GOP Still May Have Another Chance to Repeal Obamacare Before Midterms
With Senator John McCain off the Graham-Cassidy train, the Affordable Care Act lives another day. But while this should be a weekend of celebration for ACA supporters, remember that Republicans still may have another chance to gut the ACA before the November 2018 midterms.
The much-discussed September 30 deadline to pass a health care bill by a simple majority vote is a deadline with respect to the Fiscal Year 2017 reconciliation instructions. But the next day, Fiscal Year 2018 begins. And with a new fiscal year comes a new opportunity to pass legislation that will throw millions of people off Medicaid and private-sector health insurance.
Section 301 of the Budget Act (2 U.S.C. § 632) directs Congress to pass a budget resolution for each fiscal year. Section 310 (2 U.S.C. § 641) allows that resolution to include reconciliation instructions to House and Senate committees. A bill that carries out those reconciliation instructions can pass the Senate by a simple majority vote, with limited debate and without the possibility of a filibuster.
The widespread expectation is that congressional Republicans will use the section 301 budget resolution for FY 2018 to address taxes. (Key Republicans on the Senate Budget Committee reportedly reached an agreement this week on the terms of such a resolution.) Under the Senate parliamentarian’s longstanding interpretation, there can be only one bill per budget resolution addressing each of three areas: spending, revenue, and the debt limit. Any tax bill will of course affect revenue, which means that no other bill passed pursuant to the FY 2018 budget resolution can have a revenue impact. So if Republicans use the FY 2018 budget resolution for taxes, they can’t use the same resolution for a health care bill such as Graham-Cassidy that affects tax credits and penalties.
But that doesn’t mean health care legislation is off the table entirely. Section 304 of the Budget Act (2 U.S.C. § 635) allows Congress to pass a “revised” budget resolution before the end of the fiscal year. And section 310 allows for a budget resolution, including a revised resolution, to contain reconciliation instructions. And recall that the rule is one revenue-related reconciliation bill per budget resolution, not one revenue-related reconciliation bill per fiscal year. So if the Republicans can push through tax legislation pursuant to a section 301 budget resolution in FY 2018, they can then pass a revised resolution under section 304 and take another gander at health care. (Alternatively, they could pursue health care legislation through the FY 2019 budget resolution next spring.)
Of course, the fact that a health care bill before the 2018 midterms remains a procedural possibility does not mean that it’s a political possibility. If Republicans couldn’t muster 50 votes in the Senate this summer, it’s not clear why they’ll have any more luck once they’re done with taxes. And it’s an open question whether the Senate parliamentarian will allow consideration of a section 304 revised resolution before the section 301 process has run its course. So if Republicans can’t come to an agreement on taxes, then health care may remain on hold.
All of which is to say: Supporters of the ACA can breathe a sigh of relief. But they can’t let their guard down entirely. The conversation on Capitol Hill will now shift from health care to taxes, but section 304 of the Budget Act means that it still could shift back.
