Politico's Jennifer Haberkorn and Manu Raju reported last week on discussions among Senate Republicans about whether and how to use parliamentary procedure tied to the Budget Reconciliation process to repeal the Affordable Care Act (Obamacare) in the next Congress.
Explaining the technical elements of this effort are not necessary for this particular blog post, but this process would allow the Senate Republican majority to pass legislation repealing Obamacare with a simple majority of 51 votes without Democrats being able to filibuster it.
Any discussion occurring on this topic, and any effort to use reconciliation to repeal Obamacare represent political kabuki theater at its worst. Simply put, such an effort would be utterly and completely disingenuous and would indicate that Republicans care far more about appeasing their base than they do governing.
Make no mistake about it, most elected Republicans (if not all), genuinely believe that the Affordable Care Act is bad public policy. I've seen very few policy based explanations (i.e. the ACA will cause these negative consequences) as to why the law is such bad policy (as opposed to ideological ones that view the ACA as greater government intrusion into the healthcare system and into people's lives). But I don't doubt the genuineness of this belief.
Regardless, however, of what Republicans genuinely believe, they cannot repeal or destroy the Affordable Care Act before at least the spring of 2017. President Obama will veto any legislation that the next Congress passes to repeal the Affordable Care Act or to gut its core.
Overriding such a veto would require the support of 13 Democratic senators. Based on National Journal's 2013 vote rankings, that would require the support of liberal stalwarts Jeff Merkley (OR) and Tim Kaine (VA), and socialist Bernie Sanders (VT). The odds of that happening are roughly equivalent to me being offered a job with a $1 million per year salary, a date with Jennifer Lawrence, and a body guaranteed to last me without major issue until age 105 in the next 24 hours.
As such, any repeal vote would represent political theater designed to signal Republicans' dislike for the law, and to let the conservative base know that elected Republicans agree with them about Obamacare, and are doing everything they can to destroy the law.
There would be no real governing cost to holding a regular vote to repeal Obamacare in the Senate. Democrats would filibuster, the bill would go nowhere, and Republicans could lament the Democratic obstruction. Attempting to use reconciliation to vote to repeal Obamacare, however, has real governing consequences.
As Haberkorn and Raju detailed, attaching repeal of the Affordable Care Act to budget legislation could imperil other legislative priorities that have an actual chance of becoming law—such as corporate tax reform, or even individual tax reform. If President Obama vetoes a budget reconciliation bill because it repeals the Affordable Care Act, Congress could not subsequently pass another reconciliation bill including tax reform (or any other legislative priority).
While all of this procedure can be arcane and confusing, the ramifications of this distinction are huge. If tax reform, for example, is not part of a budget reconciliation bill, it would be subject to a Senate filibuster. Thus, it could only be achieved with the support of at least 60 senators. This hurdle might allow a coalition of liberal and conservative senators who disliked a compromise tax reform bill for different reasons to come together to torpedo it.
Using the budget reconciliation bill to stage a symbolic and fruitless attempt to repeal Obamacare also would undoubtedly irritate and antagonize President Obama pointlessly. After 5 years of rhetoric and countless House votes, the vast majority of the public is well aware that Congressional Republicans loathe the law and that there is absolutely no way that the president will allow them to repeal it.
The suggestion that Republicans are even contemplating using reconciliation to repeal the ACA should bother Americans, because it calls into question post-election Republican promises to focus on governing and to work with the President where possible. Passing such reconciliation legislation would be highly controversial and acrimonious. It would also likely occupy a substantial amount of the finite legislative calendar time because it would involve significant parliamentary maneuverings.
All of these consequences would make it more difficult to pass other consequential, much needed, and possible legislation, ranging from tax reform to increased transportation funding—all in the name of a symbolic effort that represents the prioritization of politics over legislating.
The American people are well aware that, if given simultaneous control of Congress and the White House (including 60 senators), Republicans plan to dismantle the Affordable Care Act by any means necessary. They do not have to resort to legislative contortions to prove this point.
This use of reconciliation would undoubtedly please the conservative base. It is exactly kind of tactic that Senator Ted Cruz (R-TX) advocates, because it would represent the maximum possible effort that Republicans could take to destroy a law that they have pledged to repeal.
Yet, Republicans would be far better off operating as they did on the recently passed "CRomnibus." Thanks to the give and take of the traditional (but rarely seen today) legislative process, that bill carried many Republican favored policies into law (including the highly controversial banking provision that enraged liberals).
Make no mistake about it, Democrats must understand and accept that the only way to accomplish anything over the next two years is to accept certain Republican priorities becoming law in exchange for some Democratic priorities becoming law. Divided government necessitates this sort of horse trading.
But such negotiations require trust among the President, Congressional Democrats, and Congressional Republicans. Successful legislation would also require both sides to bargain in good faith, settle for half a loaf, and be willing to infuriate their bases.
The discussion of using reconciliation to repeal Obamacare unfortunately and ominously signals that Republicans would rather antagonize the President, pass up a chance to achieve major legislative goals, and appease their base than do these things.