Elected officials, not unelected staffers, should decide the fate of ObamaCare
© Greg Nash

Ted CruzRafael (Ted) Edward CruzSenate panel advances bill blocking tech giants from favoring own products Lawmakers press Biden admin to send more military aid to Ukraine On The Money — Ban on stock trading for Congress gains steam MORE wants to destroy the Senate as we know it,” wrote former Senate staffer Richard Arenberg in these pages a few days ago. To which the frustrated citizenry responds, “You mean that as a compliment, right?"

Arenberg is referring to Sen. Cruz's idea that of using the rules of the Senate to push through a real ObamaCare repeal-and-replace bill, rather than the weak bill the GOP leadership has constructed, allegedly out of concern that repeal of certain elements of ObamaCare would fail the so-called “Byrd Bath” and be stripped out of their reconciliation bill.


Just what elements that might fail the “Byrd Rule?” The pre-existing condition mandates, and the mandates to prohibit individual risk evaluation in favor of “Community Rating,” and to require every policy sold to contain coverage for so-called “Essential Health Benefits,” whether the policy-holder wants them or not.


These are driving up the cost of insurance – and, consequently, these elements drive up the cost to the federal government, which subsidizes that insurance. Repealing them should pass the Byrd Bath.

As Arenberg points out, then-parliamentarian Alan Frumin rejected Senate Democrats’ attempts in 2009 to use reconciliation to pass ObamaCare. But that was seven years ago, before we had the experience of ObamaCare. Clearly, that experience shows that these mandates have caused costs to rise – and, with them, federal outlays.

Cruz’s advice was simple: Put all these reform elements in the reconciliation bill. Perhaps the parliamentarian will advise these elements do have a significant impact on the budget, given the evidence of the last seven years of ObamaCare. However, if the Senate parliamentarian – an unelected staffer – advises that these elements of the bill cannot be considered under reconciliation, ignore her advice.

Doing so would invite an immediate appeal of the ruling of the presiding officer from opponents of the bill.

But under the rules of reconciliation, overturning a ruling of the presiding officer requires 60 votes. Republicans currently control 52 seats in the Senate, so Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellBiden stiff arms progressives on the Postal Service Biden clarifies any Russian movement into Ukraine 'is an invasion' The Hill's Morning Report - Presented by Facebook - Biden talks, Senate balks MORE could afford to lose 11 votes and still maintain the 41 votes needed to sustain the ruling of the chair.

For Arenberg, this is an “outrageous suggestion.” “If the Cruz idea is adopted, it would blow a gigantic hole in the Senate rules, destroying the Senate as we know it,” he wrote.

Perhaps Arenberg hasn’t noticed, but the Senate hasn’t functioned as its founders intended for quite some time. The Senate as they knew it was destroyed a long time ago.

Those of Arenberg’s ilk will cry, “Zounds! The Senate’s rules and traditions are what make it unique!”

No doubt, these are the same people who insisted right up until the votes were counted that Donald TrumpDonald TrumpPredictions of disaster for Democrats aren't guarantees of midterm failure A review of President Biden's first year on border policy  Hannity after Jan. 6 texted McEnany 'no more stolen election talk' in five-point plan for Trump MORE would not, could not win the presidency. He was a “wrecking ball.”

These are the people who still fail to understand why Donald J. Trump is President Trump – he’s there because a "yuge" group of voters decided they were done with the political gamesmanship of Washington, through with the smoke and mirror games.

In other words, they voted for the “wrecking ball” precisely because he is a wrecking ball.

The Constitution says two things of import here: First, the vice president serves as the president of the Senate. That makes him the presiding officer. Second, “each House may determine the rules of its proceedings.” The Senate has done so, and has given the presiding officer the power to, well, preside.

So it’s not the Senate parliamentarian’s right to decide, it’s the vice president’s. He can take – or reject – advice from anyone he wants.

Robert Dove, former Senate parliamentarian – and, significantly, Arenberg’s co-author of "Defending the Filibuster: The Soul of the Senate" – agrees. In a 2010 interview on MSNBC, Dove reiterated that the “parliamentarian can only advise. It is the Vice President who rules.” Well, yes. Exactly.

Cruz is right. Vice President Mike PenceMichael (Mike) Richard PenceManchin, Collins leading talks on overhauling election law, protecting election officials Jan. 6 committee asks Ivanka Trump to sit for interview Pences' pet rabbit, Marlon Bundo, dies MORE can (under the rules), and should, preside over the Senate when it’s dealing with the reconciliation legislation. And he should be prepared to rule in the significant insurance reform elements that need to be inserted into the reconciliation bill to ensure real repeal of Obamacare.

When the Democrats rammed ObamaCare through Congress, they broke precedent and their promises to pass the bill. That fact was not lost on the American public, which responded thunderously and disapprovingly in the 2010 elections.

Senate Republicans should at least have the courage to do everything reasonably within their power, and within the Senate rules, to free Americans of the unpopular and unworkable law that has plagued us for seven years. To do anything less than that will surely be greeted in a similar way by voters in 2018. Count on it.

Jenny Beth Martin is president and co-founder of Tea Party Patriots, the largest national tea party group in the country.

The views expressed by contributors are their own and are not the views of The Hill.