The politics of the Affordable Care Act has never been complicated. The law has been widely unpopular since it even was printed into bill form in 2009, barely passed the House, Senate and then back to the House despite a strong Democratic majorities in Congress. Exit polls from 2010 and 2014 showed Republicans cruised in the midterms because of voter concern over the law and its effects. Indeed, two studies on the 2010 elections found Democrats lost 13 and 25 more seats because of a positive vote for the law. Last year, Republicans netted their third largest majority in the Senate since 2004 and their largest House majority since 1928.
Democrats remain in denial about the potency of the law, electoral result or not. They point to the 2012 election (even though Romney did not make the law a big part of the campaign) and the two recent Supreme Court decisions regarding the law. Just hours after the Supreme Court ruled in favor of the law’s subsidies in Burwell vs. King the President spoke in the Rose Garden, declaring “After more than 50 votes in Congress to repeal or weaken this law, after a presidential election based in part on preserving or repealing this law; after multiple challenges to this law before the Supreme Court—the Affordable Care Act is here to stay.”
Such an interpretation is a profound misreading of the court’s view of the law and more importantly the public’s. Despite the Supreme Court’s ruling the momentum against the law remains on the side of its opponents in competitive Senate and battleground district contests. Further working to opponents advantage are the sizable hikes being announced/asked for by Health Insurance subsidies as they discover the promise of young, healthy individuals paying to subsidize the older and sicker was more hype than reality.
The Obama administration has already reacted to the unpopularity of the law. In mid 2010 the administration delayed implementation of the Mandate until after the midterms and Presidential election. In 2014, seeking to avoid another midterm disaster, delayed several other mandates in the law including medium-sized businesses not being required to provide health insurance to full-time employees until next year—such a mandate has allowed opponents of the law to argue it would be overly burdensome and drag the economy down. Despite giving consumers an extension for their old health care plans until 2017, the prospect of another flood of politically damaging cancellation notices is palpable. In an effort to keep insurance companies on board with the law the funding streams to the insurance companies—or bailout as the GOP calls it-the White House initially supported are unlikely to continue creating the possibility of massive hikes in insurance and state health markets. Such a strategy was geared to buy the law time and the public would eventually come around. Such a theory has little grounding in reality.
Keeping the law around has had the opposite effect. On top of the electoral detriments the law has caused to Democrats is the fact the public has not come around to supporting the law. In December of 2009 the RCP average of approval/disapproval polling on the law found 52.7% opposing. Today, opposition stands at a similar 51.4%. A poll last month by WSJ/NBC was even more ominous. Fully 50% of respondents supported repeal or a major overhaul of the law. A solid plurality, 47%, supported changing key elements of the law. Only 8% supported the law as is.
Such public opposition has not translated to success at rolling the law back. Republicans in contested races plan to make the law a key part of their reelection efforts as Democrats have recruited numerous former and current officeholders in favor of supporting the law. But repeal or changing key aspects of the law could cause headaches for the GOP. For example, the Supreme Court’s decision to keep the law’s subsidies mean if the GOP were to repeal or change the law they could be accused of hurting the poor. Real change to the law would likely have to wait until 2017 when the GOP still controls Congress and has the White House and even then, only if the GOP uses controversial procedural acts such as Budget Reconciliation in the Senate.
Within the GOP there is a spirited debate about where to go with the law and what to do if it is repealed (this assumes they win the White House and hold the Senate in 2016). Senator Ben Sasse from Nebraska, a freshman elected in 2014, highlighted three GOP lines of thought in a recent National Review column. According to Sasse, one faction would prefer to keep it alive as a political issue indefinitely, talking about repealing the law but otherwise keeping the core fully in place. A second camp would undertake the scorched-earth legislative strategy likely necessary to repeal the law—even supporting killing the filibuster for short-term gain. The third group, which Sasse labels the Replacement Caucus, would make large-scale changes to the law after campaigning on a reform-oriented health care agenda. This seems the most tenable and electorally favorable approach and the fact Sasse, a hardline fiscal conservative, would support such an idea is telling.
If Republicans did have complete control come January, 2017 the party will be faced with a sister soulja moment regarding the law. They would have won three out of four elections campaigning hard against the law and face a Democratic party already wondering about its post-Obama future. Lacking elected office, the President would be able to do little to defend his signature domestic agenda. Likely most, if not all Democrats would oppose a repeal of the law but efforts to change the law could find fertile ground. A number of 2018 Senate Democrats hailing from red states- Sens. Joe Manchin of West Virginia, Heidi Heitkamp of North Dakota, Claire McCaskill of Missouri, Joe Donnelly of Indiana, and Jon Tester of Montana-would be facing reelection in an unfriendly, midterm environment and hungering for something to show voters that they understand their concerns regarding governmental efficiency.
Of course, such an idea is predicated on the GOP winning in 2016 and being able to forge a right-left political coalition to implement meaningful policy change. It would also require the GOP to show some semblance of political unity and an ability to convince moderate Democrats to cross over and support a politically controversial policy reform item. But, the politics of Obamacare, where it continues to remain underwater and public opposition to many of the law’s core requirements make such an occurrence a definite possibility.