House Republican leaders on Monday night unveiled a bill to repeal and replace parts of the Affordable Care Act. By Tuesday night, despite President Trump’s support, critics on the left and right, on and off Capitol Hill, had skewered the bill. Even if House GOP leaders eventually pull together a majority to pass a measure, the sledding could be even tougher in the Senate.
But Republicans control both Congress and the White House, and they’ve deployed “reconciliation” — a special type of budget bill that allows GOP legislators to move swiftly and protect the bill from a Senate filibuster.
Republicans are now floundering, suggesting that reconciliation is a double-edged sword. Divided majorities coupled with intricate budget rules are — ironically enough — impeding, not facilitating, swift action.
Live by the calendar, die by the calendar
Given the opposition to the House bill, some Senate Republicans have advised Trump and the House GOP to slow the reconciliation train, rather than rushing to complete action before the April recess. Republicans, however, do not have the luxury of time.
Republicans put on a legislative straitjacket by committing themselves to using reconciliation, not once but twice this calendar year. After their party unexpectedly won the White House in November, Hill Republicans hatched a plan to adopt a pared-down budget resolution that would cover the fiscal year that began in October. Adopting a budget in January (after failing to agree to one last year) allowed the GOP to pursue an ACA-related reconciliation bill by majority vote, precluding the need for Democrats’ support.
But Republicans also intend to adopt a budget resolution this spring for the coming fiscal year. Doing so would allow them to write a second reconciliation bill, this time to carry tax reform.
What’s the catch? There is only one track leaving the station, and only one reconciliation train fits on it at a time. Most of those who watch the Senate closely think the health-care reconciliation bill would lose its procedural protections from a filibuster once Congress adopted its second budget resolution.
Delaying health-care reconciliation thus puts tax reform at risk. But Republicans have been banking on repealing Obamacare taxes to help pay for their tax bill. The two bills are intricately connected, and the health-care bill’s clumsy rollout complicates that relationship. The slow-moving Senate will also have other must-pass business on its spring plate, including filling the Supreme Court vacancy and funding the government when money dries up this spring.
Far from speeding up legislative action, reconciliation might derail it.
Divided majorities are hard to reconcile
So what’s been clumsy about the rollout? All the opposition, for one. First to declare their hostility were members of the House Freedom Caucus, buoyed by three conservative senators happy to join. Because there is no need to seek Democratic votes in either chamber under reconciliation rules, factions in both chambers have been emboldened, particularly on the far right. And with slim margins in both chambers — barely two dozen in the House and just three in the Senate — leaders cannot afford to lose many votes.
The ideological map of the current House lets us see the barriers to passage.
The Freedom Caucus is an ideologically coherent faction (as measured by UCLA Voteview’s 2017 data). Its stance — insisting on a more conservative bill that repeals the existing ACA, and nothing else — is unlikely to be accommodated without the loss of moderate colleagues who might not want to make their constituents worse off by repealing or further weakening the ACA.
Granted, Republicans in districts won by Hillary Clinton (some of whom may be especially reluctant to vote for the bill) are ideologically diverse, but any defections spell trouble in a world of slim majorities. Moreover, as shown in the figure below, these cross-pressured Republicans will be decidedly weaker than their GOP colleagues in 2018. On average, GOP members from districts that went for Clinton won with only 56 percent of the 2016 vote — some 10 points worse than their fellow partisans.
The graph also plots 2016 enrollment in ACA marketplaces by congressional districts. Marginal GOP House members do not represent areas that disproportionately rely on insurance secured through the ACA — although the data do not count individuals whose insurance is secured through the ACA’s Medicaid expansion. But these Republican House members do represent some of the most highly ACA-dependent (Florida) districts.
To be sure, Democrats wouldn’t support the Ryan bill even if it were considered in the normal process, outside of reconciliation. But the expectation that Republicans will provide all of the votes has heightened media attention on House factions, a spotlight the Freedom Caucus and supportive organized interests have been pleased to fill.
The Byrd Rule
Reconciliation is even more complicated in the Senate. Although the procedure empowers the majority party in an otherwise super-majoritarian Senate, such power is costly.
First, reconciliation bills are subject to the “Byrd Rule,” which blocks provisions that raise the deficit beyond the life of the bill or that do not directly change government revenue or outlays. It takes 60 votes to waive the Byrd Rule. The Senate parliamentarian calls balls and strikes on the Byrd Rule in the form of advice to the Senate, advice that can be challenged only if 60 senators want to overlook the rule (votes Democrats are unlikely to provide).
By limiting what can be included in the GOP bill, the Byrd Rule exacerbates already tough trade-offs necessary in crafting legislation. For example, the bill cannot eliminate the mandate that individuals buy health insurance, because the mandate does not directly raise government revenue or reduce spending. The bill can, however, eliminate various ACA taxes, so long as the revenue lost to the government by eliminating the taxes is made up by other provisions in the bill. Otherwise, the bill could increase the deficit — triggering a Byrd Rule challenge.
Second, by requiring only a simple majority for passage, reconciliation makes every Republican senator’s vote potentially pivotal. Rather than seeking and failing to secure 60 votes for passage — and then blaming Democrats for the loss — reconciliation focuses attention on GOP divisions, just as in the House. Had Republicans needed 60 votes, they would have been back on the more familiar terrain of a partisan and polarized Senate, with the parties pointing fingers at each other. Instead, GOP civil war is brewing in several dimensions, with conservatives pursuing repeal only, moderates trying to protect Medicaid, and senators in between keeping a wary eye on the rising popularity of the ACA.
Be careful what you wish for
The decision to use reconciliation is not the only reason Republicans are struggling to find a way to repeal and replace Obamacare as promised. Other complications include shifting public attitudes, a lack of health-policy expertise among Republicans, and Democrats’ historic “ownership” of health issues. But the downsides of reconciliation — interacting with a divided majority party — have made the road ahead for Republicans particularly rocky.