Obamacare was born of arcane
reconciliation rules. It could die by them.
Only in Washington can the word “reconciliation”
be used to describe the most aggressive and partisan way to jam
legislation through a gridlocked Congress.
It was through the reconciliation process that Obamacare
became law in 2010. And I predict that if Republicans sweep the
2012 elections—a mighty big “if” for them to
take back the presidency and the Senate and maintain control of
the House—it is through reconciliation that Obamacare
will be undone.
A brief refresher: In 2009, Democrats had big majorities in
both chambers. The House approved a version of Obamacare that
was decidedly leftist, including a “public option”
to upend the private health insurance marketplace. On a purely
partisan Christmas Eve vote, the Senate gathered the requisite
60 votes for a plan that was different in many respects, and
the two chambers prepared for a conference committee to hash
out the ground between the two bills.
Then Republican Scott Brown was elected to Ted
Kennedy’s Senate seat, suddenly denying Democrats the
critical 60th vote needed to pass a final bill that had been
negotiated with the House. For weeks, the reform bill looked
dead. Then Democratic leaders decided to proceed with the
The House would pass the Senate bill with no changes, which
meant that no formal conference committee would commence. And a
separate bill negotiated behind closed doors would rely on the
reconciliation process, which requires only 51 votes in the
Senate rather than the conventional 60. The Democrats
succeeded. Without reconciliation, healthcare reform would not
have become law.
Reconciliation, a creature of the Congressional Budget Act
of 1974, was designed with the intention of easing
Congress’s ability to strip out excessive expenditures
from the budget. Historically, it was used for legislation that
reduces the deficit. But in 1996, it was altered to include any
legislation that affects the federal budget.
Jim Capretta, a budget official under George W. Bush,
recently wrote an excellent piece in the National Review about how to repeal
Obamacare through reconciliation. He notes that there’s a
good possibility that Republicans will hold the House and pick
up Senate control, but it’s too far a stretch to envision
the GOP with 60 Senate votes. If a Republican president is also
elected, the GOP would be in a position to pass a
reconciliation bill to repeal and replace Obamacare—and
the Republicans would not need any Democratic cooperation to
make it happen.
Capretta argues that a well designed provision should clear
a parliamentarian’s hurdle. “It’s true that
Obamacare includes some provisions that, on their own, might be
considered non-budgetary, but not nearly as many as some may
think,” he writes. “The entire machinery of the
coverage provisions—the individual mandate, the Medicaid
expansion, the employer requirements—is entirely fueled
by federal money (in the form of both subsidies and
Moreover, he writes, the intended state exchanges and the
regulatory apparatus are also financed by taxes. Repeal of
these provisions—the guts of Obamacare—is plainly a
budget issue and appropriate for reconciliation.
Capretta claims that other parts of
the law could be repealed with creative bill drafting.
The House and Senate could couple
repeal with some strategic cuts in spending (perhaps
including retaining some cuts that were enacted in Obamacare),
and the total package would then be estimated to cut the
deficit—thus qualifying a bill for reconciliation.
Republicans, of course, would need strong public support for
such an unorthodox parliamentary approach. In a national
Rasmussen poll last October, most voters still favor repealing
the healthcare law. The survey found 54% at least somewhat
favor repeal, with 42% strongly favoring it. A total of 39% at
least somewhat oppose repeal, with 27% strongly opposed. The
national elections will undoubtedly be a referendum on whether
the law should be repealed.
Common wisdom says that you can’t get the toothpaste
back in the tube—no entitlement program has ever been
eliminated. There are a lot of reasons why that may not be the
case with Obamacare. No successful entitlement legislation had
ever been passed on a purely partisan basis. This one was
jammed through against the public’s wishes, and there is
growing evidence that it will be a budget-buster.