Andy Warhol famously asked, “Isn’t life a series of images that change as they repeat themselves?” Last month, the Republican House of Representatives voted to repeal the Affordable Care Act (Obamacare), by my count, for the 57th time. This time there was a bit of a change. The Senate passed a similar bill.
Each time in the past, the repeal effort was met in the then-Democratic Senate by refusal to take it up. When Republicans gained control, it was blocked by filibuster by the minority Democrats. This time Republicans turned to a feature of the Budget Act called “reconciliation” in an effort to circumvent Democratic filibusters.
Reconciliation was intended, when it was included in the 1974 Budget Act, essentially without debate, to be a “good government,” bipartisan tool for Congress to get a reasonable hold on the federal budget. Reconciliation was included as an optional process.
Reconciliation bills were designed to be fast-track measures (meaning limited debate and amendment). The fast-track feature of the process meant that the Senate’s normal safeguards for the minority would not apply. Since debate would be limited, filibusters would be impossible. This meant that a simple majority, not 60 votes, would be necessary to adopt the measure. Senators agreed to this approach because the scope of reconciliation was expected to be narrowly limited. Reconciliation bills were not intended to include comprehensive, programmatic legislation.
Over the years, in my judgment, both parties in the Senate have abused the budget reconciliation process. It has been used to pass major legislative efforts like the massive Bush tax cuts and the sweeping Clinton welfare reform.
Republicans will argue that it was also used to adopt Obamacare in the first place. Actually, Obamacare overcame a filibuster in the Senate to pass on Christmas Eve in 2009 with 60 Democratic votes. Reconciliation, however, was used later, in March 2010 (after the death of Edward Kennedy and the election of Republican Scott Brown denied the Democrats their 60th vote), to clean up the bill by removing special deals adopted in the Senate to get the votes of Democrats Mary Landrieu of Louisiana and Ben Nelson of Nebraska.
This year, the reconciliation bill passed by the House would block the employer and individual mandates, largely gutting Obamacare, and would also terminate federal funding for Planned Parenthood. To satisfy its most conservative members, the Senate broadened the bill by removing the Medicaid expansion provisions that provide health insurance coverage to more than 5 million Americans in 28 states.
Democrats were unable to filibuster the bill and it was passed by the Senate on Dec. 3 with only Republican votes, 52 to 47. Since the House and Senate versions differ, the House must now accept the Senate version, which it is expected to do.
For the first time, a bill substantially gutting Obamacare will reach the president’s desk. The outcome, however, will be the same. The Affordable Care Act will not be repealed because President Obama will certainly veto the reconciliation bill and the Congress will refuse to override the veto.
Nonetheless, Republicans will rejoice believing that they won some sort of moral victory. They will have forced Obama to declare he supports Obamacare. This is hardly a surprise. But the GOP will argue that they have shaped the blueprint which, if they elect a new Republican president next year and keep control of the Congress, will point the way to a swift repeal of Obamacare.
This, however, ignores the big question. With what will they replace it? The GOP has done an exceedingly poor job of answering that question. The Congressional Budget Office has reportedly estimated that the Senate bill would increase the number of uninsured Americans by more than 22 million above what it would otherwise be by 2018.
If a new president and a new Congress try to gut the Affordable Care Act, that question will loom large.