#TexasFoldEm Endgame: McConnell & Schumer exchange symbolic Senate chess moves

November 3rd is just 33 days away. At least 2.2 million Americans have already voted as of this writing. The #TexasFoldEm Trump/GOP lawsuit to strike down the entire ACA is scheduled to be heard by the Supreme Court on November 10th...and Donald Trump, Mitch McConnell & Lindsey Graham are pushing as hard as possible to ram through ultra-right wing ideologue and anti-ACA zealot Amy Coney Barrett as quickly as they can.

Meanwhile, 1,000 people are still dying and 40,000 or so are still testing positive for COVID-19 each day.

Needless to say, tensions are high and Democrats have a much weaker hand when it comes to saving the ACA from oblivion than they did a couple of weeks ago.

So, as the clock ticks down to both 11/03, 11/10 and 1/20, both GOP Senate Majority Leader Mitch McConnell and Democratic Senate Minority Leader Chuck Schumer are playing a few mostly symbolic cards along the way.

On Tuesday evening, Sept. 29th, Schumer made the first move:

In rare move, Schumer forces vote to consider health care bill amid Supreme Court tensions

Senate Minority Leader Charles Schumer (D-N.Y.) on Tuesday took the rare step of trying to force a vote on legislation amid growing tensions over the Supreme Court fight.

Schumer, from the Senate floor, took procedural steps to bring up a bill that would ban the Department of Justice (DOJ) from advocating for courts to strike down the Affordable Care Act. The DOJ is doing just that in a case that's set to be heard by the Supreme Court on Nov. 10.

Democrats argue that if Judge Amy Coney Barrett is confirmed to fill the seat left vacant by the Sept. 18 death of Justice Ruth Bader Ginsburg, it will be more likely that the Supreme Court strikes down the Obama-era health care bill.

Schumer's move caught Republican leaders by surprise. A Schumer aide confirmed that the Democratic leader's maneuvering will make the Democratic bill next up on the Senate's floor schedule once they pass a continuing resolution Wednesday to fund the government beyond Sept. 30 and avoid a government shutdown.

Under the Senate's rules, a vote related to the Democratic bill could take place as soon as Thursday. Democrats will need 60 votes to move forward, something they are all but guaranteed to fall short of, but it will allow them to try to squeeze Republicans on health care.

While Schumer made his move on Tuesday, the actual vote wouldn't happen until today, so yesterday (Wednesday) McConnell decided to counter this with his own purely symbolic vote designed purely to provide cover for vulnerable GOP Senators up for re-election:

McConnell forcing procedural vote on Tillis's pre-existing conditions bill.

It would partially restore protections for people with pre-existing conditions if the ACA is struck down by SCOTUS.

— Steven Dennis (@StevenTDennis) September 30, 2020

The "Tillis Bill" referred to here was actually introduced by vulnerable NC GOP Senator Thom Tillis a year and a half ago; I wrote up a detailed explainer at the time. In short, this bill would include a couple of ACA protections (guaranteed issue and partial community rating), which would kind of, sort of replicate a small portion of ACA provisions...but nothing else whatsoever:

In other words, as Jeffrey Young noted last summer:

But prices could dramatically vary based on age, gender, occupation and other factors, including hobbies, in ways that are functionally the same as basing them on medical histories. Insurance companies have a lot of experience figuring out that stuff.

It also wouldn't do anything to protect the ~15 million Americans on Medicaid via ACA expansion, it would bring back annual/lifetime benefit caps, remove the cap on maximum out of pocket expenses, eliminate the ACA's no-cost preventative services, remove the provision allowing young adults to stay on their parents plan until age 26, and most significantly, it would eliminate all federal tax credits/subsidies for enrollees, ensuring that the policies would be utterly unaffordable for just about anyone who isn't wealthy.

Republicans are trying to pre-but Dems on preexisting conditions. McConnell has cued up a vote tonight on Tillis' PROTECT Act, which leaves out coverage of essential benefits and other protections found under the ACA.

— Igor Bobic (@igorbobic) September 30, 2020

GOP Sens. Lee and Paul voting with Dems to table (kill) Tillis’s bill on preexisting conditions

— Igor Bobic (@igorbobic) September 30, 2020

Cruz and Braun also vote with Dems to table (kill) Tillis' bill on preexisting conditions

Looks like conservatives are going to block this

— Igor Bobic (@igorbobic) September 30, 2020

Sure enough, in the end...

