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Can Democrats Scrap the Filibuster?

The filibuster is a time-honored tradition in the Senate that allows any Senator to prolong debate and delay or prevent a vote on a bill.  Currently, 60 votes are needed in the Senate to end debate and pass most pieces of legislation, a threshold that requires Democrats to have the support of at least 10 Republicans to advance bills through the 50-50 Senate.  It has been difficult thus far for Senate Democrats to win over enough Republicans which is severely limiting what Democrats can accomplish legislatively.  This begs the question: why don’t Democrats simply scrap the filibuster?

Changing the Rules

Rules are made to broken, right?  Well, it’s not that simple.

There are 2 options to end the filibuster rule.  One option is to move forward to change Senate Rule 22, the rule that requires 60 votes to end debate.  BUT, Senate Democrats need a super-majority – 67 votes – to change the rule.  The other option is to create a new precedent in the Senate.  Changing the precedent, also known as the “nuclear option,” would require only a simple majority.

Not Enough Democratic Support

While Senate Democrats only need 50 votes to create a new precedent on the filibuster, the biggest hurdle is that not all 50 Senate Democrats are on board.  The most vocal supporters of the filibuster are Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ), who have repeatedly voiced their opposition to removing the filibuster since Democrats narrowly regained control of the Senate in January 2021.

Manchin most recently affirmed his filibuster support on June 6 when he wrote, “I will not vote to weaken or eliminate the filibuster” in an op-ed in the Charleston Gazette-Mail.  In his op-ed, Manchin pointed out that Senate Democrats were quick to defend the filibuster when then-President Donald Trump called for the tactic to be thrown out in 2017 when the GOP controlled both chambers of Congress and the White House.  Similarly, Sinema declared on June 2 that the filibuster “protects the democracy of our nation rather than allowing our country to ricochet wildly every two to four years.”  More so, Sinema has expressed support for restoring the 60-vote threshold to advance nominations.

Other Senate Democrats have conveyed some hesitancy to remove the filibuster.  When asked in January 2021 if he supported keeping the filibuster, Sen. Mark Kelly (D-AZ) declined to answer specifically and instead stated that he supports bipartisanship.  Additionally, Sen. Mark Warner (D-VA) also said in January that “it would take an awful, awful lot for me to end the filibuster.”

What About Reforming the Filibuster?

Between keeping or throwing away the filibuster, reforming the filibuster as we know it could be a third option and a compromise for Manchin and Sinema to consider.  On March 7, Manchin did state that he supports making the filibuster more “painful” if senators want to use it.  The scenario Manchin referred to is the “talking filibuster,” whereby members of the minority party can filibuster only as long as they are on the floor.  Once a senator relents, there would be a simple majority threshold.  The talking filibuster used to be the norm in the Senate until it was scrapped in 1975 because senators thought it was too time-consuming.

There is more recent precedent for reforming the filibuster.  In 2013, then-Majority Leader Harry Reid (D-NV) led the way to allow all nominees except for Supreme Court justices to advance in the Senate with a simple majority.  It should be noted that Reid accomplished this following a strong 2012 midterm election that saw the number of Democratic Senators grow from 53 to 55, while then-President Barack Obama publicly admonished Senate Republicans for consistently blocking his agenda.  In 2017, Republicans expanded on this when then-Majority Leader Mitch McConnell (R-KY) permitted Supreme Court nominees to also be approved with a simple majority.  McConnell proceeded to strike the filibuster in this scenario after Senate Democrats blocked the confirmation of Supreme Court nominee Judge Neil Gorsuch.

However, it’s unclear to what extent Manchin and Sinema would be open to even reforming the filibuster.  Manchin’s June 6 op-ed clearly states an opposition to “weakening” the filibuster, while Sinema’s comments on restoring the 60-vote requirement to advance all nominees suggests an unwillingness to change.

What Does Biden Say?

Over the course of his long career in Washington, President Joe Biden has evolved from being a staunch supporter of the filibuster to embracing calls for reform.  In the wake of the Sandy Hook mass shooting, then-Vice President Biden referred to the filibuster as a “perverted” rule after the Senate failed to advance gun violence legislation in 2013.  More recently, Biden expressed support for restoring the talking filibuster in an April 2021 interview.

On June 2, Biden took a rare move to say “two members of the Senate who voted more with my Republican friends” when asked why progress on a voting rights bill has stalled.  Biden was of course referring to Manchin and Sinema, who still technically vote with Democrats more often than not.  Biden’s move to publicly call out the two suggests a willingness to use the power of the bully pulpit to condemn Democrats opposed to changing the filibuster, especially if his agenda continues to face staunch GOP opposition.

What Happens Next?

