The most significant long-term outcome of last night’s Republican debate is that Mitt Romney, the likely nominee, committed himself to using budget reconciliation to repeal the Affordable Care Act, thus evading a filibuster:
I also say we have to repeal Obamacare, and I will do that on day two, with the reconciliation bill, because as you know, it was passed by reconciliation, 51 votes.
This, as Dave Weigel has noted, is a crucial commitment, setting up what will probably be the biggest policy fight of a prospective Romney presidency. But, though Republicans have long been touting this option, it may not be so easy to pull off.
First, let me explain what this means. Budget reconciliation is a process in Congress to move budgets. It’s become crucial because it can’t be filibustered, and therefore it can pass with a majority vote in both houses of Congress.
Romney says the Affordable Care Act was passed this way, though that’s not actually true. The law passed through the Senate with 60 votes, overcoming a filibuster. Later, both houses used reconciliation to iron out some budget-related differences between the House and Senate versions of the law. Conservatives responded with apoplexy — it was a vile abuse of procedure, a dastardly exploitation of the suddenly sacred principles of budgetary procedure. (Here’s some sample fulmination from National Review, the Heritage Foundation, and Jonah Goldberg, who fumed that Democrats “won dirty.” Romney himself called it “neo-monarchy.”
I don’t think that reversing this once-sacred principle will pose even the slightest obstacle to Republicans. (Neo-monarchy, bad. Neo-neo-monarchy, good!) But practical problems may arise.
The first problem is that a President Romney would probably also need to use budget reconciliation to extend the Bush tax cuts. The cuts expire at the end of 2012, and, barring a budget deal under the Obama administration, Romney would be looking to extend those low, low tax rates. His best leverage to do so would be to use reconciliation — otherwise he’d need a bunch of Democratic senators to get to 60 votes. Now, Romney could (and probably would) try to combine the two measures into one big bill to cut taxes and repeal health care reform. But the more policy changes you load onto one bill, the bigger the risk of a defection making it all topple over.
The second and larger problem is that the Affordable Care Act can’t be completely repealed by reconciliation. Remember, reconciliation can only be used for budget-related changes. The Affordable Care Act included lots of non-budget provisions. In particular, it used both regulation and spending to cover people who lack health insurance. You basically have three categories of uninsured. You have people who are just too poor to afford a regular health insurance plan and don’t get one through their job. You have people who might be able to afford a regular health insurance plan, but have a preexisting medical condition, or perhaps a family member with one, so insurers either won’t cover them at all or will only sell them a plan at exorbitant prices. Then you have generally healthy people who could afford a plan but choose to skip out on it
The Affordable Care Act covered those groups in different ways. The poor people just got added onto Medicaid. The sick people had a more complex solution. The Act regulated insurers, so they have to charge everybody the same rate, poor and sick alike. This would create an incentive for even more healthy people to flee the system — why share costs with sick people when you’re healthy? — so the law added a mandate that everybody buy insurance, plus cost subsidies for people who’d have trouble affording a private plan. That’s the same system Romney used in Massachusetts, and was the basis for the Affordable Care Act.
Now, if Romney wants to use reconciliation to screw poor uninsured people, he can. Medicaid is a spending program, and he can use a budget bill to cut it. But screwing the non-poor uninsured will be trickier. Regulations forbidding insurers from discriminating against sick people will still be on the books, and you can’t eliminate a regulation with a budget reconciliation bill.
If they eliminate the subsidies but leave the regulations in place, you’ll have insurers required to sell policies to people who are sick, but no way to bring healthy people into the risk pool. A few states tried that. It created a cost spiral that collapsed the whole market. Romney would end up screwing the health insurance industry, which is much harder to do, politically, than screwing the uninsured. The industry has lobbyists.
Those lobbyists were happy to preserve the old system, which screwed all the uninsured and none of the insurance companies. They were fine with the Obama plan that screwed none of the uninsured and none of the the insurance firms. They're not going to be happy about creating a system that screws some of the uninsured and all of the insurance companies.
Now, there is a proviso where this gets complicated. (Okay, even more complicated.) The only thing keeping a party from using reconciliation to pass non-budget things is the Senate parliamentarian. By social custom, the parliamentarian’s rules are always followed. When he struck some parts from the Democrats’ reconciliation bill, they abided his ruling. But Republicans could decide to use reconciliation to repeal the entire Affordable Care Act, and when the parliamentarian rules against them, simply overrule him.
That would be a huge, drastic change — essentially it would end the filibuster. That would be a good thing, long-term, and it would also make it easier for Democrats to one day pass health care reform again. (If it weren’t for the filibuster, health care reform would have passed long, long before Obama came along.) But that kind of cultural change might worry Senate Republicans, who cling to the filibuster and other byways of the Senate. And it would be a controversial way for Romney to start his presidency, probably ending any hope of further bipartisan cooperation.
Would Romney carry this out? He has some decent moral instincts, and surely understands the devastation trying to repeal a plan based on his own plan would bring. On the other hand, he’s proven himself utterly ruthless, so the question is what political calculation he would make. On the one hand, he could press to use reconciliation to repeal health care reform, risking a blowup in the Senate and an irreparable break with moderate Democrats he may need for other parts of his agenda. On the other hand, failing to honor this commitment would precipitate a break with the right-wing base, frothing for a repeal of the demon Obamacare.
I don’t doubt that Romney would succumb to whatever course political calculation dictated. But whether he would actually pay the costs of the promise he made last night is not clear.