Law & the Courts

Use Reconciliation to Oppose Obamacare — but Do It Carefully

(Lane Erickson/Dreamstime)
An undisciplined, piecemeal approach could do more harm than good.

Less than three months ago, House and Senate Republicans passed a budget-conference agreement that said, “The conference agreement affirms the use of reconciliation for the sole purpose of repealing the President’s job-killing health care law.” Despite this seemingly clear language, House and Senate leadership have yet to commit to using reconciliation for the purpose of sending to President Obama’s desk a bill that would repeal all or most of Obamacare. But using reconciliation for that purpose would be useful — not because it would actually repeal Obamacare (Obama would simply veto the legislation) but because it would help pave the way to repeal in 2017, by serving as a trial run and helping to confirm Republicans’ resolve.

Another good way for Republicans to use reconciliation to advance the cause of repeal would be to use it to pass a bill that would repeal the most despised part of Obamacare — the individual mandate. Using reconciliation to target the individual mandate (while leaving in place the more popular employer mandate) would help remind Americans that Obamacare ultimately relies on un-American coercion. As the administration has admitted (and Hillary Clinton has insisted), Obamacare cannot work without the individual mandate — which means the 2,400-page overhaul cannot be “fixed” without leaving its most hated part in place. Using reconciliation to go after the individual mandate would give Republicans a chance to highlight anew that, for the first time in United States history, Americans are being required to buy a product or service of the federal government’s choosing, under penalty of law. There is no downside to making Obama veto the individual mandate’s repeal.

Reconciliation is the budgetary process by which the Senate can pass legislation with just 51 votes — that is, without the possibility of a filibuster, which would require 60 votes to overcome. When enacted in 1974, reconciliation was specifically intended to help Congress pass a budget, but since then it has been used to get various types of legislation through the Senate. It is a cumbersome process guided by complex rules that are very much open to interpretation. The gist is this: It can be used only once a year, to pass legislation that is related (and not just incidentally) to federal spending or revenues; and if such legislation doesn’t expire after ten years, it must result in a lowering of deficits, as scored by the Congressional Budget Office. Fortunately, most of the key parts of Obamacare are related to spending or revenues, and the deficit-reduction hurdle can easily be cleared by retaining a portion of Obamacare’s appropriation of Medicare funding.

The Democrats used reconciliation to get the House’s changes to Obamacare through the Senate after Massachusetts voters elected Scott Brown in 2010, which gave Republicans the 41 votes necessary to sustain a filibuster. Obamacare, which passed the House with only three votes to spare, would not have become law if the Democrats had not used reconciliation to aid its passage.

Turnabout is fair play, and this same reconciliation process will allow Republicans to repeal all or most of Obamacare and replace it with a conservative alternative in 2017 — provided that they have control of the presidency and Congress, and provided that the new Republican president is as committed to repealing and replacing Obamacare as Obama was to passing it. So Republican voters should choose their presidential nominee wisely, taking particular note of whether a candidate is running on a politically winning alternative, rather than advocating a political loser or taking an I’ll-come-up-with-it-later approach.

There is a right way and a wrong way to go about using reconciliation in connection with Obamacare.

Here’s how efforts to repeal Obamacare via reconciliation could proceed in the current Congress: Since the American people were explicitly told that Obamacare is “comprehensive” legislation — with “the pieces of the puzzle” being “too closely tied to one another” to allow for piecemeal changes — Republicans could start by arguing that the whole of Obamacare, taken as one “comprehensive” package, is fair game for reconciliation, as it clearly has more than an incidental effect on spending and revenues. If the Senate parliamentarian rules that this is not allowable under her (non-binding) interpretation — that is, if she rules that Obamacare cannot be repealed in full via reconciliation — Republicans can then start planning how to overcome such a potential ruling in 2017.

But there is a right way and a wrong way to go about using reconciliation in connection with Obamacare. Perhaps the two worst things that Republicans could do via reconciliation in the current Congress would be to (a) use it to pass a repeal of Obamacare’s medical-device tax and/or employer mandate, since this would make the Republicans look preoccupied with corporations while making corporations less excited about full repeal; or (b) try to use it to repeal all of Obamacare, get an unfavorable ruling from the parliamentarian, and then quit. That would be counterproductive for the cause of repeal, as it would falsely suggest that reconciliation won’t work in 2017.

Fortunately, the great majority of Obamacare is clearly repealable via reconciliation. This includes its taxpayer-funded subsidies (of which the typical 20- or 30-something person making at least $35,000 doesn’t get a dime), its massive Medicaid expansion, its employer mandate (which would be fair game in the context of repealing all or most of the legislation), its tax hikes, its raid on Medicare funding (though some of this might have to be maintained for budgetary reasons), and its individual mandate. Wiping out all of these would effectively constitute repealing Obamacare — especially when one considers that Obamacare’s “preventive services” requirements (including the requirement that the abortion drug known as ella be provided for “free”) were merely decreed by Health and Human Services Secretary Kathleen Sebelius and could unilaterally be reversed by a Republican HHS secretary.

Moreover, Obamacare’s dual requirement that insurers must accept all comers (“guaranteed issue”) and may charge them only a standard rate (“community rating”), regardless of pre-existing conditions, should also be repealable via reconciliation. That’s because if the individual mandate is repealed while guaranteed issue and community rating remain in place, individuals would not have to buy health insurance until they were already sick or injured, which would make federal health spending skyrocket.

To sum all this up, reconciliation is a valuable tool that can and should be used now in a manner that helps pave the way to repealing Obamacare and replacing it with a conservative alternative — via reconciliation — in 2017. But to avoid inadvertently undermining the cause of repeal, Republicans would be wise to use it in one of two ways: to repeal the individual mandate, thereby drawing renewed attention to Obamacare’s coercive core, or to repeal as much of Obamacare as possible. That is, they should either selectively target Obamacare’s most vulnerable part or else target as much of Obamacare as they can. Either route would help pave the way to repealing Obamacare and replacing it with a conservative alternative in 2017.

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