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ACA Repeal: Process Over Policy
By Julius W. Hobson, Jr.

With Republicans in control of the White House and both the House of Representatives and the Senate, it did not take long for the process of repealing the Patient Protection and Affordable Care Act (ACA) and the Health Care and Education Reconciliation Act of 2010 to begin. Congress will use the budget reconciliation process in order to get around the filibuster in the Senate.

As much as the policy substance is significant, it is more important to understand the budget reconciliation process and why it was chosen.

Under the Congressional Budget and Impoundment Control Act, as amended, Congress must enact a concurrent resolution on the budget. In the Senate, debate on a budget resolution is limited to 50 hours. This resolution must be passed by both Houses in the exact same form. The budget resolution may contain reconciliation instructions to various committees to develop and report legislation to their respective budget committees.

The budget committees package the bills and take them to the floor. In the House, the bill goes to the Rules Committee for a rule to govern floor debate.

In the Senate, a reconciliation bill may be considered for up to 20 hours. What is relevant in the Senate is the Byrd Rule, which forbids extraneous legislative language. A provision is considered to be extraneous if it falls under one of the following six definitions:

• It does not produce a change in outlays or revenues or a change in the terms and conditions under which outlays are made or revenues are collected.

• It produces an outlay increase or revenue decrease when the instructed committee is not in compliance with its instructions.

• It is outside of the jurisdiction of the committee that submitted the title or provision for inclusion in the reconciliation measure.

• It would increase the deficit for a fiscal year beyond the "budget window" covered by the reconciliation measure.

• It recommends changes in Social Security.

• It produces a change in outlays or revenues that is merely incidental to the nonbudgetary components of the provision.

This final option is probably the most important with regard to attempts to repeal the ACA. If the Senate parliamentarian rules against a provision, the senator proposing the bill language in question can either except the parliamentarian's ruling or offer a motion to waive the Budget Act. Such a motion requires 60 votes.

On the first day of the 115th Congress, the House adopted a rules package which would facilitate floor debate on an ACA repeal bill by exempting a point of order against a repeal bill that increases mandatory spending over 10 years. This is important, as the Congressional Budget Office (CBO) has estimated that a full repeal would significantly add to the annual deficit, as well as the debt.

There are three key congressional offices that are key to the repeal process. First, the CBO is responsible for providing cost estimates for almost all legislation as to how it would affect revenues or spending over a five- or 10-year period. CBO also provides a basis for its estimate. CBO is nonpartisan and does not make policy recommendations.

Second, the ACA contained a number of revenue measures. The Joint Committee on Taxation (JCT) is a nonpartisan committee that essentially contains a professional staff consisting of PhD economists, attorneys, and accountants. This staff provides assistants to members of Congress and the chairs of the Senate Committee on Finance and the House Committee on Ways and Means concerning tax legislation. It is responsible for estimating the revenue effects of tax legislation. JCT works with CBO in preparing its estimates.

Finally, the Senate parliamentarian is the official advisor to the Senate concerning interpretation of its rules and procedures. The parliamentarian also determines whether there are any provisions in the budget reconciliation bill that violate the Byrd Rule.

By using the budget reconciliation process, Congress faces certain limits due to the Senate Byrd Rule. For example, in late 2015, the Congress passed a budget reconciliation bill that did not repeal the full ACA due to Byrd Rule issues. Instead, it repealed elements such as the individual and employer mandates, Medicaid expansion, the Cadillac tax, small business tax credits, and the Prevention and Public Health Fund.

Also complicating the repeal effort this year are ACA provisions that have strong support among Americans. These include the following:

• closing the Medicare drug benefit doughnut hole, preexisting conditions;

• adult children up to age 26 on their parents' health insurance;

• coal miners' access to benefits and insurance; and

• prevent denial of coverage due to preexisting conditions.

Another Republican goal is to block grant and cap the Medicaid program. Some 31 states expanded their Medicaid programs under ACA. Now several Republican governors have urged Congress not to change the program as they are concerned about coverage for many of their state's residents.

Further complicating the process is pressure from the incoming administration to move quickly on "repeal and replace." But a key problem facing congressional leaders, in both the House and Senate, is a concern that repeal with the elements of the replacement could lead to disruption of access to care and coverage for many of the 20 million Americans currently covered under the ACA.

As of this writing, the Senate has passed S. Con. Res. 5, Fiscal Year 2017 Budget Resolution. The legislation contains reconciliation instructions for the House Committees on Energy & Commerce and Ways & Means and the Senate Committees on Finance and Help, Education, Labor & Pensions to report reconciliation bills to their respective budget committees by January 27. Congressional Republicans aim to repeal the ACA and replace it with something yet to be developed. The House is expected to follow suit. Meanwhile, the nominee for Secretary of the Department of Health and Human Services is not expected to be confirmed until February and an administration proposal would follow shortly thereafter.

In closing, the budget reconciliation process matters as much as, if not more than, the substance. Regardless of what the administration or congressional Republican leaders may wish to achieve using the reconciliation process, the Byrd Rule will determine which policy changes survive and which ones don't. Stay tuned.

— Julius W. Hobson, Jr. is senior policy advisor at Polsinelli and an adjunct professor at the Graduate School of Political Management, George Washington University, where he teaches lobbying and legislative research & writing.