On Obamacare repeal, the voting is over (for now) and the finger-pointing has begun. And boy, are there a lot of Republicans worth blaming over this one.
Yet here’s an idea worth considering: Maybe the GOP just faced insurmountable obstacles. Sure, in theory there were enough Republicans in Congress to enact something if they all stuck together. But those Republicans varied immensely in what they (and their constituents) wanted from an Obamacare “repeal,” and to make matters worse, Senate rules took a lot of options off the table that could have been used to reach an agreement or at least put together a coherent policy. There’s no denying that what happened Friday morning was humiliating, but there might have been no actual path to a genuine repeal and replacement of Obamacare.
Let’s briefly review the process that would have landed a bill on President Trump’s desk:
‐At least 216 of the House’s 238 Republicans would vote for a bill (given the party breakdown when the vote was taken). This would necessarily require some votes from conservative Freedom Caucus members.
‐At least 50 of the Senate’s 52 Republican members would support a bill, possibly a very different one given the far greater strength of moderates in the upper chamber.
‐The House and Senate would iron out their differences and then both pass the same bill, also by the above margins.
‐The Senate and conference bills would have to be compliant with the rules for budget reconciliation. Reconciliation bills can’t be filibustered (meaning they can be passed with 50 Senate votes plus a tiebreaker from the vice president, instead of 60 votes), but they’re supposed to be used for budget matters only. Obamacare has a lot of tax and spending provisions that are obviously budget-related, but intertwined with these are a bunch of insurance regulations, which don’t directly involve the federal government’s coffers.
Everyone knew from the start that something didn’t add up here. That’s why Republicans initially floated a “repeal and delay” plan back in January: They’d repeal the taxes and spending and leave the regulations in place, knowing this would completely destroy the insurance market — but set the changes to take effect a couple years down the road. Allegedly this would force Democrats to the bargaining table in the meantime, so Congress could pass additional reforms with the normal 60-vote threshold, unencumbered by reconciliation rules.
That plan was incredibly risky, given that it was basically a time bomb stamped with the GOP logo, and too many Republicans refused to go along with it. In other words, the strategy addressed the reconciliation problem, or at least had the potential to, but it didn’t satisfy the need to unite the entire party around a single plan.
The Republicans never managed to find a solution that could do both, instead ignoring the problem until they couldn’t anymore. Reality is what’s still there when you stop believing in it, as Philip K. Dick wrote.
Since the Senate never managed to pass a bill, we never got to observe the final step, the two houses of Congress trying to iron out the differences between their ideas so they could each hold another vote on the final product.
The House’s American Health Care Act, for example, wildly violated the expectations that would govern the rest of the process — and still managed only a 217–213 vote in the chamber. There were policies in that bill that would send Senate moderates running for the hills (such as huge Medicaid cuts) and provisions that violated reconciliation rules (such as state waivers for insurance regulations, added via the MacArthur amendment). In other words, it solved the Freedom Caucus problem but none of the others.
The Senate, of course, is where everything just completely fell apart. Two moderates, Susan Collins and Lisa Murkowski, basically seceded from the effort, giving the leadership precisely no margin for error. (Collins was one of the Republicans who’d considered backing Obamacare back in 2009.) Just as important, the upper chamber is where reconciliation rules are actually enforced by the Senate parliamentarian, and a bunch of key provisions bit the dust.
On a policy level, the situation surrounding the individual mandate was particularly troubling. The mandate is just a tax penalty, which has an obvious connection to the federal budget and can therefore be zeroed out in a reconciliation bill. But if you kill the mandate while maintaining protections for people with preexisting conditions — which political reality requires — you create a situation where people are tempted to go without coverage until they get sick, which drives up premiums and can eventually cause a “death spiral” (though the CBO did not foresee one in this case). In other words, you really need some other policy to replace the mandate. And yet nearly every plausible option — such as a 60-day waiting period or a surcharge for people who fail to maintain continuous coverage — isn’t eligible for a reconciliation bill because it doesn’t directly affect federal revenue or spending.
Since the Senate never managed to pass a bill, we never got to pop the popcorn and observe the final step, which would have involved the two houses of Congress trying to iron out the differences between their ideas so they could each hold another vote on the final product. (As Virginia representative David Brat asked the Washington Post after his chamber barely managed to pass a bill, “Have you been watching for the last few months how tight this is, and you’re going to shift this one [way] or the other? . . . Good luck, you don’t have to be Einstein to game theory that one.”)
This didn’t have to end the way it ended, with Senate Republicans up in the middle of the night weighing the pros and cons of passing a “skinny repeal” bill they didn’t actually want to become law — the idea being to skip right to a conference with the House and hammer out a compromise there — but being afraid that the House might be crazy enough to just pass it instead, which would send it directly to the president. There’s no excuse for that level of dysfunction.
But it’s also hard to see how this could have ended successfully, in a law that could plausibly be called “repeal and replace” and would create an insurance market that Republicans could be proud of. Perhaps there’s no comprehensive solution that makes the full spectrum of the party happy and complies with reconciliation.
I don’t know where we go from here. Republicans could gut the filibuster, either killing it outright or overriding the parliamentarian regarding what’s allowed under reconciliation, but that could have dire consequences once Democrats regain power. Republicans could work with Democrats to patch up Obamacare and ideally inject a few free-market ideas in the process, more or less admitting defeat. I’ll go to my grave insisting we should just turn the law over to the states and let them experiment, an idea Lindsey Graham is trying to bring back. Or the party could move on to some other issue like tax reform and return to health care only when Obamacare hits (or is pushed into) the wall.
Whatever route the GOP takes, hopefully it’s one that actually leads somewhere. The year 2017 has already been embarrassing enough for everyone who calls himself a Republican.