By Yuval Levin
Tuesday, January 17, 2017
Where do things stand among Republicans in Washington
regarding the repeal and replacement of Obamacare? Every day seems to bring
fresh twists in the story, and the basic thread can be hard to follow. Is this
the beginning of an arduous but ultimately fruitful legislative process? Is it
the painful end of an illusion? Will it yield in a quagmire or a vindication
for the party that has made the fight against Obamacare its foremost mission
for more than half a decade?
One lesson I’ve learned from working on public policy in
and out of government is that in a complex legislative debate, success and
failure often feel exactly the same while they are happening. They both feel
pretty much like pandemonium. During the lengthy period when some basic
questions of strategy and substance are still open, everything seems up for
grabs and the entire edifice always looks on the edge of collapsing. So it is
not easy to judge the prospects for success by orderliness or discipline along
the way. A better yardstick is whether there is a plausible strategy being
championed by a critical mass of people on both sides of Pennsylvania Avenue.
By that measure, the effort to replace Obamacare is in
some trouble. On its face, the legislative strategy lawmakers are now pursuing
is not a good fit for the substantive policy objectives it is expected to
achieve, and Republicans have yet to come to terms with the mismatch. But we
are very early in the process, there is a growing awareness at all levels of
the inadequacies of the approach, the incoming administration has yet to truly
have its say, and ample opportunity remains for Republicans in Congress to
correct their course as they go. That course will inevitably change several
times before the story ends.
What follows, with due apologies for its length, is one
observer’s general sense of where things stand. I’ll lay out the logic of the
reigning strategy, take up its faults, consider the role the incoming
administration has played, and offer some reflections on where things might be
headed.
Repeal and Delay
Immediately after the election, it seemed as though
congressional Republicans had quickly chosen a course on health care. The idea
was a dual-reconciliation strategy for repealing and replacing Obamacare.
The reconciliation process allows budget-related
legislation to get through the Senate without the threat of filibuster — and so
with only a simple majority. Because no budget resolution was enacted last
year, Republicans have the option of advancing two separate reconciliation bills
in 2017, where normally only one per year is possible. The plan was to begin
the year with a quick reconciliation measure, enacted by the end of February.
It would repeal significant pieces of Obamacare (though by no means all,
because only provisions related to spending or taxes can be included in
reconciliation bills). Then, later in the year, a more comprehensive
reconciliation bill would include both tax reform and key elements of a
conservative health-care reform as an Obamacare replacement. Repeal and replace
would both be written to take effect in two or three years, together, but they
would be enacted separately.
The logic behind this approach was basically threefold.
First, and most important, was a logic of momentum: It would allow Republicans
to move very quickly on what had been a key campaign commitment for years and
not lose time and focus as usually happens with major legislative initiatives.
They even had a bill already written that they knew the Senate parliamentarian
would deem eligible for reconciliation. When Republicans took over the Senate
in 2015, they sent President Obama a short, simple reconciliation bill
repealing, with a delayed effective date, Obamacare’s subsidies, mandates,
taxes, and Medicaid expansion but not touching the law’s insurance regulations
(which probably aren’t removable by reconciliation). Everyone understood that
Obama would veto it, but the idea was to do a test run of a partial repeal by
reconciliation. Now with Trump in the White House, Republicans could just send
him the same bill, get it signed into law, and then get to work on a
replacement before the repeal took effect, having clearly signaled their
seriousness.
Second, there was a logic of inertia, which reaches back
well beyond this year: The movement to repeal and replace Obamacare was born
with 2012 in mind. Obamacare was enacted in 2010 but would not take full effect
for four years, and there was a presidential election in the middle of that
period. The idea was that if Republicans won in 2012, they would move swiftly
to unravel the law before it took effect and then move more slowly and
incrementally to enact conservative reforms that would enable a genuine
consumer market in coverage for individuals.
The Romney transition team in 2012 developed a detailed
strategy for such a two-step approach (including plans for an early
repeal-by-reconciliation bill if Republicans took over the Senate). They
effectively locked it away in a glass box marked “break in case of Republican
president” – and left it unbroken in 2012. But after Trump’s unexpected
victory, the first instinct of some Capitol Hill Republicans was to break the
glass and get going.
This may seem like silly reasoning for a legislative
strategy, but it’s actually a very common way of thinking about policy. Clever
plans denied their chance by lost elections or failed votes often grow only
more brilliant in the imagination of their champions; these plans are then the
first default when those champions have their next opportunity to act. A great deal
of the misbegotten structure of Obamacare itself can be explained by such
reasoning (with its roots in the failure of Hillarycare), as can a lot of the
policy landscape. Public programs are often designed to win the last war,
ignoring crucial changes over time.
When it comes to Obamacare, one very important thing has
changed since 2012: The law has now been implemented for several years, so that
millions are insured through its mechanisms. A repeal and replacement today
would need to provide some kind of bridge for at least some of these
beneficiaries and so would probably need to connect its repeal and replace
elements fairly explicitly.