So far, the filibuster hasn’t totally derailed the Biden Administration’s agenda.  The Administration and congressional Democrats have already scored a policy victory by advancing the American Rescue Plan Act, and most of the Senate’s business has focused on nominations.  However, if Senate Republicans continue to oppose key Democratic proposals on voting rights, infrastructure, and other issues, Biden and other top Democrats could turn up the pressure on Manchin, Sinema, and other Senate Democrats to support changes to the filibuster.  Whether the President or Senate Majority Leader Chuck Schumer (D-NY) are willing to do that remains to be seen.

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The Week in Review: May 24-28

Moderna Says Its COVID-19 Vaccine Is 100% Effective in Teens

On May 25, Moderna announced that its COVID-19 vaccine is 93% effective in children aged 12-17 after the first dose and 100% effective after the second.  Additionally, data from the company’s phase 2/3 clinical trial consisting of 3,700 adolescents identified no serious side effects.  Moderna plans to ask the Food and Drug Administration “in early June” to amend its emergency use authorization to allow individual as young as 12 to receive the vaccine.  Currently, only Pfizer’s COVID-19 vaccine is authorized for use in teens.  If approved, Moderna’s COVID-19 vaccine would greatly increase the supply of shots available to middle and high school students ahead of the next school year.

“Lab Leak” Theory on Virus’s Origin Gains Steam

Following growing concerns that COVID-19 may have originally escaped from a laboratory, President Biden directed the intelligence community to “redouble” its efforts to investigate the origins of the COVID-19 pandemic.  These concerns are fueled by reports that three employees at China’s Wuhan Institute of Virology were hospitalized with symptoms consistent with COVID-19 and “common seasonal illness” in November 2019.  However, hard evidence that COVID-19 originated in a lab has yet to be found, and NIAID Director Anthony Fauci told a Senate committee on May 26 that he still believes the “most likely scenario is that [COVID-19] was a natural occurrence.”  The intelligence community is expected to report its findings to the President in 90 days.

Senators Take Action on Public Option, Rural Health Care Workforce

On May 25, top Democrats on bicameral health committees issued a request for information (RFI) to gather feedback on a proposal to create a government-run public health insurance option.  Among the issues the RFI seeks feedback on are the criteria used for determining prices, the role of states, and how a public option would interact with Medicare and Medicaid.  While President Biden campaigned on creating a public option, the proposal faces an uphill battle from Republicans and health care stakeholders who are strongly opposed.   In other congressional news, four bipartisan senators reintroduced legislation on May 27 to extend a program that allows international doctors to remain in the US upon completing their residency, so as long as they practice in rural areas that are suffering from physician shortages.  Notably, the bill would expand the number of physicians who can participate in the program and would open participation to physicians’ spouses.

Former Virginia Sen. John Warner Dies at Age 94

On May 25, former Virginia Senator John Warner died of heart failure in his Alexandria home at 94 years old.  Warner, who represented Virginia in the Senate from 1979 to 2009, was a moderate Republican who occasionally broke ranks with his party on high-profile issues.  For instance, Warner opposed Robert Bork’s nomination to the Supreme Court and supported several gun control bills.  Warner, a veteran of both World War II and the Korean War, chaired the Rules and Armed Services committees for several years each in the Senate.  In his post-Senate career, Warner worked as a Senior Advisor for the Washington, DC law firm Hogan Lovells.

CMS Delays Medicaid “Best Price” Policy for 6 Months

On May 26, the Centers for Medicare and Medicaid Services (CMS) issued a proposed rule to delay the effective date of a rule requiring drug manufacturers to include discounts they offer to patients when calculating the “best price” for drugs under Medicaid’s drug rebate program.  According to CMS, the delay is intended to provide the agency, states, and drug makers time to address concerns over patient access and make changes necessary to implement the new requirements.  The rule, which was initially set to go into effect on January 1, 2022, received mixed feedback from stakeholders.

ICMYI: Congress Set to Review Intelligence Report on UFOs

US intelligence agencies are expected to deliver a report to Congress next month on UFOs, or “unidentified ariel phenomena” (UAPs) in the military’s parlance.  The report is a result of the FY 2021 omnibus appropriations bill that was signed into law in December 2021. Interest in UFOs has grown among both the general public and lawmakers after the Department of Defense declassified videos taken by the US Navy of strange objects flying near warships and aircraft.  Pentagon officials say they’re studying UAPs to determine whether the objects represent a threat to national security.  It remains to be seen to what extent the report will contain newly declassified information.

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The PHE Was Just Extended. What Does That Mean?

So, what exactly happens to those regulatory flexibilities and emergency measures when the pandemic ends?  On April 15, the Department of Health and Human Services (HHS) extended the PHE for a 90-day period beginning on April 21 and ending on July 19.  HHS won’t keep doing this forever – so what happens when the PHE is no longer renewed?

