Another week has gone by in the life of the ultimately doomed reconciliation package to repeal the ACA. Last week in What We’re Reading, we reported that the Senate got some pretty bad news for its attempt at repealing the law when the chamber’s parliamentarian (yes, it’s a real job) determined that the package that was passed by the House on October 23 violated the Byrd Rule for attempting to repeal the law’s individual and employer mandates. Despite the news, Senate Majority Leader Mitch McConnell (R-KY) has vowed to find some workaround, such as a substitute amendment, so that they can still do a repeal of all of the law’s major provisions, including both mandates, by using the reconciliation process. Minority Leader Harry Reid (D-NV) has vowed to fight those attempts, claiming that any maneuvering still violates the Byrd Rule and can’t be passed under reconciliation.
Reconciliation has the best chance for Republicans to force a repeal of the law because it only requires 51 votes for passage, instead of the usual 60, and there are 54 Republicans in the chamber. Therefore, naturally, Leader McConnell shouldn’t have any trouble passing it, putting the repeal to the president’s desk, forcing a veto, and making the point clear to the American people that it’s President Obama’s fault that the law is still on the books. Unfortunately for McConnell, that task isn’t that easy as he faces challenges from both tea party members and centrist Republicans. Senators Ted Cruz (R-TX), Marco Rubio (R-FL), and Mike Lee (R-UT) have all indicated that they would not support the reconciliation package unless it was a full repeal of the law, meaning not only must it include the individual and employer mandates, but it must literally include every provision of the law. Meanwhile, Senators Mark Kirk (R-IL), Lisa Murkowski (R-AK), Rob Portman (R-OH), and Kelly Ayotte (R-NH) are the most likely to oppose the deal because the package that was passed by the House included a one-year defunding of Planned Parenthood—which would make their reelection prospects more daunting. However, on Monday, two top Republican senators indicated that they were looking into ways to remove that language, which would potentially give Republicans 51 votes in favor of passage.
And as we say each time we discuss any reconciliation attempts, all efforts are ultimately futile as even if McConnell can rally enough support for passage, it will never be signed into law by President Obama. Last month, ahead of the House’s passage, the White House released a Statement of Administration Policy indicating that they would veto the package as currently presented. That doesn’t mean that any repeal of any provision is off the table, as following the House’s reconciliation passage we indicated that repealing the law’s auto-enrollment provision was a likely candidate, and sure enough a week later it was struck from the law. We are hopeful that the Cadillac/excise tax will be the next casualty of piecemeal repeal, which we advocate as a far more effective way to improve the law for consumers and agents and brokers alike. Time and again, we have seen this approach work in our favor as the Administration blocks any full repeal efforts but agrees to incremental changes, including repealing the law’s 1099 requirement, long-term care CLASS Act, $2,000/4,000 deductible cap, small group expansion, and most recently repealing the auto-enrollment provision.