How Obamacare Was Passed – And Why It Can’t Be Repealed By Reconciliation

A common question since President Trump took office is why Republicans can’t simply repeal the entire Affordable Care Act with a budget reconciliation.

The Democrats passed it that way, the argument goes, so why should Republicans have to worry about filibusters, cloture votes and the arcane rules of the Senate when they try to repeal Obamacare?

The most obvious reason is that with the four Republican Senators who are holding out to preserve the Medicaid expansion, Republicans don’t even have a simple majority that would vote for a clean repeal. The Medicaid Four, Lisa Murkowski of Alaska, Cory Gardner of Colorado, Rob Portman of Ohio and Shelly Moore Capito of West Virginia, vowed to oppose any repeal and replace bill that did not allow a phase out of Obamacare’s Medicaid expansion.

A more technical reason is that Obamacare was not passed with a budget reconciliation. Not exactly anyway.

At the beginning of the 111th Congress in 2009, Democrats held 58 seats in the Senate. The wave election of 2008 had given them a majority that was just short of filibuster proof. Then the Democrats got two lucky – or at least underhanded – breaks. First, in what is often considered to be a stolen election, Al Franken unseated Republican Norm Coleman in a hotly contested recount. Second, Arlen Specter (R-Pa.) switched his party affiliation to Democrat in April 2009. Suddenly, the Democrats had the 60 votes necessary to stop a Republican filibuster in its tracks.

Specter’s defection set the stage for the Senate to pass the Affordable Care Act. On December 23, 2009, the Senate voted to end debate on the bill. The next day, Christmas Eve, the Senate passed the bill in a strict party line vote with every Republican voting “no.” The bill then went to the House of Representatives.

The next month, the Democrats faced a setback when Senator Edward Kennedy (D-Mass.) died suddenly. In a special election widely interpreted to be a referendum on the health care bill, Scott Brown defeated the heavily favored Democrat candidate and broke the Democrats’ filibuster-proof majority.

What saved the Democrats was the fact that the House and Senate had negotiated most of their differences prior to the introduction of the bill into the Senate. To win over the final few House Democrats, the Democrat leadership urged them to pass the Senate bill with no changes and then pass a second bill via the reconciliation process. If the Senate bill was passed without changes, it would avoid going to conference and being subjected to a second Republican filibuster attempt before a final vote. The reconciliation bill, although its content would be restricted to tax, spending and debt limit legislation by Senate rules, would also not be subject to a filibuster.

After President Obama signed an Executive Order that purported to ensure that federal funds would not be used for abortion, Rep. Bart Stupak (D-Mich.) and the last few Democrat holdouts signed onto the bill. The promise not to fund abortion was broken almost immediately.

The Affordable Care Act was passed by the House without amendment on March 21, 2010 and went directly to the president’s desk. The Health Care and Education Reconciliation Act of 2010 was passed by both Houses of Congress on March 25, 2010. President Obama signed the Affordable Care Act into law on March 23 and the Health Care Reconciliation Act on March 30.

The bottom line is that Obamacare passed with two bills. One was a reconciliation bill and one was not. The largest part of Obamacare legislation was passed in a normal bill that Republicans did not have the numbers to filibuster. The Republicans cannot pass a clean repeal because they do not have the votes to stop the Democrat filibuster that would be certain to come.

But what about the 2015 repeal bill that was vetoed by President Obama? How could this bill repeal the entirety of Obamacare and get past the Democrat filibuster to the president’s desk if it was limited to the Senate rules on budget reconciliations?

The answer is that the bill, HR 3762, which was assigned the unwieldy name “To provide for reconciliation pursuant to section 2002 of the concurrent resolution on the budget for fiscal year 2016,” was not a clean repeal of Obamacare any more than the AHCA was. The 2015 bill, like the AHCA, begins with the statement that the Affordable Care Act is amended, not repealed.

A House Republican fact page about HR 3762 also doesn’t make the claim that the bill would have repealed Obamacare in full. The bill summary on the page says, “HR 3762 repeals the health exchange subsidies and the Medicaid expansion included in the Affordable Care Act (ACA), repeals the ‘Obamacare slush fund,’ eliminates federal funding for Planned Parenthood, repeals the individual and employer mandate penalties, and repeals the medical device and ‘Cadillac’ tax, among other provisions.” If you doubt this, you can read the text of the bill for yourself here.

HR 3762 might have been a better bill than the AHCA, but the Republican position in Congress was also better in 2015. Republicans held 54 Senate seats and 246 House seats in the 115th Congress. In the squeaker election of 2016, President Trump’s short coattails reduced those numbers to 52 Senate seats and 241 House seats. There is still a GOP majority in both houses, but a slimmer one with less margin for defections on votes.

HR 3762 passed the Senate by a 52-47 vote. Two Republicans voted against the measure, Mark Kirk of Illinois and Susan Collins of Maine. Mark Kirk lost his reelection bid in 2016, but Susan Collins remains in the Senate as a prospective “no” vote on the AHCA.

The Medicaid Four were all in the Senate in 2015 and all voted for HR 3762. These four Senators switched their positions on the Medicaid expansion and made it necessary to present a weaker bill to Congress. It is ultimately these four Senators, along with Susan Collins, who should be held responsible for the failure of the GOP to repeal Obamacare because, without their votes, not even a reconciliation bill can pass, let alone a cloture vote on a clean repeal bill.

The failure of the Republicans to pass a clean repeal bill is not due to a lack of will on most members of the party. It is due to math. Democrats used the extremely rare and temporary 60 vote majority to force Obamacare through Congress with no Republican support. The current Republican position is much weaker than that of the Democrats in 2010.

If it is the fault of “RINOs” in Congress, it must be noted that Speaker Paul Ryan (R-Wisc.) is not the RINO to blame. Ryan and other Republican leaders worked to provide the strongest bill possible given the electoral realities of their caucus.

The blame lies with a handful of Republican Senators who are holding up the drive for a strong bill to replace Obamacare. Their names are Lisa Murkowski (Alaska), Cory Gardner (Col.), Rob Portman (Ohio), Shelly Moore Capito (W. V.) and Susan Collins (Maine).

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