In 2010, it was the Senate’s Christmas morning vote that paved the Affordable Care Act’s passage into law. In 2017, it was John McCain’s dramatic thumbs-down that ended the Obamacare repeal. In 2020, even if Democrats take back the White House and the Senate, their majority will be slim — a couple of votes at most. Health reform will, once again, live or die in the US Senate.
But for all the attention health care has received in the Democrats’ presidential primary, there’s been relatively little focus on Senate Democrats’ thinking or plans. History suggests that’s a mistake. So in recent weeks, I’ve been interviewing key Democrats on the Senate Finance Committee — which controls Medicare, Medicaid, Obamacare, and the tax system, and thus will be the committee where the bulk of health reform is written. I asked them what they and their colleagues learned from the Affordable Care Act and where they see health reform going if they get another chance in 2021.
What I found was a more jaded group than in 2009. The grinding legislative gauntlet that produced Obamacare, combined with the decade-long Republican campaign of obstruction, sabotage, and legal challenge, has produced a grim realism. Senate Democrats recognize that failure is possible and the path to passage is slim. But they are cohering around a rough consensus on where the next bid at health reform should begin.
It starts with abandoning the political idealism behind the Affordable Care Act. Max Baucus, the powerful chair of the Senate Finance Committee, believed he could secure Republican votes with a hybrid public-private expansion based on Mitt Romney’s reforms in Massachusetts and slow, bipartisan negotiations. President Barack Obama, who still sought to make good on his promise to lead a more collegial political system, backed his plan. Everything about the ACA, from the policy to the messaging, reflected the belief that Republican support was possible.
Universally, Democrats look back on this as a mistake. “Some of us didn’t think there would be Republican votes in 2009,” says Sen. Sherrod Brown (D-OH). “They didn’t want to write a bill. They didn’t want to come together on a bill. And they didn’t want it to succeed after it passed. That’s what’s morally outrageous about their behavior. So next time, we go in with our eyes wide open.”
Sen. Debbie Stabenow (D-MI), the ranking Democrat on the Senate Finance Committee’s health care subcommittee, agrees. “It would be wonderful to have Republican votes,” she says. “But we don’t start with that as a working assumption. We have to write something Democrats agree with.”
The failure of Obamacare’s pluralistic approach has also soured key Democrats on the role industry should play. In 2009, Democrats cut deals with health insurers, pharmaceutical companies, hospitals, and other key groups in a bid to build support — including, they hoped, among congressional Republicans — for the legislation. Looking back, Sen. Ron Wyden, the Oregonian who will chair the Finance Committee if Democrats retake the majority, thinks that was a mistake. Getting industry on board meant watering down the policy — and for what?
“If you’re trying to tee up a proposal to drive down costs, you’ll have a lot of people mad at you,” he says. “I think the idea that we need to put everybody at the table, I don’t see that being the starting point in 2021. It certainly wouldn’t be for me as the senior Democrat on the Finance Committee.”
It starts with Medicare
Wyden is arguably the Senate’s most committed health wonk. He once told me he read David Broder and Haynes Johnson’s giant history of the 1994 health reform, The System, four times, cover to cover, to understand why past efforts had failed. In the 2000s, he was the lead author of the bipartisan Wyden-Bennet Healthy Americans Act, an ambitious bill that sought to achieve universal coverage almost entirely through private insurance expansion. In 2011, he joined with Rep. Paul Ryan (R-WI) on a plan to reform Medicare.
If Democrats retake the Senate in 2020, Wyden’s position on Finance will make him the most powerful Democrat in the Senate, save Minority Leader Chuck Schumer, on health care. This unnerves some Democrats, as Wyden’s policy ideas, interest in compromise, and independent streak has sometimes put him crosswise with the party.
But today, Wyden holds out little hope of Republican support and emphasizes Medicare expansion. His evolution tracks the changing Democratic consensus more broadly: After Republicans proved they will attack a private insurance system just as fiercely as they would a public insurance system, the political case for pursuing private insurance collapsed.
“There is no question, in terms of the big picture, that 2009 was focused on a private approach to health care,” Wyden says. “Now Democrats are united around the proposition that Americans need and want Medicare-type choices.”
Which isn’t to say Senate Democrats are prepared to abolish private health insurance. As in Wyden’s comment, the word “choices” came up a lot in my conversations.
“As a practical matter, the way we move forward on health care has to be recognizing people’s current insurance system and allowing people to make choices,” says Stabenow. “If everyone chose the Medicare public option, then it would be very clear what the public wanted.”
“I understand the aspirational notions around Medicare-for-all, but if there’s one thing that I think we still have to wrestle with, it’s that Americans want to see more of their fellow citizens covered but they are very nervous about losing what they have,” says Sen. Mark Warner (D-VA). “There’s a huge risk aversion.”
Brown, who has long supported single-payer, agreed. “I think you want people to have choice still,” he says. “You don’t want to take people’s insurance away. A lot of people don’t want government insurance. I understand that.”
Finishing the work of Obamacare
A striking feature of these conversations was how much Senate Democrats see themselves as completing the work of Obamacare.
“I’m proud of what we did,” says Stabenow. “Not only did we expand access to health care, we forever changed people’s expectations about the ability to get affordable health care. I think that’s why it’s been so hard for Republicans to repeal it. Once people get access to health care without being discriminated against for preexisting conditions, it’s very hard to take that back.”
