Ted Cruz and Mike Lee go nuclear: The right's new Obamacare repeal hardball

Conservative senators are already thinking about chipping away at rules to eliminate the scourge of healthcare

Published July 27, 2015 5:02PM (EDT)

  (Reuters/Chris Keane)
(Reuters/Chris Keane)

Two hijinks-minded Republican senators tried, and failed, to stick it to Sen. Mitch McConnell during Sunday's Senate session considering amendments to the highway bill. This does not mean that Mike Lee and Ted Cruz's amendment hijinks are finished just yet, however. For today's trick, Lee will magically attempt to repeal Obamacare with a 51-vote simple majority! His chances of success are approximately zero. But what we're seeing, already, is an interest among Republicans to chip away at the Senate procedural rules that would block them from taking Obamacare off the books.

The drama began on Friday when McConnell filed two amendments to the highway bill -- a full repeal of the Affordable Care Act and a reauthorization of the Export-Import Bank -- and then cut off consideration of all other amendments. This didn't irritate Ted Cruz so much as give him an excuse to feign over-the-top irritation against the majority leader to buttress his presidential campaign's fundraising efforts. Cruz repeatedly accused McConnell of lying about the manner in which he'd pursue an Ex-Im Bank reauthorization.

Pearls were clutched throughout the Beltway. The Senate is such a comically stuffy institution that it's literally against the chamber's rules to "impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator." Accusing a United States Senator of... of lying? Good heavens! But instead of formally reprimanding Cruz for questioning the unimpeachable integrity of Mitch McConnell, all but three Republican senators on Sunday rejected calls from both Cruz and Lee for roll-call votes on their amendments about Iran and Planned Parenthood, respectively. It was a direct rebuke for Cruz's attack on McConnell. "You learn that in kindergarten: You learn to work well together and play by the rules," Sen. Lamar Alexander said. "Another thing you learn in kindergarten is to respect one another." Thanks, Dad.

The lesson that Mike Lee learned was not to play nicely with his colleagues, however. Instead he is expected on Monday afternoon to play some Obamacare-repeal procedural hardball in an effort to put his colleagues on the spot. Here's the big plan, in Lee's own words:

"Republicans now have an opportunity to make good on our promise to repeal Obamacare,” Lee said. “The first Obamacare vote on Sunday will have a 60 vote threshold, and Democrats will likely block it,” Lee continued. “But thanks to the sequencing of the votes we just locked in, Republicans will have the opportunity resurrect that Obamacare amendment later on in the process, and put it back before the Senate in a manner that only requires a simple-majority vote.”

After cloture is reached on the Export-Import Bank amendment, senators will still be allowed to offer germane amendments to the highway bill, each of which would only require a simple-majority to pass. If the Chair rules that the Obamacare amendment is non-germane, Senate Rule 22 also allows any senator to appeal that ruling to the full Senate. At that point, a simple-majority of Senators would have the power to add the Obamacare repeal amendment to the highway bill."

Opponents of Lee's move, of which there are many, are describing this as the "nuclear option for legislation" -- i.e., the total elimination of the filibuster. That's not the case. A closer approximation of what Lee's suggesting is a nuking of the germaneness rule regarding amendments.

Lee claims that this would be a special, one-off case instead of a precedent, but, well, sometimes precedents get set whether that's your intention or not. That's the more theoretical reason for Lee's fellow Republicans to squash his maneuver today. The more practical one is that if an Obamacare repeal is added to the highway/Ex-Im reauthorization bill, Senate Democrats would filibuster the underlying bill and there would be no highway/Ex-Im reauthorization bill making its way out of the Senate. (This is indeed part of Lee's plan: He and a super-minority of senators do not want the Ex-Im Bank revived at all.)

This is a momentary congressional procedural spat that they'll resolve eventually, and I hope you were able to get this far without falling asleep. But the episode is an early sign of what may come if Republicans can marry their control of Congress with a Republican White House in 2017. The pressure from the GOP base to do whatever's necessary to repeal Obamacare will be extraordinary. Most Republican senators and presidential candidates, for now, aren't too keen on nuking the legislative filibuster in order to achieve that goal, but they're coming around. Lee is already applying pressure on his fellow Republican Senators to erode the filibuster by essentially setting the precedent that it needn't apply to amendments. Come 2017, if there's a friendly face at the other end of Pennsylvania Avenue, Lee's colleagues might find themselves more disposed to nuking that and whatever other procedural difficulties get in their way.

By Jim Newell

Jim Newell covers politics and media for Salon.

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Editor's Picks Elections 2016 Mike Mike Lee Mitch Mcconnell Obamacare Senate Ted Cruz