Last night’s failure of “skinny repeal” may not be the end of Republican efforts to reform Obamacare, any more than the original failure of the AHCA was, but it’s yet another setback that makes it that much more likely that the core of the Affordable Care Act will survive despite the White House, Senate, and House all being controlled by people who claim to support its repeal. How did we get here? As usual, there’s more than one answer. Let’s list the major causes of the party’s inability to repeal Obamacare.
First, let’s be frank: Republicans and conservatives have just never been as interested in health-care issues as in other issues. Most of the party’s best people over the years have become experts in national security, or law, or taxes, or criminal justice, or education, or any number of other issues. Health care has traditionally not been a motivating issue for the party’s voters. There are some wonderfully smart and serious people on the right who have done great work in the health-care space, in and out of government, but they are few and outnumbered. That means that the debates on these issues are often not conducted in depth, and that too many elected officials have never really been briefed by anyone who has put serious effort into studying the key questions. Under stress, the process of designing and amending major legislation and building a coalition to pass it will break down without a committed core of knowledgeable issue activists.
Second, it gets harder to unravel laws and benefits the longer they are in place. Had Mitt Romney won the 2012 election and Republicans captured the Senate in 2010 or 2012, it would have been less politically difficult to stop Obamacare before it was implemented. Even government programs everyone agrees are harmful, on balance, tend to have specific beneficiaries who fight for the status quo. And the individual insurance market of 2012 has been destroyed, making it harder to sell the argument that a replacement can be easily conjured up. The failures of Romney on health care have been rehashed plenty, but the timing would still have been much better.
That’s particularly true of Obamacare’s regulations. Medicaid spending, once created, was always going to be hard to claw back, but at least the various repeal-and-replace proposals tried. Very early on, though, the various House and Senate plans made the fateful decision to leave in place the beating heart of Obamacare, its guaranteed-issue and community-rating rules (for example, the ban on pricing policies to reflect pre-existing health conditions) and its “essential benefits” requirements that limit the options for offering lower-cost plans. That committed Republicans to abandoning the most politically important critique of Obamacare: that it drives up premiums. But those regulations, unpopular when proposed, have become more popular as people have come to see them as part of the status quo rather than a threat to it.
Fourth, the absence of presidential leadership was costly in multiple major ways. It was a common lie by liberal commentators that Republicans had no plans or proposals to replace Obamacare; the problem was not a lack of plans, but the lack of a single consensus plan. The party’s apparent unity on repealing the ACA over multiple repeal votes for years concealed real divisions on what to replace it with.
That’s a common problem for majority parties, especially ones that have been out of power for a while. But our political system normally has a process for building majority coalitions around a specific agenda: presidential campaigns. Like it or not, for the past century, presidential leadership has been a key component of most major legislative drives to change the country’s direction on a big issue. A candidate who puts a plan or framework on the table, defeats all comers in the primary, then wins the general election, has generally won some political capital for that plan.
In the fall campaign, Trump did absolutely nothing to sell any particular vision of health-care reform, but just coasted on the existing, entrenched public dislike of Obamacare.
Several Republican contenders tried this on health care: Bobby Jindal had the most detailed approach, but others like Marco Rubio also offered a framework. Trump, famously, was unable to describe his ideas beyond “get rid of the lines around the states.” In the fall campaign, Trump did absolutely nothing to sell any particular vision of health-care reform, but just coasted on the existing, entrenched public dislike of Obamacare. If Trump’s victory convinced people in Washington of anything, it was that the voters were not very interested in traditional Republican ideas. That left the congressional leadership even more gun-shy than before about taking their own case to the public, knowing they risked friendly fire from Trump.
Trump compounded this in office by spending most of his time talking and especially tweeting about anything and everything but the contents of the health-care bill, driving up his own unpopularity to no good end and leaving the field open for Democrats to control the terms of debate. One lesson Republicans never, ever seem to learn is that if you let the other side do all the talking about a topic, they will win the argument. Obamacare, which was deeply unpopular from 2009 through Election Day — at all times, less popular than Obama himself — suddenly started to climb in opinion polls as the Democrats went on the offensive while Trump was busy grousing about Mika Brzezinski and Jim Comey and his own attorney general.
Trump’s defenders argued that his creation of distractions on Twitter was giving cover for congressional Republicans to do their jobs quietly, and that might have worked on a smaller issue. But with a unified Democratic message uncountered by the White House, it’s not surprising that the reform bills got gradually more watered-down and ultimately failed.
