Tom Cotton rejects the parliamentarian dodge

I have written about how congressional Republicans are subscribing to the view that key parts of Obamacare cannot be repealed through “reconciliation” — i.e., without 60 votes. This view — reflected in the House “replacement” legislation — holds that the GOP cannot repeal the price-hiking, competition-destroying regulations that form the core of Obamacare because the parliamentarian, pursuant to the Byrd Rule, won’t allow such repeal through the budget reconciliation process.

I call this the parliamentarian dodge. By embracing it, congressional Republicans put themselves in an untenable position. Without overturning the Obamacare regs, Republicans cannot repeal Obamacare, as they repeatedly promised to do, without seeing rising insurance premiums and, very likely, a “death spiral” for which they will be held responsible.

But Republicans need not put themselves in this box. The view that Obamacare regulations can’t be repealed through reconciliation is highly debatable. As I said here, the regs in question are part of a single, integrated Obamacare scheme. It is the scheme, not each and every element of it, that must pass the Byrd Rule test for what can be done through reconciliation by having a budget effect — and surely it does.

In addition, I noted (per Daniel Horowitz) that the current repeal bill being pushed by Speaker Ryan repeals certain Obamacare regulations. This undercuts any claim that the Byrd Rule precludes repealing Obamacare regs.

Yesterday, in his interview with Hugh Hewitt, Sen. Tom Cotton pushed back against the parliamentarian dodge. He told Hugh:

I think we should take a bolder stance about the number of those regulations that can be included inside this [reconcilation] process, because those regulations clearly have a huge budgetary impact. They are driving up the price of premiums by billions and billions of dollars in the aggregate, which means taxpayers are paying billions and billions of dollars in the aggregate on the individual market and through the Obamacare subsidies.

So rather than pick and choose, and say we think this regulation fits within the Senate rules, or we think that one does not, we should take a bolder view. We should make that case, and we should proceed on that manner.

I simply don’t understand why the House bill has tried to repeal. . .some of the regulations of Obamacare. It modifies some of the other regulations, although it doesn’t repeal them, and then it leaves others in place on the grounds that they can’t be touched through this process. I don’t see why that is a consistent view.

I think we need to just focus on the entire regulatory scheme that has driven up premiums for so many Americans, and therefore has cost billions and billions of dollars to the taxpayers, which is perfectly suitable for the reconciliation process.


A ruling by the Senate parliamentarian can be rejected without a super-majority. Thus, Republicans have the power to “dodge” the parliamentarian. They also have a principled argument for doing so.

This is the only exit from the trap the GOP finds itself in. Sen. Cotton has pointed the way.