• Senate GOP Eyes Reconciliation for Next Assault on the Affordable Care Act
  • August 7, 2015
  • Law Firm: McDonald Hopkins LLC - Cleveland Office
  • Republicans have been debating how best to use reconciliation for weeks if not months. Some wanted to use it to roll back President Obama’s executive orders on immigration, others hoped to use it to push through comprehensive tax reform, while others urged using the procedural tool to take another swing at the Affordable Care Act. After much debate, it appears Senate Republicans at least have decided to use reconciliation to go after the president’s signature healthcare law. But, they didn’t say whether that’s the only thing they will try to accomplish through reconciliation.

    In a statement released this week, Senate Majority Leader Mitch McConnell (R-KY) made it clear that Senate Republicans would use the budgetary tool to attempt to fully repeal the Affordable Care Act. He did not, however, say that reconciliation would only be used on the healthcare front, and Republicans made it clear that they were at least open to trying to accomplish more than just Obamacare repeal. Majority Whip John Cornyn (R-TX) was more direct about what reconciliation will be used for: "Obamacare and anything else we can shoo on in there."

    The rules of reconciliation allow it to be used on a bill that covers a wide variety of subjects, as long as they fall into the jurisdiction of certain committees. The rules do not require the bill to do only one thing, although GOP leadership is very clear that repealing Obamacare is its primary objective. (The tool allows a bill to pass through the Senate with only 51 votes instead of the 60 needed to break a filibuster.)

    The budget resolution passed earlier this year instructed certain committees in both the House and the Senate to find $1 billion in deficit savings. There were also nonbinding instructions for the House saying reconciliation was to be used for repealing the Affordable Care Act.

    But as long as the committees hit the target savings and the legislation proposed falls into their jurisdiction, they are in compliance with the rule. The committees are:
    • House Ways and Means
    • House Energy and Commerce
    • House Education and Workforce
    • Senate Finance
    • Senate Health, Education, Labor, and Pensions
    Obviously, President Obama would veto any legislation that repeals the Affordable Care Act. As we head into the 2016 election season, however, Republicans believe that sending a bill that repeals Obamacare to the president is an important message to send to voters, even if it is destined to be vetoed.

    In addition to sending a message to voters, using reconciliation to attempt to repeal the Affordable Care Act would serve to placate conservatives in both chambers, as well as outside conservative interest groups who have been clamoring for Congress to do something on healthcare.

    It remains unclear when reconciliation may be used, as it has no expiration date. The committees' deadline for submitting their recommendations to the Budget Committee came and went with no action taken, although this doesn't matter. Reconciliation becomes unusable only if a new budget resolution with new instructions is passed.

    Historically, it is not unusual for there to be a long lag between when a budget resolution is passed and when action is taken on reconciliation. A budget with reconciliation was passed in April 2009 and action was finally taken in March 2010. In 2008, the budget was passed in May and action was taken in September. And prior to that, a budget was passed in April 2005, but action was taken on reconciliation in December 2005 and then again in May 2006, as there were separate instructions on revenue and deficit.