Tip Sheets

How Congressional Republicans plan to gut the ACA

Sarah Ferris

By Sarah Ferris

Republicans in Congress aim to vote to repeal the Affordable Care Act in the first 100 days of Donald Trump’s presidency.

Even with Trump in the White House, the GOP won’t be able to get a full repeal of the ACA through the narrowly divided Senate. Instead, Republicans will use a legislative tactic called reconciliation, which will enable them to push massive budget-related bills through the Senate without the threat of a Democratic filibuster. The following is a guide to some of the bewildering D.C. budget lingo and process for this to take place.

Reconciliation typically takes months because of the complex — and sometimes subjective — Senate rules. However, Republicans in Congress, feeling intense pressure to act quickly after six years of repeal pledges, plan to speed up the timeframe.

The procedure was created by the Congressional Budget Act of 1974, and has been used only about 20 times. While mostly intended for deficit reduction, reconciliation has also been used to pass welfare reform under the Clinton administration and tax cuts under the George W. Bush administration.

Democrats also used reconciliation in 2010 as a last-ditch way to pass final pieces of the ACA after they lost their filibuster-proof majority in the Senate when Republican Scott Brown succeeded the late Edward Kennedy.

The highly complex budget tool is key to the GOP’s strategy to dismantle the ACA with a filibuster-proof majority in the upper chamber.

Reconciliation Steps

1. Write a budget: The House and Senate Budget Committees each draft a budget resolution that sets discretionary spending caps for 2017. It also will include “reconciliation instructions” for the committees with jurisdiction over health care – the Senate Finance Committee, the Senate Health, Education, Labor, and Pensions Committee, the House Ways and Means and the House Energy and Commerce Committee. 

The budget resolution does not prescribe specific legislation. It only includes a timeframe and goals for changing spending or revenue (or both). This will be the fiscal framework for eventual legislation to repeal or amend the ACA.

2. Agree to a budget: Both the House and Senate must pass identical budget resolutions. If the two versions are not the same, lawmakers will “conference” the two bills to create a compromise version.

The resolution is protected from a filibuster under budget rules because it only needs 51 votes to pass, not 60. Still, the resolution still must secure 218 votes in the House and 51 votes in the Senate. (This means Senate Majority Leader Mitch McConnell can only lose two Republican votes in 2017, assuming Vice President Pence votes in the case of a 50-50 tie).

3. Committees get to work: The authorizing committees then will write the actual reconciliation bill that will determine what to do with Obamacare. They want to do this more quickly than some reconciliation efforts, but there still are some big questions for Republicans to answer, including when the repeal should go into effect. Also to be determined is what stopgap program – if any – should be in place to help the estimated 22 million people who could lose their coverage.

Once completed, each committee sends its finalized legislation to either the House or Senate Budget Committee, which will compile each submission into an omnibus budget reconciliation bill.

GOP leaders are expected to largely rely on their 2015 reconciliation bill, which they used to strike a blow at the ACA shortly after regaining Senate control in the midterm elections. (President Obama vetoed that). It is unlikely to change much in part because every bit of a reconciliation bill has to pass muster with the Senate parliamentarian under the complicated budget rules –  which already has been done with the 2015 version.

The bill (H.R. 3762) was used as a dry-run for Obamacare repeal, proving the GOP could navigate the traps of Senate budget rules to eliminate the key pillars of the law.

The bill did not kill all of the health law – under budget rules, not everything is relevant. But it would have knocked down the individual and employer mandates, halted Medicaid expansion, drained federal subsidies and eliminated financing provisions such as the so-called Cadillac tax and the medical device tax.

Committees likely will have to make some adjustments, particularly related to the timeline, for this year’s reconciliation bill. But it likely will not look radically different. Even so, the bill won’t fill in some considerable blanks about precisely how the Republicans plan to replace the health law – still a contentious matter.

The 2015 bill provided a two-year window to sunset the ACA’s subsidies and Medicaid expansion, which would have allowed them to continue until 2017. House and Senate Republicans remain deeply divided over how long to keep the subsidies flowing – if at all – after the repeal vote.

Medicaid also looms large in the upcoming reconciliation debate. More than a dozen senators up for reelection in 2018 hail from states that expanded Medicaid under the ACA.

4. Bill passes and president signs: Reconciliation bills are fast-tracked in both the House and the Senate.  With the expedited process, Senate debate is limited to just 20 hours. Debate on a House-Senate compromise is limited to 10 hours. 

Senators can still propose an unlimited number of amendments that are germane to the bill, however. Once the 20-hour time limit expires, amendments can be considered with little to no debate, a process dubbed “vote-a-rama.”

Trouble Spots

Byrd rule: The Senate adopted the Byrd rule – named after its sponsor, Sen. Robert Byrd (D-W.V.) – to halt lawmakers from tucking non-spending-related measures into reconciliation bills. (Byrd had intended to protect the reconciliation process from becoming what he called a “Pandora’s box,” warning that other lawmakers were abusing the tool.)

The Byrd rule is enforced by parliamentary objections, called “points of order,” against parts of the bill or any amendments. Under the rule, senators may raise a point of order to strike “extraneous” provisions in the bill, such as measures that don’t affect spending or revenue. If key provisions are challenged, the reconciliation bill could begin to resemble Swiss cheese.

Replacement: Coming up with a plan to replace Obamacare has been an aim for the Republican Party for so long that it has become a laugh line even in conservative circles. Despite voting more than 50 times in the House to repeal the law, the GOP has not once voted on legislation that would take its place. 

Now with full control in Washington, Republicans are facing an intense time crunch to pass a reconciliation bill to dismantle the law.

Replacing the ACA will be even tougher than repealing it. Republicans need a separate legislative strategy, which almost certainly would require cooperation from some Senate Democrats.

Related Reading

Sarah Ferris covered health care, mainly focused on the Affordable Care Act, for The Hill newspaper for 2-1/2 years. She will cover the federal budget – and some health care policy – for Politico beginning this month.