“We have to repeal Obamacare, and I will do that on Day 2 with a reconciliation bill,” Romney said. “Because, as you know, it was passed by reconciliation, 51 votes. We can get rid of it with 51 votes.”
It makes for a good campaign promise, but does Senate procedure allow it to happen? I spent yesterday afternoon putting the question to congressional procedure experts and the short answer is: probably not.
Budget reconciliation is a Senate procedure meant to make passing budgets easier. Any budget reconciliation bill only needs a simple majority to pass, meaning they can head off possible filibusters. The legislative procedure came to fame during the health reform debate, when Democrats used a reconciliation bill to tweak the Affordable Care Act after losing its 60-vote, filibuster-proof majority.
But what reconciliation boosts in ease, it lacks in scope: Reconciliation bills can only touch provisions that are primarily financial in nature. And that, in the view of congressional scholars, creates two hurdles that make it near impossible to use the legislative vehicle to repeal health reform.
To start, the reconciliation process can only affect provisions that have a direct impact on the deficit. Many of the key health reform pillars, like reforms to the insurance industry or the mandated purchase of insurance, just don’t fall into this category. “As a yardstick, you have to ask: Is it purely or primarily fiscal in nature?” says Martin Gold, a partner at law firm Covington and Burling, who has served as U.S. Senate Majority Leader Bill Frist’s floor adviser. “If the answer is no, then reconciliation cannot be used to remove it.”
Even for a provision that does pass that hurdle, and has a primary fiscal impact, there’s one other hurdle: Repeal must reduce, rather than increase, the deficit. And it’s what Steve Smith, a congressional scholar at Washington University in St. Louis, calls “the most obvious obstacle” given that the Congressional Budget Office says the health reform law will, in total, save the government money.
“The health care bill is judged by the CBO to reduce the deficit,” he writes in an e-mail. “Repeal surely would mean increasing the deficit.”
So what can the Senate do? The best case scenario for repealing health reform via reconciliation would be tackling specific provisions that meet these two requirements: They’re of primary fiscal impact and repeal would reduce the federal deficit.
Which provisions these are is unclear, even to congressional experts who have spent years studying floor procedure. “Once you get into the business of trying to dismantle it, it becomes pretty tricky,” says George Washington University’s Sarah Binder.
Quinn Gillespe Associaties’ Kevin Kayes, who served as an assistant floor parliamentarian in the late 1980s, suggested I look through the reconciliation bill passed alongside health reform to gauge what issues are on the table. There’s actually a lot: Health insurance subsidies, Medicare payments, Medicaid funding for states and excise taxes on high cost insurance plans all get tweaked.
These, however, would come with obstacles that are just as much political as they are procedural. Take the insurance subsidies: Repealing them would presumably score as a deficit reduction, saving the government money. But what you can’t get rid of is the individual mandate, which requires most Americans to buy coverage, and raises revenue by collecting penalties for those who go uninsured.
Repealing insurance subsidies but leaving the mandate in place most likely leads to fewer people buying insurance, and instead paying the fine, a situation insurers dread.
“If you take away the insurance subsidies, you start unraveling the insurance side and create a nightmare for industry,” says Bonnie Hogue Duffy, who heads up QGA’s health care practice. “So procedurally, can you do some repeal? Yes, I think you can. But politically, it’s a lot harder for me to see.”
The same would likely go for funding the Medicaid expansion: Take it away and states will howl about having to foot the bill for the Medicaid expansion on their own.
While it’s unclear how much of health reform could repeal, one thing we do know for sure: There’s no way any of this happens on Day 2, as Romney suggests. “Oh, god no,” Gold said of such a timeline. Kayes adds, “There’s nothing that’s going to happen on Day 2.”
First, a budget resolution has to pass; that tends to take months. Even when that did happen, a reconciliation bill would have to go through committee hearings and get a sign off from both bodies. And at some point, they’ll have to figure out the question that stumped all these congressional scholars: What provisions of the health reform law can and can’t be touched.
“If you move at a pretty brisk clip, this will take a few months,” he explains. “It’s not an overnight process.”
Legislators could think outside the box and come up with some more drastic steps to pave a clearer path to repeal via reconciliation. They could, for example, repeal the provision that requires any reconciliation bills to reduce the budget deficit. At New York Magazine, Jonathan Chait suggests they could also overrule the parliamentarian if he were to deem a given change out of line. Or, they could actually just fire the parliamentarian all together: Sarah Binder notes there’s actually precedent for this: Sen. Trent Lott dismissed then-parliamentarian Bob Dove when he was displeased with his rulings.
The Romney campaign did not respond to multiple requests for comment. But in the view of these congressional experts, anything short of these kind of aggressive changes makes reconciliation a pretty unlikely path to health reform repeal.