Congressional Republicans face a choice in the next few weeks on whether to provide a potential GOP president with a tool for repealing and replacing Obamacare in his first few days in office in 2017.
Whether and how to use the legislative tool known as reconciliation is one of the big questions Republicans must answer among themselves as they prepare for writing budgets for fiscal 2017 next month. Conservatives fear that the measure could be abused by GOP leadership or a Democratic president might stop the party from deploying the measure.
Reconciliation, a part of the budget process meant to enforce deficit reduction, allows Congress to pass legislation with only 51 votes in the Senate. It’s the tool that Republicans used to place an Obamacare repeal bill on President Obama’s desk this month, as well as how Democrats passed Obamacare in the first place.
Congressional GOP budget experts believe that reconciliation instructions could be used to repeal and replace Obamacare next year, realizing a top goal of Republican candidates that once seemed impossible.
Here’s how it could work: The House and Senate would write budgets that include reconciliation instructions for repealing and replacing Obamacare. Then, in November, the GOP holds onto the Senate and a Republican candidate wins the White House. In the first few weeks of 2017, those reconciliation instructions, GOP budget experts believe, still would be available to allow an expedited passage of Obamacare-related legislation.
The key is that, unlike legislation, reconciliation instructions do not expire at the end of a given Congress and could be picked up by a new Congress early in 2017. At least, that is what Republicans believe.
Outside budget experts surveyed by the Washington Examiner said that such a move would be unprecedented and suggested that it would stretch the limits of congressional procedure.
It would be “unlikely” that the maneuver could work, said Steve Bell, an expert at the Bipartisan Policy Center who served as staff director of the Senate Budget Committee under former Sen. Pete Domenici, R-N.M., It “all depends to some extent, on which side of the bed the Senate parliamentarian got up on that day,” Bell said.
As it happens, the long-shot strategy is not currently the leading option for House Republicans. House Budget Committee Chairman Tom Price, R-Ga., said earlier in January that the use of reconciliation was still under discussion and that the idea that had the most traction as a candidate for reconciliation was “some type of welfare reform along the lines of expanding the successful ’90s reform.” Tax reform, he said, was an “outside possibility” for reconciliation, which has some flexibility but can be used only once.
The prospect that unused reconciliation instructions could be used by a new president in 2017 has some conservatives discouraging congressional leaders from writing them into the budget agreement at all.
Aides to Senate conservatives cited the possibility that the reconciliation instructions could be used by a President Clinton to bypass a filibuster from conservatives in the Senate to pass legislation backed by a simple majority of Democrats and moderate Republicans.
That scenario could become a possibility if Republicans passed a budget agreement with reconciliation instructions for legislation such as welfare reform this year, but failed to get the welfare legislation across the finish line. Those unused instructions could be picked up by the Senate in 2017 to pass legislation favored by Clinton, or in the lame-duck period to pass international tax reform legislation, an issue that in recent months has divided Republicans.
“There’s a trust deficit here that needs to be closed,” said Dan Holler, a representative for the conservative group Heritage Action. “We’re telling folks that there’s no need to do [reconciliation instructions] now.”
Holler pointed to betrayal felt by some conservatives last year when GOP leaders contemplated using reconciliation instructions to restore subsidies to Obamacare exchange enrollees who stood to lose their tax subsidies in the Supreme Court case King v. Burwell if the justices had ruled against the law. Some conservatives hadn’t seen restoration of subsidies they oppose as a possibility when they voted for the budget.
The remote upside that reconciliation could be used to give a GOP president an immediate opportunity to undo Obamacare, some conservatives say, is outweighed by the possibility that it could be used for objectionable purposes. That’s especially true because, despite the passage of six years since Obamacare became law, Republicans will not have coalesced behind replacement legislation ready to be signed by the president by January. Actual repeal would be politically unthinkable without replacement.
Furthermore, GOP majorities could always rewrite the budget in January to create new reconciliation instructions, setting themselves back only weeks relative to the strategy of writing them this month for use then.
“Congress can agree to a resolution that is largely a shell, doing nothing but reaffirming the existing the budget resolution and containing a new reconciliation directive,” said Richard Cogan, a senior fellow at the Center for Budget and Policy Priorities, a left-of-center Washington think tank. Doing so, he added, could happen “within a few weeks” of the president being sworn in.
The question of whether reconciliation instructions can carry over to another Congress, Kogan added, is “an interesting question that’s not really just inside baseball, but inside the infield fly rule.”