The PHE So Far

HHS first declared the COVID-19 PHE on January 27, 2020, and HHS has since renewed the PHE four times, each for 90 days.  When Acting Health and Human Services Secretary Norris Cochran  sent a letter to state governors on January 21, 2021 estimating  the PHE will likely remain in place for the entirety of 2021,” many thought the current extension would run through the calendar year, but Secretary Xavier Becerra extended the PHE through July 19, following the pattern of 90-day renewals as stipulated by the Public Health Service Act.  The January 2021 letter indicated that when HHS decides to terminate the declaration and/or let the PHE expire, the Department will provide states with 60 days’ notice.

When Will the PHE End?

Do you remember when President George W. Bush relayed the message that the war in Iraq was over during his famed aircraft carrier speech on May 1, 2003, and then the war continued for many years?  Is that what will happen with the PHE?

As it goes, there isn’t a requirement that  HHS outline any specific criteria to be met for the PHE to end.  The Health and Human Services Secretary has the option of declaring the PHE over, or he may simply not extend the current emergency.  For their part,  the American Health Care Association offered one suggestion – that the  PHE be lifted if roughly 70% of the population has been vaccinated, or less than 500 COVID-19 deaths have occurred for 14 consecutive days .

Key Measures Linked to the PHE

Both Congress and the Administration have advanced key COVID-19 relief measures whose expiration dates are linked to the termination of the PHE.  Below is a list of pivotal relief measures and their central provisions.

  • Certain measures included in COVID-19 relief legislation.  Many policies tied to the PHE are included in the Families First Coronavirus Response Act, enacted March 18, 2020, the CARES Act, enacted March 27, 2020, and the American Rescue Plan Act, enacted March 11, 2021.  Some of these measures expire at the conclusion of the PHE, while others have a specific end date beyond the PHE, such as the one year or one calendar quarter after the termination of the PHE.  Key provisions include:
    • Enhanced coverage and no cost-sharing for COVID-19 testing and vaccines under Medicare, Medicare Advantage, Medicaid, CHIP, and TRICARE.
    • Waived or modified Medicare requirements for telehealth, such as the restriction on use of a telephone and the requirement for face-to-face visits between home dialysis patients and physicians.
    • Increased Medicaid federal match rate to 6.2%.
    • Waived site-neutral payment rate provisions for long-term care hospitals.
    • Continued payments to providers via the Medicare Hospital Accelerated Payment Program.
    • Recalculated Medicaid disproportionate share hospital allotment.
  • Temporary regulatory flexibilities under CMS.  In interim final rules published on March 31, May 8, September 2, and November 2, 2020, the Centers for Medicare and Medicaid Services (CMS) has relaxed numerous Medicare and Medicaid rules for the duration of the PHE.  Examples include testing and reporting requirements for long-term care facilities, enhanced Medicare reimbursement for certain COVID-19 treatments, and price transparency requirements for COVID-19 tests.  The interim final rules also include a number of telehealth provisions, with notable examples including:
    • Waived requirements on the types of practitioners that can furnish Medicare telehealth services to include all practitioners eligible for Medicare reimbursement, including physical therapists, occupational therapists, and speech language pathologists.
    • Modified reporting requirements for remote physiological monitoring services.
    • Payment parity for audio-only telephone services.
    • Allowing hospitals to bill for services provided remotely by hospital-based practitioners to Medicare beneficiaries registered as outpatients.
    • Allowing teaching physicians to review services provided by resident physicians remotely via audio-visual communications technology.
  • Section 1135 Waivers.  Since the start of the pandemic, CMS has invoked Section 1135 waiver authority to issue a blanket waiver and a series of state-specific waivers that expand telehealth coverage, allow clinicians to practice across state lines, and suspend some reporting requirements.  All of these waivers are set to expire at the conclusion of the PHE.
  • HIPAA Enforcement.  The HHS Office of Civil Rights has relaxed certain HIPAA privacy rules for the duration of the PHE that apply to telehealth technologies, testing sites, and web-based scheduling platforms for COVID-19 vaccination appointments.
  • Stark and Anti-Kickback Statute.  The HHS Office of the Inspector General has issued guidance discouraging enforcement of pandemic response activities until the end of the PHE that could be viewed as problematic under the anti-kickback statute and the Stark Laws.
  • Controlled Substances. Both the Substance Abuse and Mental Health Services Administration and the Drug Enforcement Administration have issued guidance allowing more flexibility for providers and opioid treatment programs to prescribe controlled substances during the PHE.