Indeed, the three most oft-mentioned policies were the three ideas that Democrats tried to include in Obamacare, only to sacrifice them at the altar of 60 votes.
First is lowering Medicare’s eligibility age to 50. Brown negotiated a similar proposal — lowering the age to 55 — for Obamacare, but it died when Sen. Joe Lieberman swore to torpedo the entire bill if it dropped the Medicare eligibility age. The bitterness of that betrayal lingers.
“Lieberman killed it, saying it was a matter of conscience when it was clearly a matter of insurance industry interests in Hartford,” says Brown. “And I’m speaking on the record.”
Second is the public option, which was excised from Obamacare. “We passed a public option in the Finance Committee in 2009,” says Wyden, sighing. “We lost it on the floor.”
But the intervening years have only strengthened the case for a public insurance option, as some state insurance marketplaces are dominated by just one or two private insurers. “As we’ve watched the costs of using the private insurance model, it’s clear, in my mind, that at minimum there needs to be a public option,” says Stabenow. “I believe it makes sense to expand Medicare and give people choices.”
The popularity of the idea is evident in the sheer number of Senate Democrats proposing some version of it. There’s Sen. Brian Schatz’s “State Public Option Act” (22 cosponsors), Sens. Jeff Merkley and Chris Murphy’s “Choose Medicare Act” (14 co-sponsors), Michael Bennet and Tim Kaine’s “Medicare X Act” (11 co-sponsors), Sen. Sheldon Whitehouse’s “CHOICE Act” (eight co-sponsors), and Sen. Ben Cardin’s “Keeping Health Insurance Affordable Act” (no co-sponsors, so lonely). These bills differ in their details and ambition, but they reflect the consensus around a public option — which will most likely be branded as a Medicare expansion.
Third, Senate Democrats lament that Obamacare didn’t do more to cut costs for the already insured. “I think if you look back on what happened, it’s clear Congress should have gone much further when it had the chance and had a laser-like focus on holding health care costs down — period, full stop,” says Wyden.
There are as many ideas for controlling health costs as there are members of the Senate, but the one Democrats seem most united on is letting Medicare bargain down prescription drug prices — an area where Democrats smell blood in the water after President Trump expressed support but never rallied his own party around the issue.
“There is real interest now in drug pricing,” says Warner. “Even the administration has acknowledged it’s not fair for Americans to pay the R&D costs for drugs for the whole world.”
All in all, it adds up to a simpler agenda and message, which Democrats feel they lacked in 2009.
“I thought about this a lot, and if I had run for president,” says Brown, “my message would’ve been: You don’t throw out Obamacare and start over. You build on it by opening Medicare to everyone over age 50 or 55 and letting it negotiate drug prices. That should be the Democratic message. We’re the party that wants to give you the choice to join Medicare early and negotiate drug prices.”
Can Democrats avoid the filibuster?
Lurking behind this discussion is the role of the filibuster, which forced Democrats to trim their reforms in 2009. With no hope of finding 60 votes in 2021, Democrats are left with two choices.
One option is they can use the budget reconciliation process, which is protected from the filibuster. The downside of the budget reconciliation process is it’s governed by an arcane set of rules that penalize ambitious reforms that rely heavily on regulatory changes. But if Democrats confine themselves to lowering the Medicare age, adding a public option, and negotiating drug prices, there’s reason to believe it might pass parliamentary muster.
A more radical option — albeit one that would give Democrats the maximum legislative room in 2021 — would be eliminating the filibuster altogether. “If a Democratic president wants to tackle the most important issues facing our country, then he or she must have the ability to do so — and that means curtailing Republicans’ ability to stifle the will of the American people,” wrote former Senate Majority Leader Harry Reid. “It’s time to allow a simple majority vote instead of the 60-vote threshold now required for legislation.”
Sen. Elizabeth Warren (D-MA) agrees. “When Democrats have the White House again, if Mitch McConnell tries to do what he did to President Obama, and puts small-minded partisanship ahead of solving the massive problems facing this country, then we should get rid of the filibuster,” she said. But so far, she’s the only member of the Senate running for president in 2020 to endorse outright abolition of the filibuster.
So which direction will Senate Democrats go? This was the one question no one I spoke to would offer an answer on.
“It’s too early to say that this is the parliamentary route you’re gonna have Democrats come down to,” says Wyden.
“Right now, I can’t answer that,” says Stabenow.
“Call Schumer and ask him,” says Brown.
What Democrats do recognize is that they can’t do what they did in 2009 and let the process drag on, mired in controversy and complex policy arguments that leave the public feeling confused and overwhelmed, and give Republicans time to marshal counterattacks.
“You’ll not see us get lost in the technical morass of yearlong-plus debate about all the nuances of various things,” says Wyden. “On the third day of his first term, President Obama had me to the Oval Office to talk health care. Just me and him. And I told him, ‘You should be able to describe it in a sentence.’ We have to be able to lay out in a sentence what we’re interested in.”
Correction: Sen. Brian Schatz is the lead sponsor of the “State Public Option Act,” not the “Choose Medicare Act,” which he is co-sponsoring. Sen. Chris Murphy is a lead sponsor of the “Choose Medicare Act.”