On Wednesday, January 6, 2016, the House of Representatives passed H.R. 3762, the Restoring American’s Healthcare Freedom Reconciliation Act, by a vote of 240 to 181, after which it was sent to President Obama.

The bill jettisons many provisions within the Affordable Care Act (ACA), better known as Obamacare.  For example, it would eliminate the taxes on medical devices, prescription pharmaceuticals, and the alleged “Cadillac” health insurance plans.  It would phase out Medicaid expansion and eliminate taxpayer subsidies obtained within the exchanges.  Most importantly, it would gut the individual and employer mandate to purchase health insurance by removing the tax penalties for not doing so.  Although the House has passed several bills to repeal Obamacare, former Majority Leader Harry Reid (D-Nev.) had prevented any of them from receiving a vote in the Senate.  H.R. 3762 became the first one to land on President Obama’s desk.

The president vetoed the bill two days after it was passed, which everyone knew would happen.  Critics have said the whole process was a waste of time, a sham, or simply a maneuver to placate Republican voters.  But the passage of H.R. 3762 did fulfill a promise of getting an Obamacare repeal bill to the president.

The most significant aspect of H.R. 3762 is that it was passed by a majority vote in the House and the Senate through budget reconciliation, which was established by the 1974 Congressional Budget Act.  It can only be used to consider three issues:  spending, taxes, and the debt limit.  The reconciliation process, according to the Congressional Research Service, “is intended to facilitate the consideration and enactment of legislation that implements, in whole or in part, the budget policies reflected in the budget resolution.”

Legislation that is not considered under reconciliation in the Senate can be filibustered.  In order to stop a filibuster or prevent it from occurring, 60 votes are required before floor consideration can move forward and the bill can be approved or rejected by a majority vote.  In recent years, 60 votes have been required for virtually every bill to move forward in the Senate, which is why reconciliation is such a critical procedural tool.

When reconciliation is included in a budget resolution, there are instructions for specific House and Senate committees to write legislation that either increases or decreases revenues, spending, or the debt.  Certain amendments are prohibited and the debate must be completed quickly.  In addition to preventing a filibuster in the Senate, debate is limited to 20 hours.

The reconciliation process also includes the “Byrd Rule,” named after former Senator Robert Byrd (D-W.Va.), to prevent extraneous matters from being considered, such as provisions that would have no direct budgetary result and increase or reduce the deficit for a fiscal year beyond those included in a reconciliation bill.

Since 1974, reconciliation has been used 20 times, and it was last used to pass the final version of Obamacare.  In 2009, both the Democratic-controlled House and Senate had their own healthcare reform bills, H.R. 3962 and H.R. 3590 respectively.  H.R. 3590 was originally a House-passed bill concerning first-time homebuyer tax credits for service members entitled the “Service Members Home Ownership Tax Act.”  Senator Reid amended H.R. 3590 with the Senate’s version for healthcare reform and re-named it the “Patient Protection and Affordable Care Act,” which today is simply called the Affordable Care Act.  No Republican could filibuster the bill because the Democrats had the necessary 60 votes to stop them.  H.R. 3590 was passed on Christmas Eve by a vote of 60 to 39, with Democrats all voting yes and Republicans all voting no.

Since the House-passed healthcare reform bill and the Senate-passed bill were different, a conference committee was needed to work out the differences between the two bills and produce one compromised bill, which would have then had to pass both the House and the Senate.  But on January 18, 2010, State Senator Scott Brown (R-Mass.) became a U.S. Senator when he won Senator Ted Kennedy’s old seat in a special election.  No longer did the Democratically-controlled Senate have 60 votes to stop a filibuster.  Scott Brown promised to be the vote that would stop Obamacare.

Democrats had to scramble.  Fortunately for them, there were reconciliation instructions in the Fiscal Year 2010 budget resolution instructing various committees to reduce healthcare spending.  After weeks of internal debate, Democrats made the decision to use the reconciliation process to make changes to the Senate-passed bill.  The Senate bill, H.R. 3590, was passed in the House on March 21, 2010, soon followed by H.R. 4872, the Health Care and Education Reconciliation Act, which made changes to ACA that the House wanted.  The reconciliation bill went to the Senate where additional changes to ACA were made; because it was a reconciliation bill, only a simple majority was necessary to pass the bill.  The bill was then sent back to the House, where it was agreed to and sent to the President for his signature.  This reconciliation bill provided, in a sense, a conference committee by default.  As a result of these actions, ACA is formed from two pieces of legislation, H.R. 3590 and H.R. 4872.

Since reconciliation was used to sign Obamacare into law, it has long been advocated by former budgeting and health policy experts to use it as a process for repeal.  For example, James Capretta, a former associate director at the Office of Management and Budget, stated in an October 2011 National Review article that while some ACA defenders have said it “would be the height of cynical partisanship for Republicans to undo Obamacare” using reconciliation, because it “played only a minor role in the enactment” of the law, that is not the case.  Capretta pointed out Obamacare would never have become law without reconciliation and noted, “So what goes around, comes around.  Obamacare is in law – with all of its trillion-dollar spending and taxes now part of CBO’s ‘baseline’ budget projections.  Reconciliation was created for the express purpose of giving Congress an expedited process for making changes to just this kind of spending and tax policy.  Obamacare is thus a very ripe target for budget cutting, and that means reconciliation.”

The House of Representatives passed H.R. 3762 on October 23, 2015 by a vote of 240-189; the Senate added some additional items and passed the bill on December 23 by a vote of 52 to 47.  It was returned to the House one last time in January for final passage.

H.R. 3762 proved that a future Congress could pass an Obamacare repeal bill using the reconciliation process in order to avoid a filibuster by Senate proponents of ACA.  Since H.R. 3762 met the requirements under reconciliation, including cutting the deficit and passing muster with the Senate parliamentarian, a legitimate pathway exists to repealing Obamacare without 60 votes in the Senate.  Now all that is needed is for the Congress to remain in the hands of elected officials that are dedicated to repealing Obamacare and a president that will sign it into law.