When then-Senate Minority Leader Mitch McConnell conceded, days before the 2014 midterms, that a full repeal of Obamacare would require 60 votes, the conservative activist wing of the GOP exploded.
“This is why nobody believes Mitch McConnell anymore,” said Mary Vought, spokeswoman for the Senate Conservatives Fund, a group founded by then-senator Jim DeMint to back Tea Party candidates in GOP primaries. “He says he wants to rip Obamacare out ‘root and branch,’ but then flips days before his election and says he plans to surrender.”
The anger derived from the belief that the Senate could pass a bill repealing the law through the use of a budgetary process known as reconciliation, which cannot be filibustered under Senate rules and therefore only requires 51 votes to pass. The procedure captured the imagination of conservatives when Senate Democrats used it to pass parts of Obamacare in 2009.
It now appears that reconciliation will be used more narrowly, to target specific parts of the law.
McConnell’s team clarified that he would try to repeal the law through reconciliation; after the election, the incoming majority leader said that “the reconciliation process does present an opportunity and we’re reviewing that.”
Months later, with the yearly legislative wrangling over the budget in full swing, conservatives hoping that reconciliation would be their silver bullet are likely to be disappointed. Most Senate Republicans do not believe that the reconciliation rules permit a full repeal, frustrating conservatives who thought it might be possible if McConnell had argued forcefully for the idea earlier this year. It now appears that reconciliation will be used more narrowly, to target specific parts of the law.
“When it comes to repealing Obamacare, what our members have talked about for years up here is going at the core of the law, which are changes to health-care spending that are mandatory,” says one senior GOP Senate aide.
McConnell does not have the authority to decide unilaterally that a given law can be repealed through reconciliation; instead, parliamentarians, the umpires of Senate procedure, interpret the relevant rules and precedents whenever a disagreement arises. Much of Obamacare does not qualify for reconciliation under the Byrd rule, the regulation that governs the process.
Some Republicans believe that McConnell has done more to deter colleagues from pushing for a full repeal than he did to convince the parliamentarians that it would be possible under the Byrd rule. “Internally, they’ve been aggressive in terms of, whenever this subject comes up, saying we can only do so much,” says one senior GOP Senate aide.
“The parliamentarians may not allow the entire thing to be repealed, but they might allow certain really central parts of it to be repealed,” says another senior GOP Senate aide. “And our posture has always been sort of twofold: One, that we wanted reconciliation to be used for Obamacare repeal; and two, that we would argue strenuously that as much of it be accepted [for reconciliation] as possible.” The individual mandate, for instance, qualifies for repeal through reconciliation because the Supreme Court defined it as a tax in 2012. Other regulations that do not affect federal spending or revenue are not reconciliation-eligible.
Some Republicans believe that McConnell has done more to deter colleagues from pushing for a full repeal than he did to convince the parliamentarians that it would be possible under the Byrd rule.
Some conservatives hoped to sidestep such procedural obstacles by writing the reconciliation bill as a single-sentence repeal of Obamacare, which would thereby deprive the Democrats of the ability to comb through the bill section-by-section in search of programs that fall outside the scope of the budget process. They argued that the law’s cumulative impact on the deficit should be enough for such a single-sentence repeal to avoid falling afoul of the Byrd rule.
“The preponderance of the act of repealing it, it should be reconcilable because of its impact on the deficit,” one GOP Senate aide says.
After consulting with the parliamentarians, Senate leadership dropped that plan. “In order to evaluate the one-sentence bill, the interpreters for reconciliation [the parliamentarians] have to look behind it to understand what it means,” a senior GOP aide familiar with the budget process explains. “So, effectively, they have said you need to deal with a provision-by-provision bill.”
That frustrates some conservatives, because parliamentarians have an odd relationship with the rest of the Senate. Aides describe it as adversarial, comparing it to a courtroom in which representatives of various lawmakers debate what is permissible under Senate rules. The proponents of a single-sentence bill to repeal Obamacare believe that GOP leadership was content to skip that debate in this case and accept a preliminary statement from the parliamentarians as a final decision.
“They’ve just assumed that the parliamentarian is going to say no,” according to one senior GOP aide.
Another staffer outside of leadership defends McConnell on this point. “I don’t think they want that to be the outcome,” the aide says. “They think that’s what the law says.”
The debate is further complicated by the King v. Burwell lawsuit pending before the Supreme Court, which argues that the IRS unlawfully provided subsidies to people who enrolled in Obamacare. If the justices rule against the administration, Republicans might use the reconciliation process to offer temporary assistance to people who lose their health-care subsidies as a result.
With that in mind, GOP sources regard a bill introduced by Senator Ron Johnson (R., Wis.) and cosponsored by the Republican leadership team as a candidate to make it into the reconciliation package. The legislation would provide subsidies through 2017, but it would also repeal the individual mandate, the employer mandate, and some other provisions of Obamacare.
“A lot of what Senator Johnson has proposed could fit in the constraints of reconciliation,” the budget expert explains.
In any event, Senate Republicans won’t make a final decision until after the court rules in the King case, because that decision could make more aspects of Obamacare eligible for repeal through reconciliation.
“What we are going after by the time it gets to July, we can’t tell,” the budget expert continues. “It could be all of Obamacare. It could be parts of Obamacare. We just don’t know yet.”
— Joel Gehrke is a political reporter for National Review.