Upton Unsure of Reconciliation for Planned Parenthood Defunding

House Energy and Commerce Chairman Fred Upton expressed uncertainty Thursday about whether budget reconciliation can be used to defund Planned Parenthood, one of the options that Republicans are considering to starve the family planning group of federal funds, appease unhappy conservatives and still avoid a government shutdown.

“I don’t know that we can do that in reconciliation,” the Michigan Republican said in an interview with CQ Roll Call. His comments are significant because Energy and Commerce is one of three committees in the House that would be tasked with writing reconciliation legislation that likely would be focused on repealing parts of the 2010 health care law (PL 111-148, PL 111-152).

Energy and Commerce has jurisdiction over the Medicaid program that provides health care for low-income Americans. Medicaid reimbursement of services provided by Planned Parenthood accounts for most of the $450 million the organization received annually in federal aid. The group has been under fire since the release of a series of undercover videos showing officials allegedly discussing donations of fetal tissue for medical research.

But Pennsylvania Republican Joe Pitts, chairman of the Energy and Commerce Health Subcommittee, said he anticipates that Republicans will opt to use the budgetary maneuver. “I think that’ll be one that we use and we’re discussing in a hearing today a couple of vehicles that could be used for that option,” he said, referring to legislation his subcommittee was examining to deny funding to providers who perform certain kinds of abortions.

Texas Republican Kevin Brady, chairman of the Ways and Means Health Subcommittee, also expressed support for the reconciliation approach. “I like it,” he said. “I’m skeptical the Senate will ever overcome their 60-vote rule and so we need to do what we can to get that bill to the president’s desk.”

Nevertheless, Upton’s comments underscore the uncertainty about whether the powerful reconciliation tool can be used to defund the organization.

The Byrd Rule

Upton said the Senate’s Byrd rule, which imposes restrictions on how reconciliation is used, could be a factor. No specific language has been made public to defund Planned Parenthood in a reconciliation bill, so it is difficult to know whether it would pass muster with the Senate parliamentarian.

“The Byrd rule certainly has an impact on anything that we do in the Senate,” Upton said. But he also left open the possibility that reconciliation could be used for Planned Parenthood. “I don’t know is the answer,” he said.

GOP leaders are mulling speeding up the reconciliation process as a way to include a provision to defund Planned Parenthood.

House Speaker John A. Boehner, R-Ohio, said Thursday that “reconciliation is a distinct possibility” as a way of dealing with Planned Parenthood. House GOP Whip Steve Scalise, R-La., on Tuesday told CQ Roll Call he favors the idea, which he said offers a sure way to put a defunding measure on President Barack Obama’s desk since a reconciliation bill can be taken up in the Senate without the customary 60-vote requirement, meaning it can be passed without Democratic votes.

House Minority Leader Nancy Pelosi, D-Calif., told reporters she believes her caucus has the votes to sustain a veto from Obama in the event a reconciliation bill with Planned Parenthood defunding language reached his desk.

Heritage Warning

The strategy received a cool reception from some on the right.

Paul Winfree, director of the Thomas A. Roe Institute for Economic Studies at the Heritage Foundation, argued in a column that the Byrd rule could prevent the use of reconciliation for Planned Parenthood.

“To remain consistent with the Byrd Rule, the provision must be budgetary, and any budgetary changes associated with the provision must not be ‘merely incidental to the non-budgetary components,’” wrote Winfree, who previously served as a Senate GOP budget staff member. “Provisions in reconciliation bills cannot be included if the primary purpose is to advance a certain policy. Rather, reconciliation is reserved for provisions included with the purpose of reducing the deficit in a way that reflects assumptions made by the budget resolution.”

Heritage Action, an arm of the Heritage Foundation, called for reconciliation to be used solely for repealing the health care law ( PL 111-148, PL 111-152 ), while also urging GOP leadership to include a defunding provision in a stopgap spending bill.

Even so, there appears to be considerable support among Republicans in the House for using reconciliation to defund Planned Parenthood, based on conversations with lawmakers. Some, however, want to also attach defunding language to a stopgap funding bill, a move widely viewed as increasing the probability of a government shutdown.

Senate Finance Chairman Orrin G. Hatch, R-Utah, indicated earlier this week he is open to using reconciliation for Planned Parenthood. “I think that’s probably the only way it’s going to happen,” he said, referring to getting a defunding bill on the president’s desk. “I don’t want the government shut down.”

Upton said it’s possible the House could move on reconciliation soon, but he said it might be difficult to get to it before the end of the month.

“Timing-wise that’s pretty hard to do,” he said, adding it also will depend on what Congress does to temporarily extend government funding into the fiscal year that begins Oct. 1. “At this point no decisions have been made,” he said. “We have not blocked out time at this point for a markup.”

Ryan McCrimmon and Emma Dumain also contributed to this report