Not agreed to, 47-47: Motion to table Tillis amendment #2673 (preexisting conditions) in relation to the House message to accompany S.178 (shell).

— Senate Cloakroom (@SenateCloakroom) September 30, 2020

OK, so now at-risk Republicans Senators Susan Collins, John Cornyn, Steve Daines, Joni Ernst, Cory Gardner, Lindsey Graham, Kelly Loeffler, Martha McSally, David Perdue, Dan Sullivan and of course Thom Tillis get to whip up last-minute ads claiming that they voted to "protect coverage of pre-existing conditions" even though the bill really wouldn't do that in practice and is only "necessary" in the first place because they voted to zero out the ACA's individual mandate in the first place.

That brings me to today, when Schumer's own guaranteed-to-fail Senate bill was given a vote:

Senate now voting on advancing Schumer’s bill defunding Trump admin’s support for lawsuit seeking terminate Obamacare

"The eyes of America are on this body and on Republican senators right now,” he says

— Igor Bobic (@igorbobic) October 1, 2020

Collins, Ernst, & Gardner -- 3 vulnerable GOPers -- vote with Democrats to advance Schumer's bill cutting off DOJ support for anti-Obamacare lawsuit

— Igor Bobic (@igorbobic) October 1, 2020

Daines votes no

— Igor Bobic (@igorbobic) October 1, 2020

During a debate on Monday, Daines downplayed the threat to Obamacare, saying that "experts are saying it’s highly unlikely" that SCOTUS will strike down the law.

Today he voted to continue DOJ support for the lawsuit seeking to strike it down.

— Igor Bobic (@igorbobic) October 1, 2020

McSally, another vulnerable GOPer, joins Collins, Gardner, & Ernst in voting to advance Schumer's bill

— Igor Bobic (@igorbobic) October 1, 2020

Sullivan (!) also votes yes on Schumer's bill

— Igor Bobic (@igorbobic) October 1, 2020

51-43, Senate rejects advancing Schumer's bill cutting off DOJ support for a lawsuit seeking to strike down Obamacare (needed 60 to advance)

— Igor Bobic (@igorbobic) October 1, 2020

Ah, the filibuster, is there no decent legislation you can't block?

In the end...

CORRECTION: 6 GOP voting in favor: Collins, Ernst, Gardner, McSally, Murkowski and Sullivan.

Not voting: Alexander, Lee, Graham, Harris, Rubio, Tester.

Cloture not invoked, 51-43.

Apologies. https://t.co/1Tqv96jknd

— Senate Press Gallery (@SenatePress) October 1, 2020

This gives last-minute attack ad fodder for Democrats running against Cornyn, Daines, Graham, Loeffler, Perdue and Tillis.

It also means that Collins, Ernst, Gardner, McSally and Sullivan will try to pair this vote with yesterday's to "prove" how pro-pre-existing condition coverage they really are after all.

Of course, there's a few problems with this strategy:

1. First, it's likely too late. Millions of people have already voted, all of them have a long history of voting to strike down the ACA, all of them voted for the bill which allowed the lawsuit to be brought in the first place and none of them have so much as pretended to oppose the lawsuit until today. It's pretty weak tea to try and claim they suddenly had a Come to Jesus moment less than 5 weeks before Election Day.

2. Both bills still ultimately failed. They might get a small amount of mileage out of these votes, but in the end, if the bill they voted for still fails in the end, most people won't give a crap. People tend to care about results, not "good intentions". If either one had passed the Senate but not the House, they would get more juice out of their votes, but not a lot more.

3. This also gives Democrats a huge opening to point out their hypocrisy on the issue when they inevitably vote to confirm Barrett to the Supreme Court knowing full well that she'll vote to strike down the ACA no matter what.

4. Finally, on the second bill specifically, remember that even if it had somehow passed and been signed into law (unlikely seeing how Trump himself would veto it anyway), it wouldn't have ended the lawsuit. It just would have told Trump's DoJ that it could no longer support the plaintiffs in the lawsuit. That's something, but hardly a game changer, even if it was enforceable.

And so it goes...33 days and counting...