The remarkable thing is not that the Health Care Freedom Act failed. It’s that it almost passed.
The HCFA, the last-ditch effort to uphold Republicans’ promise to repeal Obamacare, was something unusual in politics: a bill that senators would only support if they were assured it would never become law. The hastily drafted legislation, which was only released three hours before the vote, would have detonated the Affordable Care Act’s individual markets without building anything in their place — as such, the Congressional Budget Office estimated the bill would drive 16 million people into the ranks of the uninsured, and estimates of similar bills in the past had projected skyrocketing premiums. No one wanted that.
Usually, “no one wants what this bill does to happen” means the bill dies a quick death. But the argument for the HCFA was precisely that it would never become law. It was proposed as a vehicle to begin negotiations with the House. "The skinny bill, as policy, is a disaster," said Lindsey Graham, a Republican senator from South Carolina. Yet he voted for it anyway. By the end of the process, Senate Republicans were in the absurd position of begging House Speaker Paul Ryan for assurances that he would not let the House pass the bill the Senate was sending them.
This never made a lick of sense: If Senate Republicans didn’t want the bill they had released to become law, and they wanted to write a better one instead, why didn’t they abandon the bill they didn’t want to become law, and write a better one instead? How would involving the House — and giving up control over both the policy and the process — make their job easier or the final bill, in their eyes, better?
There was never an answer to these questions. The bill was garbage, and the process was nonsense. And 49 Republican senators voted for it anyway.
The Senate rejected five different Obamacare replacement bills, not just one
It’s important to remember that the Senate did not just reject one health care bill during this process. It rejected, depending on how you count, three, four, or maybe even five.
There was the American Health Care Act, which passed the House but was considered dead on arrival in the Senate.
There was the original version of Majority Leader Mitch McConnell’s Better Care Reconciliation Act, which would have failed on the floor and so was yanked back for revisions.
There was the Ted Cruz-ified version of the Better Care Reconciliation Act, which gutted insurance regulations (including preexisting conditions) and was defeated in a 43-57 vote.
There was the Obamacare Repeal and Reconciliation Act, which would have repealed Obamacare without specifying a replacement, and which failed 45-55 on the floor.
And then there was “skinny repeal” — the Health Care Freedom Act, which would have repealed the individual mandate but left the Medicaid expansion. Last night, Susan Collins, Lisa Murkowski, John McCain, and every Senate Democrat sent the bill to a 49-51 defeat. But that likely overstates the bill’s support, given that many of the Republicans who voted for it only did so under the assumption that they would move to negotiations with the House and nothing like the HCFA would ever become law.
Republicans have, at this point, considered a wide array of Obamacare repeal plans. Some of them used income-based tax credits and some used age-based tax credits and some kept Obamacare’s tax credits. Some had massive Medicaid cuts, and some didn’t. Some gutted Obamacare’s insurance regulations, and others largely left them intact. But none of them came anywhere near 51 votes for final passage in the Senate.
Paul Ryan, Mitch McConnell, and Donald Trump all failed in different ways
In different ways and at different times, the Obamacare repeal-and-replace process has shredded the myths built around the GOP’s key elected leaders.
House Speaker Paul Ryan, author of the ambitious budgets that had served as the GOP’s effective answer to the Obama administration’s plans, was considered the party’s great policy mind — the figure who could unite Republicans around a single, coherent agenda. But his American Health Care Act was widely considered a mess, and the Senate trashed it without a second look.
The expectation then was that Mitch McConnell, the wily leader of the Senate Republicans, would save the day. But McConnell, we’ve learned, is far better at leading a minority than managing a majority. From the outset, his process was all tactics and no strategy: He knew he wanted to pass something, but he didn’t know what he wanted to pass, and he wasn’t willing to entrust the process to the committees or members with a clearer vision, or a clearer process for coming to a vision.
The result was a bill designed in secrecy, built atop backroom deals, and crafted with little buy-in from his members. The final text of the final bill was not available until mere hours before the vote. Republican senators regularly voiced their frustration and disappointment in the process, culminating in McCain’s dramatic speech where he blasted the way McConnell had managed the health care effort:
We've tried to do this by coming up with a proposal behind closed doors in consultation with the administration, then springing it on skeptical members, trying to convince them it's better than nothing, asking us to swallow our doubts and force it past a unified opposition. I don't think that is going to work in the end. And it probably shouldn't.
