Senate Dilemma: How to Score ACA Repeal Bill

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By Jonathan Nicholson

Nov. 6 — The Republican effort to force an Affordable Care Act repeal bill to President Barack Obama's desk faces a tough new question in the Senate: How will the House-passed bill (H.R. 3762) be scored?

Senate Budget Committee Chairman Mike Enzi (R-Wyo.) is mulling the issue, according to a spokesman, though it is considered likely he will opt for a conventional score instead of a dynamic one. Dynamic scoring is the methodology Republicans changed the rules to allow in the House and whose implementation in the Senate has been in question.

“Staff are currently reviewing the House reconciliation bill in relation to the score and Senate reconciliation procedures,” Enzi spokesman Joe Brenckle said Nov. 5.

“No decisions have been made as the review continues. Following this review, Chairman Enzi will speak with his colleagues about his conclusions and advice on the best path forward for reconciliation in the Senate.”

Possible Setback?

Opting not to use the dynamic score, in which the Congressional Budget Office and the Joint Committee on Taxation attempt to quantify the proposal's effect on the overall economy and estimate that impact on federal revenue and spending, could be seen as a setback for supporters of the methodology if it is seen as a precedent for future bills in the Senate.

Republicans in general have supported dynamic scoring and made a change in House rules to allow it in certain cases, saying it makes scores for bills more accurate and provides needed information to lawmakers on how a bill would impact the economy. Democrats in general have opposed the change, saying its accuracy relies too heavily on assumptions within economic models and the scores would be used to understate the costs of Republican-favored tax cuts. Former CBO Director Douglas Elmendorf has given a cautious endorsement of dynamic scoring, saying it should be used, but only if particular conditions are met.

While the House's change in rules made it clear dynamic scoring would be used for bills there, as long as the bill had a large enough budget impact or was designated to be scored dynamically, the situation in the Senate has been less clear. Language in the budget resolution (S. Con. Res. 11) adopted in March allows for dynamic scoring in the Senate similar to the House's rule, but the conference report on the resolution said dynamic scoring would be used “for informational purposes only” in the Senate.

In August, a Senate Budget Committee staffer told Bloomberg BNA that the language in the text of the resolution meant dynamic scores could be used to determine whether budget-related procedural hurdles would apply to specific bills, despite the seemingly contradictory report language (See previous story, 08/27/15). Using the conventional score could potentially avert one way bill opponents could raise a parliamentary objection and may make it easier to deal to with other procedural hurdles.

Long-Term Deficit Hurdles

Enzi will likely have some time to decide the issue. As of Nov. 6, the bill had not yet been sent over to the Senate from the House, despite being passed there Oct. 23, according to Library of Congress's website.

No matter which score is used, the bill appears vulnerable to at least one budget-related challenge in its current form. The CBO and JCT issued an updated bill score Nov. 4 to reflect changes made before it hit the House floor and the enactment of a provision in the bill in the recent sequester replacement deal (Pub. L. No. 114-74). In that score, the bill, which uses savings from repealing the individual and employer insurance mandates to pay for repealing taxes on medical devices and some high-cost insurance plans, is scored as narrowing the deficit by $78.1 billion over 10 years under conventional scoring and a larger $129.0 billion with dynamic effects included.

Under either method, though, the bill would increase the 10-year deficit in at least one of the four decades immediately following the 10-year budget window, making it vulnerable to a floor challenge. Waiving that point of order would require a three-fifths supermajority on the Senate floor, which would mean at least a few Senate Democrats would have to vote with Republicans on the waiver.

The bill could be sent to either the Finance Committee or the Health, Education, Labor and Pensions Committee to have language inserted fixing the long-term deficit problem, a prospect that may explain why it has yet to arrive in the Senate from the House.

Asked for a timetable for floor consideration for the bill on Nov. 4, Sen. John Cornyn (R-Texas), the Senate majority whip, said he hoped to see it soon, but gave no dates.

“As soon as possible. Maybe before Thanksgiving,” he said. “Maybe.”

To contact the reporter on this story: Jonathan Nicholson in Washington at

To contact the editor responsible for this story: Heather Rothman in Washington at