As Senate Majority Leader Mitch McConnell tries to negotiate his way to a health bill that can win at least 50 Republican votes, there is one woman who could stop the bill cold.
She isn't even a senator.
Elizabeth MacDonough is the Senate's parliamentarian, who advises senators on the chamber's complicated rules and procedures. She can decide what pieces of the emerging Senate repeal of the Affordable Care Act can be included under the budget reconciliation process senators are using. That process allows them to pass a bill with a simple majority vote rather than needing the usual 60.
In theory at least, she could reject the deals McConnell is trying to make.
By all accounts, MacDonough, who has spent almost her entire career working for the Senate and was appointed to her position in 2012, is scrupulously fair and trusted by both major parties.
"Elizabeth is great," said Rodney Whitlock, a former Republican staffer on the Senate Finance Committee who has argued tricky legislative points before her numerous times. Democrats agree. "She's a straight shooter and an honest broker," said Bill Dauster, a longtime Democratic staff director for the Budget Committee.
It's good that both sides like her, because if the Senate bill comes to the floor, MacDonough may have to make some decisions that will make one side or the other very unhappy.
MacDonough and her assistants are charged with deciding which pieces of the bill violate the rules of budget reconciliation, in particular the "Byrd Rule," named for its author, the late Sen. Robert Byrd, D-W.Va. That rule requires that everything in the bill pertain directly to the federal budget. The idea is to prevent senators from loading up the budget bill with unrelated items that belong in the regular, slower Senate process.
The judgments mostly involve parts of the bill that opponents argue don't add to or subtract from federal spending, or whose budget impact is "merely incidental" to the purpose of the policy. Outside observers say the parts of the Senate measure that are vulnerable under this rule include provisions that would defund Planned Parenthood and those affecting the rules for private insurance plans.
Generally, the review involves meetings between Senate committee staff and the parliamentarian.
"The Democrats go in, the Republicans go in, then both of them go in together," Dauster said. Each side argues whether certain language should or should not be allowed in the bill.
MacDonough does not rule immediately after the arguments. "She has, of late, gotten back to people by email" with her decisions, Dauster said.
That has not always been the case. In the past, said Bill Hoagland, a longtime Republican staff director for the Senate Budget Committee, after making their arguments "we would wait until we went to the floor and [a senator] would raise a point of order" against some specific language, and senators and staff would learn the parliamentarian's decision only then.
MacDonough's ruling may prompt the bill's authors to delete language before the bill comes to the Senate floor. Or they may let the drama may play out. Any senator can raise a point of order against a specific provision claiming it violates the Byrd Rule. It takes 60 votes to overcome such a point of order.
But what if Senate leaders do not accept MacDonough's decision?
"That's what scares the heck out of me," Hoagland said. Under the Senate's rules, the senator who is acting as the presiding officer during the debate does not have to take the parliamentarian's advice. But if he or she rules against what the parliamentarian has advised, "I would argue that you have basically destroyed the Byrd Rule and you've destroyed the purpose of reconciliation at that point," he said.
That's because it would allow the majority party, which controls the Senate, to effectively include any provisions it wants in the fast-track budget bill with only a simple majority.
"It's another way to go nuclear," Dauster said, referring to efforts to end a filibuster, which requires 60 votes to break.
It depends how MacDonough rules. And how badly the Republicans want their health bill to pass.
