In a private meeting with Americans for Limited Government (ALG) staff, senior aides to Senate Minority Leader Mitch McConnell (R-Ky.) promised that should Republicans reclaim a majority in the Senate on Tuesday, they would use the budget reconciliation process to go after Obamacare.
It was unclear whether that meant full or partial repeal of the law under reconciliation, but according to ALG vice president of public policy Rick Manning who was at the meeting on October 29, “Aides acknowledged the only way to get any type of repeal or even major changes to the law would be reconciliation.”
The matter was further clarified in an October 30 statement by McConnell spokesman Brian McGuire: “if Republicans are fortunate enough to take back the majority we’ll owe it to the American people to try through votes on full repeal, the bill’s most onerous provisions, and reconciliation.”
At issue were comments from McConnell, who faces reelection Tuesday, that it would take 60 votes in the Senate to get a full repeal of Obamacare.
“Well, it’s the top of my list, but remember who’s in the White House for two more years. Obviously, he’s not going to sign a full repeal,” McConnell said to Neil Cavuto on Fox News. “It would take 60 votes in the Senate. Nobody thinks we’re going to have 60 Republicans. And it would take a president — presidential signature. No one thinks we’re going to get that.”
This seemingly differed with comments on Fox News Sunday in July 2012 when, after the Supreme Court upheld the law’s individual mandate as a tax, McConnell said, “The chief justice said it’s a tax. Taxes are clearly what we call reconcilable. That’s the kind of measure that can be pursued with 51 votes in the Senate.”
The charitable explanation is, simply, there are parts of Obamacare that can be dealt with via budget reconciliation — which cannot be filibustered — and there are parts that cannot be, because of the way the rule is constructed. Under the so-called Byrd Rule, non-budgetary, “extraneous” items cannot be brought up under reconciliation.
So, a “full repeal” of Obamacare via reconciliation may not be permissible because not everything in the law is budgetary in nature.
But as McConnell noted in 2012, since the Supreme Court ruled the individual mandate penalty was a tax, it would be reconcilable under the rule. And, other items like Medicaid expansion, the insurance exchanges, the exchange subsidies, and also the employer mandate penalty — another tax by Chief Justice John Roberts’ standards — would too fall under the scope of reconciliation as budgetary items.
That’s not everything, but those are some of the most important provisions of the law itself.
If there was any issue with the budget score — the rules require that reconciliation bills not add to the deficit — Republicans could simply include offsetting cuts elsewhere in the budget to achieve a favorable Congressional Budget Office score.
Such legislation likely would be vetoed by Barack Obama. But it doesn’t matter.
Putting it on Obama’s desk, and forcing him to veto it, clearly makes the presidency the obstacle to getting rid of the health care law. This would set up the 2016 presidential election as a clear referendum on whether or not to keep the law.
But first things first, to get any type of repeal past the Senate, using reconciliation or otherwise, Republicans are going to need a majority there, which they have not had since 2006.
On Tuesday night, we’ll find out if McConnell will be the next majority leader, finally putting the wheels in motion, leading to Obamacare repeal votes in the Senate — including via reconciliation.
Some say elections don’t matter. Clearly this one does.
Robert Romano is the senior editor of Americans for Limited Government.
