The fate of the Republican drive to repeal and replace Obamacare — and of the millions of Americans who could be left uninsured if it succeeds — could come down to a complex and obscure Senate rule.
That rule will determine what provisions Republicans can include in the bill, how much of Obamacare they can repeal, and perhaps whether the most conservative GOP senators will vote for it. It could be the roadblock to a policy that conservatives see as their biggest demand before they support a bill they have serious reservations about.
The most anti-Obamacare senators want to undo the law's insurance regulations as much as they can, and they are rallying around a proposal by Sen. Ted Cruz (R-TX) that would give them a win on that front. Under the proposal, if insurance companies sold a health plan that complied with Obamacare's rules, they would be allowed to sell other plans that did not.
That amendment might be essential to a Republican grand bargain on health care. If conservatives get a win on regulations, they might be more flexible about keeping some of the health care law's taxes on the wealthy. If some of the taxes are kept, then Senate leaders can spend more money on provisions, like Medicaid and financial aid for private coverage, that moderates are focused on. It's still likely to result in a bill that scales back federal support for insurance coverage and overhauls Medicaid while cutting taxes for the health care industry — but if any plan can pass the Senate, it's likely to look something like that.
But the first domino to fall in such a scenario would be a conservative win on insurance regulations. The Cruz amendment will first have to survive the so-called "Byrd Rule," which is supposed to limit the bill to policies that directly affect federal revenue and spending. If the proposal doesn't comply with the Senate's rules, an ensuing fight could pit conservatives against moderates and institutionalists — and could edge Senate Majority Leader Mitch McConnell (R-KY) closer to completely eliminating the legislative filibuster, a move with far bigger implications than health care policy.
It's a predicament seven years in the making, since Republicans started swearing to repeal Obamacare as soon as they took control of the government, and it is one that the GOP has courted from the start of this year's repeal effort.
With a slim majority in the Senate, the party chose to use "budget reconciliation" — a process that allows a bill to pass with only 50 votes but comes with restrictions that make it less than ideal for complex policymaking — to pass their plan.
The result is that the fate of the whole enterprise could now rest with the Senate's parliamentarian. Conservatives and senior senators have been meeting with that arbiter of the chamber's rulebook in recent days to figure out what they can include in the bill.
Obamacare, in other words, may live or die on the Byrd Rule — a 20-year-old quirk in the Senate's rules that most Americans have never heard of.