Jun 29 2012
By Manu Raju & Jake Sherman
Republican hopes to repeal the health care law may come down to a bank shot: A GOP sweep in November and a simple Senate majority — along with some arcane budget procedures — could kill the individual mandate in 2013.
The House will hold a symbolic vote to repeal the law on July 11, but the real long-term strategy for rolling back the law is already under way. Republicans are stoking voter anger over the law until Election Day, which they hope will produce a Mitt Romney presidency and an all-Republican Congress. And it ends by employing budget rules that would allow a fast-track repeal with a 51-vote majority in the Senate, circumventing a Democratic minority and potential filibuster.
That process — known on Capitol Hill as budget reconciliation — would give Republicans a serious shot at repealing the individual mandate and the heart of the law before 2014 when much of it is scheduled to take effect.
So it’s not surprising that the word “reconciliation” was on the tip of virtually every Republican tongue Thursday, just hours after the landmark Supreme Court ruling upholding most of the health care law.
South Dakota Sen. John Thune, chairman of the Republican Conference, said budget reconciliation could be a “vehicle” for repeal, promising Republicans would make “every attempt” under a GOP Senate majority and Republican White House to do just that.
“I’ve already heard discussions that it can be done through 51 votes in the Senate, which is an easier threshold,” said Washington Rep. Cathy McMorris Rodgers, a member of House GOP leadership and a key Romney adviser.
“With a 50-vote majority in the Senate, Republicans could do the same thing Democrats did with 50 votes on Obamacare — and that is to use the reconciliation process — to reverse the more onerous provisions of Obamacare and replace them with what Republicans have been talking about,” Senate Minority Whip Jon Kyl (R-Ariz.) said.
Of course, a lot has to go right for Republicans between now and then.
Obama would have to lose the White House, Republicans would have to pick up three Senate seats — and hold the House — and the GOP would have to show 100 percent unity if it was serious about repealing a law that has been found constitutional by the Supreme Court.
On top of that, some budget experts believe not every part of the health care law could be repealed using the simple-majority rules of reconciliation — only the parts that have a direct budget impact. Still, major portions, including the individual mandate, could be targeted by reconciliation.
“The reconciliation process that was so horrible and abnormal?” said Rep. Rob Andrews (D-N.J.), a key player in passing health care, referring to past Republican complaints that reconciliation was illegitimate. “That reconciliation process? It was legitimate to use it in ’09, it would be legitimate to use it to repeal it. It actually would. I’m sure that’s what they’d try to do.”
Rep. Chris Van Hollen (D-Md.), ranking member on the Budget Committee, acknowledged that “theoretically” it’s possible but dismissed the chances that Republicans would succeed.
“This is under the fantasy world where they control everything,” Van Hollen said.
Nevertheless, the talk over process is more significant than just procedural mumbo jumbo. Even if Republicans sweep the elections, the Senate will almost certainly be narrowly divided, meaning regular bills related to repeal would need 60 votes to overcome a Democratic filibuster.
But under the Congressional Budget Act of 1974, a law intended to make it easier for Congress to rein in big deficits, Republicans would have the ability to avoid the 60-vote threshold altogether. First, Congress has to pass a nonbinding budget blueprint instructing congressional committees to draft reconciliation legislation aimed at conforming to tax and spending goals. And once that bill is drafted, debate can be limited on the floor and sent to the president’s desk.
While intended to curtail the deficit, both parties have used the process to run roughshod over the congressional minority, whether it’s been Republicans enacting the Bush tax cuts in 2001 and 2003 or Democrats shepherding through portions of the health care law in 2010.
Budget experts in both parties acknowledged that the process could be used to target most of the core elements of the law, especially portions that have a budgetary impact, including the individual mandate that requires most Americans to buy health insurance.
Other provisions in the law that do not have a direct impact on the budget could have a harder time overcoming Senate budgetary points of orders.
Republicans say if that happens and they control congressional majorities, they will add legislative riders to spending bills instructing federal agencies not to spend money on implementing the health care law.
“We’re out of money,” said Sen. Thad Cochran (R-Miss.), who is in line to chair the Appropriations Committee if the GOP wins back the Senate. He added that the appropriations process “probably” would be used to declare a “lack of funding” implementing the law.
Another appropriator, freshman Sen. Ron Johnson (R-Wis.) added: “If we run on the basis that we’ve got to stop implementation of the law, certainly through the budget process with 51 votes, we can pass a budget and defund it. That’s probably about as much as we can hope to do.”
The ruling has given both parties an opportunity to reframe the debate: Democrats say the focus now will be on the law’s merits, not whether it’s constitutional, and whether people should lose benefits enacted in 2010. But Republicans say the court has declared the individual mandate a “tax,” and that Democrats are responsible for a tax hike on millions of Americans.
Both sides still have their attorneys poring over the decision, looking for potential problems for existing law. Democrats appear to be in no hurry to legislate over the matter after the court upheld the individual mandate under Congress’s constitutional authority to tax.
But top aides and lawmakers from both parties were immediately concerned about the provision in Chief Justice John Roberts’s ruling that said the Constitution prohibits the federal government from withholding Medicaid money from states that don’t participate in the program’s expansion. Aides and lawmakers feared that it could renew battles over whether the federal government could withhold education dollars for states that don’t comply to No Child Left Behind standards, or transportation funds for states who don’t set the alcohol drinking age at 21.
Immediately, however, the House has set a July 11 vote to repeal the law, a measure that will pass the GOP-dominated chamber but stall in the Democratic Senate.
Some Republicans were openly admitting that the repeal vote is rooted in 2012 politics and that the real fight would occur on the campaign trail and carry into the next Congress.
“We’ve already done it,” said Rep. Reid Ribble (R-Wis.). “I think it’s fine to do it, I don’t disagree with the strategy to do it — recognizing it’s not going anywhere.”
Romney has promised to immediately grant waivers to all 50 states and territories. And then the budget process would begin in Congress.
“They paved the way for that,” said Rep. Phil Gingrey (R-Ga.), a physician, referring to Democrats in 2009. “They’ve already set the precedent for utilizing reconciliation on a piece of legislation where it’s never been used before. So tit for tat, in regard to that. Absolutely, if we need to use reconciliation to get rid of this monstrosity, we will. I’ll be for that.”
Scott Wong contributed to this report.