The first major head of conflict for the incoming Senate majority has revealed itself.
On one side you have an incoming Senate majority leader, and other adherents of basic mathematics (sellouts!), who argue that there simply isn't a path to achieve the prime ideological goal of "the base." On the other side you have "the base," by which we mean Sen. Ted Cruz and friendly conservative outside groups looking to exploit unresolvable tensions for fun and profit. The question is: Should Mitch McConnell use the budget reconciliation process to repeal Obamacare? It's this procedural question that serves as story line to the long-awaited, quixotic sequel to that math-punching blockbuster hit of 2013, Shut Down the Government Until Obamacare Is Repealed.
The Hill this morning reports on the interest groups that are pressuring McConnell to adopt the tactic. And the fundamental problem with this reconciliation strategy shows itself in the language they're using to discuss it: the idea that Republicans can "repeal Obamacare" with 51 votes. "Republicans should use reconciliation to fully repeal ObamaCare," says Ken Cuccinelli, head of the Senate Conservatives Fund -- no friend to Mitch McConnell. A communications director of the mighty Heritage Action echoes Cuccinelli, arguing, "'the most important' thing that Republicans could do in the majority would be to 'use the reconciliation instructions to repeal ObamaCare.'"
Do you see the problem with this language? Mitch McConnell and Senate Republicans cannot, as it happens, repeal Obamacare with 51 votes. What they can do is pass a bill to repeal Obamacare with 51 votes. The House, as it does every 45 minutes or so, can also pass a bill to repeal Obamacare. Once each chamber has passed a bill to repeal Obamacare, that bill can go to President Obama. And then he will veto it. The numbers do not exist in either the House or the Senate to override that veto.
This is a tedious semantic distinction, but it's the precise tedious semantic distinction that's keeping this mathless, waste-of-time strategy alive and gaining momentum well past its sell date. It's much more fun and fruitful for the Senate Conservatives Fund or Heritage to write one of those "Dear Conservatives" emails calling on Senate Republicans to "repeal Obamacare" than it is to write one calling on Senate Republicans to "pass a repeal of Obamacare." As though it's up to Mitch McConnell's predilection for aggressive procedural maneuvering to determine whether the Patient Protection and Affordable Care Act remains the law of the land. But the only thing that's within Mitch McConnell's control, essentially, is whether to register a protest vote that will get vetoed.
There is at least one Tea Party outside group, surprisingly, that's opted for Team Reality in this coming fight. Mark it down now: The Tea Party Express, unlike the Senate Conservatives Fund and Heritage Action, understands that the Constitution gives the president of the United States this power called the "veto."
Some conservatives question whether the strategy is worth pursuing while there’s a Democrat in the White House.
“Reconciliation works when you have a Republican president who will go with a Republican Congress. I don’t see a lot of opportunities,” said Sal Russo, founder and chief strategist of the Tea Party Express. “There are probably some ObamaCare fixes that perhaps would have Democratic support — the medical device tax [repeal] — but if it gets too aggressive, it’s not going to stand a chance of getting past the president.”
“I think it’s going to be a limited tool,” he added.
The Tea Party Express gets it! What a world.
There are other problems with using the reconciliation process, for either a full Obamacare repeal or a repeal of the medical device or individual mandate, beyond the existence of the presidential veto. The so-called Byrd Rule does not allow the reconciliation process to be used for anything that adds to the deficit. The Affordable Care Act, by the Congressional Budget Office's scoring, reduces the budget deficit by billions of dollars over the 10-year horizon. Repealing it would add to the deficit. Repealing the medical device tax would also add to the deficit. Same thing for the individual mandate since it is, as Chief Justice John Roberts so famously put it, a tax.
There would be a couple of ways for the Senate Republican leadership to get around the Byrd Rule. It could logroll the repeal of these budget-increasing items with some other deficit-reducing measure into a reconciliation vehicle that reduces the deficit on net. Another, more "fun" option would be to take Paul Ryan's advice by leading a coup at the CBO and changing the way in which it scores legislation. Yes, we're talking about instituting "dynamic scoring," that special conservative pixie dust that fills the cavernous gaps of supply-side economics. Under this logic, a repeal of Obamacare or one of its taxes wouldn't add to the deficit, because repeal would obviously create ~77 percent quarterly GDP growth, easily making up the revenue shortfall.
The sooner conservatives get over this "McConnell can repeal Obamacare with 51 votes!" mirage, the sooner they'll realize that there are meaningful ways they can chip away at Obamacare without even needing gimmicks. As the Tea Party Express strategist said, a repeal of the medical device tax is possible. It would get plenty of Democratic votes. President Obama, revealingly, dodged a question during last week's press conference about whether he'd sign a repeal of it. He could probably be pressured into doing so.
The insistence on pursuing the Big Repeal, even though it's impossible, instead of chipping away meaningfully but still at the margins of the law may represent a bigger unease among conservatives: that once Republican legislators begin working to reform the law, they've implicitly abandoned the larger goal of repealing it. Manicuring the coarser edges of the law signals that the property only needs a bit of maintenance, can be salvaged, doesn't need to be imploded. And that would be a realism too radical for the times.