When the Supreme Court last week swatted down a legal challenge that could have crippled a centerpiece of President Barack Obama's health-care law, it merely kicked the debate back from the legal to the political arena. Conservatives are still determined to fight Obamacare. But now, they're fighting over how to fight it.
The latest plan, floated by a couple of top-tier Republican presidential hopefuls, is already facing pushback from the right.
In recent days, former Florida Governor Jeb Bush, officially a candidate for president, and Wisconsin Governor Scott Walker, who appears likely to make his campaign official in July, have both hit on the same idea for getting rid of Obamacare. But it would involve killing a Washington sacred cow that is, if anything, more beloved of conservatives than it is of liberals. Namely, the Senate filibuster.
Three influential conservative organizations are reacting with reserve if not outright exasperation to the idea, floated by Walker and Bush at the prompting of conservative talk show host Hugh Hewitt, of eliminating the parliamentary tool often used by Senate minorities to defend their interests. The intraparty spat illustrates how hard it will be for Republicans to reverse Obama's signature policy in the foreseeable future, although vowing to do so may be good for ginning up conservative votes.
Bush said Friday he'd "certainly consider" endorsing an end to the filibuster if it paves the way for replacing Obamacare with his preferred alternatives. Over the weekend, Walker was more categorical when Hewitt asked him the same question at the Western Conservatives summit in Denver: "Yes. Absolutely," he said, according to the Washington Examiner.
The theory is straightforward: If Republicans can win the White House next year and maintain their majorities in the House and Senate, the only sure-fire obstacle to rolling back Obamacare would be a Democratic filibuster in the Senate, requiring a 60-vote majority to cut it off.
'Undermine conservative principles'
The problem: Many conservatives want to preserve the filibuster, which has come in handy for them in the past. The ability of senators to use the parliamentary delaying tactic has been limited over the years, most recently in 2013 when then-Senate Majority Leader Harry Reid, exasperated by Republican slow-walking of Obama's federal appointees, invoked the "nuclear option" to eliminate the use of the filibuster against most presidential nominees. Still, eliminating the filibuster all together is not a popular idea inside the Beltway.
Senator Ted Cruz of Texas, a Republican presidential candidate, rejected the idea on Monday.
"I believe ending the legislative filibuster would ultimately undermine conservative principles," he told Hewitt. Noting that Democrats produced the New Deal, Great Society and Obamacare with super-majorities in the upper chamber, he argued that "the super-majority requirement in the Senate more often than not slows bad liberal, radical ideas."
Pressed by Hewitt, Cruz held firm, stressing that he fought "tooth and nail to stop Obamacare" even to the point of forcing a government shutdown in 2013—for which, he noted, Walker criticized him. "Talk is cheap," Cruz said, taking a shot at his rival.
'A dicey idea'
Andy Roth, a lobbyist for the conservative pressure group Club For Growth, groaned when asked if his organization supports the idea of ending the filibuster to repeal Obamacare, even though getting rid of the health care law is one of the Club's top priorities. "In our experience, the filibuster has stopped more bad bills from becoming law than prevented good bills from becoming law," he said in an interview. "So getting rid of the filibuster is a dicey idea."
"The Club's position still is repeal, and just because this court decision made it tougher I don't think Republicans should give up on it," Roth said. But he added: "We probably shouldn't be recommending getting rid of the legislative filibuster."
The offices of other three Republican senators running for president—Marco Rubio of Florida, Rand Paul of Kentucky and Lindsey Graham of South Carolina—didn't return queries Monday about whether they support the idea. All of them defended the filibuster against Democrats' successful effort to nuke parts of it in 2013, and Graham has played a leading role against attempts to weaken the tool.
'Far more harm than good'
Dan Holler, a spokesman for Heritage Action For America, which along with the Club pushed the unsuccessful legislative strategy to defund Obamacare in 2013, similarly declined to support calls for nixing the filibuster.
"We need a president willing to fight to repeal Obamacare and reform the healthcare system the right way. Fortunately, there is a legislative process already in place: reconciliation," Holler said, referring to the parliamentary tool that lets the Senate bypass the 60-vote threshold to make certain changes to the federal budget.
Ken Cuccinelli, the president of the Senate Conservatives Fund, another well-financed right-leaning group, also poured cold water on the idea.
"Eliminating the legislative filibuster would do far more harm than good because the Senate, despite being controlled by Republicans, is a liberal body that left unrestricted by debate will pass even more liberal legislation," Cuccinelli told Bloomberg in a statement. "The Republicans can use budget reconciliation to repeal Obamacare with a majority vote, just as the Democrats used it to pass Obamacare with a majority vote."
Reconciliation: plausible or 'nonsense'?
That reconciliation strategy has been endorsed by other conservatives including Cruz and Erick Erickson, the editor of the blog RedState. It's a complex scenario involving the use of congressional budget-writing authority—and rulings by the Senate parliamentarian—to allow congressional Republicans to do a back-door repeal of some elements of Obamacare this year. But congressional experts are doubtful about whether it will fly.
"That is, or should be, nonsense. Reconciliation can't be used to increase deficits, and is quite constrained when it comes to substantive measures that are not directly fiscally related," said Norm Ornstein, a congressional scholar at the American Enterprise Institute. "But what this suggests is that right wing groups will try to bludgeon [Senate Majority Leader Mitch] McConnell and [House Speaker John] Boehner to stretch the rules beyond recognition."
The Club for Growth's Roth is floating another proposition, suggesting that a future Republican president could roll back the IRS rule that allows health insurance subsidies through the federal exchange. But the Supreme Court made clear in its 6-3 decision upholding the subsidies that the law doesn't delegate that task to the agency, meaning the next administration cannot reverse it by executive order.
For now, the best Republicans can hope for is symbolic votes to repeal the law and—potentially—passing smaller bills to nix non-essential components of it.
"We will be voting on repeal of Obamacare," said Senate Majority Whip John Cornyn, Republican of Texas, after the Supreme Court ruling in King v. Burwell. Congressional Republicans have approved a non-binding budget resolution calling for repeal of the law, but in the unlikely event such a measure landed on Obama's desk, it would face certain veto. Meanwhile, Republicans plan to push legislation to nix smaller parts of Obamacare like the excise tax on the sale of certain medical devices and the cost-cutting Independent Payment Advisory Board, which would only kick in if Medicare spending rises above a certain level.
'A moment of relief' for the White House
Republican presidential candidates are united behind the idea of repealing Obamacare. But their task is complicated by their inability to agree on an alternative plan. Meanwhile, the president is moving to consolidate his gains.
"We've got more work to do. But what we’re not going to do is unravel what has now been woven into the fabric of America," Obama said after the Supreme Court decision. "And my greatest hope is that rather than keep re-fighting battles that have been settled again and again and again, I can work with Republicans and Democrats to move forward."
One measure of the steepness of the hill Republicans have to climb: the sense inside the White House that the Supreme Court decision spelled the end of the threat to the law. After the Supreme Court decision came down, Health and Human Services Secretary Sylvia Mathews Burwell told reporters, "It was such a moment of relief."