History of a Shutdown

by Heather R. Higgins
Clashing tactics led to squandered opportunities, but the Right can still unite to defeat O’Care.

The developing narrative, whether on talk radio or in these pages and other publications, about the shutdown fight — who was on what side, what the options were, and what was gained or not — often starts from incorrect premises, based on incomplete or erroneous assumptions. Since we need to understand how we got here if we want to do better, as a team, next time, it’s important to lay out some of the unpublished history.

2010: Three Strategic Camps
The ACA passed Congress without a single Republican vote. After it became law, Republicans were essentially unified in their opposition to the law and in their oft-stated desire for repeal. Nonetheless, Republicans fell essentially into three strategic camps on how to go forward.

1. Fixers: On the center-to-right portion of the spectrum (since there are no longer any Rockefeller Republicans, who might well have approved of the ACA), the most moderate/centrist were the “fixers,” who thought that the law, if not repealed, could be repaired. Many conservatives initially feared that much of the GOP establishment and leadership lay in this camp. But in the wake of the 2010 election, any advocates for this strategy completely disappeared; the post-shutdown conversation, however, might bring them back.

2. “Win elections, then repeal”: On the far right (not in the establishment, as has been alleged), led by then-senator Jim DeMint, was the “repeal only” camp — no delay, no defunding, no relief from any provisions in the law. The idea was to allow the deployment of Obamacare in full force, with all the horribles it entailed, then to win the election in 2012, and repeal it at that point. Anything short of that was deemed a “fix” that might weaken the coalition favoring repeal. It was pointed out that this strategy depended on winning the presidency and the Senate in 2012, but those who advocated this approach believed a 2012 win was certain — so they saw no need for a backup plan.

3. “Impede, inform, repeal”: I run Independent Women’s Voice, which created the Repeal Pledge in the summer of 2010, and the Repeal Coalition in the wake of the 2010 elections. Our coalition includes people both inside and outside government, and it now has more than 200 participants. The strategy of this third camp is embodied in our Repeal Pledge: We have sought full repeal all along, but recognized that this could be a long and uncertain fight that needed a broader coalition, because Republican votes were not likely to be enough. So along the way we have supported whatever would impede the deployment and metastasis of Obamacare (e.g., delay, defund) but not “fix” the law (which would weaken the coalition and create the delusion that ACA can be made to work). This strategy also emphasizes educating people about the fact that ACA is not the compassionate panacea it purports to be, so that they too will seek repeal.

Those who sought to impede the law did get some things accomplished in 2011 and 2012. They were restricted, though, by not wanting to do something that might impair the pending Supreme Court case, and they were frustrated by the leadership’s repeated efforts to quash any tactic that might have even a remote chance of provoking a shutdown. In the 2012 election, many Obamacare opponents were troubled to see the law pushed to the back burner, at a point when it could have become a galvanizing issue — and they grew more determined than ever to take action.

Spring 2013: The Sebelius Slush Fund and Strategy
Despite the 2012 elections, the “repeal only” advocates initially continued their strategy unchanged. This became clear when Representative Joe Pitts of Pennsylvania proposed a bill that would have permanently abolished HHS secretary Sebelius’s annually recurring billion-dollar slush fund (which will eventually ratchet up to $2 billion per year, indefinitely). The fund is nominally used for preventive care, but in this year’s budget (which is public) it was funneled to promoting Obamacare, with a presidential-size advertising campaign; supporting the exchanges; and disbursing hundreds of millions of dollars to community groups to help recruit voters. . . . I mean enrollees. (The enrollment form asks whether you are registered to vote, and the process is designed to additionally enroll applicants for any subsidy for which they might be eligible.)

The Pitts bill (the Helping Sick People Act) would have used the money reclaimed from Sebelius’s slush fund to both pay down the debt, and (making it hard for Democrats to vote against it) provide funds to cover the 40,000 individuals with legitimate preexisting conditions who had been shut out of the over-budget temporary high-risk coverage created under ACA.

This seemed like a smart trade to many: remove billions from the promotion and entrenchment of Obamacare and from HHS permanently, pay down the debt, and help people who were qualified under the existing program but denied because the administration preferred politics to people. It was something it seemed all conservatives could endorse, and it might also have garnered significant Democratic support while making the public aware of the administration’s true preferences. But then Club for Growth and Heritage Action told their members it was a “fix” and threatened to “key vote” against it.

A key vote is one that a non-government organization uses to calculate its rating for every member of Congress, and those ratings are powerful things to voters. They hear that someone got a poor score from a conservative group or didn’t do the “conservative” thing, and become inclined against that legislator, particularly in a primary. The member of Congress knows that it can be difficult, if not impossible, to explain to supporters why his approach was conservative; he knows he will reach, never mind persuade, only some of them. So lawmakers froze, and the vote on the Pitts bill never took place.

