By Alexander Bolton - 02/24/15 06:00 AM EST
The Senate’s chief referee has dealt a significant setback to conservatives who want to send an ObamaCare repeal bill to the president’s desk this year.
GOP sources say Senate Parliamentarian Elizabeth MacDonough has raised red flags in response to queries about whether it’s possible to use a special budgetary procedure to repeal the controversial law “root and branch,” as Senate Majority Leader Mitch McConnellMitch McConnellDems gain upper hand on budget Overnight Finance: Senate rejects funding bill as shutdown looms | Labor Dept. to probe Wells Fargo | Fed to ease stress test rules for small banks Overnight Energy: Judges scrutinize Obama climate rule MORE (R-Ky.) has said.
The special process is known as budgetary reconciliation. It can be used to circumvent the Senate’s customary 60-vote threshold to produce changes in spending and revenue.
But it’s a matter of debate about how broadly it can be interpreted.
Some conservatives argue that because ObamaCare impacts spending and revenue, 51 Senate Republicans and a majority of the House can pass a one-sentence provision. While President Obama would surely veto a repeal of the Affordable Care Act, many Republicans want to get such a measure on his desk.
And there is growing pressure on GOP leaders to make that happen. Sen. Ted CruzTed CruzFunding bill rejected as shutdown nears Cruz: Clinton 'tired' and 'formulaic' during debate The Trail 2016: Fight night MORE (R-Texas) and Tea Party groups, including FreedomWorks and the Senate Conservatives Fund, have called on the Republican-led Congress to use reconciliation on ObamaCare.
“We think from what we’ve heard there’s a really credible case to be made that the one-sentence repeal instruction for reconciliation passes all the tests,” said Dan Holler, spokesman for Heritage Action for America.
“From our vantage point, we think there are credible arguments that you can get all of ObamaCare [repealed] through reconciliation and that’s where the focus of lawmakers should be as the budget comes up and as instructions are written,” he added.
But sources say MacDonough, who declined to comment for this article, doesn’t agree.
MacDonough serves as the Senate’s nonpartisan umpire on a variety of arcane procedural moves, and this is one of her biggest calls. She was appointed to her post by then-Senate Majority Leader Harry ReidHarry ReidObama defeat is Schumer victory Dems gain upper hand on budget Senate Dems: Don't leave for break without Supreme Court vote MORE (D-Nev.) in 2012 and is respected by both sides of the aisle.
McConnell told The Hill in 2012 that it wasn’t necessary to replace MacDonough if Republicans won the majority.
The Kentucky Republican has also refused to commit to using reconciliation on ObamaCare. Last fall, McConnell appeared to downplay expectations on a 51-vote strategy, telling Fox News that it would take 60 votes and a presidential signature to nullify the healthcare law.
“No one thinks we’re going to get that,” McConnell said at the time.
If ObamaCare cannot be overturned with a one-sentence reconciliation bill, Republican senators will have to pick it apart section by section in a time-consuming process that will be laboriously debated with the Democrats.
These rounds of procedural nit-picking are known as “Byrd baths,” after the late Sen. Robert Byrd (D-W.Va.), who helped write the 1974 Budget Act that set the ground rules for reconciliation.
The process is so daunting that McConnell and other GOP leaders may be tempted to use budget reconciliation for something less partisan, such as tax reform.
House and Senate Republicans are expected to unveil budget blueprints in the coming weeks, with the goal of passing a unified resolution this spring. Decisions on what bills can pass Congress with 51 Senate votes under reconciliation rules must be made soon.
The Senate Budget Committee declined to comment for this article.
Senate Republican aides are split as to whether ObamaCare can be repealed cleanly.
“It would be great if we could, but we can’t,” said a Senate Republican leadership aide.
One conservative aide, however, said the budget could instruct the committees of jurisdiction, the Finance and the Health, Education, Labor and Pensions panels, to report bills that reduced the deficit by a certain amount. Those panels could then report relatively simple repeal bills that would pass with simple-majority votes.
“The language would do it by reference to the actual laws passed. You wouldn’t say sections one, two, three, four, etcetera, etcetera of the code. You would do it by reference to the law, the Patient Protection and Affordable Care Act and the Healthcare and Reconciliation Act of 2010,” said the Republican staffer.
The Senate passed the Patient Protection and Affordable Care Act with 60 votes shortly before Christmas 2009 and then amended it to satisfy liberal Democrats in the House in early 2010.
Reid needed to use reconciliation to pass the changes demanded by House Democrats in March of 2010 because Democrats lost their 60-seat Senate majority after Republican Scott Brown unexpectedly won the seat long held by Sen. Edward Kennedy (D-Mass.).
A GOP aide said the parliamentarian’s initial response to the prospect of a one-sentence repeal has not been encouraging.
Another conservative aide, however, argued that the question is still open for debate.
“As far as we know there’s been no formal ruling. You argue the different sides. None of that has happened. There have been initial questions,” the aide said.
William Hoagland, a longtime Senate Republican aide and budget expert, warned conservatives during the joint Senate-House GOP retreat in Hershey, Pa., last month that repealing all of ObamaCare with 51 votes is not realistic.
“I find this very odd, and certainly stretching it much further any of us thought of with reconciliation,” he said. “My hang-up with this repeal of ObamaCare is that’s not a number.”
He said reconciliation process has always been thought of as producing a deficit-impacting number, whereas a wholesale repeal of ObamaCare would go much further than addressing spending and revenues.