Policy & Practice February 2015

in reconciliation legislation. The same is true for the employer penalty for failing to provide health insurance. 2010 Déjà Vu? Few people will remember that Democrats used the reconciliation process to fully implement the ACA. In 2009 the House and Senate passed different versions of a health care bill. The Senate passed their bill with 60 votes, just enough to overcome a Republican filibuster. In August of that year, Sen. Edward Kennedy (D-MA) died, leaving Senate Democrats with only 59 votes. When Sen. Scott Brown (R-MA)—a Republican—won the special election in February 2010 to fill the remainder of Kennedy’s term in office, the Democrats lost the votes needed to pass a health care confer- ence report. As a result, the House of Representatives was forced to pass the Senate bill without any amendments, which they did in March 2010. The bill, as passed by the Congress and signed by the president, had several problems that legislators usually would have worked out in the process of adopting a conference report. In order to fully implement the new law, Democrats used the reconcili- ation process to correct the problems in the bill signed by the president. 15 By using reconciliation, Democrats were able to avoid a Senate filibuster and get the bill to the president. What to Watch for in 2015 In 2015, the Republican majority in the House and Senate will have a several opportunities to attack policies supported by President Obama. Reconciliation has the advantage of not being subject to a filibuster. But other bills, such as increasing the statutory debt ceiling, can be used because they are considered “must pass” bills and are therefore difficult for Democrats to filibuster or for the president to veto. Appropriation bills are other “must pass” avenues, which Republicans will certainly use to attack the president’s executive action on immigration. 16 There will be a number of oppor- tunities in early 2015 for Congress to consider critical bills, any of which might be used as vehicles to attack at least some element of the ACA. March

may be a pivotal month in which many of these issues could come to a head. The current statutory limiting on the debt ceiling is due to expire on March 15, 2015. 17 On that same day, the current “doc fix” expires. This issue involves the reimbursement rate for physicians under Medicare and using the Sustainable Growth Rate (SGR) formula contained in the Balanced Budget Act of 1997. 18 Due to an anomaly in the formula, Congress has had to pass numerous bills to suspend the formula to avoid reduc- tion of reimbursement rates. The latest such bill was enacted in April 2014 19 and suspends the SGR until March 15, 2015. Finally, last December, the House passed an appropriation bill 20 for the Department of Homeland Security that funds that department until February 15, 2015. Conclusion The use of reconciliation and other “must pass” bills provide Congress with several opportunities to pass leg- islation that will force the president into a difficult position of vetoing a “must pass” bill or sign it into law. The realpolitik question remains, to what degree will the new majority powers in Congress want to pursue ideologically based policies, or will they instead choose to adjust their position and work to pass legislation the president might sign? majoritarian institution, the Senate is structurally designed to protect the rights of the Minority.” Basic Training: Senate Rules from a House Perspective, House of Representatives Rules Committee. http:// rules-republicans.house.gov/Educational/ Read.aspx?ID=8 2. Party Divisions in Congress. http:// en.wikipedia.org/wiki/Party_divisions_ of_United_States_Congresses 3. Invoking Cloture in the Senate, Christopher M. Davis, Analyst on Congress and the Legislative Process, Reference Notes 1. “While the House is designed as a

the budget window the reconcilia- tion legislation is covering; and/or 5. Legislation that makes changes to Social Security. A provision can be considered “extra- neous” for its impact on mandatory spending, even if that provision might have a significant impact on policy. Simply because the impact is incidental does not mean the impact would not be significant. How Congress Might Use Reconciliation in 2015 Given the limitation imposed by the Byrd Rule, many of the ACA provi- sions are likely to be beyond the scope of the reconciliation legislation. In order to fulfill campaign promises, it is highly possible that Congress will move early with straightforward legis- lation offering a full repeal of the ACA. In the last Congress, the House voted 54 times to repeal or amend the ACA. Such legislation would probably be fili- bustered in the Senate even though its Democratic leaders were highly critical of filibusters when they had control of that body. Democrats might decide not to filibuster a direct repeal of the ACA knowing that the president would cer- tainly veto the bill. While the Republicans cannot use reconciliation for a full repeal of the ACA because there are provisions of the act that would be considered extraneous, there are still numerous vital sections of the act that could be included in reconciliation legislation, particularly the individual mandate. When the Supreme Court ruled that the ACA was constitutional, it did so because the individual mandate was determined to be a tax. Supreme Court Chief Justice John Roberts, author of the majority decision, concluded, “that the individual mandate must be con- strued as imposing a tax on those who do not have health insurance, if such a construction is reasonable.” 14 If the individual mandate penalty included in the ACA is considered a tax, it could be repealed as part of a reconciliation process. Additionally, all the various tax provisions in the ACA, including the medical device tax and the tax on health insurance, could be included

Congressional Research Service. November 25, 2013. http://www. senate.gov/CRSReports/crs-publish.

cfm?pid=%26%2A2%3C4QLS%3E%0A 4. Veto Override Procedure in the House and Senate, Elizabeth Rybicki, Analyst See Viewpoint on page 39

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February 2015   Policy&Practice