ObamaCare proxy war? Republicans could use Burwell nomination as leverage

April 11, 2014: President Obama listens as Sylvia Mathews Burwell speaks in the Rose Garden of the White House. (AP)

A 96-love Senate confirmation vote to run the White House budget office might not mean much -- when the person who secured that support is now up to run the Department of Health and Human Services.

And by fiat, ObamaCare.

Such is the lot facing Sylvia Mathews Burwell, whom President Obama tapped to succeed outgoing HHS Secretary Kathleen Sebelius.

ObamaCare is the Continental Divide of American politics. But the administration of the Affordable Care Act (ACA) is emerging as a thick bramble -- punctuated by Sebelius's rocky rollout of the Affordable Care Act last fall. The Senate voted without hesitation less than a year ago to confirm Burwell as Office of Management and Budget Director. But Burwell's nomination now gathers untold burs and thorns as it navigates the Senate briar patch.

The Burwell nomination poses opportunities for Senate Republicans who want to combat ObamaCare head on. They can now challenge and upbraid Burwell in her confirmation hearing and on the Senate floor as she is poised to succeed Sebelius as the Obama administration's face of the ACA. Moreover, Senate tradition enables individual members to place a "hold" on a nomination -- for a practical reason or, even if a senator doesn't like how a given nominee parts their hair on Thursdays. A "hold" is a courtesy afforded all senators which can simply maroon a nomination in the water -- until that senator elects to "release" the hold.

One wonders if a senator or a group of senators may try to extract concessions out of ObamaCare by placing a hold on Burwell's nomination. Perhaps a delay or cancellation of the individual mandate. A call for documents. Assurances in writing that the administration will "follow the law" as written and permit no more delays. Perhaps require that 40 hours per week be the threshold for "full-time employment" rather than 30 hours for firms employing 50 or more people. Such companies must provide health coverage for all full-time workers. But under the Affordable Care Act, the IRS considers 30 hours to be full-time employment.

Sen. Rand Paul, R-Ky., has placed a series of holds on several key administration posts in recent months. For instance, he put a hold on the nomination of FBI Director James Comey until he got answers about the use of domestic drones. Comey's responses to Paul's inquiries about drones didn't particularly impress the senator. But the Kentucky Republican released the hold and the Senate went on to confirm Comey without much trouble.

In the end, all Paul's hold accomplished was delaying the confirmation of someone who had the votes. It's thought that Burwell's overwhelming confirmation vote for OMB director would make her a shoo-in for HHS. But this is ObamaCare, the most radioactive issue on the American political landscape. Even a nomination which appears to have the votes could hit trouble spots. And there's no guarantee that a senator or bloc of senators who wants to go to the mat with a nomination fraught with as much peril as this one would simply release a hold after some correspondence like Paul did with Comey.

Of course, Burwell's nomination could prove to be a flashpoint in the long-standing feud between Senate Democrats and Republicans over how the body confirms nominations.

Last fall, Senate Majority Leader Harry Reid, D-Nev., unilaterally changed the rules for some filibusters. He lowered the bar from 60 votes to a mere 51 to advance most nominations for administration posts. Nominees still must secure a majority of votes for confirmation. Reid's gambit is known as the "nuclear option" because it detonated some of the Senate's longstanding traditions and rules. Reid contends he had no choice but to move the way he did because of repeated filibusters by Republicans against President Obama's nominees - making it virtually impossible to confirm many of the president's picks.

Naturally, there is fallout from the nuclear option: nuclear winter. In response, Republicans have taken to exploiting all remaining rules surrounding nominations. For instance, once the Senate votes to "invoke cloture" or halt debate on a nominee, senators may still require the Senate to burn off up to 30 hours of real-time before advancing to a final vote. The phenomenon of running off the entire clock is becoming more commonplace in the post-nuclear option Senate.

Such was the case last week when Democrats and Republicans couldn't settle on a vote to confirm Michelle Friedland as a judge on the 9th Circuit Court of Appeals before a two-week recess for Passover and Easter. The Senate voted 56-41 (under the new cloture rule, which required just a simple majority) to halt debate on Friedland's nomination. But the GOP refused to yield back the 30 hours of post-cloture time permitted to liberate the nomination for a final confirmation vote. So, Reid teed up a vote series at 5 p.m. last Friday -- preventing senators from escaping Washington on Thursday. Reid also arranged for a late afternoon procedural vote for David Weil to run the wages division at the Department of Labor.

And so the Senate adjourned last Thursday evening, with many senators steamed they'd have to remain in Washington to vote Friday and not depart until Saturday morning.

But within an hour after the Senate adjourned, on cruise-control for votes Friday evening, everything changed. The Senate did an about-face and senators agreed to delay all of the scheduled votes until April 28.

Burwell's nomination for HHS secretary may have faced big trouble crossing the 60-vote procedural hurdle under the old rules. Burwell needs a mere 51 to vault procedural barriers. But that doesn't mean the GOP might not gum up the works and run out the clock on her nomination - directing all fire toward ObamaCare.

Here's something else to note as well: The Senate is currently composed of 53 Democrats and 45 Republicans. Sens. Bernie Sanders, I-Vt., and Angus King, I-Maine, caucus with the Democrats, bringing the Democrats' number to 55. So, all the Democrats need are 51 yeas to confirm Burwell. And even though Republicans vehemently oppose ObamaCare, some will have to do some explaining to justify letting Burwell sail through as OMB director but then flagging her nomination for HHS secretary.

In the end, Democrats may need some help from Republicans to confirm Burwell. Sen. Joe Manchin, D-W.Va., has issues with ObamaCare. But he immediately hailed the selection of Burwell - trumpeting her West Virginia roots. Other Democratic senators could have bigger issues. Everyone will watch to see how the Democrats facing a tough re-election cycle this fall may vote -- especially if the Burwell nomination devolves into a proxy war over ObamaCare. Political handicappers will document how Sens. Mary Landrieu, D-La.; Mark Begich, D-Alaska; Kay Hagan, D-N.C.; Mark Pryor, D-Ark.; Mark Udall, D-Colo.; and Jeanne Shaheen, D-N.H., vote on Burwell -- especially if Republicans frame the confirmation as a vote for or against ObamaCare.

It seems doubtful that Republicans can or even want to fully derail the Burwell nomination. But they can sure make a lot of noise over Burwell and use her selection to underscore their issues with the Affordable Care Act, and, depending on how they color it, put some vulnerable Democrats in a tough spot. After all, many Republicans see ObamaCare as the touchstone issue of 2014 and this is just another page in the midterm playbook. By the same token, Democrats hope Republicans overplay their hand on health care with Burwell. They cite instances of "ObamaCare fatigue" and believe the GOP could create some openings for them.

Regardless, the confirmation process of Burwell is one of the key fronts in the ObamaCare war of 2014. And her confirmation of 96-0 for OMB director means very little now.

Capitol Attitude is a weekly column written by members of the Fox News Capitol Hill team. Their articles take you inside the halls of Congress, and cover the spectrum of policy issues being introduced, debated and voted on there.