In a move virtually ignored outside Washington and largely unnoticed even within it, last December the House and Senate passed legislation repealing much of Obamacare. President Obama promptly vetoed the measure — an obstacle that will disappear come January 20. As reporters and policymakers attempt to catch up and learn the details of a process they had not closely followed, three important lessons stand out from last year’s “dry run” at repealing Obamacare.
The Senate Should Take the Lead
The legislation in question, H.R. 3762, made it to President Obama’s desk only because Republicans used a special procedure called budget reconciliation to circumvent the Senate’s 60-vote requirement to overcome a Democratic filibuster. While reconciliation allowed the bill to make it to the president’s desk, it came with several procedural strings in the Senate. Reconciliation legislation may only consider provisions that are primarily budgetary in nature; policy changes, or policy changes with an incidental fiscal impact, will get stripped from the bill. In addition, reconciliation legislation may not increase the budget deficit.
Unfortunately, the original version of the bill the House introduced did not comply with the Senate requirements. The legislation repealed Obamacare’s Independent Payment Advisory Board (IPAB) — but because that change was primarily policy-related and not fiscal in nature, it did not pass muster with the Senate parliamentarian. Likewise, according to a cost estimate by the Congressional Budget Office, the House-passed bill would have increased the deficit in the “out years” beyond the ten-year budget window, making it subject to another point-of-order challenge that would require 60 votes to overcome. Ultimately, the legislation contained enough of these procedural flaws that Senate majority leader Mitch McConnell had to introduce a completely new substitute for the bill as it came to the Senate floor, to ensure that it would receive the procedural protections accorded to a reconciliation measure.
The arcane and technical nature of the budget-reconciliation process means that the Senate will play the key role in determining what passes — simply because Senate procedure will dictate what can pass. While the House has the constitutional prerogative to originate all tax legislation, and by custom it initiates most major spending legislation, the Senate may do well to initiate action in this particular case. House Republicans proposed an Obamacare-replacement plan earlier this year, Paul Ryan’s “A Better Way,” but what good is passing that through the House if much of it ends up on the Senate’s proverbial cutting-room floor?
Personnel Matters, Because Institutional Memory Is Scarce
The original reconciliation bill was introduced in the House on October 16, during what amounted to an interval between leaders. John Boehner had announced his intention to resign the speakership, but Paul Ryan had not yet assumed that title. And while House members played another round of “musical chairs,” staff underwent their own turnover, as Speaker Boehner’s longtime health-policy adviser departed Capitol Hill a few weeks before Boehner announced his surprise resignation.
To say that relevant leaders and committee chairs have swapped places in the House recently is putting it mildly. Not one has served in his current post for more than two years. Two years ago, Paul Ryan chaired the House Budget Committee; his reign at Ways and Means lasted a brief nine months before he assumed the speakership. Elsewhere in leadership, both Majority Leader Kevin McCarthy and Majority Whip Steve Scalise assumed their jobs after the defeat of Eric Cantor in August 2014. At the committees, Budget Committee chairman Tom Price and Ways and Means Committee chairman Kevin Brady succeeded Paul Ryan in leading their respective committees last year. And the Energy and Commerce and Education and Workforce Committees will soon choose new chairmen to assume their gavels in January.
While Senate leadership has remained more stable at the member level, most of the staff in both chambers has turned over since the Obamacare debate of 2009–10. I served in House leadership during 2009, and Senate leadership from 2010 to 2012; most of my former colleagues have long since moved on, whether to lobbying jobs, grad school, or even outside Washington altogether. Both at the member level and the staff level, the critically important institutional knowledge of what happened to Democrats — and when, why, and how — during the Obamacare debacle eight short years ago is dangerously thin.
The Washington gossip circles seem most interested in playing the parlor game of who will fill what post in the new administration. But particularly if the administration defers to Capitol Hill on policy, the true action in determining what happens to Obamacare — and what replaces it — may well lie at the other end of Pennsylvania Avenue. Both reporters and would-be job applicants should react and plan accordingly.
An Influential Troika of Senate Conservatives
In addition to its procedural shortfalls, the original House reconciliation bill represented something much less than full repeal of Obamacare. While the law as enacted contains 419 sections, four of which had already been repealed prior to last October, the House’s reconciliation bill repealed just seven of them. Admittedly, much of Obamacare contains extraneous provisions unrelated to the law’s coverage expansions: nursing-home regulations, loan-forgiveness programs, and the like. But the original House reconciliation bill left intact many of Obamacare’s tax increases and all of its coverage expansions, leaving it far short of anything that could be called full repeal.
Into the breach stepped three conservative senators: Mike Lee, Marco Rubio, and Ted Cruz. The day before the House voted to pass its reconciliation bill, they issued a joint statement calling it thin gruel indeed:
On Friday the House of Representatives is set to vote on a reconciliation bill that repeals only parts of Obamacare. This simply isn’t good enough. Each of us campaigned on a promise to fully repeal Obamacare, and a reconciliation bill is the best way to send such legislation to President Obama’s desk. If this bill cannot be amended so that it fully repeals Obamacare pursuant to Senate rules, we cannot support this bill. With millions of Americans now getting health premium increase notices in the mail, we owe our constituents nothing less.
Knowing that the bill lacked the votes to pass the chamber without support from the three conservatives, Senate leadership significantly broadened the bill’s scope. The revised version that went to the president’s desk repealed all of the law’s tax increases and all of its coverage expansions. It was not a one-sentence repeal bill that eradicated all of Obamacare from the statute books, but it came much closer to “fully repeal[ing] Obamacare pursuant to Senate rules,” as the three senators laid out in their statement.
Will conservatives such as Lee, Rubio, and Cruz hold out for legislation mirroring last year’s bill — and vote no if they do not receive it?
The conservatives’ mettle will be tested once again. Already, Republican congressional sources are telling reporters that they intend to keep the law’s Medicaid expansion, albeit in a different fashion. “One of the aides said this version of the bill [that passed last year] was mostly about ‘messaging,’ and that this time, ‘We’re not going to use that package. We’re not dumb.’”
Apart from the wisdom of calling a bill that their bosses voted for less than one year ago “dumb,” the comment clarifies the obvious fissure points that will emerge in the coming weeks. Will conservatives such as Lee, Rubio, and Cruz hold out for legislation mirroring last year’s bill — and vote no if they do not receive it? Conversely, what Republican who voted for the reconciliation bill last year will object if it returns to the Senate floor? Will senators be willing to vote against something in 2017 that they voted for in 2015?
As I noted last week at NRO, Republicans’ path on Obamacare could prove more complicated than the new conventional wisdom in Washington suggests. If past is prologue, last year’s reconciliation bill provides one possible roadmap for how the congressional debate may play out.