal Obamacare, in keeping with his promise to his fellow Kentucky Senator Rand Paul, who had been opposed to any version of a bill that did not fully do that. The amendment McConnell offered was the one that Congress passed in 2015, which provides a two year time frame repeal Obamacare and devise a replacement. Tuesday evening, McConnell offered a second amendment, introducing Better Care Reconciliation Act — the Senate's proposed legislation to replace Obamacare. The senate voted Tuesday night against the BCRA amendment McConnell proposed — which also included a measure proposed by Sen. Rob Portman that would provide funding to help people transition from Medicaid to private insurance — 57-43. Nine GOP senators defected.
On Wednesday, the Senate voted on an amendment that will repeal Obamacare, which includes an additional amendment proposed to prohibit people from using tax credits on insurance plans that cover abortion. That measure failed also, with seven Republicans voting against it. The second vote on Wednesday was on a the first from a Democrat, a motion from Sen. Joe Donnelly to send the bill to the finance committee to remove the language on Medicaid, which the Congressional Budget Office estimates would sustain billions of dollars in cuts over the next decade. That measure failed on party lines.
The process now continues. Arizona John McCain, who just returned to the Senate after being diagnosed with brain cancer, filed three amendments designed ease the possible fallout from Medicaid expansion, including extending the phase out to 10 years (instead of the initial 7), and ensuring the growth rate for the program is adjusted for inflation.
"There will be a lot of different amendments offered by different members trying to craft the bill," McConnell said at a press conference after the vote, explaining he didn't think it was possible to predict what concrete measures would ultimately be offered.
Step 3: Hold (Even More) Votes
Although votes take place during the debate process, even more votes take place after the process has concluded. Amendments can be added in at this point as well, but there are no longer the requirements to hold an hour-long debate afterward. This is what is known as a "Vote-a-rama."
Different amendments would need a different number of votes to pass. Amendments that clearly fall within budgetary discretion and have been scored by the non-partisan Congressional Budget Office, like a repeal-only amendment, would need 52 votes. But an amendment can be challenged, particularly if the Senate parliamentarian deems amendments or portions of the bill fall outside the budgetary process. For instance, the Senate parliamentarian, Elizabeth MacDonough, ruled last Friday that several portions of the Senate bill, including the proposal to defund Planned Parenthood for a year and penalizing people who don't buy insurance by making them wait six months before buying any, violated the Senate rules because they fell outside of the budget process. These proposals could ultimately require 60 votes to pass if they stay in their current form, rather than 52 necessary for reconciliation, and are thus unlikely to succeed.
The Senate parliamentarian ruled on Tuesday that additional provisions in the version of the bill the Senate released on June 26 also violated Senate rules, and would require 60 votes. These include the proposal allowing insurance to increase taxes on elderly Americans, and the proposal to enable businesses to establish health care plans they could sell across state lines. This ruling is
Technically, the vote on BCRA Tuesday was a procedural one, and needed 60 votes due to the complexity of the reconciliation process. Wednesday's vote on repealing Obamacare theoretically would have needed 60 votes had the Democrats raised a point of order, because the provision regarding abortions, was deemed in violation of Senate budgetary rules, but they did not do it. The measure failed anyway.
Step 4: Send a Finished Bill Back to the House
Once all the amendments have been decided and voted on, the Senate will vote on the bill's final passage. Should 50 Senators still be on board, the Senate would pass the legislation and work out the differences with the House if they exist, likely in the form of a conference, before sending it to President Trump to sign into law. According to the Congressional Research Service, the chambers would create a conference committee, comprised of members from both the House and the Senate, to work out the differences, which would culminate in the signing of a report. Once that report is signed, it would need to be approved by both chambers before heading to Trump's desk.
McConnell said he aims to have the Senate finished with the amendments by the end of the week, and either send it to the house or start a conference committee.
"This is just the beginning," he said. "We are not out here to spike the football."