You have probably heard that the Republicans plan to use the Budget Reconciliation process to repeal Obamacare if they get control over Congress and the White House in November. Can they really do that? Maybe. Let me explain.
Budget Reconciliation is a procedure that would allow them to pass legislation repealing all or part of Obamacare with just 51 votes in the Senate instead of a filibuster proof 60 votes. Since they are unlikely to have more than about 50 or 51 Senate seats even if they win control over the Senate in November, Budget Reconciliation would be the only realistic way they could overturn Obamacare even with Romney in the White House. Democrats are certain to retain enough votes in the Senate to deny Republicans the 60 votes required to end a filibuster and pass repeal legislation. If Obama is re-elected, it will be impossible for Republicans to put together enough votes to repeal Obamacare because he would almost certainly veto any repeal legislation and the Republicans would need a two-thirds vote in BOTH the House and the Senate to override Obama’s veto, which would be impossible for Republicans to obtain.
Republicans claim they can use Budget Reconciliation to repeal Obamacare because the Supreme Court called the law a tax—according to them making it subject to reconciliation—and they say they are justified in using the process because Democrats used it to pass Obamacare in the first place.
Are they right? Let me address the two issues:
Did the Democrats pass Obamacare using Budget Reconciliation?
Answer: NO and YES.
Here is what happened. After a year of deliberation and wrangling, the Democratic-controlled House and Senate each passed a different version of health care reform in 2009. On November 7, the House passed its version of the bill on a 220-to-215 vote. On December 23, the Senate voted 60 to 39 to end debate on the bill, eliminating the possibility of a filibuster by opponents. The bill then passed on a party-line vote of 60 to 39 the next day.
Soon after the Senate passed the Affordable Care Act, Scott Brown was elected to take Ted Kennedy’s seat and the Democrats consequently lost their filibuster proof 60 votes in the Senate. Consequently, the most viable option for the proponents of comprehensive reform was for the House to abandon its own health reform bill, and instead approve the Senate-passed bill. They knew they could not get an amended bill passed by the Senate since they would not have 60 votes to end a Republican filibuster. However, a number of House Democrats who had reluctantly backed the president on health care reform didn’t like a number of provisions in the Senate version of the bill such as a provision that would have provided a higher rate of Medicaid reimbursements for Nebraska – the so-called “Cornhusker Kickback” that was designed to win the support of Democratic senator Ben Nelson of Nebraska.
House Speaker Pelosi made a deal to get the reluctant Democrats to go along with passing the Senate version of the bill. If they would vote for the Senate bill, then the Democratic leadership agreed to immediately introduce and pass separate legislation under Budget Reconciliation amending the Affordable Care Act to address those members’ grievances. The House passed the Senate bill on March 21, 2010 by a vote of 219 to 212. The Patient Protection and Affordable Care Act was signed into law by Obama on March 23, 2010.
Pelosi then introduced the Health Care and Education Reconciliation Act of 2010
to make changes to the Affordable Care Act. The Democrats used reconciliation to pass the amendments. On March 26, 2010, the Senate approved the amendments, 56 to 43, and the House passed them, 220 to 207. Obama signed the Health Care and Education Reconciliation Act of 2010 into law on March 30, 2010.
So Obamacare—The Patient Protection and Affordable Care Act—was actually passed in normal fashion without the use of Budget Reconciliation. However, Democrats did use Budget Reconciliation to amend the Act shortly after it was signed into law.
Can the Republicans really use Budget Reconciliation to repeal Obamacare?
Answer: They may be able to use Budget Reconciliation to repeal some parts of the law but probably not all of the law but then only if they win control of the Senate and the White House and retain control of the House.
Under Senate rules, the Budget Reconciliation process cannot be used if the bill:
- does not produce a change in outlays or revenues;
- produces an outlay increase or revenue decrease when the instructed committee is not in compliance with its instructions;
- is outside the jurisdiction of the committee that submitted the title or provision for inclusion in the reconciliation measure;
- produces a change in outlays or revenues which is merely incidental to the non-budgetary components of the provision;
- would increase the deficit for a fiscal year beyond those covered by the reconciliation measure; and
- would make changes in Social Security.
Some portions, and perhaps all, of the Affordable Care Act may be immune to attack via Budget Reconciliation because they fall under these restrictions. For, example, the current law reduces the deficit over time. Any changes might result in increasing the deficit which would not be allowed under Budget Reconciliation. Also, provisions of the act like restrictions on insurance companies being able to deny coverage for pre-existing conditions probably would be exempt since they don’t produce a change in federal outlays or revenues. The Senate’s Parliamentarian, Elizabeth MacDonough will have to rule on whether the changes in any repeal legislation met the requirements for Budget Reconciliation. If she reuled they did not, the Republicans would need 60 votes to override her ruling, something Republicans would not get.
However, many of the key provisions of the law – including the individual mandate to purchase health insurance, the creation of insurance exchanges where low-income families can buy subsidized policies, and Medicare and Medicaid funding measures –probably would meet the reconciliation requirements.
In short, the Republicans probably could repeal some, but not all, of Obamacare using Budget Reconciliation. Unfortunately, the provisions they could repeal would be some of the most critical to the operation of the law.
In short, the best way to protect Obamacare is to make sure that Obama is re-elected so he can veto any legislation Republicans might pass to repeal the law. And, NO--the Democrats DID NOT use Budget Reconciliation to pass the original law.