Dan O’Donnell lays out what Congressional Republican leadership has devised to replace ObamaCare, beginning with the parliamentary hurdle:
Before the ink had even dried on the House Republican plan to repeal and replace Obamacare, the American Health Care Act (AHCA), Democrats and Republicans alike were blasting it.
Naturally, very few had a chance to actually read the bill, but that didn’t stop every one of them from giving their opinions on it. Most have been remarkably disingenuous, especially those that fail to mention the budgetary process needed to get around a Democratic filibuster in the Senate.
A filibuster is all but a certainty, as Democrats have made it their sole mission to thwart the Republican agenda at quite literally every turn. Heck, they are even delaying President Trump’s Cabinet confirmations longer than any other President’s in American history.
Given that, does anyone really think that they would allow Republicans to just dismantle former President Obama’s singular (and some would say single) domestic policy achievement? Of course they wouldn’t. They would filibuster the American Health Care Act and Republicans would be powerless to stop them.
A cloture vote to stop a filibuster requires 60 Senate votes, and since Republicans only control 52 Senate seats, Democrats will be able to stop any Republican legislation by simply announcing plans to filibuster.
Thanks to a change in Senate rules in the 1970s to a “two-track system” of legislation, they don’t actually have to hold the Senate floor for weeks on end; they merely have to threaten it. Under this two-track system, once they do, if Republicans don’t have the votes for cloture, the filibustered bill (in this case, the AHCA) would quite literally be sidetracked–placed on one track while all other Senate business moves to a second track. The change to a two-track system led to a dramatic rise in filibusters and the AHCA debate would be no exception: The bill would simply stall in the Senate with no hope of rescue unless Republicans were to win an additional eight Senate seats in the 2018 midterms.
To get any sort of Obamacare repeal and replace measure passed through Congress, then, Republicans need to get around the filibuster. In a rather ingenious but admittedly limiting move, the House has settled on a method of passing legislation known as “budget reconciliation.” This allows for a bill to pass through the Senate with just 20 hours of debate and no possibility of a filibuster.
However, there are specific requirements for a bill to qualify for the reconciliation process–most notably that the bill be budgetary in nature. This means that the AHCA can only repeal Obamacare’s taxes and spending and not its onerous regulations.
Understandably, conservatives are furious that the bill is not tackling what they believe to be the fundamental problems with Obamacare, but the AHCA does repeal the individual and business mandates–generally seen to be the linchpins of Obamacare itself–as well as taxes or tax increases on prescription medication, over-the-counter medication, medical devices, health savings accounts (HSAs), and Medicare.
The bill also repeals the elimination of deductions for expenses that can be allocated to Medicare Part D subsidies, repeals the increase in the income threshold for medical expense deductions, repeals limitations on contributions to flexible savings accounts (FSAs), establishes a refundable tax credit for health insurance, and increases the maximum contribution limit to HSAs.
All of these, particularly the repeal of the individual mandate and the medical device tax, have been things conservatives have clamored for for years. Moreover, the AHCA completely overhauls Medicaid in the wake of Obamacare’s massive expansion of it. The Republican bill gives states far more flexibility in administering Medicaid than the remarkably unworkable one-size-fits-all approach of Obamacare.
Yet conservatives understandably want more. They don’t want the AHCA to merely repeal Obamacare’s taxes and spending, they want to eliminate all of its regulations. Unfortunately, that would necessitate a normal bill that would be subject to normal Senate rules and therefore subject to the inevitability of a Democrat filibuster.
Because of the two-track system, Democrats could keep any such bill sidelined for years and Republicans would be left with neither the repeal of nor the replacement for Obamacare that they so desperately want (and that America so desperately needs).
So House Republicans chose to repeal and replace as much of Obamacare as they legally could using the only realistic means they have of sidestepping Democrat obstruction–reconciliation.
In order to qualify for reconciliation (which can only occur once a year), a measure must be passed by April 15th and, critically, it must be budgetary in nature. Otherwise, it is subject to 2 U.S.C. § 644, more commonly known as the “Byrd Rule” as an homage to former Senator Robert Byrd.
If a bill or a portion of a bill does not generate a net change in either budgetary outlays or revenues–in other words, if it does not explicitly deal with taxing or spending–it is not eligible for reconciliation and would be declared a regular bill and thus subject to regular rules (and a filibuster).
Even an effort to erase the most onerous Obamacare regulations, which one can absolutely argue have an impact on the federal budget, would be subject to the Byrd Rule, which makes a bill that “produces changes in outlays or revenues which are merely incidental to the non-budgetary components of the provision” ineligible for reconciliation.
This is why the bulk of Obamacare’s regulations are not able to be included in the AHCA: They are simply not budgetary in nature. Were they to be included, Democrats would invoke the Byrd Rule and simply filibuster the measure to what would effectively be its death.
Given this harsh reality, Republicans are wise to use the budget reconciliation process to bypass Democrat obstruction and achieve the bulk of their single biggest campaign promise, the repeal and replacement of Obamacare.
It is only natural that conservatives want the AHCA to do more, but ignoring the fact that Democrats would simply filibuster any effort to completely undo all of Obamacare’s provisions is disingenuous at best and dishonest at worst.
A Democrat filibuster isn’t just a threat, it’s a certainty, and the reality is that passing the AHCA through the budget reconciliation process is quite simply the best option that Republicans have.
So Republicans’ best opportunity here appears to be to repeal as much of ObamaCare as they can without invoking the filibuster, get a larger majority in the 2018 elections, and then do the rest. And that’s an uncertain strategy not merely for the obvious reasons, but because poll results are mixed about how Americans feel about ObamaCare. Great.