GOP Looks at Reconciliation to Repeal Health Care Law

By Niels Lesniewski, CQ Staff

Senate Minority Whip Jon Kyl predicts that a Republican-led Senate will try next year — that is, if voters cooperate in November — to repeal much of the health care law with a simple majority vote, using the budget reconciliation process.

That would only be fitting, given that Democrats used reconciliation in 2010 to enact a portion of the law. And the expedited process may be the fond wish of Republicans who would like to repeal the law and avoid the 60-vote minimum that tends to control action in the Senate. But the rules governing reconciliation pose considerable challenges, even if the GOP is in the majority.

“I think with a 50-vote majority in the Senate, Republicans could do the same things” that Democrats did, said Kyl, an Arizona Republican who is retiring this year. The GOP can use reconciliation “to reverse the more onerous provisions of ‘Obamacare’ and replace them with what Republicans have been talking about,” he said.

Using reconciliation would limit debate in the Senate, eliminating the need to muster 60 votes to invoke cloture and move to a final vote. Rep. Cathy McMorris Rodgers, R-Wash., alluded to such a strategy in responding to the Supreme Court’s ruling Thursday that the health care law’s requirement that individuals obtain insurance or pay a penalty that amounts to a tax and thus is constitutionally permissible.

“They upheld the law as a tax, and therefore this is the largest tax increase in America’s history,” McMorris Rodgers said. “But it also will change the course as we move forward, in that if it’s the tax that made it constitutional, then that gives us some options through the budget to repeal this tax.”

But budget observers say that a full repeal would be impossible using the special procedures of reconciliation.

Sarah Binder, a Senate expert at George Washington University and the Brookings Institution, was quick to point out the pitfalls. An effort to repeal the health care law might run afoul of a Senate rule named for Robert C. Byrd, the late West Virginia Democrat.

“The Byrd rule prevents provisions that are ‘extraneous’ to budget targets from being included in reconciliation — unless proponents can muster 60 votes to waive a Byrd rule challenge or to reject a point of order under the rule,” Binder wrote at the Monkey Cage blog Thursday.

Further, budget rules generally do not allow provisions in reconciliation bills that would increase the budget deficit. And repealing the health care law (PL 111-148, PL 111-152) would cost money, since it has been scored by the Congressional Budget Office as saving billions of dollars.

Rep. Michele Bachmann, R-Minn., in an interview on CNN also suggested using reconciliation to repeal the health care law, but she added that Republicans still would need a two-thirds majority to override a presidential veto — unless the GOP can also win the White House this fall.

“So, if there is a majority in the Senate, and a majority in the House, and if we have Mitt Romney as the next president of the United States, we can, and we will repeal Obamacare,” Bachmann said.

Melissa Attias contributed to this story.