McCain’s final vote killing McConnell’s process reflected these concerns. “I’ve stated time and time again that one of the major failures of Obamacare was that it was rammed through Congress by Democrats on a strict-party line basis without a single Republican vote. We should not make the mistakes of the past that has led to Obamacare’s collapse,” he said in a statement. “We must now return to the correct way of legislating and send the bill back to committee, hold hearings, receive input from both sides of aisle, heed the recommendations of nation’s governors, and produce a bill that finally delivers affordable health care for the American people.”
And then there’s President Donald Trump. The dealmaker in chief has proven a singular impediment to making a deal. The core problem is Trump has no idea what he’s talking about on health care and never bothered to learn. “Nobody knew health care could be so complicated,” he famously, and absurdly, said. His inability to navigate its complexities meant he couldn’t make persuasive arguments on behalf of the bills he supported, and he routinely made statements that undercut the legislative process and forced Republicans to defend the indefensible.
Trump’s post-election promise of “insurance for everybody” with “much lower deductibles” set up a standard Republicans had no intention of ever meeting but kept having to answer for. At his occasional meetings with wavering members of Congress, he’s made superficial political arguments to people who had deep policy concerns. The discussions left legislators feeling insulted and annoyed that the president hadn’t bothered to do the barest amount of homework.
Because Trump didn’t understand the legislation or the trade-offs it made, he couldn’t make persuasive arguments on its behalf in public or private, and so he mostly didn’t try. Trump and his team were not frequent presences in the public debate trying to sell the legislation they were so keen to sign. That’s one reason the various bills routinely polled around 20 percent: Without Trump using the bully pulpit to argue on behalf of the legislation, critics, terrible Congressional Budget Office reports, and news of congressional infighting filled the void.
When Trump did weigh in, it was often a disaster. Asked by Fox News’s Tucker Carlson how he responded to analyses showing the House health bill would hurt the people who voted for him, he replied, “Oh, I know,” and said the bill was “very preliminary.” Later, after holding a Rose Garden ceremony to celebrate the passage of the House health bill, he called it “mean.” But he never articulated a standard for a bill that wouldn’t be mean, and he never came up with a policy that wouldn’t hurt his supporters.
Perhaps Trump still could have been useful if he had a deep well of support or loyalty to draw on with wavering Republican senators. But the reality is quite the opposite. He has called McCain a “dummy” and said the former prisoner of war is “not a war hero.” When pressed on the point, Trump elaborated, “he’s a war hero because he was captured. I like people that weren’t captured.”
Similarly, the Trump administration had spent the past week enraging Lisa Murkowski by threatening to punish Alaska for her intransigence. Their hardball tactics only made her angrier.
We can’t run the counterfactual of this process occurring under a president who had built good relationships with McCain and Murkowski rather than alienating them both, but Trump’s actions here clearly weren’t helpful.
So here, then, is what the GOP is left with: a speaker of the House who cannot craft the consensus agenda Republicans expected of him, a Senate majority leader whose tactical maneuvering is proving ineffective when divorced from a larger vision or uniting cause, and a president who can’t make a deal because he doesn’t understand how to work with the policies or the personalities involved. If and when the GOP moves on to other issues, its key leaders will do so with far less trust from their members or their base.
The GOP’s real problem: Obamacare is working, and they never had an alternative vision
It remains too early to call the repeal-and-replace effort dead. But it’s clearly troubled. And there are two main reasons for that.
The first is that the Affordable Care is popular, it is working in most places, and on every dimension that voters care about, it outperforms the Republican alternatives.
Poll after poll shows more people now favor the Affordable Care Act than oppose it. It has higher approval ratings than Donald Trump, Mitch McConnell, Paul Ryan, or the Republican Party. It far outperforms the Republican replacement plans: A new Washington Post/ABC News poll found voters prefer Obamacare to the Republican health bill by a 2-to-1 margin — 50 to 24 percent. You rarely see numbers like that in American politics.
These numbers are strange if you listen to Republicans describe the Affordable Care Act. In their telling, it is always “imploding,” “failing,” “dying,” “disastrous.” How can a law in such crisis command such healthy public support? The answer is that the law is, for the most part, not in crisis. The bulk of its coverage expansion has been through Medicaid, which is immune to the problems of the insurance marketplaces. Surveys find that Medicaid enrollees really like their coverage; they’re just as satisfied as people who get health insurance at work. Indeed, the Medicaid expansion has proven so popular, and so effective, that Senate Republicans from Medicaid-expanding states like Ohio and Nevada have been fighting to preserve it.
