House ACA Bill Runs Afoul of Senate’s Byrd Rule: Democrats’ Hoyer

By Jonathan Nicholson

Democrats scrutinizing House Republicans’ bill to partially repeal the Affordable Care Act said some portions of it appear vulnerable to a procedural challenge on the Senate floor, a prospect that could force a second House vote, if true.

Under the Senate’s rules, a so-called reconciliation bill enjoys protection from a filibuster by the minority party, making it the ideal legislative vehicle to use to pass controversial policies with 51 votes. But reconciliation bills also have some restrictions imposed by the Byrd rule, named after the late Sen. Robert C. Byrd (D-W. Va.).

Among the restrictions is that provisions in such bills must have some impact on federal finances, either outlays, revenue or the deficit. And those impacts must be more than “merely incidental” to the policy enacted. If they are challenged on the Senate floor and the Senate parliamentarian finds they violate the Byrd rule, they can be struck from the bill unless a waiver—requiring a supermajority vote—has been granted.

Senate Passage ‘Problematic.’

Rep. Steny Hoyer (D-Md.), the second-ranking Democrat in the House, told reporters March 7 he thought Republicans would find it tougher to pass their ACA repeal bill than they expected, in part because of Byrd rule issues.

“What they’re going to find, and what you’re all going to find, is their party is deeply divided. And frankly this bill does not, in many instances, meet the Byrd rule requirements, so that its passage in the Senate is problematic under the rules,” he said.

If the House were to approve the repeal as the legislative text was unveiled March 6 and a successful Byrd challenge was made in the Senate, the offending language would be excised but that would then require the House to vote again in order to pass the same bill in both chambers before sending it to the White House.

Democrats hope to bring political pressure on Republicans and the prospect of a second vote on the ACA bill would be one way to do that.

Neither a spokesman for the House Republicans on the House Energy and Commerce Committee or a spokeswoman for House Speaker Paul Ryan (R-Wis.) returned requests for comment immediately.

Four Provisions

According to Democratic aides, the most obvious target for a Byrd rule challenge is the repeal bill’s language for age rating by insurers, allowing them to charge more for older customers than younger ones than is currently allowed under the ACA.

One aide said the another section in the Energy and Commerce portion of the bill would be vulnerable, a provision repealing part of the ACA requiring state Medicaid programs to offer the same list of “essential health benefits” as insurance plans in the ACA exchanges.

Other potential targets for Byrd rule challenges include a penalty for people seeking to buy insurance who have not maintained coverage, the so-called “continuous coverage” provision and a provision repealing “actuarial value” standards for individual insurance plans, which is linked to whether the plans are deemed as bronze, silver, gold or platinum plans when marketed.

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To contact the editor responsible for this story: Paul Hendrie at

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