Many were stunned at this outcome, so they launched a renewed discussion about strategy: The problem with waiting for full repeal and salvation through elections, they noted, was that implementation would occur before the next election; and as hideously designed as Obamacare was, once the entitlement, however grim, took root, its recipients would be reluctant to give it up.

Eventually the “repeal only” adherents came to share that view. “Fix” became more precisely defined, and an increasing number of conservatives came to accept the strategic importance of doing whatever might impede Obamacare, primarily through delay or defunding. With this change of perspective, after the president decided (illegally) in July 2013 to delay the employer mandate for a year, conservative groups that had initially viewed mandate delays as counterproductive “fixes” agreed that they would not oppose delaying the employer mandate and the individual mandate; the proposed delays were seen by most other groups, however, as not only fair and a step in the right direction, but as a useful mechanism for minimizing harm and building momentum for repeal.

Proving the potential bipartisan appeal of “delay,” the House in July passed both H.R. 2667 (the Authority for Mandate Delay Act, delaying the employer mandate) and H.R. 2668 (the Fairness for American Families Act, delaying the individual mandate). On the employer-mandate vote, all but one Republican voted for the bill, while 35 Democrats — one-sixth of Nancy Pelosi’s caucus — joined in supporting it. On the individual-mandate vote, all but one Republican voted for the bill, while 22 Democrats voted in support. (The Republican was Representative Morgan Griffith of southwest Virginia.)

Having one-sixth of the Democratic Caucus vote against the president is remarkable, especially when you stop to consider that the administration issued a Statement of Administration Policy declaring that President Obama would veto the legislation — even though H.R. 2667 merely codified into law his already-announced unilateral declaration that the employer mandate would be delayed by a year.

In addition, Tennessee representative Marsha Blackburn’s bill to delay all of Obamacare for a year, for example, started to garner signatures as repeal strategists came to understand that many Americans and most Democrats still thought the law on balance was a good thing, though they could agree that it shouldn’t be implemented if not ready.

Summer 2013: Defund vs. Delay
We speak now of defund/delay as one strategy, but in the spring a group, separate from the broad Repeal Coalition, had formed, and in July, on the same day the mandate bills passed the House, nine senators, led by Senators Ted Cruz of Texas and Mike Lee of Utah, along with outside groups, met to discuss strategy. This group consisted mostly of grassroots organizations that for the most part had previously focused not on legislative strategies to repeal, reverse, or otherwise block Obamacare  but concentrated instead on broad mobilization. They decided that their strategy would be to demand the full defunding of Obamacare, as first stated in a letter from Senator Mike Lee that pledged full defunding, not just as an opening gambit, but as the final requirement.

Rather than having a discussion about the pros and cons of this approach, participants in the Repeal Coalition were presented with a fait accompli and told this was what the conservative strategy would be. It’s not that people disagreed with the sentiment; all Republicans and conservatives wished to defund Obamacare, but no one believed the president would agree to defund his signature legislation. After all, he’d been willing to sacrifice control of the House to see it passed.

No amount of evidence succeeded in persuading the full-defund advocates to shift to the more winnable “delay” approach, even though polls showed it was consistently more appealing to the public. The “delay” or “time out” proponents pointed out that their approach would yield roughly the same policy outcome as “defund” was likely to, and reframing the argument might at least win some Democratic votes while convincing Americans that the GOP was seeking common-sense solutions. Stopping all or part of Obamacare (for at least one year), the delay proponents argued, was more achievable than the quixotic goal of full defunding. But the defund camp continued to believe that theirs was the more compelling message, and they explicitly refused as well to plan for what might happen after shutdown. Any discussion of a Plan B or considerations of how we could come out of this with a win, even though several leaders of the defund groups admitted that President Obama would never agree to defunding the law, earned the label “surrender caucus.”

Aggravating the growing rift, many became convinced, rightly or wrongly, that some in the defund camp had a different goal from the rest of the Repeal Coalition, and it wasn’t about impeding Obamacare — defund, delay, or otherwise.

The question for most in the Repeal Coalition was: Can we get something out of this continuing-resolution negotiation that advances the ball on impeding Obamacare, preserves the sequester cuts, and leaves conservatives with a “win” and in a stronger position for 2014? The goal was to ultimately delay/defund at least key parts of Obamacare through 2013 (which would give us a better chance of delaying it again in 2014 and would thus slow the start of the entitlement). Focusing on delay rather than defunding would also have put pressure on Democrats, because any successful strategy needed at least some Democratic votes to get through the Senate. Repeal Coalition participants believed that doing this the right way would educate the American public, refocus attention on the issue, advance the ball on impeding ACA, and improve our position to win Capitol Hill majorities in 2014 and 2016, which is necessary to achieve ultimate repeal.

