WASHINGTON ― Hours after opening debate on a Republican health care bill, the Senate roundly rejected the first of a series of GOP proposals late Tuesday night: the Obamacare repeal and replacement plan that Republicans had been working on for months.
The Better Care Reconciliation Act went down, 43-57, with nine Republicans voting no: Susan Collins (Maine), Tom Cotton (Ark.), Bob Corker (Tenn.), Lindsey Graham (S.C.), Dean Heller (Nev.), Mike Lee (Utah), Jerry Moran (Kan.), Lisa Murkowski (Alaska) and Rand Paul (Ky.)
But the GOP's hopes of passing some bill ― any bill ― were alive and well Tuesday night, with a scaled-down version of repeal looking increasingly in good shape after leadership revealed their plan earlier in the day of passing a "skinny repeal" if lawmakers agreed to open debate.
At this point, the idea is for Republicans to just pass this smaller repeal ― which will likely get rid of the individual and employer mandates, as well as a medical devices tax ― and enter into a conference with the House so that Republicans can come up with some larger repeal-and-replace measure later.
At least that's how Republican leaders have articulated the plan.
There's an incredible amount of uncertainty over the legislation, which hasn't technically even been written, and there's a fair amount of bad faith. Senate Republican leaders kept their members, Senate Democrats, and the public in the dark about their plan to vote on a smaller version of repeal for weeks. There's little reason to believe Majority Leader Mitch McConnell (R-Ky.) isn't working on alternative legislation now in case the skinny repeal runs into trouble ― or, conversely, if he sensed that a bigger deal were within reach.
Asked why Republicans were doing this smaller bill Tuesday, Majority Whip John Cornyn (R-Texas) made it clear that leadership was largely making up the plan as they go.
"Who knows what the final bill will look like?" Cornyn said Tuesday. "I'd be happy to have a comprehensive bill that 50-plus senators agree to, but if we can't, then the idea would be to come up with a core of pieces that 50 of us agree on so we can get to a conference."
For now, that larger deal looks unlikely.
With nine Republicans going on record against the BCRA, McConnell would have his work cut out for him in passing a similar piece of legislation, as senators are now on the record against the bill. (Technically, senators were rejecting a procedural motion for the legislation, but this vote largely served as a proxy for a vote on the bill.)
But the smaller repeal looks like it's in decent shape. Fifty Republicans voted to open debate Tuesday, with only Collins and Murkowski voting no. And even though there are a number of Republicans who could potentially vote against the skinny repeal ― Ron Johnson (R-Wis.), Mike Lee (R-Utah) and Shelley Moore Capito (R-W.Va.) among the most likely ― lawmakers have largely tipped their hand. They have shown willingness to cave to leadership. They don't seem that troubled by the process or the legislation that leadership is using to strike at the Affordable Care Act. And their complaints of a bad process or a bad bill are just that: complaints.
Among the senators who voted for BCRA was Sen. John McCain (R-Ariz.), who spent part of his day delivering an impassioned floor speech decrying the process and the legislation that he voted for later in the evening. Johnson, who withheld his vote earlier Tuesday during the motion to proceed until he had a 10-minute conversation on the floor with McConnell, also ended up voting for the BCRA, as did Capito, who has made her qualms about Medicaid cuts well-known, saying last week that she didn't "come to Washington to hurt people."
But a Congressional Budget Office analysis of BCRA said it would do just that, leading to 22 million fewer people with insurance and raising prices substantially on older, low-income Americans.
The skinny repeal, while a less robust piece of legislation, would still manage to do much of the same. The CBO has previously said that similar legislation would lead to 15 million fewer people with health insurance and 20 percent premium increases. The legislation would, in short, produce the sort of death spiral that Republicans accuse Obamacare of producing.
Asked about the potential for that death spiral, Sen. Ted Cruz (R-Texas) suggested the skinny repeal bill would not be the final product. "This is a legislative process," he said. "This is a journey. And we're not there yet."
Cruz added late Tuesday night that the replacement plan he voted for would likely be "the contours" of a final bill.
No one seems to think the skinny repeal will be the bill that President Donald Trump signs. House conservatives suggested Tuesday that they would not simply take this smaller bill. House Freedom Caucus Chairman Mark Meadows (R-N.C.) told HuffPost there was "no appetite" to take the Senate bill if it were "just an expanded executive order." And Freedom Caucus member Rep. Raul Labrador (R-Idaho) said he would have "no problem" voting no on a bill if it were just a repeal of the individual and employer mandate.
"This is our one chance to actually repeal Obamacare and to give states flexibility," Labrador said, suggesting he wants to see something that would cut at least some of the Obamacare regulations and decrease premiums.
That standard could be difficult for both chambers to agree on, particularly if House conservatives draw a hard line on cutting regulations that would undermine protections for people with pre-existing conditions.
The measure Tuesday night needed 60 votes because of the inclusion of the so-called Cruz amendment, which would allow insurers to offer plans that don't comply with Obamacare regulations as long as they offer at least one plan that does. The Senate parliamentarian has not ruled whether Cruz's proposal conforms with rules for the budget reconciliation process, which allows the chamber to fast-track certain measures. If the parliamentarian finds that Cruz's amendment should be subject to 60 votes, it could be difficult for a final piece of legislation to address the issue as well.
And if House conservatives are making it a prerequisite that the conference bill eliminate at least some of those regulations that ensure people with pre-existing conditions are charged the same amount as healthy people, they could be setting up the whole process for failure.
But if the Republican process has proved anything, it's that almost every Republican will bend on his or her stated principles to check the box of repealing Obamacare.