There have been times when congressional leaders decided to roll the dice and send major legislation to the floor with no certainty of the outcome because the odds of passage were a toss-up. Former House Speaker John Boehner (R-OH) did that more than once in trying to break a deadlock between far-right Freedom Caucus members and more moderate members of his party.
But rarely has a leader from either party asked his members to vote on a controversial bill – one with huge political implications for them -- with no advanced warning of what was in the legislation.
Senate Majority Leader Mitch McConnell, a 32-year veteran lawmaker who some consider a “Master of the Senate” because of his wily ability to overcome legislative log-jams, is about to do just that next Tuesday, when he seeks to bring up health care reform legislation that for now remains a mystery to most of his own members, let alone the Democrats and the public.
McConnell spent months in secret backroom negotiations with a select group of Republican senators and Trump administration officials devising an alternative to a House-passed version of the legislation. But when the emerging plan was met with hostility from senators who thought it didn’t go far enough in gutting Obamacare or went too far in cutting Medicaid funding, McConnell engaged in an intense round of deal making to try to buy off opponents. But that didn’t work either.
Now, seemingly baffled by how to proceed, McConnell appears determined to seek closure on his party’s seven-year crusade to repeal and replace the Affordable Care Act. Unable to muster a minimum 50-vote Republican majority around any of a half-dozen competing plans to scrap and replace Obamacare, McConnell is considering a smorgasbord of choices next week to see which – if any—can win approval on the Senate floor in a wide-open showdown.
The options would range from an outright repeal of the ACA while delaying the effective date for two years to give Congress more time to devise a replacement, to simultaneously repealing and replacing Obamacare, to essentially punting on the issue by allowing states to decide for themselves whether to stick with the increasingly popular Obamacare program.
McConnell’s tactic is nearly unprecedented and would mark an extraordinary abdication of leadership responsibility in the drafting of historic health care reform legislation affecting one sixth of the economy, the health and well-being of 20 to 30 million Americans, and the long-term debt.
President Trump vowed throughout the 2016 presidential campaign that he and Republican lawmakers would repeal and replace the national health insurance program practically overnight once he took office. But for months, Trump was largely AWOL from the early talks and lobbying efforts that led to the narrow passage of a plan in the House in early May to the current deadlock in the Senate. Now Trump is making eleventh-hour demands that the Senate stay in town and pass some version of a GOP health bill, leaving McConnell caught between a rock and a hard place.
Steve Bell, a senior official at the Bipartisan Policy Center who spent 32 years on Capitol Hill as a Republican budget and economic adviser, said in an interview Friday, “I have never seen anything like this on an issue of this magnitude.”
Bell, who took part in past congressional deliberations over Social Security reform, deficit reduction deals and nuclear disarmament, added that “In all my years I’ve never seen a major issue that has been as mishandled as this.”
When Senate Majority Whip John Cornyn (R-TX) was asked by reporters whether senators would know in advance precisely what they would be voting on next week, he replied: “That’s a luxury we don’t have.”
There are several possible scenarios for how this political melodrama will play out on Tuesday, provided McConnell can persuade the majority to even proceed with a debate, which is far from a given. Here are the likely choices:
Repeal and Delay
Called the Obamacare Repeal and Reconciliation Act, this version of the bill is perhaps the simplest, if only because it does the least. Over the course of two years, the ORRA would eliminate many elements of the ACA entirely. The mandates would disappear, as would the tax increases, the new regulations regarding what insurance policies must cover, the subsidy payments to keep insurance affordable, and much more. What ORRA would not do is replace the ACA with a different structure meant to prevent the insurance markets from imploding.
The idea behind the ORRA is that, by giving lawmakers two years before the full impact of the law will be felt, there will be ample opportunity to craft a replacement. And because the alternative is so terrible, the argument goes, it follows that lawmakers will do just that.
This is not, to be clear, a sure thing at all. Congressional leaders used the same logic in 2011, putting the prospect of budget sequestration in place to force themselves to craft an alternative. They failed, and the country has been dealing with a policy that even its authors believed was terrible ever since.
CBO reviewed the ORRA earlier this week and determined that it would reduce federal deficits by $473 billion over a decade. But that reduction would come at the cost of 32 million fewer Americans with health care and premium costs for those who remain increasing 100 percent.
Repeal and Replace (I)
The Better Care Reconciliation Act is a sort of half-measure when it comes to doing away with the ACA. It would eliminate much of the law, including the hated individual mandate and many of the related taxes and regulations. However, it would leave much of the law’s structure in place, including subsidies paid to low- and -middle-income Americans. It would also leave many of the requirements related to what insurance policies must cover in place.
Those subsidies, however, would be smaller, and the policies they would buy would generally be worse in terms of coverage. The law changes the benchmark insurance policy from one that covers 70 percent of the expected costs of an individual’s average health care expenses to one that covers about 58 percent. While premiums would come down, the law would also cause deductibles to increase, in some cases by very large amounts. The CBO on Thursday found that the bill would result in Americans living near the poverty line being obligated to spend nearly their entire annual income in deductibles before full coverage kicked in.
CBO found that this version of the GOP repeal effort would save the Treasury $20 billion over a decade. That would come at the cost of about 22 million more Americans without insurance than would have it under current law.
Repeal and Replace (II)
This is an alternative version of the BCRA, restructured to make conservatives who felt the first draft of the bill left too much of the ACA intact. Championed by Texas Sen. Ted Cruz, it contains a provision that would allow insurance companies to offer policies that do not comply with the ACA coverage mandates. This would be conditional on them also offering plans that do comply, at the same time.
The CBO has not scored the BCRA with the Cruz amendment yet, and it is unclear that it will be able to do so before Senate leadership tries to reach an endgame on the health care reform process next week. But while there is no official tallying of the impact, experts have weighed in to warn that the Cruz amendment would have a serious negative effect on people with pre-existing medical conditions.
By allowing young and healthy people to choose bare-bones insurance policies, it will drain the risk pool for more substantial policies, leaving only older and sicker people covered under them. Because this means the insurers will face considerably more risk, they will, in turn, raise premiums and create a vicious cycle that could eventually price many Americans out of the market entirely.
Punt to the States
Some members of the Senate appear to have had their fill of attempting to restructure the health insurance industry in the US and are ready just to hand off the task to the states. Last week, on the same day that McConnell introduced the latest version of the BCRA, South Carolina Sen. Lindsey Graham and Louisiana Sen. Bill Cassidy announced that they would be offering their own alternative bill devolving much of the responsibility for structuring health care markets to the states.
“There’s about $500 billion in money; rather than trying to run health care from Washington, we’re going to block grant it to the states,” Graham said on CNN last week. “And here’s what will happen. If you like Obamacare, you can reimpose the mandates at the state level. You can repair Obamacare if you think it needs to be repaired. You can replace it if you think it needs to be replaced. It will be up to the governors. They’ve got a better handle on this than any bureaucrat in Washington.”
The bill has not been scored by CBO and has received relatively little attention from the media. However, it offers senators two things that many of them would like very much. First is the ability to say that they brought the health care debate to a conclusion that included the demise of the ACA. Second is that it gives the opportunity to claim that they had a role in funneling billions of dollars back into their states’ economies. While it’s unlikely to come up for a vote next week, given the confused state of play in the GOP conference, it would be unwise to rule it out completely.