Previewing a Post-PHE World

As vaccinations increase and jurisdictions gradually reopen, the fate of temporary policies that expire at the end of the PHE remains unclear.  Fortunately, recent actions by federal officials offer clues as to how some of temporary policies may be retained, particularly those relating to telehealth.  As expressed by then-CMS Administrator Seema Verma in December 2020, congressional action will be essential to ensuring expanded telehealth coverage and other flexibilities can be made permanent.  Since then, policymakers have been providing suggestions to lawmakers on what to do with telehealth after the PHE ends.  In its March 15, 2021 report to Congress, for example, the Medicare Payment Advisory Commission recommended continuing some telehealth flexibilities one to two years following the end of the PHE to evaluate whether the temporary policies should be adopted permanently.  The report also provided the following recommendations to Congress:

  • Continue Medicare coverage for telehealth services, regardless of a beneficiary’s location.
  • Discontinue allowing providers to reduce or waive cost-sharing for telehealth.
  • Continue coverage of audio-only services if there is a clinical benefit.

Additionally, members of Congress have put forth their own proposals to permanently expand telehealth.  Key legislation introduced so far includes:

  • H.R. 366, the “Protecting Access to Post-COVID–19 Telehealth Act of 2021,” introduced by Rep. Mike Thompson (D-CA), which would eliminate most geographic and originating site restrictions on the use of telehealth in Medicare and authorize CMS to continue reimbursement for telehealth for 90 days beyond the end of the PHE.
  • H.R. 787, the “Expanding Student Access to Mental Health Services Act,” introduced by Rep. Rick Allen (R-GA), which would permanently expand telehealth services for students.
  • H.R. 937, the “Tech to Save Moms Act,” introduced by Rep. Eddie Bernie Johnson (D-TX), which would integrate telehealth models into maternity care services.

While the federal government may not yet have a specific plan on how it intends to handle temporary regulatory flexibilities once the pandemic expires, recent action from legislators and policymakers suggest a desire to keep at least some policies around permanently.

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PAYGO Cuts Face Uncertainty in Congress

While members of both parties agree the pending Medicare sequester needs to be extended, Republicans don’t seem favorable to waiving PAYGO budget rules to allow additional cuts to be averted.  The result is continued uncertainty for health care providers and a likely sign of spending fights to come in Congress.

Medicare is currently facing two automatic budget cuts.  Under the first cut, Congress was initially set to reduce 2% of the Medicare budget, or $18 billion, in Fiscal Year 2020 due to a process known as sequestration that provides an automatic spending reduction to enforce certain budgetary goals.  However, Congress opted to delay the 2% cut to April 1, 2021 due to the pandemic’s financial impact on health care providers.  The American Rescue Plan Act of 2021 (H.R. 1318) is scheduled to trigger a second cut to Medicare to the tune of 4%, or $36 billion.  This second cut is a requirement of the Pay-As-You-Go (PAYGO) budget rule, which says legislation that fails to offset spending increases must be offset by cuts to mandatory programs such as Medicare.  Unlike the sequester, PAYGO cuts would not go into effect until the beginning of 2022.

Health care stakeholders are adamantly opposed to the cuts.  In letters sent to congressional leadership on March 11 and March 17 respectively, the American Hospital Association and American Medical Association (AMA) requested lawmakers find a bipartisan solution to avoid the both the sequester and PAYGO-triggered spending reductions.   In particular, AMA urged Congress to avoid legislation that would again induce PAYGO cuts to avoid creating further uncertainty in the health care system.

The House is set to take up a bill on March 19 that would waive PAYGO for the American Rescue Plan and delay Medicare sequestration through the end of the 2021(H.R. 1868). While both Democrats and Republicans agree the sequester needs to be delayed again, Republicans do not seem favorable to waiving PAYGO.  In a March 16 hearing on H.R. 1868 by the House Rules Committee, Ranking Member Tom Cole (R-OK) implied the American Rescue Plan was too large due to lack of bipartisan cooperation, and that a smaller COVID-19 relief bill could have passed Congress without triggering PAYGO cuts.  Additionally, many Republicans may be unwilling to waive a budgetary rule that was directly triggered by a massive bill that passed without a single GOP vote.

Likewise, it is unclear what the Senate will do with the measure once it is sent over from the House.  Introduced by Jeanne Shaheen (D-NH) and Susan Collins (R-ME), S. 748 would extend the sequester moratorium through the end of the COVID-19 health emergency but did not address the broader PAYGO issue.  The bill pays for the limited extension by extending the time period for sequestration by one year, through Fiscal Year 2031.

Given the political dynamics of the overall PAYGO issue and with Democrats controlling the Senate by just one vote, it is unclear at this time whether the Senate would take up the House measure or the Shaheen/Collins bill.  Adding to the uncertainty is the upcoming congressional recess period where both chambers will be out of session starting March 29 until April 13.  At this point, there hasn’t been any signal yet that the Senate will take action next week to avoid the current March 31 sequestration relief expiration from taking effect.  However, we would anticipate action at some point, even if it would have to be made retroactive, given the overall bipartisanship that remains generally for giving providers relief from the projected cuts.

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