Health Care

TrumpCare took a dip in the Byrd Bath, but it hasn’t drowned yet.


Republicans are using a special process called reconciliation to try to pass TrumpCare through the Senate with only 50 votes. There are rules they have to follow when using reconciliation, and now they’ve been told by the Senate Parliamentarian that several provisions of TrumpCare break the rules. Here’s what that means.

This doesn’t change our bottom line. Tell your Senator to oppose the first procedural vote, the motion to proceed, on TrumpCare.

First, what is the Byrd Bath?

There are a number of rules that have to be followed during reconciliation, collectively known as “the Byrd Rule.” It’s named after former Senator Robert Byrd, who was its principal sponsor.

It’s the Senate parliamentarian’s responsibility to offer guidance on which provisions violate the Byrd rule. The process in which the parliamentarian, a theoretically nonpartisan staffer, and the majority and minority staff of the Senate Budget Committee discuss provisions that could potentially violate the Byrd Rule is called—because Congress is so clever—the “Byrd Bath.” If a provision is found to violate the rules, any Senator can raise a point of order to object to it. Provisions stripped from the bill during the Byrd Bath have been dubbed “Byrd droppings” (because why not take the analogy too far?).

What happened to TrumpCare in the Byrd Bath.

The Senate parliamentarian shared her guidance on July 21, finding that a number of provisions violate the Byrd Rule, specifically that provisions in reconciliation legislation must primarily have an impact on government spending or revenues. That means that they have to be taken out of the bill, they have to be passed with 60 votes, or Republicans must break decades of precedent and overrule the parliamentarian to pass them (more on that in a bit). Here are a few TrumpCare provisions that violate the Byrd Rule:

  • Abortion and Planned Parenthood. Republicans wanted to defund Planned Parenthood and prohibit tax credits that help people afford insurance from being used to buy plans that cover abortion. The parliamentarian said no. This could present a political problem for Republicans, because Senator Cruz and the Freedom Caucus in the House both consider these provisions critical to their support for the bill.
  • TrumpCare’s inadequate substitute for the individual mandate. TrumpCare had a provision that imposed a mandatory waiting period of six months before insurance coverage kicked in for anyone going without coverage. This is a huge threat for anyone who really needs treatment for a health issue. But this provision being removed carries some implications for the stability of the health insurance market. They’re worried only sick people or people with a history of health issues would buy insurance, which hikes prices.
  • A state specific provision to bribe upstate NY House members. A section was added to the House bill specifically to buy off the votes of certain upstate New York members that has to do with the state’s Medicaid funding. The parliamentarian said no to this, which may mean Alaska’s Polar Payoff, another state-specific buy off, may have to come out as well. (The Polar Payoff likely came about too late to be evaluated by the Parliamentarian in this Byrd Bath.)  

There are other provisions that the parliamentarian said violate the Byrd Rule as well. Still other provisions—including important ones like the waiver that lets states get rid of essential health benefits—are still under review. And they haven’t even started to review the Cruz Amendment yet.

It might seem like taking out these provisions makes the bill “less bad.” But that’s not the case: the bill still destroys Medicaid as we know it, by ending the expansion and transforming it permanently into a cap system. It still takes away tax credits to help people afford insurance. It still drives up costs for patients. And McConnell can still try to put the rejected provisions back in by rewriting them or blowing up the Senate rules. So it’s critical that we stop him from getting 50 votes on the motion to proceed.

What will McConnell do now?

Republicans now have three options when considering the provisions found to be in violation of the Byrd Rule. They can:

  1. Try to find enough Democrats to pass these provisions with 60 votes. (Highly unlikely).
  2. Take the provisions out and pass the bill without them.
  3. Break decades of precedent and overrule the Senate Parliamentarian.

Scholars who study the Senate believe the third option would be incredibly rare and can’t remember a recent example of the Presiding Officer failing to follow the advice of the Senate Parliamentarian. These rules exist for a reason, and they’ve been respected for decades since they were first put in place. Nevertheless, Republicans like Ted Cruz are encouraging their colleagues to blow up the rules so that they can jam TrumpCare through.

Remember: McConnell needs 50 votes on the motion to proceed first. We can stop him from getting there.

All of this is moot if McConnell can’t find 50 votes on the motion to proceed. He is pulling out all the stops to buy off enough moderates to get him to 50. His latest ploy is putting back $200 billion of the $756 billion he cut from Medicaid—which makes little actual difference and does not “fix” the bill.

The results of the Byrd Bath may complicate McConnell’s path to 50. But it doesn’t change anything for us: no matter which version of the bill McConnell decides to put to a vote, TrumpCare is terrible for the American people. At least 22 million people will lose coverage. They’ll have higher costs and fewer protections. It would be a disaster for our country and the economy. Call your Senator and tell them to vote no on the motion to proceed.