Nor are the exchanges in anything close to a state of collapse. More than 10 million people are buying insurance off Obamacare’s exchanges, and surveys show most of them are happy with their plans. While there are some counties at risk of beginning 2018 without participating insurers, the total number is quite small — 38 out of 3,143 counties, according to the Kaiser Family Foundation.
Obamacare’s biggest problem is the high cost sharing that frustrates those who buy coverage on the marketplaces. But all of the Republican bills would lead to higher deductibles, higher copays, sparer insurance, and, on an apples-to-apples basis, higher premiums. The reasons for this are simple: The GOP bills cancel the individual mandate, which pushes young and healthy people to buy health insurance, and then in most cases slashed Medicaid and Obamacare’s tax credits in order to fund tax cuts and deficit reduction. That’s not a popular trade.
If the Affordable Care Act were truly as bad as Republicans say it is, it would be easier to replace. But in reality, every bill the GOP produced ended up covering fewer people than Obamacare with worse insurance.
The second problem Republicans face is they don’t know what they want their replacement to achieve, and they never have. From early in this process, they mistook the slogan of “repeal and replace” for an end unto itself when it is, in fact, a means. You repeal and replace in order to build a better health care system. But Republicans never united around a vision of what that health care system would be.
A vivid example of this was Sen. John Cornyn’s late-in-the-game argument that more uninsured people actually meant more freedom. A sitting US senator celebrating Americans’ freedom to not be able to afford health insurance sounds like a socialist satire of American values. But it also exposed the deepest problem afflicting the GOP’s health care effort: There was no clarity within the Republican Party on what its health bill is meant to achieve. Top Republicans couldn’t even agree on whether de-insuring tens of millions of people is a moral failing or a bold advance for conservative values!
Republicans leaders were trying to find a compromise between the wing of their party that wants to cover the poor and the wing of their party that doesn’t; between those who thought a 22 million increase in the number of uninsured Americans is a moral blight and those who believe it a win for freedom. There is no sensible policy that splits the difference between perfectly opposed goals.
Where repeal and replace could go next: a bipartisan effort, run through committee
The alternative to McConnell’s bill and his process is the way the Senate is actually supposed to work.
The committees that would normally write a health care bill are the Finance Committee and the Health, Education, Labor, and Pensions Committee. Both are, at the moment, well-staffed to take on this task. The Finance Committee is chaired by Sen. Orrin Hatch — a Utah conservative known, at least in the past, for working across the aisle — and the top Democrat is Oregon’s Ron Wyden, author of the bipartisan Healthy Americans Act and co-author of a health care proposal with House Speaker Paul Ryan.
The HELP Committee is chaired by Tennessee’s Lamar Alexander. This is fortuitous. Alexander is one of McConnell’s closest friends and widely considered one of the Senate’s most capable legislators. When I ask Democratic senators which Republicans they like working with most, he is nearly always mentioned. The ranking Democrat on the HELP committee is Washington’s Patty Murray, a member of the Democratic Senate leadership and the author of a successful budget compromise with House Speaker Ryan. Alexander and Murray are good at working together, too — they defied expectations and managed to reform No Child Left Behind on a bipartisan basis in 2015, and pass the 21st Century Cures Act in 2016.
Could Hatch and Wyden and Alexander and Murray work out a deal that could find 60 votes? I honestly have no idea. Republicans haven’t tried to endear themselves to Democrats amid this process, and the fact that they don’t know what they want to achieve on health care makes it hard to know what the space for bargaining is. But an actual committee process would be one way to find out. Alexander, for one, seems eager to try: He is already scheduling hearings on stabilizing Obamacare’s individual insurance markets.
Meanwhile, Democrats remain afraid that, as happened with the House’s American Health Care Act, Republicans will revive their process and end up passing a bad bill simply because none of them want to be blamed for killing it. Fear can be a powerful motivator for compromise.
The collapse of McConnell’s health care bills does not leave him without options. He could, if he chooses, do what he should have done in the first place and turn this issue over to the committees that are supposed to own it, and see if there’s space for a bipartisan bill.