What Does the Senate Need to Repeal Obamacare?

As the Midterm Elections approach, concerns about Health Care are the primary motivating factor behind votes for either party (second only to a desire to support- or reject– President Trump).

Several health care issues will hinge on the results next Tuesday: protections for people with preexisting conditions*, the stability of the insurance markets, and the future of Medicaid Expansion to name just a few. However, these three concerns fall under the future of the Affordable Care Act (“Obamacare”) itself, which is the overarching Health Care dispute.

With the election results so uncertain, it is arguable that next year Obamacare could be destroyed or restored, eviscerated or enlarged- all depending on who shows up to vote this week and next.

I would take a quick tour of those four possible options.

I am sure we remember- whether we want to our not- the multiple attempts to Repeal Obamacare in 2017. Paul Ryan and the GOP House of Representatives got a Bill successfully over the finish line in May; the Senate Bill (actually it was their 5th or 6th) died in July 2017 with the votes of Senators Susan Collins of Maine, Lisa Murkowski of Alaska, and John McCain’s famous thumb.

To pass a Repeal Bill the GOP needs a simple majority vote, but only 50 seats since Vice President Pence would serve as the tie-breaker in a split-vote scenario.

In July 2017 Republicans could afford to lose two votes because they had a 52 caucus majority, but in December 2017 they lost the Roy Moore Alabama election- leaving them at their current 51 seats.

With neither Senators Collins or Murkowski up for reelection (and assuming they would not vote differently) the GOP must gain one seat, two would be better, three or more would start getting very comfortable.

And they could easily do that.

On October 29th FiveThirtyEight is placing the odds of Republicans maintaining control as 5 in 6 (82.5%)- with an 80% chance they wind up with between 50 and 55 seats.

That is The End- Right? The GOP Can Repeal Obamacare in 2019?

Not so fast.

Both houses of Congress must pass any new law, or repeal an old one. The House of Representatives passed Repeal in 2017, and a fortified GOP Senate will inevitably get their own Bill in 2019. What is to stop the advancement of that fully formed legislation from advancing to President Trump, eager to sign it?

The (presumably) Democratic House of Representatives.

Congress is not allowed to extend victories from year to year. A bill “may begin its journey at any time, but it must be passed during the same congressional session of its proposal, a period of one year.” [quote]

The 2017 House of Representatives American Health Care Act is dead.

Oddsmakers (on October 29th) are placing bets of a Democratic majority at 5/13; odds that the Republicans maintain their majority at 9/5. FiveThirtyEight (October 16th) set the chances of a Democratic win of House leadership at 70%.  Fox News (October 29th) lists 31 “tossup” states- if 11 of those go to the left the Democrats are in control.

These polls are undoubtedly biased, and predictions of the size of a Democratic majority vary significantly- but all they need is a majority of 1 to control the House legislative process- and defeat any resurrected Repeal initiative in a GOP controlled Senate.

But a House of Representatives in Democratic hands will do more. Expect a series of bills to reverse actions undermining the ACA in the first two years of the Trump Administration. Restoring penalties necessary to enforce the individual mandate, reversing funding cuts to advertise and assist people in purchasing policies in the Obamacare Marketplaces, and reinstatement of cost-sharing reduction payments (CSRs) to insurance companies will all successfully follow the predicted Democratic win.

And Democrats will go beyond fixing Trump-era damage to the ACA. Obamacare was never fully implemented due to conflicts with the GOP led House of Representatives in the last half of the Obama Administration- a switch to Democratic control could bring bills to reinstate Obamacare closer to its original vision.

Which will, in turn, be killed by the GOP Senate.

What If the Polls Are Wrong- and the GOP Maintains Control of all of Congress?

If the GOP retains the House? Obamacare is dead.

It would be foolish to say another successful Repeal bill in the House would be easy- but the lessons learned from the 2017 ordeal would (presumably) make that outcome likely.

And If the Polls are Wrong in the Opposite Direction?

The least likely scenario in all the polls is that Democrats win control of both the House of Representatives and the Senate.

But, if that happens (FiveThirtyEight places it as a 1 in 6 chance or 17.5%), all the repairs and restoration passed by the House of Representatives will be met and answered by the Senate.

Two Democratic houses will probably compete to see which can expand the Affordable Care Act farther- while also pursuing the liberal Holy Grail of “Medicare for All.”

Which would all be for show- President Trump would likely veto any health care legislation to come out of a Democratic Congress.

Any Democratic salvation of the ACA in  Congress is as dead as Paul Ryan’s 2017 Repeal Bill.

Does All of This Come Back to More of the Same?

Perhaps this is the most likely- and universally disappointing- result of these crucial elections.

Conservatives yearn to see the end to 6+ years of fighting the Affordable Care Act; Liberals dream for the law to be restored to Spring 2016 levels and more.

What are we likely to get?

Two houses of Congress equally obstinate and fixed on their position on the ACA.

Obamacare could die in 2019 or thrive, but it is most likely going to continue to limp along for another two years in between two political extremes.

The future of Obamacare has been uncertain since its signing in 2010. Unbelievably (or perhaps not?) “Repeal” will still undoubtedly be a central question in the 2020 election cycle.

Want to Know More?

*The Protection for Pre-existing conditions could survive a repeal of the ACA itself- but the politics of that issue, the shortfalls of the recently announced Senate Bill to independently legislate protections, and the case in Texas currently threatening them all together are discussed in Fontenotes Number 65.

Speaking of prior Fontenotes- I have been writing about the potential death of the ACA for so long that I feel like Bill O’Reilly with his “Killing” series of books. If you want to walk down ACA Memory Lane with me you will find all of my Fontenotes on my website here.