No, the 50-vote ACA repeal option wouldn't die after Sept. 30—unless the GOP wants it to

Topics: Politics and Policy, Federal Government, Health Care Legislation, Health Care Reform

By Josh Zeitlin, Editor

You may have heard that the GOP has a September 30 deadline to repeal the Affordable Care Act (ACA) with just 50 votes.

Proponents of the Graham-Cassidy ACA replacement measure are pointing to the looming deadline to urge Sens. John McCain, Lisa Murkowski, and other Republican lawmakers to vote for their bill next week—even though that won't allow enough time for the Congressional Budget Office to estimate the legislation's effects on coverage or premiums.

One problem with that deadline claim, though: It's not quite true.

Yes, Senate parliamentarian Elizabeth MacDonough has ruled that the current reconciliation authority (created under the fiscal year (FY) 2017 budget resolution), which would allow the GOP to pass ACA repeal with a filibuster-proof majority, runs out on Sept. 30.

But if Republicans want to treat these next few days as their final opportunity to repeal the ACA with 50 votes, that is a political choice, not a process necessity. Budget experts told American Health Line that if the GOP wants new reconciliation authority for a health care bill, the House and Senate could make that happen by approving appropriate language in a FY 2018 budget resolution. 

"There is still time for the GOP Congress to write a budget resolution for FY 2018, whether they do it before Oct. 1 or later on," Sarah Binder, a professor of political science at George Washington University, told American Health Line. "So long as they can agree to a budget resolution with instructions, they can keep trying [on ACA repeal]. That's a technical judgment—not a political one!"

Under Senate rules, to keep the option of 50-vote ACA repeal going after Sept. 30, Binder said a FY 2018 budget resolution would need to provide reconciliation instructions to four committees of jurisdiction for such a health care reform bill:

  • The House Energy and Commerce Committee;
  • The House Ways and Means Committee;
  • The Senate Health, Education, Labor and Pensions (HELP) Committee; and
  • The Senate Finance Committee.

GOP leaders can include reconciliation instructions for those committees if they want to do so. If Republicans do not pass Graham-Cassidy before Sept. 30 and the FY 2018 budget resolution does not provide reconciliation instructions to those four committees, the GOP will have essentially chosen to end its ACA repeal efforts for this Congress, with a few caveats:

  • Senate Republicans could later pass a new, revised budget resolution for FY 2018, which former Senate parliamentarian Alan Frumin told American Health Line was "very rare, but in order."
  • Senate Republicans could pursue less sweeping (but still impactful) ACA changes that might not require reconciliation instructions for all four committees. As Steven Smith, a professor of political science at Washington University in St. Louis, told American Health Line, "It would be possible to gut the ACA by extracting just parts of the program (say, eliminating the mandate)."
  • Senate Republicans could employ the so-called "nuclear option" and overrule the parliamentarian to forge ahead with 50-vote repeal, although it is highly unlikely they would do so. Josh Ryan, an assistant professor of political science at Utah State University, told American Health Line, "[Senate Majority Leader] Mitch McConnell has said repeatedly there is no way they will invoke the nuclear option and I think that's probably true. ... Neither party has an appetite for that right now."
  • It is possible that Republicans could include a provision in the FY 2018 budget resolution "extending the 'life' of the current ACA repeal effort," Gregory Koger, a professor of political science at the University of Miami, told American Health Line. Koger said the FY 2018 resolution "could include some language acknowledging that ... the House already passed an ACA bill, and authorizing the Senate to continue its efforts to pass it as reconciliation." Koger said he is not sure whether the parliamentarian would rule that such language adheres to Senate rules.

If Republicans maintain in control of the House and Senate after the 2018 elections, they could also try again in a future fiscal year to pass ACA repeal with 50 votes. "Perhaps if they win more seats in the Senate, and keep their House majority they would presumably have more room to work with," Ryan said. "That's a big if, though, and they probably think (correctly in my view) that the longer Obamacare remains law, the tougher it will be to repeal."

What about tax reform?

One reason why observers have commonly assumed the FY 2018 budget resolution won't provide for repealing the ACA is that Republicans have said they want to use next year's reconciliation instructions for a different purpose: tax reform.

But it's actually possible that Republicans could use FY 2018 reconciliation authority to pass both tax reform and health care reform. Senate Finance Committee Chair Orrin Hatch (R-Utah) on Tuesday acknowledged there's "a chance" Republicans could go that route, although he said it wouldn't be "easy."

Under a budget resolution, the Senate can pass only one reconciliation bill related to revenue, one related to spending, and one related to debt limit laws. Those could all be addressed in one bill, or in separate bills. Things get tricky because health care reform includes both revenue and spending changes, and tax reform includes revenue changes.

Lawmakers could dodge that issue in a couple of ways:

  • They could combine tax reform and ACA repeal into one big reconciliation bill, as Democrats did in 2009 with the ACA and student loan reform; or
  • They could theoretically put all the revenue parts of ACA repeal and tax reform into one bill and all the other parts of repeal into a separate bill, although that could run up against the requirement that reconciliation bills not add to the deficit outside the 10-year budget window.

As Hatch said, doing tax reform and ACA repeal together wouldn't be easy. "Combining those two big ticket items is going to make it next to impossible to find an acceptable compromise," Utah State University's Ryan said, although he noted it is "possible."

One more wrinkle: The GOP could adopt one FY 2018 budget resolution with one set of reconciliation instructions and later pass a separate, revised FY 2018 budget resolution with different reconciliation instructions—which might let it do health reform and tax reform in completely separate bills.

Frumin, the former Senate parliamentarian, told American Health Line, "What is unclear, and I believe is something for which there is no precedent," is whether two reconciliation processes "can be alive at the same time." Frumin added, "I think, at first blush, that the most institutionally defensible answer is that the first reconciliation process must be completely finished before the adoption of another budget resolution with reconciliation instructions."

The bottom line

But those parliamentary gymnastics aren't really necessary. At the end of the day, the GOP could still give itself the option of doing health reform, tax reform, or both after Sept. 30 if it so chooses: It would just have to pass a FY2018 budget resolution (which couldn't be filibustered) that provides the right reconciliation instructions.

Health reform is hard. Tax reform is hard. If the GOP chooses, it can treat Sept. 30 as its hard ACA repeal deadline, which would mean that there wouldn't be time for a full CBO score and more hearings on Graham-Cassidy. If the GOP chooses, it could pursue ACA repeal after Sept. 30. It is their choice—but it is a choice.