The Obscure Rule That Could Derail Repeal And Replace

WASHINGTON (AP) — The success of Republican efforts to repeal and replace Democrat Barack Obama's Affordable Care Act could depend on an obscure Senate rule that few people have heard of and even fewer understand.

It's called the Byrd rule, named for the late West Virginia Sen. Robert Byrd and designed decades ago to preserve Senate filibuster rights. What it means for health care is that many Republican ideas may be ruled ineligible.

Republicans trying to tackle health care control the Senate with only 52 votes. They can't fully repeal the law; that would require them to match the 60-vote threshold in the 100-member body that Democrats reached when passing the Affordable Care Act seven years ago. Instead, they are hemmed in by the numbers and the rules as they use a fast-track process that requires only a simple majority.

The Byrd rule limits what can go into the filibuster-proof bill known as reconciliation. Such bills were designed to make it easier for Congress to cut the deficit. The Byrd rule blocks lawmakers from giving extraneous policy material a filibuster-free ride on such bills along with tax and spending provisions.

Here's a look at how the Byrd rule is affecting this year's Obamacare debate:

ORIGIN OF BYRD RULE

The Byrd Rule got its start back in 1985 when the modern budget process was still relatively new. Powerful senators had succeeded in stuffing unrelated amendments on textiles and tobacco into that year's reconciliation bill, which alarmed defenders of Senate traditions such as then-Minority Leader Byrd, who warned it was endangering the filibuster. Byrd and Majority Leader Bob Dole, R-Kan., engineered a unanimous vote to curb the ability to tuck extraneous provisions into fast-track budget legislation.

The party controlling the Senate has typically tried to stretch the Byrd rule's boundaries, however, with today's GOP-controlled Senate only the latest example.

"Reconciliation has been thoroughly and totally abused over the years," said former Senate Parliamentarian Alan Frumin. "People think you can put almost anything in reconciliation."

POINT OF ORDER

The Byrd rule generally blocks provisions that don't affect the federal budget — and blocks provisions whose changes to spending or taxes are "merely incidental" to a larger policy purpose. If such provisions are inserted despite the Byrd rule, any individual senators can knock them out with a point of order.

Such "Byrdable" provisions appear to include a controversial House amendment by Rep. Tom MacArthur, R-N.J., to allow states to opt-out of Obamacare mandates and allow insurance companies to charge higher premiums to people with pre-existing conditions.

Other policies, such as mandates that individuals buy insurance or employers provide it to their workers, can't be directly repealed but can be gutted through the special budget bill by scrapping the penalties for violating the mandates. The rule also blocks other GOP ideas like allowing insurance companies to sell health care policies across state lines.

BYRD AND HIS RULE IN ACTION

Byrd himself played a big role in blocking fellow Democrats from using the budget reconciliation process in a failed 1994 health care attempt. And Democrats started out in 2009 by trying to pass the Affordable Care Act without using the reconciliation shortcut, winning a 60-39 vote on Christmas Eve Day to pass the measure.

But when Massachusetts Republican Scott Brown won a special election to claim the seat formerly held by Democratic Sen. Ted Kennedy, Democrats turned to a separate budget reconciliation measure to make modest changes to secure the law. Republicans used reconciliation to send a repeal measure to former President Barack Obama last year for his veto and are using it again now.

WHAT HAPPENS NOW

The House-passed bill has plenty of Byrd rule problems. Senate Majority Leader Mitch McConnell, R-Ky., is expected to start from scratch. Key staff have already been meeting with the chamber's nonpartisan parliamentarian, Elizabeth MacDonough. Once Senate Republicans release their alternative to the House bill, Democrats will give it a scrubbing — sometimes known as a "Byrd bath" — and raise points of order under the rule. If there's a final House-Senate conference report that contains offending items, they too can be stripped out on Byrd Rule points of order, which could force the House to vote again.

Some conservatives are arguing that since Republicans control the Senate, they could opt to, in essence, ignore the Byrd rule by having the presiding officer substitute his or her judgement for the parliamentarian's. There's no sign, however, that McConnell is interested in doing that.