Mitch McConnell came up one vote short in his effort to pass the Health Care Freedom Act through the Senate early Friday morning. “Our regret,” he said, is “that our efforts were simply not enough this time.”
But no matter how that vote ended up, McConnell had already failed.
It was already clear that he and the Senate had failed at their primary task: legislating. They failed to put together a bill they actually liked and thought would make the country a better place. What actually went down to defeat in that vote was a bizarre placeholder they claimed was never meant to become law anyway, a buck-passing effort in and of itself.
The close margin also made another thing clear: that McConnell had failed to protect his senators. It’s highly unusual for leadership to put up a controversial bill that narrowly fails. In doing so, McConnell has now ensured that all but three of his senators are on record supporting this tremendously unpopular effort.
And he failed on another front: protecting the Senate itself. In his desperate desire to secure a win for his party, McConnell made a mockery of Senate rules and traditions in a way his party may well one day deeply regret.
McConnell failed as a legislator
For one, McConnell had failed as a legislator. Despite months of work and behind-the-scenes talks, he could not put together an actual, substantive bill to repeal and replace Obamacare that could win the support of 50 senators. He could not come up with a creative policy solution that would unify his party. He couldn’t solve the Rubik’s Cube.
McConnell knew full well that he had failed in this when he moved health care legislation to the floor this week. So his last-ditch plan was instead to rely on the unholy and frankly bizarre gimmick of convincing senators that they would be voting for a sort of placeholder bill that would never become law — the HCFA, or the “skinny bill.”
The skinny bill’s only purpose, GOP leaders claimed, was to kick-start conference negotiations with the House. Sen. Lindsey Graham (R-SC) called the bill a “terrible” “fraud” that would “destroy the insurance markets” if passed alone. Sen. Lamar Alexander (R-TN) said it was “not a solution” but merely “is a solution to get to a place to where we can write a solution.” Sen. Steve Daines (R-MT) called the bill “a means to an end to keep this conversation going.”
The problem, of course, was that the House certainly could just turn around and pass the skinny bill, and send it to President Donald Trump’s desk. So eventually, this led to an absurd spectacle in which the Senate GOP begged that the House of Representatives promise not to just pass the very same bill they themselves were trying to pass, because they didn’t want it to become law.
While undeniably creative, McConnell’s approach was a stunning and unprecedented abdication of authority from Republican senators and their leaders. And it was clearly borne out of fear. McConnell had failed to craft a workable bill, so in an attempt to avoid being blamed for the collapse of his party’s Obamacare repeal effort, he asked his senators to support an unworkable bill, to pass the health care hot potato one more time. It didn’t work, though it came remarkably close.
But McConnell’s failure is broader than even that.
McConnell failed to protect his vulnerable senators
The Kentucky senator also failed in one of the key duties of a majority leader — to protect his vulnerable senators from sticking their necks out and taking a difficult vote for no reason.
And this did come as a surprise. Most observers expected that McConnell had the votes for the skinny bill in his pocket, because it’s highly unusual for a party leader to force a close vote and come up just short, as professors David King and Richard Zeckhauser demonstrated in a 2003 paper.
The general practice of party leaders has been that if a controversial bill appears headed for failure, they’ll “free up” their vulnerable members to defect, rather than forcing them to take a doomed vote that could haunt their reelection campaigns, without even a policy achievement to show for it.
That didn’t happen here. Instead, every Republican senator except three is now on record voting for a bill many in the party outright admit is terrible policy, and supporting a health care legislative effort that most polling indicates is hideously unpopular.
Senators who voted yes include Dean Heller (R-NV), the most vulnerable Republican up in 2018, as well as several Republicans representing in blue or purple states who are up in subsequent years.
McConnell may have calculated that Obamacare repeal was such a core promise of the Republican Party that he had no alternative other than to force a vote, and try his hardest for success. But he appears to have put the interests of the party before the interests of his members. And now a whole lot of his senators will have a whole lot of explaining to do in their reelection campaigns.
And McConnell failed to protect the Senate itself
Finally, McConnell also failed to protect the institution he leads.
In speeches, in interviews, and in his memoir, McConnell has frequently claimed to be an institutionalist who deeply prizes the norms and traditions of the United States Senate.
The Senate, he’s claimed, is a “moderating institution” that should “keep the government from swinging between extremes as one party loses power and another gains it.” If it was instead used as “an assembly line for one party's partisan legislative agenda,” he warned, the consequence would be “instability and strife” and not “good, stable law.”
The way he went about trying to pass this health bill made an utter mockery of all those claims.
McConnell bypassed the traditional committee and hearing process, not even giving it a chance to work. He didn’t even bother to pretend to reach out to Democrats, pursuing a wholly partisan strategy from the get-go. He crafted the various versions of his bill in total secrecy. He utterly disregarded public opinion. And he tried to quickly ram a bill through the Senate with pure partisan brute force.
In the end, his last-ditch “skinny bill” itself was only publicly released after 9:30 pm Eastern last night, with the Senate voting on it after midnight.
All of this did not end in success. But all of it came perilously close to success — which means these tactics will be replicated.
“McConnell has unleashed a whole series of forces that ultimately could really transform the Senate in a bad way,” Norm Ornstein of the American Enterprise Institute told me a few weeks ago.
Indeed, those on the left are already fantasizing about using tactics McConnell pioneered here — tactics President Barack Obama’s Democrats wouldn’t have dreamed of — to at some point ram through their own sweeping new laws.
Future majorities now have a precedent for ramming partisan legislation crafted in secret through the budget reconciliation process quickly. McConnell has written the playbook they will use.
So rather than “Restoring the Senate” — the title of a speech McConnell delivered in 2014 — his legacy may be breaking it.