The Reconciliation Option
The way forward for repealing and replacing Obamacare becomes clearer.


James C. Capretta

At last Tuesday’s debate among the Republican presidential candidates, former Massachusetts governor Mitt Romney and former U.S. senator Rick Santorum both mentioned that repeal of Obamacare could be accomplished through the special budgetary procedure known as “reconciliation” (see this video clip of the debate exchange, courtesy of Avik Roy’s enlightening post on the subject). This bit of Washington inside baseball was unusual in a presidential-debate setting; most of those in the audience watching at home probably have no earthly idea what the budget-reconciliation process is, nor should they. But in the long fight over Obamacare, what Romney and Santorum said about the use of reconciliation is a crucially important point that has the potential to dramatically affect the future of American health care.

First, what is “reconciliation”? Reconciliation is a special legislative process established by Congress to provide for expedited consideration of important budgetary legislation. The “expedited” designation is particularly important in the Senate. Most legislation of any consequence requires 60 votes in the Senate to pass, as that is the normal number needed to shut off debate (called “cloture”) when a determined minority is willing to stage an indefinite filibuster. But reconciliation bills can be debated only for a certain number of hours before the measure goes to a final vote. In other words, a reconciliation bill cannot be filibustered — and therefore can pass in the Senate with a simple majority, normally 51 votes, when all time for debate has expired.

Fast-forward now to 2013. If, in the 2012 election, Republicans are able to maintain control of the House, pick up the majority in the Senate (a real possibility) but not a 60-vote supermajority, and win the White House (looking more possible by the day), the GOP would be in position to set in motion a reconciliation bill to repeal and replace Obamacare — and they wouldn’t need any Democratic cooperation to make it happen. The fact that leading Republican presidential candidates have now said that reconciliation is an option is a big deal, as it makes it very clear to all concerned that there is a clear path to victory for Obamacare opponents.

Seeing the threat that the reconciliation option could pose, Obamacare’s apologists have responded by suggesting it would be the height of cynical partisanship for Republicans to undo Obamacare in this fashion, since reconciliation supposedly played only a minor role in the enactment of Obamacare. Obamacare’s defenders also claim that, in any event, the GOP may not be able to pull it off because some aspects of Obamacare are non-budgetary and therefore aren’t eligible for repeal in a reconciliation measure, which is supposed to deal exclusively with budgetary matters. Sen. Kent Conrad, the Democratic chairman of the Senate Budget Committee, took the argument further and said that using reconciliation for repeal would be inappropriate because reconciliation is supposed to be used for deficit-cutting efforts — and Obamacare’s full repeal would increase the deficit, according to the Congressional Budget Office (CBO).

As usual, there’s a lot of smoke and misdirection in these arguments, and not much clarity.

For starters, it seems that some might need a refresher course on the history of Obamacare’s enactment. Reconciliation didn’t play a small role in Obamacare’s passage, as has been suggested. Without reconciliation, Obamacare would not have become law at all. It’s true that the main Obamacare structure was passed by the Senate in December 2009 under normal rules for legislative consideration. That’s because Democrats at that time had 60 votes (including two independent senators who caucus with them). They didn’t need to resort to reconciliation to pass the bill as long as  all 60 of their senators stuck together and supported passage, which they did.

But then Scott Brown won the Massachusetts Senate race in January 2010; the Democrats lost their 60-vote supermajority and could no longer close off debate on legislation without the help of at least one Republican senator.