For many in the defund-only camp, however, the flatly stated goal was to shut down the government and stand united until Reid and Obama capitulated. Indeed, the leaders of the defund effort were telling their members that defunding was possible, if only leadership stood its ground.

Why did this “hang-tough” way of articulating the goal matter? It is premised on the notion that Republicans could shut the government indefinitely and that this would eventually bring Reid and Obama to the table. Since the groups had no plan for pressuring Democrats — which is where the pressure on Reid and Obama would have to come from — and since, predictably, Republicans’ popularity would suffer even more than Obama and Reid’s, there was no foreseeable way to produce the desired outcome. Ultimately, this strategy set leadership up for failure.

That led many to conclude that this effort — at least for some of the key defund proponents — wasn’t really about impeding Obamacare at all, but was a set-up to discredit leadership and further frustrate the base. This concern was amplified by the hundreds of thousands of dollars these groups spent attacking conservative Republicans over the summer; the fact that no vulnerable Democrats were targeted; the dramatic shift of the messaging such that Republicans rather than Democrats would “own” Obamacare, with the “you fund it, you own it” line; the creation of an expectation in the base that the defunders knew could not be met; and the fundraising bonanza that followed. (Fundraising from conservatives, to attack Republicans for being too soft, is reportedly more remunerative than attacking Obama or Democrats for being too liberal.)

We should note, though, that the vast majority of the groups that subscribed to the defund approach had no venal motives whatsoever; nor did the grassroots participants who followed them. Those in the defund camp were extremely frustrated with the political terrain and believed that large demands, high principles, and unshakable resolve were required.

Most of the participants in the Repeal Coalition shared this frustration but believed success required an education campaign about ACA over the summer. (That didn’t happen.) They further argued that any shutdown strategy should have plans in place for funding the other parts of the government — as well as a series of offers to resolve the dispute — in order to maintain public support. To that end, and as an alternative to the full-defund approach, the Repeal Coalition put together a letter that more than 40 groups signed, listing the key mandates, subsidies, and taxes we sought to delay — in the event that a full defund or full delay proved impossible, as vote-counters could easily predict.

After the August announcement that Congress and its staff would be afforded special treatment under Obamacare, the strategy grew to encompass one more piece. If Obama and Reid behaved as expected (i.e., not negotiating at all), then the last GOP offer would include only the clean CR and the language proposed by Senator David Vitter to take away this special exemption. This would have been quite meaningful in the long game of getting delay, garnering huge leverage for future negotiations, and it would have been almost impossible for Democrats or Republicans to justify voting against.

For many going into the continuing-resolution fight, the plan was to bank the sequester levels in the clean continuing resolution and then negotiate for more in the debt-ceiling debate. There was even agreement among many Republicans that they would trade some of the sequester cuts for a delay in the individual mandate, which would have been a net plus.

Unfortunately, even though all Republicans and conservative groups came together to support defunding as an initial offer, the Senate rejected that and the subsequent offers (first defund, then delay, then an individual-mandate delay plus Vitter), as had been predicted. The Senate was about to produce a joint agreement on the debt limit and the continuing resolution that would have been politically almost impossible to vote against, given the public’s views on the prospect of default. Yet the House nonetheless attempted a last offer, which was the effectively agreed-to continuing resolution and debt limit, plus the Vitter language. This last offer died stillborn, as the Pitts bill had died months before. Heritage Action and Freedom Works decided it wasn’t a big enough win, and that the Vitter proposal didn’t matter, and they “key voted” against it — lowering the conservative “scores” of Republicans who voted for the joint agreement. Ultimately, the Reid–McConnell bill passed, and conservatives got the same sequester we started with while getting nothing that advanced the cause of repealing Obamacare and giving away a debt-ceiling hike for free.

October 2013: Opportunities Lost
If one presumes there was no alternative to pushing for “defund,” except waiting for 2016, it makes sense to contend that no opportunities were lost. But, in fact, we did have an alternative, and we lost five big opportunities. This is not to say that Republicans might not benefit from having taken a strong stand, particularly if Obamacare’s implementation remains a fiasco. And it is possible that the GOP’s plummeting poll numbers are only a temporary phenomenon. But whatever one thinks of the shutdown, we lost ground in these five areas:

Education: Yes, the defund strategy gave us some teachable moments and made people aware, particularly if they listened to Senator Cruz’s oration, of the harms of Obamacare and the Republican opposition to those harms. This is all to the good, and many of us are grateful for it. But imagine how much greater our impact would have been if we’d started not with the defund argument that polled poorly even among conservatives, but with the need to protect people from higher costs, tax increases, job losses, privacy risks, and losing the insurance they had been told they could keep — but now can’t.

