During the health care debate Democrats worked very hard to promote the myth that reconciliation is an incredibly limited legislative procedure. They did this to create an excuse so they could tell their base the rules “forced” them to go with a corporatist health care reform package. In reality Democrats didn’t pass a more progressive law, because they didn’t want a more progressive law.
Yet this absurd myth has become so ingrained with the Democrats’ defenders in the health care battle they actually believe it. They now use the lies this Democratic myth was built on to claim a President Romney, if the Republicans won a majority in the Senate, would have a lot of trouble repealing the Affordable Care Act using reconciliation. We have seen this general idea from both Jon Chait and Sarah Kliff. The simple truth is that if Romney and a Republican Congressional majority really wanted to repeal the law with reconciliation, they could do so very easily.
To begin with, the reconciliation process is governed by the “Byrd Rule” (PDF). The most important aspects of the rule state that provisions in a reconciliation bill most change outlays or revenues, and the entire bill must be deficit reducing over the long term. Applications of the rule are also nominally subject to interpretations by the Senate Parliamentarian.
While the Senate Parliamentarian’s advice is usually, but not always, followed, the position has no actual power. The important thing to know is that the only persons empowered to determine what the Senate rules actually mean and whether a provision follows the Byrd Rule consist of a simple majority of sitting Senators. If necessary the majority of Senate Republicans can determine the rules mean whatever the GOP majority want them to mean. And that majority could pass a bill to repeal the whole law.
Ignoring Senate traditions regarding reconciliation would be nothing new for Republicans. They did it when they passed the Bush tax cuts even though the procedure was supposedly meant to reduce deficits.
Most likely, though, the Republicans won’t even need to reinterpret Senate rules or break traditions to repeal almost all of the ACA. Despite what some writers claim, the Byrd Rule isn’t narrowly limited by provisions about directly changing taxes or providing direct funding.
For example, Kliff goes so far as to make the absurd claim that repealing the fine that is supposed to enforce the individual mandate wouldn’t meet the Byrd Rule requirement of changing revenue. But a direct fine clearly falls under “changing revenue,” as demonstrated by the fact that Democrats modified the fines with their reconciliation bill. She also falls into the fallacy of assuming that each and every provision must be deficit reducing; but a reconciliation bill can have deficit increasing provisions as long as the whole bill reduces the deficit.
Most policy changes will impact revenues or outlays. For example since employer-provided insurance is tax exempt, almost any major health insurance regulation could be scored by the CBO as producing a change in revenue. Better insurance means less tax revenue. As a result the GOP could legitimately argue that repealing many of the ACA provisions would meet the Byrd Rule. And the Senate majority would, after all, be the final judge of want is a legitimate argument. The GOP will be able to point to the fact that even the reconciliation bill passed by Democrats included some new health insurance regulations.
Making a whole repeal bill deficit reducing simply requires a similar trick to what the GOP did to make the Bush tax cuts qualify for deficit reduction. The GOP could, for example, have the reconciliation bill appear to implement a beefed up version of the excise tax at the end of 10 years, knowing no future Congress would allow the tax to take effect.
If the Republican party wins control of the government, and they are determined to repeal the Affordable Care Act with reconciliation, they can. If necessary, they can do it by heavily bending Senate traditions. But it is likely they could achieve most of their repeal goals even without needing to use extreme hardball tactics. Democrats sought to deceive their base by insisting reconciliation is extremely limited, but that doesn’t mean it is true.