Congress, Health Care Reform, and Reconciliation

Abstract

This article explores the role of reconciliation in the passage of health care reform in the 111th Congress. Although counterintuitive, the analysis suggests that the loss of a filibuster-proof super-majority with the election of Senator Scott Brown (R-MA) aided Democrats in clearing the overhaul package by facilitating the use of reconciliation. Reconciliation provided the critical procedural mechanism enabling health care reform to be enacted into law. Despite reconciliation's importance, substantively the reconciliation “fixes” were relatively modest amendments. Moreover, notwithstanding the use of reconciliation, Congress passed the health care legislation with largely conventional means—separate health care reform measures cleared the House and Senate in 2009, in 2010 the House approved the Senate bill, and then both chambers quickly passed the reconciliation addendum. This research draws on discussions I had with over a dozen key actors after health care reform passed.

Acknowledgments

I truly appreciate the time and reflections of my interviewees, who so generously shared their insights with me. I also benefitted greatly from a grant from the University of Vermont Political Science Department, which enabled me to travel to Washington, D.C. to conduct the interviews. For their research assistance, I thank Liz Kellogg and Emily Slaw. An earlier version of this paper was presented at the annual meeting of the New England Political Science Association, Hartford, CT, April 2011.

Notes

1. McDonough (2011) presents an excellent explanation of the law's content.

2. In addition, see the special edition of Journal of Health Politics, Policy and Law 36 (June 2011), which includes a series of mini-essays devoted to various aspects of health care reform.

3. As Saturno explains, “Most points of order in the Budget Act apply to measures as a whole, as well as to motions, amendments, or conference reports to those measures. When a point of order is sustained against consideration of some matter, the effect is that the matter in question falls” (2011, 2).

4. The 2001 tax cuts, for instance, included a sunset provision (Heniff 2010), thereby requiring the extension in December 2010 for them to stay in effect (New York Times Staff 2012).

5. For a broader discussion of the Clinton administration's debacle, see Brady and Kessler 2010, Hacker 1997, Skocpol 1996, and Steinmo and Watts 1995.

6. Although beyond the scope of this article, it merits mention at the outset that the budget resolution also allowed consideration of education reform under reconciliation and that education reform was included in the HCERA. Substantively, the student loan modifications in the HCERA saved money (helping to defray health care reform's cost and decrease the budget deficit), and addressed a significant Pell grant budget shortfall. Politically, the education reforms pleased President Barack Obama and House Democrats (who already had cleared student loan reform as a stand-alone measure). On the other hand, some conservative Democratic senators opposed a change in student loan administration methods, and had previously been able to block them. When their votes were not needed for a reconciliation measure that avoided filibusters, however, their opposition became less important (Jacobs and Skocpol 2010; Sinclair 2012).

7. As Sinclair (2012) has demonstrated, the legislative process for most major legislation is characterized by so-called unorthodox lawmaking, which she contrasts with the uniform textbook lawmaking process.

8. Particularly noteworthy building blocks for health care reform prior to the 111th Congress came from Senator Kennedy and Senator Max Baucus (D-MT), respectively chairing the Senate Health, Education, Labor, and Pensions (HELP) Committee and Finance Committee. For decades, Kennedy's top priority had been health care reform, sparking his 2008 series of discussions with health care stakeholders, and so much more. Baucus contributed additional ideas in November 2008 with his White Paper on health reform (McDonough 2011).

9. For instance, the law's market-based approach of working toward near-universal coverage by building on the existing private insurance structure resembles the GOP alternative to Clinton's ideas, the Heritage Foundation's proposals, and former Republican Governor Mitt Romney's plan in Massachusetts. Similarly, while later denounced by Republicans as a violation of American freedoms, the individual mandate earlier had been touted by GOP officials. For further information on these and other issues, see the following: Hacker 2010; Issenberg 2010; Jacobs and Skocpol 2010; McDonough 2011; Staff of the Washington Post 2010.

10. Rahm Emanuel promoted the notion of pared-down bills, which Pelosi vehemently opposed for both policy and political reasons, belittling the idea with the “Kiddie Care” label. After Emanuel's public push for a small, incremental approach, Pelosi sought assurances from Obama that he would not abandon congressional Democrats who already had cast the tough votes for his legislative priority (Stolberg, Zeleny, and Hulse 2010).

11. McDonough captures this mistrust and competition: “There is a saying among House Democrats: ‘In the House, the Republicans are our opponents and the Senate is our enemy’” (2011, 93)

12. Clearly no legislative action occurs in a vacuum. For an interesting discussion of how the sustained push on health care reform, in part, stymied action on climate change as well, see Stromberg (2010).

13. In enrolled form, the HCERA, with its health and education reforms, is about 6% the length of the PPACA (Heniff 2010).

14. McDonough offers a brief and clear description of the HCERA's key provisions (2011).

15. Note that the HCERA saves money and hence is not time-limited; in contrast, for instance, the 2001 Bush tax cuts enacted through reconciliation had sunset provisions because they increased the budget deficit (Frakt 2011).

16. Although I include the CBO estimates, projections about the ACA's impact vary (McDonough 2011).