Balkinization: They're back!

They're back!

David Super

Defying the almost universal prediction of political observers, Senate Republicans are again making a concerted effort to repeal the Affordable Care Act (ACA). The lead sponsors of this new effort are Sen. Lindsay Graham (R-SC), a favorite of many liberals for his willingness to criticize President Trump, and Sen. Bill Cassidy (R-LA), who had previously co-authored a plan to allow states to choose whether to continue the ACA or accept a block grant. Far from being the moderate, compromise approach some imagined that Republicans would pursue after their embarrassing setback this summer, the Graham-Cassidy legislation combines many of the most problematic provisions of previous Republican proposals with a block grant that is underfunded at the start, loses purchasing power over time, and then abruptly stops in 2027.

It appears that Senate Republicans are only one or two votes short of the fifty they would need to produce a tie, which Vice President Pence would break in their favor. Senate Majority Leader McConnell reportedly has said he will bring the legislation up as soon as fifty votes are in view. How did we get here?

Part of the answer is procedural. Republicans’ efforts to repeal the ACA have depended all along on the special protections that the “reconciliation” process affords to legislation conforming tax and entitlement laws to the budget resolution Congress approved for a particular fiscal year. The Congressional Budget Act allows both a budget resolution and a budget reconciliation bill to pass the Senate with a simple majority, capping debate and disallowing a filibuster. Last winter, Republicans passed a budget resolution for federal fiscal year 2017 – which already had started – to give themselves the ability to use reconciliation procedures for ACA repeal. FFY 2017, however, ends on September 30. The Senate parliamentarian has confirmed that no budget reconciliation bill is possible under a budget resolution for a fiscal year that has already ended. Thus, if ACA repeal does not clear the Senate by the end of this month, Republicans will lose their procedural magic wand.

In theory, they could pass a new budget resolution for FFY 2018 with the same “instruction” to repeal the ACA through reconciliation legislation. In practice, they do not want to do so because they plan to use the FFY 2018 budget resolution to authorize budget-busting tax cut legislation. Longstanding Senate precedent disallows more than one reconciliation bill on spending or more than one reconciliation bill on revenues for the same fiscal year. As much as Republicans want to kill the ACA, their donors would never tolerate slamming the door on tax cuts. So it is now or never.

Senate Majority Leader McConnell, who has made a career out of being underestimated, also carefully laid the groundwork for this moment even amidst the ruins of his defeat last summer. He never allowed an up-or-down vote on ACA repeal itself. Instead, he brought the unpalatable House Republican bill to the floor and allowed a series of votes on whether various proposals should replace it as the pending legislation. When those proposals failed, the result was only that no viable alternative to the House bill had been found, not that repeal legislation was defeated. Thus, he can call up the same legislation and allow Senators Graham and Cassidy to offer their substitute. If it prevails, the Senate can rapidly move to final passage because the chamber has already consumed much of the permissible time for debate on a reconciliation bill.

Also helping Republicans is budget process law’s narrow requirements for cost estimates. Throughout the spring and summer, whenever the Congressional Budget Office (CBO) released a cost estimate, the bill in question lost public support because the estimates invariably showed millions of people losing health care coverage and millions more facing brutal premium hikes. This time, by delaying the finalization of their proposal, Republicans have prevented CBO from issuing a similarly comprehensive estimate of Graham-Cassidy. Instead, Republicans have requested a simple one-page letter affirming that their proposal stays within the constraints established in the budget resolution. This will suffice to allow the Republican Chairman of the Senate Budget Committee to declare that the requirements for reconciliation legislation are met while denying opponents numbers about coverage losses and premium hikes. The proposal’s similarity to past proposals assures devastating results, but without official estimates, Republicans will get much less bad press until after the vote is held.

Much of the reason the ACA’s fate is again in the balance, however, is political. After the summer’s political incompetence, the Republican leadership is doing far better now. To undermine the opposition of Senator John McCain (R-AZ), they lined up the rousing endorsement of Republican Arizona Governor Doug Ducey who, like many governors, relishes the power that directing a large block grant would bring him. Senator McCain is not historically a maverick on human services programs, and he voted for a devastating ACA repeal bill this summer before switching his vote on Senator McConnell’s final proposal.

Another crucial “no” vote in July came from Senator Lisa Murkowski (R-AK), who also had previously not focused much on human services programs. Senator Murkowski’s top legislative priorities have always been ruinous anti-environmental policies that would aid various business interests in her state. These measures would have little chance of approval on their merits. Instead of threatening her as they clumsily did in July, this time the Trump Administration made a timely announcement that it is advancing drilling in the Arctic National Wildlife Refuge.

Sen. Dean Heller (R-NV), who cast a symbolic vote against some early repeal bills but supported the leadership on the key vote, has received harsh criticism from both sides for being weak and indecisive. Leaders allowed him to be the third-listed sponsor of the new proposal, allowing him to claim that he is now leading rather than following.

By contrast, many Democrats have been playing into the Republicans’ hands. Instead of emphasizing opposition to Republican proposals, which unites a broad swath of the electorate, sixteen Democrats last week made a great show of introducing a politically implausible and highly divisive single-payer plan. The health insurance industry is far from loveable, but it did provide solid opposition to ACA repeal efforts in the end, helping to give cover to wavering Republicans. Proposing to legislate them out of business while ACA repeal efforts are still alive is a pretty good way to dampen their enthusiasm for the fight. The plan’s implicit criticism of the ACA is also particularly ill-timed when an energetic public mobilization is needed to defeat Graham-Cassidy.

So what will happen? It is hard to know. If the Graham-Cassidy plan does pass the Senate, the House will almost certainly take it up and pass it as-is, sending the bill directly to the President for his signature. True, some House Republicans’ states will be severely disadvantaged by the block grant’s funding formula, but the House leadership has proven highly effective at twisting arms to get the votes in needs. With the supposedly more moderate Senate giving Members cover, and perhaps with promises of subsequent legislation to reallocate block grant funds, it seems unlikely that House Republicans will dare to take responsibility for killing the ACA repeal effort. (Sending the bill to a House-Senate conference committee would not work because, by the time the committee finished its work, a full CBO estimate would be out and, more importantly, the Senate’s reconciliation carriage will have turned back into a pumpkin.)

On the other hand, Senators Lamar Alexander (R-TN) and Patty Murray (D-WA), the chair and ranking member of the Health, Education, Labor and Pensions Committee, have been working on a modest legislative package to improve the stability of the ACA’s insurance markets, including an end to President Trump’s oft-repeated threats to withhold statutorily mandated reimbursements to insurance companies for providing the ACA’s cost-sharing subsidies to people under 250% of the federal poverty line. If they finish negotiations and announce a proposal before Graham-Cassidy reaches the Senate floor, that could weaken the momentum for ACA repeal. Presumably Senator Alexander is coming under intense pressure to refrain from any announcement for just that reason. What remains to be seen is whether he or other senators will have the courage to defy their leadership and the Party’s donor base.

Posted 8:56 PM by David Super [link]