Trump’s current weakness, and his lack of a mandate on the issue built during the election, also meant that there was never any real pressure on Senate Democrats to vote for repeal, not even in states that Trump had carried by as much as 30 or 40 points. (Ronald Reagan, in 1981, memorably got one wavering Pennsylvania Democrat to support his tax-cut plan by calling in to a live radio show to confront him.) Trump’s fans will now find it easy and convenient to blame this entire debacle on people like Paul Ryan and John McCain, but no other president, just six months into his term, would have been such a non-factor in such a central policy debate.
Fifth, as Pat Toomey noted recently, nobody in the Republican Congress actually expected Trump to win the election, in which he trailed in the polls (sometimes badly) all the way to Election Day. As a result, there was no effort made to prepare the way for a Ryan-McConnell-led health-care bill without presidential leadership when it became obvious that Trump would not lead on the issue. Republicans already had the plans and the votes needed to oppose Hillary Clinton on health care; they didn’t think the day was coming any time soon when they’d need more than that. There have been admirable efforts made since then to play catch-up, but there is so much to be done on so many fronts that it’s hard to construct it all on the fly.
Sixth, the rules of the process — the filibuster rules of the Senate, and the need to appease the Congressional Budget Office — acted at every turn to deter Republicans from simply proposing the best policies they could think of. The only way to get anything through the Senate, with all 48 Democrats opposed, is the budget reconciliation process (the same gimmick the Democrats used to pass key components of Obamacare in the first place after Ted Kennedy’s death cut them down below 60 votes). The Senate parliamentarian was not going to accept everything that Republicans may have wanted to do on health care as a proper subject for a reconciliation bill, which in theory is limited to tax and spending measures. So, when forced to choose between proposing good policy that would need 60 votes for passage and mediocre policy that could pass with 51 votes, Republicans repeatedly opted for the mediocre choices. That made it progressively harder to sell the bill as a good deal, and also made it harder to horse-trade amendments to the bill to build a coalition.
It was the exigencies of trying to satisfy the reconciliation process, rather than use normal legislative channels, that seduced Paul Ryan and Mitch McConnell into a ridiculous process.
On balance, unlike the filibuster for judicial and executive nominations, the legislative filibuster is a good thing. It acts as democracy’s sobriety checkpoint to prevent transient majorities or brief surges of public emotion from saddling us with permanent public policy that’s hard to get rid of. But here, it’s acting perversely to entrench the work of a very transient majority that had 60 votes in the Senate for only a few months, had to use reconciliation to enact its own handiwork, and was swiftly voted out of office in the House over this very issue almost seven years ago.
It was the exigencies of trying to satisfy the reconciliation process, rather than use normal legislative channels, that seduced Paul Ryan and Mitch McConnell into the ridiculous process of bringing up two discordant bills, neither of them drafted in an open process or subject to public hearings, and then gambling that passing them both could lead to something being worked out in conference behind closed doors. That’s no way to run lawmaking on a big issue, but it’s more common these days in passing budget and appropriations bills where the details of the sausage-making are best kept away from prying voter eyes.
Strategically, Republicans also made a crucial error by trying to thread the needle of reconciliation for a replacement. Back in January, when Trump was freshly elected, they could and should have taken the momentum from the election and just rammed through a full repeal (or at least as full as would pass the reconciliation rules), leaving no upside for Democrats to obstruct in the hopes of preserving the current system by inaction. That may have resulted in a bipartisan bill that would be distasteful to conservatives on a lot of grounds, but it would have decisively altered the procedural and political dynamics in favor of passing something. The failure to do so was a major failure of imagination and initiative on the part of Ryan and McConnell, albeit due partly to pressure from Trump to do repeal and replace together.
More broadly, the current budgetary process places far too much power in the hands of unelected bureaucrats such as the CBO and the Senate parliamentarian, and gives Congress no power to stop policies it disagrees with by the main power the Founding Fathers intended it to exercise: just refusing to keep authorizing new funding until everyone comes to the table.
Republicans have learned how to win elections, and they have many better policy ideas on health care than the current system. But defeat, in this case, had many fathers. Understanding its causes is vital to improving how Republicans approach future battles.
Obamacare Repeal and Replace, R.I.P.
For Conservatives, Health-Care Reform Is Not an Option
Health Care Reform Is Dead: Here’s What Congress Can Do Instead
— Dan McLaughlin is an attorney in New York City and an NRO contributing columnist.