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Reconciliation in reality

The House of Representatives is currently debating a reconciliation bill that repeals major pieces of the Affordable Care Act (ACA). As a policymaking endeavor, the reconciliation bill is doomed: the president will veto it, and the Congress doesn’t have the votes to overturn the veto. As a statement of principles, however, there is value in identifying this key policy difference between the Congress and the executive branch, and reconciliation is one approach to elucidate this contrast.

Reconciliation is a parliamentary tool that is designed to make Congressional passage of budgetarily significant legislation a bit easier – in particular by precluding a filibuster in the Senate. But the tool is limited, and these limitations are borne out in the composition of the current reconciliation bill. Specifically, the current reconciliation bill largely focuses on repealing key pieces of the ACA that have major budget effects. This is the right approach and deploys the reconciliation tool appropriately. Unfortunately, this just isn’t good enough for some advocates in Washington who want the ACA repealed “root and branch” through reconciliation and are peddling flawed arguments to justify this all or nothing perspective.

{mosads}Several right-of-center organizations are pressuring House Republicans to vote against a reconciliation bill that would repeal some of the more odious but – important for the reconciliation process – pricey provisions in the ACA. One such group is even scoring reconciliation as a key vote on its lawmaker scorecard. Groups advocating this position would prefer that the reconciliation measure uproot all of the ACA, before heading to a certain veto. Unfortunately, this just isn’t permissible under reconciliation. According to a July memo, one leading organization suggests that a reconciliation bill can be crafted to avoid three areas that some in leadership believe would jeopardize a full-repeal reconciliation bill.  Specifically these areas are: Byrd rule (special rules governing reconciliation in the Senate) concerns over jurisdiction, Byrd rule concerns over deficit effects, and Byrd rule concerns more generally. Unfortunately, the prescriptions for each are dubious.

First, there is a claim that jurisdictional issues could lead to an “intense debate with the parliamentarian over jurisdiction.” Section 313(b)(1)(C) of the Congressional Budget Act states: “a provision that is not in the jurisdiction of the Committee with jurisdiction over said title or provision shall be considered extraneous.”  The claim has been made that originating a reconciliation bill in the House obviates this concern (though it’s unclear what the specific jurisdictional concern is), which is dubious for two reasons: 1) the Byrd rule only applies to matters before the Senate anyway, irrespective of their origin, and more importantly, 2) any bill going after the ACA will involve revenues and, per Article 1, Section 7 of the Constitution, must originate in the House.

A second argument purports that a full repeal would not run afoul of another provision of the Byrd rule (Section 313(b)(1)(B)) that, in essence, precludes (or allows members to object to) provisions that raise spending or cut tax revenue if on net, the effect of all the provisions in that part of the reconciliation bill would be to raise the deficit. So for example, the reconciliation instruction to the House Ways and Means Committee requires a net deficit reduction of $1 billion over 2016-2025, so a reconciliation bill coming over to the Senate with a Ways and Means title that didn’t meet this test (when measured against the jurisdiction of the Senate Finance Committee) would be vulnerable to a point of order under the Byrd Rule and could have provisions struck from it on the floor of the Senate (leaving the rest of the bill still before the Senate) if there are not 60 votes to waive the point of order. Since, according to CBO estimates, a full repeal would on net increase the deficit in general, and in particular, the repealing of major tax and spending pieces that are under the Ways and Means committee’s jurisdiction would also likely increase the deficit, this would likely be the outcome of a full repeal effort. The proposed solution is for the Senate Budget chairman to ignore the Congressional Budget Office’s analysis and assert, as is the chairman’s prerogative, that no, in fact, repealing the ACA would not increase the deficit. This assertion, known as directed scoring, would be corrosive to the overall budget process and has not been invoked in such a fashion. Indeed, during the highly partisan reconciliation debate in 2010 related to enactment of portions of the ACA – Democratic Senate Budget Chairman Conrad did not abuse this authority.

Third, some seem to think that a one-provision reconciliation measure repealing all of the ACA would not be subject to Byrd rule concerns because it would by definition have budgetary effects. But the Senate parliamentarians shot this idea down some time ago, which is probably why the current reconciliation bill in the House is written the way it is rather than as a wholesale repeal. Of course, if the fantasy “root and branch” measure were tested in the Senate, and the parliamentarian determined it was subject to the Byrd rule, then the GOP majority, through its presiding officer, could ignore the parliamentarian, and Democrats could object. Senate Republicans could then affirm the decision to ignore the parliamentarian – a tactic, employed in 2013 by then-Senate Majority Leader Reid (D-Nev.), known as the nuclear option, which was roundly decried by many right-of-center groups. Separately, as noted above, since CBO has estimated that a full repeal of the ACA would increase the deficit – a Byrd-rule point of order could kill the entire bill in this scenario, rather than just a single offending provision.

Not for the first time, some are pushing forward a fantasy outcome that ignores the rules of governing. Unfortunately, promoting these dubious notions does a disservice to policymakers trying to sensibly pare back the ACA.

Gray is fiscal policy director at American Action Forum.

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