The Senate Is Playing Obamacare Reconciliation Chicken

Both parties are weighing the politics of what to do next with the law.

WASHINGTON - JULY 15: Sen. John Cornyn (R-TX) asks questions during the third day of confirmation hearings for Supreme Court nominee Judge Sonia Sotomayor before the Senate Judiciary Committee on Capitol Hill July 15, 2009 in Washington, DC. Sotomayor faces a day of questioning from Senators on the committee and also a closed door session. Sotomayor, an appeals court judge and U.S. President Barack Obama's first Supreme Court nominee, will become the first Hispanic justice on the Supreme Court if confirmed. (Photo by Mark Wilson/Getty Images) (National Journal)

For Senate Republicans, the question on Obamacare is simple: To reconcile, or not to reconcile?

Republicans haven't stopped wanting to repeal the Affordable Care Act just because the Supreme Court preserved it once again in last month's King v. Burwell decision. But they are still trying to figure out how hard to pursue their quixotic repeal quest—and whether they can even start to consider more incremental changes that might tacitly suggest that the law, as President Obama put it, "is here to stay."

The No. 2 Senate Republican, Majority Whip John Cornyn, is ready to go big in an effort to use the reconciliation process to repeal huge chunks of the law and put it on Obama's desk, setting up a promise to repeal it in full if a Republican wins the presidency next year.

"As far as I'm concerned, we're going to use reconciliation to vote on repealing and replacing Obamacare," Cornyn said in an interview. "There's some limits to what the parliamentarian will let you use reconciliation for, but we're going to get as much of that in this as we can."

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Reconciliation would only require a simple majority to pass the Senate, rather than the 60 needed to break a filibuster. Democrats used the process to pass the Affordable Care Act five years ago.

"I think everything's kind of in play," said Sen. John Thune, the No. 3 Republican in the upper chamber.

But Sen. John Barrasso, who took the lead on the party's plans had the Court ruled in its favor, said there's no deadline for deciding how to use reconciliation and, right now, the Senate has a lot of other things on its plate.

"It's still open. No final decision has been made," Barrasso told reporters. "Had the Supreme Court ruled the other way, there would have been an immediacy to have to use reconciliation with regard to a King decision, but since the decision went the other way, that immediacy isn't there. So reconciliation is still a useful tool and I expect it to be used."

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Beyond reconciliation, Republicans are pursuing smaller repeal targets in the law, several of which have bipartisan support. The House already voted to repeal the medical-device tax and a Medicare advisory board created by the law.

"I think those would be great," Thune said. "We're obviously trying to get the repeal bill, but if we can't succeed on that, then we'll make some of these rifle shots. The parts of it that we find most harmful would be things we would probably take a look at. Things like what the House did—the device tax—you know the list."

But they have to toe a careful line: Any endgame short of full repeal is still apostasy for many conservative members and much of the party's base. At the same time, Democrats will be quick to chastise the GOP for again litigating a law that has seen its core elements upheld twice by the nation's highest court.

"It is time to stop refighting battles that have been settled again and again," Obama said shortly after last month's Court ruling. "It's time to move on."

(RELATED: The Supreme Court Obamacare Case, Explained)

So far, though, there has been little public sign that the GOP would consider changes to the law that don't strip provisions or stop its implementation.

"I'm always open, but I have to say that it is such a disaster, I don't think it can really just amend it," Senate Finance Chairman Orrin Hatch said in an interview. "It's going to have to be replaced with something that is far superior and recognizes the realities of economics."

Yet Senate Democrats say they believe some Republicans want to negotiate, trading Democratic-approved fixes for GOP-preferred changes to the law. But the majority party's internal politics won't allow it.

"I think they want out from under this issue," Hawaii Democratic Sen. Brian Schatz said of Republican leadership. "But they've created a monster. They've told their base that Obamacare is the legislative apocalypse."

Connecticut Democratic Sen. Chris Murphy, who sits on one of the chamber's health panels, said that he would be willing to put some repeal options on the table in exchange for other changes. He named the so-called Cadillac tax specifically, which has long rankled Democrats because unions oppose it, and many Republicans would like to do away with it.

The medical-device-tax repeal, which passed the House with substantial Democratic support, is another likely candidate. Both would raise the deficit, and the Cadillac tax is designed to lower health care costs, but Obamacare would function fine without them.

Fixing the so-called family glitch, which makes as many as 4 million Americans ineligible for the law's subsidies, and changing the definition of full-time work under the law are other "fixes" that some Democrats have said they're willing to consider. Health and Human Services Secretary Sylvia Mathews Burwell recently floated the idea of making more small businesses eligible for tax credits as another administration-approved change.

"I've had a series of fixes for some time that I think make sense," said Sen. Mark Warner, a Virginia Democrat on the Senate Finance Committee. He has backed bills that would create a cheaper insurance option on the law's insurance marketplaces and ease reporting requirements for businesses.

"I'm open," Warner said. "But it has to be starting on the basis of 'actually improve,' not simply 'get rid of.'"

Some Democrats might be willing to talk even if Republicans keep using repeal rhetoric, though, as long as they also were engaging in more narrow conversations about changing the law.

"I think there are Republicans who understand that the fight is over," Murphy said. "I'm perfectly willing for them to say to their base that they want a repeal while they're sitting in a room talking to us about smaller changes. I don't know if they can pull that off."

But Republicans point the finger right back to the Democrats' unyielding support of the law for holding up any constructive talks.

"I'm always open to negotiations, but there are—I just don't think that there's a sincere desire to negotiate, and I think anything we do try to do, the president will probably veto anyways," Hatch said. "I mean he's so caught up in it that he really thinks it's a great bill when, in fact, everybody knows it's not."