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Fair Play

Obamacare was born of arcane reconciliation rules. It could die by them.

By  Joel Wood

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 reconciliation strategy.

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 penalties).”

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.

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