Repealing Obamacare has long been Republicans’ holy grail, but it appears more likely to be their white whale—even if a Republican wins the White House in 2016.
The latest hope for repeal comes in the form of reconciliation, a Senate procedural tool that allows legislation to pass with only 51 votes. And with Republicans owning a Senate majority for the first time since the law passed, 2015 is the party’s first real opportunity to move a repeal bill through Congress. Obama would veto the measure, of course, but the plan was to set the stage for real action should the GOP capture the presidency in 2016.
Senate Republicans’ repeal effort is demonstrating why a full repeal of the law is likely impossible. Because while reconciliation allows a bill to pass the Senate with a simple majority, there are limits to the type of bills that can be moved under the procedure, and a full repeal falls outside of that scope.
Instead, even Senate Republicans concede that the full repeal measure would have to pass through a more conventional process—including overcoming a filibuster.
“You’ll have to have 60 votes in the United States Senate,” said Sen. Chuck Grassley, in an interview about reconciliation's implications for repeal in 2017.
And given the landscape of the 2016 Senate election, scoring 60 Senate votes is unlikely. The party currently controls 54 seats, and it would take a massive string of upsets to assemble a filibuster-proof majority next session.
“The fact of the matter is you can’t repeal all of Obamacare in reconciliation,” said Doug Holtz-Eakin, president of the American Action Forum and a policy director for John McCain’s 2008 presidential campaign.
But even if it’s not a viable pathway to repeal, reconciliation is still far from feckless in the GOP fight against the Affordable Care Act. Instead, Republicans could use the process to strike down large chunks of the law—perhaps even enough to prune back the law to near irrelevancy.
“The process of using reconciliation to repeal parts of ACA is in many ways a trial run for a serious effort to repeal ACA under a Republican president,” said Ed Lorenzen, a senior adviser at the Committee for a Responsible Federal Budget. “The difficulty they are having in putting together repeal legislation that satisfies the Senate rules related to reconciliation may make it a less attractive strategy in 2017 [if] a Republican president is elected.”
A potential embarrassment
For this Congress, Republicans’ worst-case scenario would be a failure to find an anti-Obamacare reconciliation measure that they can even get 51 senators to line up behind.
So far, they’ve had some hiccups. Sens. Marco Rubio, Ted Cruz, and Mike Lee have vowed to vote against anything short of full repeal. But including a Planned Parenthood defund in the bill threatens the votes of moderates such as Sens. Mark Kirk, Susan Collins, and Lisa Murkowski.
For now, it remains unclear what will be the contents of a bill by the time the Senate votes on it, or when that will be, or even whether GOP leadership will be able to scrape together the mere 51 votes needed to send the bill to the president’s desk. But the process of fitting together Obamacare provisions like pieces of a puzzle to meet Senate procedural rules—and both moderate and conservative expectations—has demonstrated the difficulty of governing on the GOP’s election-winning philosophy of repeal-and-replace.
While the exercise is largely regarded as political messaging, the GOP’s back-and-forth with the Senate parliamentarian has real consequences for 2017, when Republicans have pledged that the Affordable Care Act will be repealed under a new president from their party. Intended to show what could happen with new leadership, this year’s reconciliation process has instead shown the unlikelihood of a full ACA repeal. But when it comes to how the health care law works, political messaging aside, it might not matter whether it’s fully or partially repealed.
“I think if we get to 2017 and we’ve got a Republican House, Senate, and president, what they’re going to care about is the outcome, not whether it’s the specifics of repeal-and-replace,” Holtz-Eakin said. “They don’t necessarily have to try to repeal the whole thing. They have to modify it and get to something they support as a party.”
The House-passed bill currently defunds Planned Parenthood in addition to striking down several provisions of the Affordable Care Act: the individual and employer mandates, the medical-device tax, the Cadillac tax, and the Prevention and Public Health Fund. An additional auto-enrollment provision was included in the House bill, but was used as a pay-for in the budget deal passed by Congress last month.
But since the bill moved to the Senate, it has run into issues with the Senate parliamentarian, who is responsible for ensuring the bill is in compliance. The mandate repeals have recently been deemed nonstarters, but leadership says it’s confident it will be able to rework the language of the bill to fit the Byrd-rule criteria.
“I think the major elements, the thing that our people care about the most, I think we’re going to get there,” said Sen. John Thune. “But you have to work with how you word it. It’s a process.”
Missing from the current bill are repeals of Obamacare’s Medicaid expansion and its tax subsidies, as well as stipulations regarding who and what insurers must cover—all critical components of the health care law. But the Affordable Care Act is complicated, and its major parts were designed to work together. If major pieces are repealed, the whole thing might have to be reexamined to create a cohesive, working health care system.
And if that happens, full repeal versus partial repeal could become a matter of semantics.
“I think in the end, what we want to do, we feel like if we repeal the individual mandate, the employer mandate, the taxes, you basically repealed Obamacare,” Thune said.
Democrats, on the other hand, are pouncing on the opportunity to once again defend the health care law’s permanence.
“Repeal is a forlorn hope of our Republican friends,” said Sen. Chuck Schumer, the No. 3 Democrat in the chamber, in an interview.
This article is from the archive of our partner National Journal.
Caitlin Owens is a health care reporter at National Journal. Her work has previously appeared in the Los Angeles Times, The News & Observer and The Charlotte Observer. She is a graduate of the University of North Carolina at Chapel Hill.