Apparently, the House of Representatives is voting on the American Health Care Act (AHCA), the first part of the Republican strategy to “repeal and replace” Obamacare, on Friday afternoon, before the Congressional Budget Office has scored a final version — actually, before there is a final version.
This is not normal.
Usually, by the time a major bill gets to the floor of a chamber of Congress — and has “profound impacts on an industry that makes up one-sixth of the American economy” does count as major, in case that was unclear — it has been under consideration for a matter of weeks or months. It has been thoroughly vetted in committee and debated on the chamber floor. Amendments have been proposed, debated, negotiated, and voted on. The bill has been analyzed by the Congressional Budget Office and by independent analysts. Members of Congress know what they are voting for; their constituents, if they care to, know what is in the bill.
None of that has really happened with the AHCA. The original bill was introduced less than a month ago. It was thoroughly revised (to appeal to conservative Republicans) on Monday night. And it was substantially revised again (to appeal to those same conservatives) in the hours before the bill is being called for a vote, with an amendment formally introduced on Thursday night that will apparently be part of the bill voted on on Friday.
There are a lot of things we don’t know about the AHCA. There are a lot of things members of Congress don’t know about the AHCA. They will have to, in the immortal (if decontextualized) words of Nancy Pelosi, pass the bill to find out what’s in it. And, of course, one of the things we don’t know is whether they will pass the bill at all.
1) How many people are going to be insured under the AHCA — and what counts as being “insured”?
The biggest last-minute change to the AHCA is a provision that reverses the federal mandate, under Obamacare, that all health insurance plans cover 10 “essential health benefits” by allowing states to decide which benefits they consider “essential.”
Getting rid of the essential health benefits — a demand of free market conservatives in the House Freedom Caucus — will allow insurers to offer insurance that provides minimal coverage for low prices, or to offer plans that only cover certain medical needs to people who don’t think they need mental health or pregnancy care (or who can only afford plans that leave those needs uncovered).
On paper, this means more people will be able to afford health insurance, because they’ll be able to afford cheaper, stingier plans than anything currently available on the market. The Congressional Budget Office’s scores of the AHCA in its original form, and then in its first revision, said that the AHCA would leave 24 million more people uninsured by 2024 than under the ACA — in theory, that number would drop with the new changes.
But there’s a catch. A big catch.
Back in December, the CBO warned Republicans that when it analyzed health care bills, it wasn’t going to define “insured” as simply “having purchased an insurance plan.” People who’d purchased plans too skimpy to protect them from likely medical costs wouldn’t count as insured in a CBO analysis.
The CBO didn’t specify what a plan would need to include to count as “insurance” — it didn’t explain, for example, whether a plan that didn’t offer any essential health benefits, or only covered some of them, would be too limited to count. And because previous iterations of the AHCA didn’t allow employers to offer skimpy plans, this wasn’t a question the CBO had to tackle when scoring the AHCA so far.
So how many more people would be uninsured under the AHCA than under current law? Would giving insurers more flexibility in what they offer allow more people to purchase insurance that the CBO deems sufficient? Would the ability to offer skimpy plans, and charge more for complete ones, price even more than 24 million people out of sufficient insurance? Or would the two changes cancel each other out?
We won’t know until the CBO scores the latest changes. And the CBO isn’t scoring the latest changes before members of Congress have to vote on the bill.
2) How much is the AHCA, in its current iteration, going to cost?
Getting rid of essential health benefits might cause the AHCA to strip fewer people of insurance (depending on how you define “insurance”). But it could also get rid of one of the AHCA’s biggest assets: reducing the federal deficit.
The original version of the AHCA reduced the deficit by $337 billion over 10 years. The changes to the bill made Monday, which added a tax credit to help older Americans buy insurance, cut that number in half — making the bill less appealing on fiscal conservative grounds.
But under the newest version of the AHCA, health insurers would have a huge incentive to offer plans that cost exactly as much as people would end up getting back in tax credits — meaning that people who otherwise couldn’t afford insurance would be able to buy some minimal form of coverage for nothing, and the government would pick up the cost.
Again, that might lead more people to buy health insurance, which would reduce the number of uninsured under the AHCA. But it could also cost the federal government a lot more money in reduced tax revenues than earlier versions of the bill. The latest changes could wipe out the deficit-reducing power of the AHCA entirely.
3) Are conservatives going to get behind the bill?
The change to essential health benefits was made at the behest of the House Freedom Caucus, a loose agglomeration of conservative members. But the change to essential health benefits wasn’t the only thing they were asking for. They also wanted changes made to other health insurance regulations in Obamacare’s “Title 1.”
Those changes don’t appear to be forthcoming. And as of Thursday, without them, several members of the Freedom Caucus appeared prepared to vote against the bill.
Maybe the pressure of the impending vote will force them to cave. Maybe it won’t. No one seems to know.
4) How many members of the Coverage Caucus are going to defect?