Encouraging Leadership: Despite all the predictions that the House leadership would never, ever have the spine to go to shutdown, they did! And they stuck with it! And they gave us the clean defund vote! Then they gave us a clean delay package! And they gave us a proposal for an individual-mandate delay, with Vitter! And when conservatives said, “We need to move fast, the Senate is rushing a deal,” they did! The House held emergency meetings, several times, and tried very hard to bring everyone together and get enough votes to get something better and beat what was about to come out of the Senate. And having done everything the defund wing wanted, in the face of an apoplectic Representative Peter King (N.Y.) et al. and huge pressure from many of their donors, House leaders received scant praise. Instead, they were swatted on the nose with a “Bad Dog!” key-vote admonition, even though that deal would have been far better than what they were forced to swallow in the end. From the standpoint of human relations, and considering how to build trust for future negotiations, this demand that the perfect be the enemy of the good, this ingratitude and obliviousness to how far the Republican House leadership moved in the direction of the grassroots conservatives, constitutes a huge opportunity lost.

Ending the Congressional Exemption: There had been no previous clean vote on the Vitter amendment, and there wasn’t one this time, so it will be easy for Democrats to deny the lengths they went to in order to protect carve-outs for Congress. This was conservatives’ first shot at getting an effectively clean vote on the Vitter proposal. The GOP could have branded itself as the party that cares about the rule of law and genuine fairness; if the Vitter proposal had been voted down, we could have used that against Reid and cast the presidency in an imperial light.

The Vitter Leverage: There is a reason Reid and Obama have desperately fought to keep the Vitter amendment from going to the floor for a vote: They understood that if Vitter passed, Democratic members and staff would have the same experience of Obamacare as the general public — and they’d share the same concerns. This would increase the appeal of delay.

If Vitter becomes law, tagging along with the American people becomes the only way Pelosi & Co. get to keep their own existing health care. That’s a huge incentive, even bigger than getting out of town for vacation. Remember that Democrats have far more senior female staff than Republicans do, and those female staffers don’t just hate the cost (which is how men tend to evaluate health insurance), they also worry about the lower quality of care they might get through the exchanges. If Vitter had passed, Republicans would have had a huge personal financial and quality-of-life incentive to use as a negotiating chip, influencing the two constituencies that matter most to members: spouses and staff.

A Win: Had Vitter passed, most conservatives and Republicans could have claimed a victory, a seemingly small but strategic one, and felt rewarded for the weeks of shutdown. And maybe, just maybe, the GOP leadership would have been encouraged to be tougher negotiators in the future. Victories beget victories, success encourages success, and feeling optimistic is a whole lot better than being discouraged, disenchanted, or disgusted.

Going Forward
What’s done is done. The question now is how, from a minority position, to go forward effectively, expand the number of people who share our view, and, as Reagan would have advised, keep taking slices of the loaf, then going back for more. This fight is not going away, and no participant in the Repeal Coalition intends to hang it up and give up after January 1, even if some have alleged that by then, it will be “over.”

Where to start? Ditch the recriminations. They accomplish nothing. Start with a little gratitude for whatever people sincerely did to advance the cause. Thank the grass roots for caring about what the Constitution actually says and putting so much effort into ensuring that the issue was front and center in the minds of Republicans going into this fight. Thank the leadership for doing all those things we were assured they wouldn’t do. Thank Ted Cruz for his heroic 21 hours on the Senate floor. Thank Senators Tom Coburn (Okla.) and Richard Burr (N.C.) for years of articulate service in the cause of repeal. Thank Senator Vitter and Representative Ron DeSantis (Fla.) for their bill that demands fairness. Thank the many groups that supported a delay strategy for the hours of careful analysis they have put into making the case and devising strategies to impede Obamacare and pave the way to repeal.

Refocus on our shared objective, and dedicate ourselves to thoughtful, strategic planning so that together we will make real progress in the months and years ahead.

Most important, let us come together. For surely we cannot do this alone, and the fight is long, but the cause, and our fellow citizens, are worth it.

Heather Higgins is president and CEO of Independent Women’s Voice, which runs the Repeal Coalition. The Repeal Coalition now has more than 200 participants, drawn both from a wide range of outside organizations and from inside the House and Senate.

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