Why Repeal and Replace Will Start With Reconciliation
Remember the "Cornhusker Kickback" and the "Louisiana Purchase"? During the Obama administration, then-Senate Majority Leader Harry Reid crafted the deals to buy the votes of Nebraska Sen. Ben Nelson and Louisiana Sen. Mary Landrieu to pass the original Senate Affordable Care Act with 60 votes on Christmas Eve 2009.
Then, Massachusetts voters replaced Sen. Ted Kennedy with Scott Brown before the final bill could pass the House and get back to the Senate. For Democrats, it looked like the ACA was dead.
Suddenly, the White House and the Democratic Congress decided that they could pass health care by using a reconciliation bill.
First, it’s important to explain what reconciliation means. Put simply, the budget reconciliation process is like the TSA Pre Check process at airports -- it speeds things up. For instance, a reconciliation bill isn’t subject to a Senate filibuster (which can only be ended with 60 votes), and debate is limited to 20 hours. The catch is in order to be eligible for the reconciliation process, a bill has to have a budgetary impact.
This provision limiting reconciliation (the Byrd Rule) forced the ACA to be passed as two bills. First, the House passed the Senate bill as it was sent over without any changes. Then House members passed a reconciliation bill that provided for tax and spending changes in the first bill. Bye-bye, Cornhusker Kickback; lucky you, Louisiana Purchase.
This year, as congressional Republicans faced the practical challenges of repealing and replacing the ACA, their first hurdle was their lack of 60 votes in Senate. Leadership realized its only path was for the House to act first and do it in three steps: reconciliation legislation to repeal those things passed in the reconciliation bill in 2010 (what is done by reconciliation can be undone by reconciliation); regulatory changes proposed by Health and Human Services Secretary Tom Price under the authority of the original ACA; another piece of legislation done under regular order to put the new regulations into law and to clean up those issues which couldn’t be handled in reconciliation because of the Byrd Rule.
This is why the House bill, for instance, effectively defunds rather than repeals Obamacare’s individual and employer mandates. In other words, by zeroing out the penalties associated with these mandates, Congress can more effectively repeal Obamacare than by attempting to make a legislative change that would be blocked by the Senate parliamentarian.
House Republicans are moving as quickly as they can to protect people who are being hurt by Obamacare, which is collapsing, while creating a new patient-centered system that will improve care for all by focusing on the individual. The only way to start that process is with this imperfect, messy and confusing process called budget reconciliation.
This process has created a lot of unnecessary controversy on the Right. Just as generals have to contend with the fog of war, legislators have to contend with the fog of procedure -- confusion about what is possible and what is not, and uncertainty about who is friend or foe.
Because Senate Republicans lack the 60 votes the Democrats had in 2009, House Speaker Paul Ryan is right to say that the House is facing a binary choice between passing something like the House bill via reconciliation or nothing.
Congress is in the early stages of this process. There are, of course, policy differences about a number of topics such as using advanceable, refundable tax credits versus tax deductions. There are differences in strategy on challenging the Senate parliamentarian. Honest debate about the House plan will make the final product better. These differences do not make Republicans any less committed to repealing Obamacare. It simply reflects their commitment to helping people by repealing and replacing Obamacare through a process that will work.
Focusing on where they are united -- the need to fundamentally change the U.S. health system by shifting authority from government to individuals -- will help the House pass the American Health Care Act. Budget reconciliation is the best -- and only -- realistic way to start.
David Hoppe is the former chief of staff for House Speaker Paul Ryan; John Hart is the editor in chief of Opportunity Lives. Both are advisers to the One Nation Health Coalition.