The AHCA needs more than just the Freedom Caucus to pass. It needs to prevent further defections by the “Coverage Caucus” — members of Congress worried that the AHCA is going to reduce their constituents’ ability to get health care.
Members of the Coverage Caucus didn’t like the first wave of changes to the AHCA. They are practically guaranteed not to like the second round of changes. Some of them are upset in principle that the White House and House leadership are catering to the wishes of the Freedom Caucus rather than to the needs of the Coverage Caucus (many of whom are relatively electorally vulnerable).
“For every vote you pick up on the right, you lose two on the left; for every vote you pick up on the left, you lose two on the right,” Rep. Chris Collins (R-NY) told Vox’s Tara Golshan Wednesday, explaining the problems with amending the bill to get to a 218-vote majority. So how many votes has the AHCA picked up on the right, and lost on the left, in the past 24 hours?
5) Is the AHCA going to survive the Senate — and the coming “Byrd bath”?
The entire reason the essential health benefits provisions weren’t in the original AHCA is that House leadership thought it might violate the rules of the Senate. The Senate is planning to pass the AHCA through its reconciliation process, which only requires 50 votes (because it can’t be filibustered and force a 60-vote cloture motion to pass). That means the Senate can pass it with only Republican votes.
But it also means every provision in the bill has to have a direct impact on the federal budget, under a Senate norm known as the Byrd Rule.
There’s no cut-and-dried list of what passes the Byrd Rule — it’s up to the Senate parliamentarian to determine when a bill arrives on the floor (in what those on the Hill call the “Byrd bath”). But House leadership, when drafting the bill, didn’t want to risk it.
As we’ve seen, changing the “essential health benefits” regulations could have an impact on the federal budget, but the worry is that the Senate parliamentarian would deem that impact “incidental” to the point of the provision. That could doom the essential health benefits provision, or even the entire bill.
On Wednesday, however, a statement from Sen. Mike Lee (R-UT) caused the House to reconsider. But it’s not entirely clear if Lee’s statement was an accurate reflection of what the Senate parliamentarian is actually going to do. And even if it is, Lee hinted that the essential health benefits provision won’t be allowed to stay in the AHCA — it’ll just get stripped from the bill, allowing the rest of the AHCA to pass with 50 votes. That might be a victory for the bill passing, but it’s not a victory for the House conservatives who fought to get the regulatory changes to the AHCA into the House — and it raises even more questions about what this bill would actually do if it went into law.
6) Is there a hope this passes the Senate?
If the AHCA were subject, intact, to reconciliation rules, it wouldn’t need any Democrats to vote for it in order to pass. But it would only be able to afford to lose three Republicans. And more than three Republicans in the Senate have voiced serious problems with the bill as it stood before Thursday — not only conservatives like Lee but also members of the Coverage Caucus’s Senate auxiliary such as Sens. Susan Collins (R-ME) and Bill Cassidy (R-LA).
Senate Majority Leader Mitch McConnell has said the Senate will only have a week to consider the AHCA — and won’t get a chance to amend it in committee. That reduces the opportunities that critics have to negotiate with leadership and find a way to get on board. It makes it entirely plausible the AHCA will fail.
If the AHCA fails in the Senate, the House won’t just have wasted its effort. Republicans who voted for the bill will have been forced to take a hard vote — a vote that opponents will be able to characterize as “voting to strip your prescription drug benefits” in attack ads, for example — without having an actual legislative accomplishment to show for it.
7) Is this really the only attempt the White House is going to make?
Rep. Chris Collins is a close Trump ally. Collins said Thursday night that if the AHCA doesn’t pass, President Trump will give up on health care reform and leave the nation stuck with Obamacare — that there will be no second attempt.
This certainly sounds like a thing Trump would say. But is it a thing Trump would actually do? After all, on more than one occasion over the short life of the AHCA, the White House has announced that negotiations over the bill are over and the existing version is the final one — only to turn around and agree to changes. Does Trump mean it this time? Really? What will he say to his voters when they demand Obamacare repeal? Is he going to support members who voted for the AHCA, or just try to punish Republicans who voted against it?
8) What will happen to the other two “prongs” if the first prong (the AHCA) fails?
The AHCA was never supposed to be the be-all, end-all of Obamacare “repeal and replace.” It was supposed to be the first prong in a three-prong strategy. In addition to the reconciliation bill, Congress would work on a bill addressing other Obamacare provisions to go through the conventional passage process (i.e., requiring 60 Senate votes to pass). And the Health and Human Services Department would tweak existing regulations to allow more flexibility for insurers.
Nothing is preventing Republicans in Congress from trying to work out a “third-prong” conventional bill, even if the first prong fails, much less preventing the Trump administration from going through with the regulatory “second prong” — in fact, they could do so right now if they wanted to.
But if President Trump is serious about walking away from health care reform and leaving the nation to fend for itself on Obamacare, it certainly implies a lack of commitment to prongs two or three if prong one dies. Is that something congressional Republicans would be willing to accept?