Will the GOP let a procedural question stop them from repealing Obamacare?

CPI Staff — Monday, September 18, 2017

After failing to repeal Obamacare earlier this year using the Fiscal Year 2017 reconciliation process, the Senate has found itself in a peculiar position.

The reconciliation bill for FY2017 still remains on the Senate calendar, available for use. But for how long? Until this fiscal year ends on September 30, 2017? Until the end of the 10-year budget window under instruction by the FY2017 budget? Until the end of the calendar year?

On this question, the Senate is in untested water. In parliamentary speak, this is known as “unadjudicated precedent” – or, a parliamentary question that the Senate has never decided how to handle.

Unlike the House, which is governed by very clear cut majoritarian rules, the Senate operates under 44 standing rules, and over a million precedents.

The standing rules of the Senate govern everything from when Senators take the oath of office to the committee referral process. However, the standing rules are intentionally vague when it comes to the parliamentary process – that is, how the Senate decides to handle questions of procedure on the Senate floor.

That’s where precedents come in. Precedents fill in the gaps in the Senate standing rules. They kind of act like judicial case law – what has the Senate said before on this question, and how should that guide future action?

As you might imagine, there are many, many more Senate precedents than there are standing rules. They cover everything from what constitutes “germaneness” in the Senate, to the right of priority recognition for the Senate majority leader.

Precedents can be created by the Senate whenever there is an open question – or they can be overturned, in favor of new precedent being created. (For more on the interaction between Senate rules and precedents, see here.)

As the number of precedents continues to grow (again, over a million!) individual Senators do not have the capacity, or the time, to know how each one of them apply.

This is where the Senate parliamentarian comes in.

As a staffer for the Senate, the parliamentarian’s role is to advise Senators on what the precedents say in regard to a pending parliamentary question.

The parliamentarian’s authority in this matter is often misunderstood. The parliamentarian does not make rulings. Rather, the parliamentarian advises the Senator acting as the Senate’s presiding officer, and then the presiding officer makes a ruling.

As a matter of note, the Constitution grants the role of President of the Senate to the Vice President of the United States. When the Senate is dealing with contentious matters, the Vice President will, at times, serve as the presiding officer in order to issue rulings from the chair, and break tie votes. (Vice President Pence most recently issued a tie breaking vote on the confirmation of Betsy DeVos to be Secretary of Education.)

Again, the parliamentarian’s counsel is advisory. The Senate can, and frequently does, choose to break new ground by voting on a question of procedure. This is how new precedent is created.

The parliamentarian’s guidance is usually kept private, as it is used exclusively to guide the internal workings of the Senate.

However, Senator Bernie Sanders chose to make recent guidance from the parliamentarian public, in announcing that she had advised that the FY2017 reconciliation instructions – which the GOP wanted to use to repeal Obamacare – would expire on September 30. In releasing her opinion, the Sanders staff did not make public the reasoning behind her guidance.

Regardless of what the parliamentarian advises, the Senate retains the right to act as the body decides.

Thus, should a Senator decide to elevate the question – when do reconciliation instructions expire? – to the full Senate, the question would ultimately be decided by the votes of all Senators, duly chosen and sworn.

At the moment, there seems little interest by either Democrats or Republicans in challenging the parliamentarian’s advice, and bringing this question to the floor.

That leaves little time for the GOP to keep its nearly decades long promise to voters to repeal Obamacare.