Senate Majority Whip Dick Durbin likes to taunt his Republican colleagues, arguing that ObamaCare can't be repealed because 60 votes are required to end debate in the Senate on any measure.
Though Republicans will likely win control of the Senate in 2012, Mr. Durbin is right that they probably won't get to 60 senators. That would require the GOP to win back more than half the Democratic seats up next year. Rep. Jim Moran (D., Va.) recently called GOP promises of repeal "a political scam on their base. . . . It can't happen."
Not so fast. Keith Hennessey, a former White House colleague of mine, says Democrats are wrong. He argues that Republicans can repeal health-care reform with a simple Senate majority.
Director of the National Economic Council under President George W. Bush, Mr. Hennessey now teaches at Stanford Business School and is a research fellow at the Hoover Institution. Last week on his website, KeithHennessey.com, he made the case that congressional Republicans could use the reconciliation process to kill ObamaCare with 51 votes in the Senate and a majority in the House of Representatives.
The Budget Act of 1974 established the reconciliation process. The House and Senate Budget Committees can direct other committees to make changes in mandatory spending (like ObamaCare's Medicaid expansion and insurance subsidies) and the tax code (such as ObamaCare's levies on insurance policies, hospitals and drug companies) to make spending and revenue conform with the goals set by the annual budget resolution.
For example, under reconciliation the Senate Budget Committee could instruct the Senate Finance Committee to reduce mandatory spending on insurance subsidies and Medicaid expansion. These two items make up more than 90% of spending in ObamaCare. All the changes from all the committees are then bundled into one measure and voted upon. Because reconciliation is protected by the rules of the budget process, it doesn't take 60 votes to bring it up and it requires only a simple majority to pass.
Will this 51-vote strategy work? One long-time GOP budget whiz, embarrassed he hadn't thought of this, told me it would. Another Republican veteran of the budget wars agreed, though she had some concerns that certain elements of ObamaCare, such as some insurance provisions, might be beyond the reach of reconciliation. For example, would reconciliation allow Republicans to kill the requirement that younger, healthier workers pay higher premiums than they rightly should to keep premiums for older workers lower?
Mr. Hennessey believes that these are "strategically unimportant" items. He says the goal should be to repeal ObamaCare's big-cost drivers, and reconciliation provides the tool to do it.
Using reconciliation would require that Republicans pick up at least four seats in 2012, when 23 senators who caucus with the Democrats are up for re-election, many in red states. Already, vulnerable Democratic senators like Jon Tester of Montana, Claire McCaskill of Missouri and Joe Manchin of West Virginia are talking about how to get rid of some of ObamaCare's most objectionable parts, like the individual mandate. They'll only get more skittish as the election approaches. Democrats cannot complain if the GOP uses reconciliation after Democrats used it to pass ObamaCare through the Senate.
Congressional Republicans are getting crucial help in this battle from allies outside Washington. Republican governors know that ObamaCare's mandatory expansion of Medicaid rolls will collapse state budgets. Texas Gov. Rick Perry has called ObamaCare "unaffordable, unsustainable and unworkable," and many have criticized the law for shifting billions of dollars onto the states. GOP governors are in charge of at least 10 key battleground states and can continue to drill home this message in states such as Ohio and Florida that are vital to Mr. Obama's re-election.
Even Democratic governors in swing states are critical of ObamaCare's Medicaid expansion. "There is no hidden pool of money" to pay for expanding Medicaid, lamented Colorado Gov. John Hickenlooper. North Carolina Gov. Bev Perdue said she opposes health-care reform "that shifts costs to the states." States are "not going to be in a position to pick up the tab" of expanding Medicaid, warned Washington Gov. Christine Gregoire.
Democrats harp on the 60-vote threshold and ignore the reconciliation option because they want Americans to accept the inevitability of ObamaCare. But its roots are clearly in shallow soil.
Of course, a 51-vote Senate strategy would also require a Republican president who would sign a reconciliation bill. All of which means that ObamaCare will be a central issue in the 2012 election. The president may not want to "re-litigate" ObamaCare, but Republicans—and a majority of Americans—do.
This article originally appeared on WSJ.com on Wednesday, February 9, 2011.