ACA repealers face Byrd rule constraints

The budget reconciliation process may just maim the health law

Jan 05, 2017 | By Allison Bell

One question about the current Republican effort to use the budget reconciliation process to attack the Affordable Care Act is whether the effort is really an ACA repeal effort or an ACA maiming effort. 

Sen. Mike Enzi, R-Wyo., the chairman of the Senate Budget Committee, has described Senate Concurrent Resolution 3 as an ACA repeal measure.

The measure would give two committees in the House and Senate instructions to come up with proposed budget changes.

Lamar Alexander, a senator from a big hospital company's home state, could play a major role.

Another measure, House Resolution 5, would let the House consider proposed health care-related budget measures that increase federal spending by a large amount.

The procedural rules are important to any efforts to repeal the ACA, as opposed to cutting funding for ACA programs, because Republicans hold just 52 seats in the Senate.

Senate rules normally require a measure to attract at least 60 votes to overcome the objections of opponents and come up for debate on the Senate floor.

The Senate has developed a special budget resolution and budget reconciliation consideration process to ease passage of budget-related measures. Those can reach the Senate floor with just 51 votes.

But former Sen. Robert Byrd, D-W.Va., put a provision in the Congressional Budget Act of 1974 that complicates Republican efforts to use budget reconciliation to repeal any ACA provisions not directly related to federal spending.

The provision, known as the Byrd rule, lets opponents challenge whether a provision in a budget measure is an "extraneous" provision. Supporters of a provision must attract 60 votes to keep an extraneous provision in a measure that can get through the Senate with just 51 votes.

The Senate parliamentarian is in charge of deciding whether a proposed budget measure provision is extraneous. The current Senate parliamentarian is Elizabeth MacDonough.

The Byrd rule includes a procedure for getting exceptions to the Byrd rule requirement. But to get an exception, the provision must help the federal budget deficit a great deal, and it also must get approval from the highest ranking Democrat on the Senate Budget Committee, Sen. Bernie Sanders, and from the highest ranking Democrat on the Senate committee responsible for proposing the provision.

If MacDonough ruled that a full ACA repeal measure was extraneous to a budget reconciliation measure, advocates of repeal might be able to find another way to achieve full repeal. It's possible, however, that ACA opponents would only be able to change the ACA provisions that have a significant effect on federal spending.

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