Reconciliation has already been linked to health reform via its role in the legislative history of the ACA. Though the 2010 law known as Obamacare was not passed via reconciliation, as conservative politicians and writers often claim it was, reconciliation did play a key role in the shape the law takes today. In the early phases of the act’s passage in December 2009, Democrats enjoyed a filibuster-proof 60-vote majority in the Senate, and did not need reconciliation to effectively pass bills. But the House and Senate did pass slightly different versions of a health-reform bill in December of that year, with the House bill spending more, taxing more, and extending more subsidies to increase coverage to more Americans. The House and Senate hoped to bring their bills closer together in a conference, which would have necessitated another Senate vote and another possible filibuster attempt.
Republican Scott Brown’s victory in Massachusetts in the 2010 special election to fill Democrat Ted Kennedy’s Senate seat changed the calculus on that process. Brown’s election upended the Democratic filibuster-proof majority in the Senate, and in response, Democrats resorted to the process of reconciliation to bridge the gaps between the Senate and House bills. The Democrat-led House abandoned its own bill to pass the Senate’s more conservative legislation, and then the Senate avoided a Republican filibuster by using reconciliation to pass the Health Care and Education Reconciliation Act of 2010, which amended the ACA to be more like the House’s original bill. That bill used federal funds to pay for the bulk of the Medicaid expansion, increased tax credits and subsidies for purchasing insurance, closed the Medicare “donut hole,” and increased some taxes to afford the expenditures, among other measures.
Republicans have often presented the use of reconciliation to repeal key parts of the ACA as a bit of poetic justice for that 2010 maneuver, and they have performed a practice run before. In 2015, the Republican-led Senate voted 52 to 47 to pass H.R. 3762, a reconciliation bill that would have stripped federal subsidies for purchasing insurance through the exchanges, ended federal funding for the Medicaid expansion, and nullified a number of taxes sustaining the law, including the individual mandate. That bill has largely been seen as a blueprint for Republicans’ repeal efforts this time around, and its potential effects on the economy have already been modeled and predicted.
But according to a senior Senate health aide, an H.R. 3762-like bill passing through the reconciliation process is less likely than it seems, mostly because Republicans don’t expect President-elect Trump to veto their legislation. In other words, Trump has promised to roll back the ACA and might actually sign a law to that effect, so congressional repeal plans have more weight. The 2015 vote was symbolic, and Republican members of Congress had the luxury of pushing through legislation on ideological grounds, rather than actually considering the real effects of repeal or what might need to come next. When asked about H.R. 3762’s repeal of the Medicaid expansion—which his home state of Nevada had accepted—Republican Senator Dean Heller responded, in a well-publicized quote, “Well, it’s going to be vetoed.” But in this run, the policies are live-fire, and stripping coverage away from millions of people has real political—not to mention societal—ramifications. The provisions in H.R. 3762 may have too many unpalatable effects to use it as a model. The staffer, who works for a Democratic senator, suggested that many Senate Republicans are already tentative about these very real-world effects on health care and the economy.