New resolution is a first step toward Affordable Care Act repeal

U.S. Vice President-elect Mike Pence (C) and Republican National Committee Chairman Reince Priebus (2nd R) join Senate Majority Leader Mitch McConnell (R) to speak with reporters after the weekly Republican caucus luncheon at the U.S. Capitol on Washington, U.S. January 4, 2017. Also pictured are U.S. Senator John Barrasso (R-WY) and Senator John Cornyn (R-TX). REUTERS/Jonathan Ernst - RTX2XJZ2

The 115th Congress gaveled into session yesterday, and the Senate is wasting no time in beginning work on one of its major legislative priorities: repealing the Affordable Care Act (ACA), also known as Obamacare. The Senate began consideration of a measure, which Senate Majority Leader Mitch McConnell (R-Ky.) has referred to as an “Obamacare repeal resolution,” today, with consideration expected to conclude next week. Since this is the U.S. Congress we’re talking about, however, it is not as simple as just calling up one bill and repealing parts of the law upon its adoption. Here are answers to a few key questions about what the Senate will be working on this week and next:

1. Does this resolution repeal the ACA?

No. Despite the decision by Republicans to call it a “repeal resolution,” the measure does not repeal any part of the law. Rather, it lays the groundwork for a subsequent budget reconciliation bill which would actually contain the legislative language that repeals portions of the ACA. House Republicans have set out an ambitious timeline for beginning the second stage of the process with committee deliberation in late January, but even an optimistic schedule doesn’t put legislation that would actually make any changes on the president’s desk for another two months. If and when a bill repealing parts of the ACA is actually signed into law, moreover, there is uncertainty about the length of the transition period for unwinding the repealed provisions.

2. If this piece of legislation doesn’t actually repeal the law, what does it do?

The appeal of using the budget reconciliation process to repeal parts of the ACA is that reconciliation measures can’t be filibustered in the Senate, thanks to a limit on the length of debate. Starting the reconciliation process requires reconciliation instructions, or language directing particular congressional committees to develop legislation achieving a certain amount of deficit reduction. It is these instructions—in this case, to the Ways and Means as well as the Energy and Commerce Committees in the House plus the Finance and Health, Education, Labor, and Pensions Committees in the Senate—that facilitate the actual creation of a reconciliation measure repealing portions of the ACA. The budget resolution that the Senate will consider this week and next also contains several other provisions that would help smooth the path to passage of a subsequent repeal bill, including language protecting future repeal legislation from objections on the Senate floor on the grounds that it violates other, non-reconciliation-related budget rules.

3. So consideration of this measure is “just procedural”?

As long-serving Representative John Dingell (D-MI) once put it, “I’ll let you write the substance.  You let me write the procedure, and I’ll screw you every time.” In other words, nothing in Congress is ever just procedural. Not only is the budget resolution a necessary step towards a policy goal (eventually bringing a repeal bill to the floor of the Senate protected from obstruction), its consideration will also present important opportunities for senators on both sides of the aisle to achieve political objectives.

That’s thanks in part to the vote-a-rama, the name given to the long series of amendment votes that occurs after time for debate on the budget resolution has expired. Because the rules for considering the budget resolution create a more open amending environment in the Senate than has been present in recent years, members of both parties can easily offer messaging amendments meant to force their partisan opponents to cast difficult votes. These votes can and do become fodder for future campaigns. A vote to an amendment on the fiscal year 2016 budget resolution regarding Pell Grants, for example, was at the center of a testy exchange in a 2016 debate between then-Senator Kelly Ayotte (R-NH) and her Democratic opponent, Senator Maggie Hassan (D-NH). The process has gotten increasingly unwieldy as senators have filed more amendments to the budget resolution, behavior that is likely motivated, at least in part, by the overall decline in the number of amendments considered on the floor of the chamber.

Senate Minority Whip Richard Durbin (D-IL) has already indicated that Democrats intend to force Republicans to cast “test votes…to take positions” on popular provisions in the ACA, such as the prohibition on insurers denying coverage based on pre-existing conditions. Democrats’ goal in doing so is to shape future debate on the actual repeal and replace bills and to generate a record of which, if any, Republican senators support certain portions of the law. In addition, because amendments need not be related to the health care law, we could see messaging amendments on other topics as well.

As they prepare for the first period of unified GOP control of the House, Senate, and presidency since 2006, congressional Republicans have certainly plotted an aggressive agenda. The Senate’s action this week is an important part of pursuing those goals, but Republican branding aside, it is merely the first step down a long road.