I’ve written here about how, in a little noticed floor fight, Senator Mike Lee laid the groundwork for the Senate’s first meaningful (that is, a vote at majority threshold, not at 60) vote on Obamacare repeal in 2015.
For students of the Senate, the process by which this occurred is as instructive as it was cunning, and demonstrates how Senators can use their rights – and the Senate’s rules and precedents – to their advantage.
This sequence of events began with a deal Mitch McConnell cut with Patty Murray (D-WA) as the Senate considered a highway bill in 2015. She and Senator Lindsey Graham (R-SC) agreed to give President Obama trade promotion authority (TPA), and in exchange, McConnell promised to bring up the reauthorization of the Export-Import Bank, which benefits Boeing, a major employer in Washington State and South Carolina.
McConnell promised them that if these senators supported TPA, he would add the Export-Import Bank amendment to the highway bill. When this deal was publicly announced, it prompted Ted Cruz to call McConnell a liar on the Senate floor, because McConnell denied that any such deal would take place and Cruz voted for TPA on the basis of those assurances.
With Murray and Graham supporting TPA, McConnell then had to go forward with his side of the bargain. To counter conservative opposition to putting Ex-Im reauthorization on the floor, McConnell filed an amendment to the amendment tree to repeal Obamacare. However, due to the fact that he believed the amendment to be non-germane, the amendment would be subject to 60 votes. With only 54 Republicans in the Senate, the amendment was destined for failure.
At this point, the amendment tree was structured in the following way.
The underlying bill was to be used as a “revenue shell.” In other words, because the Constitution requires all revenue bills to originate in the House, and the Ex-Im and highway bills have revenue provisions, these provisions had to be added to a revenue related bill that had come over from the House – that bill would “house” whatever the Senate put into it. The Senate selected a bill that exempted veterans from certain Obamacare taxes.
McConnell then offered the full highway bill as the substitute amendment, the reauthorization of the Export-Import bank as the first degree perfecting amendment (this was done to fulfill his promise to Graham and Murray, in exchange for their votes in favor of TPA). The second degree perfecting amendment was a full repeal of Obamacare.
McConnell then filed cloture on everything. First, he filed cloture on the Obamacare amendment. Second, he filed cloture on the Export Import Bank amendment, third, he filed cloture on the highway bill, and fourth, he filed cloture on the underlying bill. All four cloture motions would ripen concurrently, and at the end they would be voted on in the order filed.
However, things did not go as McConnell had planned.
The first complication happened when Senator Ted Cruz, in a rarely used procedural maneuver, offered a third degree amendment to defund the Iran nuclear deal. Cruz knew this was out of order, but he offered the third degree amendment with the intent of appealing the ruling of the chair and forcing Senators to take a vote on the record.
McConnell, however, was able to thwart Cruz’s plan by refusing him sufficient second to get a vote on his appeal when the amendment was out of order (allowing a sufficient second is a courtesy given normally given to all members). The Cruz amendment fell.
This brought the Senate to the Obamacare amendment. McConnell’s intent was to have the Obamacare amendment be the first vote. In this scenario, cloture would fail (because it required 60 votes) and then Minority Leader Harry Reid would make point of order that the Obamacare amendment was not germane to the highway bill and therefore it was out of order and should fall automatically.
But McConnell had made a rare, unforced error in filling the tree.
His oversight focuses on where germaneness arguments can be made along the amendment tree. Recall that the revenue shell – the underlying House bill that the Senate was using to house its highway bill – exempted veterans from parts of Obamacare. Because of its subject matter similarity to McConnell’s Obamacare repeal amendment, the argument for germaneness could be made – thus stripping the amendment of the need for 60 votes, and dropping the approval threshold to a simple majority.
Senator Lee seized on this oversight, and publicly announced that he planned to appeal the ruling of the chair when Reid tried to rule the amendment out of order.
In other words, if the Senate wanted to get rid of the Obamacare amendment, as McConnell planned to do, some Republicans would now have to vote against the amendment on the appeal.
Though the entire party had campaigned on Obamacare repeal (McConnell himself famously promised to repeal Obamacare “root and branch”), Lee’s gambit was unacceptable to McConnell and the rest of the conference. The Leader called an emergency meeting of GOP senators, and publicly told Lee to withdraw the amendment.
However, Lee stood his ground and stated that unless McConnell gave a public commitment to use the upcoming reconciliation bill to repeal Obamacare, he would force the vote at a 51 vote threshold which would derail the highway bill and the Ex-Im Bank reauthorization.
McConnell was out of options and agreed to the deal. The result was the 2015 Obamacare repeal bill that was sent to President Obama’s desk in December 2015, and which set the stage for where the Senate is currently.
For Senators and staff, the old quote from former Congressman John Dingle remains as true as the day he spoke it.
“If you let me write the procedure and I let you write the substance, I’ll beat you every time.”