(Jan. 26, 2017)

There is little doubt that Paul Ryan’s healthcare plan is in trouble. Numerous Senators and Representatives have expressed doubts about its provisions, and concerns have come from both ends of the ideological spectrum. But the biggest opposition seems to be coming from Ryan’s right flank (i.e. those advocating “full repeal”).

Ryan’s position appears to be this: “The AHCA is the only bill that can successfully meet the desires of a majority of the politically-diverse Republican congressional delegation. It is admittedly a Frankenstein creature, purposefully designed to thread a variety of policy needles and balance competing interests. No bill will be able to satisfy all, but this bill can garner a majority of votes in the House and the Senate. Other bills, coming from either the right or the center, cannot do this. And if nothing is done, Obamacare is here to stay, unchanged. This is our only shot.”

We may dispute the premises here, but this does appear to be Ryan’s thinking. He is doing what House leaders have done for decades: cobble together a package of provisions that has enough support to get it across the finish line. All indications are that he will use a relatively closed process to try to force the bill through the House. But this top-down approach has serious drawbacks. In particular, by controlling the process so tightly, Ryan absolves Members of the need to craft alternatives. Thus, recalcitrant Members can be policy purists – announcing vague criticisms and advocating for unspecified changes. Without a looming deadline (like a government shutdown or debt default), Members opposed to the bill may have little incentive to come on board.

However, Ryan has an easy procedural solution for this problem: open up the process and call their bluff. Ryan doesn’t need to commit to an open rule from the Rules Committee or any permanent changes to House rules. He just needs to get mildly creative with how the process is structured.

Here’s where it gets technical: a special order of business from the Rules Committee could provide for the following procedures. First, allow three different healthcare bills to be considered in the Committee of the Whole – one for the Democratic minority, one for Republican conservatives on the right, and the Ryan plan. Each gets a straight up-or-down vote. If one manages to secure 218 votes, it “wins” (and moves on for a final vote in the House). If more than one is able to get 218 votes, the one with the greatest number of affirmative votes “wins” (“top-vote-getter”). If no version is able to get 218 votes, then the Ryan plan gets one last vote in the House, becoming the default option.

What is the likely outcome of using this process? First and foremost, it would demonstrate the lack of support for any alternative to Ryan’s plan. A hard-right “repeal everything” version is unlikely to get more than 100 votes in the House. Even if Ryan’s version fails to get to 218 in the Committee of the Whole, it is probable that it will get more support than anything the Freedom Caucus could dream up. This establishes the fact that Ryan has a better negotiating position – not because he is the Speaker who controls the process, but because he has more votes than his critics. After the votes in the Committee of the Whole, the Ryan plan becomes the “last train leaving the station.” It is now clear where the center of gravity lies in the Republican caucus – conservative critics had their shot and failed to bring Members along to their side. Now the only option is the original Ryan plan. Members would still be free to vote against it in the House, but now they would be in the position of derailing the only chance at altering Obamacare (after proving that their preferred alternative would fare even worse).

This outcome is no guarantee, of course. It may very well be the case that Ryan overestimates the support for his plan and underestimates the support for a more conservative alternative. If the votes in the Committee of the Whole do not show a clear favorite among Republican alternatives, then Members may be willing to sink the whole thing and try for something different in the future. However, this scenario is exactly the same as trying to ram the Ryan plan through the House with a closed process – one way or another, you still need 218 votes. The difference is that a “take-it-or-leave-it” approach allows Members to blame Ryan (and the process) for the failure. They’ll say that a better Speaker would have put together a different bill and gotten 218 votes, or that a different Speaker would have been more willing to allow the consideration of alternatives.

Under the plan above, Ryan is able to take the moral high ground on process and still come out a winner. He allows what all disgruntled factions claim to want: an up-or-down vote on their version of the bill. It would force the Freedom Caucus to put in the work of actually crafting legislation and whipping votes. And most importantly (from a procedural perspective), it establishes a more open process where differing points of view are given an equal opportunity to prevail. If Ryan is confident that his plan will succeed, he has nothing to fear and everything to gain by letting the House work its will in an open and transparent manner.