There are bazillions of opinions on the current ObamaCare repeal and replace efforts. Many people are rightly concerned their wants, wishes or needs do not seem addressed within the Price/Ryan bill announced last night.
CTH is far from a SME on the details. However, we do know the legislative “process” and we followed the original construct closely. Many people are missing the big picture challenges with “repeal and replace” – perhaps we can explain a little, and maybe it will settle some nerves.
The best way to explain what appears to be the Price/Ryan legislative road-map is to remind ourselves how a Dem legislature was able to enact ObamaCare with zero Republican support. In 2017 the reversal of this process also lines up to be a Republican repeal with zero Democrat support.
Way back in 2009 when ObamaCare was being constructed, there were two procedural legislative constructs to create ObamaCare- one from the House (Pelosi) and one from the Senate (Reid).
The biggest hurdle in overcoming the constitutional minority protections for overreaching legislative constructs is the Senate. The Senate is structurally built around a process that requires minority consideration to pass law. Knowing this, Nancy Pelosi and Harry Reid needed a system to work around the legislative blocks (tools) of Republicans.
One of the tricks in their road-map was to get a bill passed the Senate first. The Senate vote hurdles are the tallest (60). The plan was for the Senate Bill to then go to the House for changes, and then back to the Senate for reconciliation of those changes, ie. lower vote hurdle (51).
So Harry Reid stripped out an already existing House bill sent to the Senate that was to fund the retirement accounts of federal fire-fighters. The construct of ObamaCare that Reid created through bribery, deal-making, scheme and fraud, used the House Fire-fighting bill as the “vehicle” holding the Senate legislative construct. After sequestering the Senators for two weeks, it passed with only dems (60) at 1:38am on 12/24/09.
The House also passed a bill, but their version was remarkably different, which would normally go to the senate for changes, adjustments and a vote. However, after we elected Scott Brown Jan 19th 2010, Harry Reid only had 59 votes when the Senate returned from the holiday recess.
Scott Brown meant the House bill was Dead On Arrival in the Senate.
The only option was for the House (Pelosi) to vote on the Senate bill (Reid) passed on 12/23/09. However, the Democrats could not change anything; because if they changed anything when they send it back to the Senate another full high-hurdle Senate vote would be needed, and Reid had lost that ability.
So Nancy Pelosi talked one-on-one with each of her House members, and convinced them to vote on the Senate Bill “as is”, even though the Senate bill was highly unliked by massive numbers of House democrats (especially the ‘blue dogs’). It was a plan that depended on modification of the Senate Bill AFTER House passage. That “after passage” modification plan was the reconciliation process.
The House voted to approve the Senate bill “without changes” thereby making it law. At this moment in time the Reid Bill was momentarily the ObamaCare law.
The new law was then immediately modified by a second House bill and sent to the Senate for use in the budgetary technique of “reconciliation”, where only 51 votes are needed to modify an existing bill based on funding, or the budget of the bill.
Think of it like this: Your team and my team at work agree to purchase a specific car, however we disagree on the color of the car. We pass a law that allows us to purchase the car (with a high vote threshold), and then hold a vote on the color (with a lower vote threshold). The color of the car doesn’t change the price, therefore our differences can be ‘reconciled’ with a simple majority. The BIG decision was the purchase of the car, the LESSER decision was what color it is. That’s the basic premise behind the Senate budget reconciliation principles.
However, instead of lesser financial details, Harry Reid included big legislative changes in the reconciliation process, and both Reid and Pelosi planned on Obama’s HHS Secretary Kathleen Sebelius using massive latitude (they provided) within rules and regulations to smooth out the details.
The reconciled bill now passed the Senate with 51 votes, and was sent back to the House for a second vote on the changes. The bill now contained the stuff the house formerly demanded. To get the last votes needed, Obama promised an executive order to a group of 19 Democrats led by Michigan Rep Bart Stupak (RE: Abortion funding). With those votes in hand the bill passed the second time with a simple majority.
That’s the scheme that created ObamaCare as it became law.
Without a single Republican vote.
Now, the Republicans are going to attempt to repeal that bill by modifying it; and have to also plan for a full unity road block of Democrats providing them no support. That means the Republican repeal/modification needs to pass the house and senate without a single Democrat vote.
Here’s where it gets tricky.
This process takes three phases. In phase #1 you are repealing a bill through modification knowing you need to use the Senate Reconciliation process (51 vote threshold). That means the repeal/modification bill itself cannot have any federal budgetary impact beyond 10-years. Any bill/modification that HAS budgetary impact, beyond ten years, cannot use reconciliation in the Senate and must reach the higher hurdle of 60 votes.
Additionally, phase #2 and phase #3 will take place over time, through the regular process, as the House and Senate debate their constituent provisions. This is how the law should have been written in the first place – but it wasn’t. Phase #2 and phase #3 mean compromise, because the higher vote thresholds will be required.
All of the changes that people want in a replaced ObamaCare bill (purchasing across state lines, etc.) can only come after the entanglement/modification of the law takes place.
So why not just repeal the entire thing and start over? “The hand grenade approach”.
Firstly, a clean “repeal bill” would be “new legislation” that would require 60 votes of support in the Senate. That means 8 Democrat Senators would be needed to eliminate ObamaCare. They don’t exist. Secondly…
POLITICS! Repeal alone would mean 100% of Americans could immediately be thrown into a state of immediate loss of coverage, and tens of millions -especially those currently using medicaid- certainly would. And not a single Democrat would be in a hurry to create another construct with the 2018 election coming and their ability to say “republicans destroyed your healthcare” etc.
Here’s the way I would summarize the Trump/Price/Ryan message.
- In 2010 Nancy Pelosi said to her House majority “trust us in creation, and what you want will follow”, and the Democrats -many unwillingly- did. ObamaCare was created.
- In 2017 Trump/Price/Ryan are saying “trust us in repeal, and what you want will follow”, and understandably battered conservatives in the House and Senate cannot trust.
Additionally, there are GOPe special interests (outlined yesterday) which were financially impacted by the creation of the original law. Those special interests have spent millions in both support and opposition, and they are now leveraging their influence in the untangling of the original law. This includes GOPe republicans who SUPPORT ObamaCare.
- Phase #1 – Dismantle the underlying financial construct of the law through new law targeting the underlying financial architecture. This process allows reconciliation (lower vote threshold in the Senate).
- Phase #2 – HHS Secretary Tom Price rewrites the rules and regulations to focus on patient centered care. Most of the tens of thousands of pages are rules and regulations. Secretary Price uses the new architecture created under phase #1 to rewrite the rules.
- Phase #3 – The wholesale reforms and changes to the law: malpractice/tort reform, purchasing across state lines, etc. are additions -new bills- (higher vote thresholds) to add to the law that provide the changes most ObamaCare critics are demanding.
The key to understanding the repeal and replacement of ObamaCare is in the process.
The process was the problem in the creation of a highly partisan law, and the process is the problem in the repeal of a highly partisan law.
There’s no good solution other than to ask yourself: