ACA Repeal Passes Senate, Headed to President for Veto

A vote in Congress to repeal the Affordable Care Act (ACA) is practically no longer a news story. The House of Representatives has voted more than 50 times to repeal the law since its passage in 2010. So what was different about the vote that took place last week?

The primary difference this time is that the legislation is expected to pass both the House and Senate and therefore will be the first attempt at repeal to land on President Obama’s desk. When it gets there, it faces a certain veto, leading many in Congress to call last week’s efforts a “waste of time.” That said, it bears taking a closer look at what passed last week (and how it passed) despite the fact that it won’t become law during this administration.

So how did a repeal effort which has never had the 60 votes necessary to overcome a Senate filibuster all of a sudden pass that chamber? The answer lies in a complicated budgetary maneuver called “reconciliation.” For those who’ve been following Congress for a while, this term may be familiar – ironically, it’s the same maneuver that was used to pass major parts of the ACA in the first place. In short, reconciliation allows for certain kinds of legislation (essentially items designed to impact the budget, not to change policy) to pass the Senate with a simple majority, and these measures are not subject to a filibuster. Here’s a good primer for those who want to take a deeper dive.

So what passed the Senate last week?

That story begins earlier in the fall, when the House of Representatives passed legislation designed to repeal parts of the Affordable Care Act using the reconciliation process. That bill, H.R. 3762, would repeal the ACA’s individual and employer mandates, as well as the medical device tax and so-called “Cadillac Tax”. It also bars all federal funding for Planned Parenthood, including Medicaid funding, for one year; eliminates the ACA’s Public Health and Prevention Fund; and increases mandatory funding to Health Centers by $235 million in each of Fiscal Years 2016 and 2017. That bill passed the House on October 23rd, by a vote of 240-189.

The Senate began debate on the measure on Tuesday night, and the picture there was more complicated. Senate Republicans needed a simple majority of 51 votes to pass reconciliation legislation. There are 54 Republican Senators. Three of them—Senators Cruz (R-TX), Rubio (R-FL) and Lee (R-UT)—said they could not support the bill as passed by the House, as it did not go far enough, in their view, toward the goal of fully repealing the ACA. Two more moderate Republicans—Senators Kirk (R-IL) and Collins (R-ME)—indicated they could not support the bill because they have concerns about the Planned Parenthood provisions. In response to this, the Senate leadership modified the bill to expand its scope – while successfully navigating the complicated “Byrd Rule,” which sets the limits on what can and can’t be done through reconciliation. That “substitute” bill added a 2-year phase-out of the ACA Medicaid expansion and exchange subsidies, as well as other provisions related to hospital payments, substance abuse treatment and repeal of additional taxes created by the ACA. The bill passed the Senate 52-47 on Thursday night, along party lines, with Senators Kirk and Collins voting no as expected, and Senator Bernie Sanders (I-VT) not present.

Neither the House bill nor the Senate substitute will become law. President Obama is certain to veto whatever version is sent to him in the end, and there are not the votes to override a veto. Still, the vote and the debate surrounding it are a clear indication that the ACA continues to be a major partisan dividing line at the national level, even as we approach the end of the third open enrollment period.

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