Conservative health wonks have proposed various ways to
do this. (Here is one general
overview and one fairly specific
proposal I’ve been involved with, and many others have offered a variety of
good ideas.) A quick repeal with no hint of replacement would create at least a
temporary situation in which there was no such bridge; this would cause great
uncertainty for the people involved and also put great political pressure on
Republicans. But the inertia of the quick repeal idea has driven some
Republicans to overlook or minimize that challenge.
And third, the idea of a dual-reconciliation strategy was
driven by a logic of tax reform. The first reconciliation bill, by eliminating
the Obamacare taxes, would lower the revenue baseline against which an eventual
Republican tax reform was measured — making deeper tax cuts possible later in
the year. And the second reconciliation bill, by providing some tax credits for
insurance to lower-income people at the same time it enacted corporate and
personal income-tax cuts, would improve the distribution tables of the
Republican tax reform, making its benefits less skewed toward higher-income
people. Since repeal and replace would take effect at the same time (in two or
three years under this hopeful scenario), the effect on health policy would be
the same as one bill, but the tax-reform effort would be much aided by
splitting them up.
In different combinations, these three arguments have
added up to a case for a dual-reconciliation strategy over the past two months.
In the immediate aftermath of the election, the Trump team also pressed
congressional Republicans for quick action on health care. They even asked
whether a bill could be ready for signature by inauguration day, which added to
the pressure for speed and for starting with legislation that was already
written and tested. And the dual-reconciliation approach soon also became the
preferred strategy of Senate Republican leader Mitch McConnell, who has long
maintained a studied agnosticism about the substance of health reform.
McConnell’s priorities are procedural and institutional.
He wants the Senate to work and not to be paralyzed, and he wants to avoid
massive, comprehensive legislation that cannot possibly be legible to
legislators. Splitting repeal and replace, and then perhaps further dividing
any replacement effort into smaller steps, would be more like the way he wants
to see the Senate work. And it would avoid making incremental progress
dependent on full agreement in advance about the specifics of the ultimate
reforms.
If Republicans can pass one bill now that all of them
would support, and then worry about the next step later, why should they wait?
The Trouble with Delay
But by early December, as they began to focus on the
details and contemplate the politics, some Republicans in Congress (especially
in the Senate) became increasingly uneasy with this strategy.
Their worries were straightforward. A repeal bill pursued
without a replacement would be scored by the Congressional Budget Office as
significantly increasing the number of uninsured Americans (as the CBO has
already signaled this week), and Republican Members of Congress did not relish
answering questions about that score with assurances that a plan would be
forthcoming later. Leaving Obamacare’s insurance regulations in place while
eliminating its taxes, mandates, and subsidies (and offering no plan for further
changes) could also hasten the departure of insurers from the system during any
transition period, leaving Republicans with the blame.
But most important, dividing repeal from replace could
leave the prospects for a replacement much bleaker, since support for any
particular approach to reform is likely to be narrower than support for even a
partial repeal. This would also mean that any further steps toward full repeal
would be more difficult. And there is no guarantee that a second reconciliation
deal this year will be possible: Arriving at a ten-year budget trajectory that
50 Republican senators can accept without being able to assume further savings
from Obamacare’s repeal (which will have been enacted by then), and apparently
without entitlement reform, will be no simple matter. In effect, the
dual-reconciliation strategy threatens to undermine both repeal and replace
while leaving Republicans with some of the blame for Obamacare’s ongoing
collapse.
These concerns built up quietly in December, expressed in
meetings of members, or in closed conversations with health wonks. But when
members returned for the new Congress in January, it became apparent that the
worries were widely shared and were not being answered; senators in particular
then began to complain in public. This has helped create the sense that the
strategy’s fate is in doubt. That’s true, but as long as no alternative
strategy is out there, the danger to the dual-reconciliation approach is
probably not fatal.
It’s important to see that the debate is more about
legislative strategy than policy substance. The story most frequently told
these days about the sources of the chaos around health care in Congress
suggests that the problem is that Republicans just can’t agree on policy. And
they are certainly far from unanimous about health reform. But Republicans have
actually made a great deal of progress toward broad agreement on a general
policy approach over the past half-decade, albeit more so in the House than in
the Senate. That approach, now most fully embodied in legislation authored by
Representative Tom Price, combines returning insurance regulation to the
states, a federal tax credit for coverage in the individual market, and
continuous-coverage protection to cover Americans with preexisting conditions.
And Donald Trump has chosen Price to be his Secretary of Health and Human
Services.
It is a general approach that could take a number of
different forms in practice. Some of these would allow the states to
auto-enroll uninsured people in plans with premiums equal to the federal tax
credit for which they are eligible; these could amount to a kind of “universal
catastrophic coverage” policy, nearly zeroing out the uninsured and then
enabling a competitive market for more comprehensive coverage above that. (This
is the form that would seem best aligned with Donald Trump’s rhetoric about the
uninsured.) Others might employ income-based credits but a less aggressive
enrollment strategy. Others might deliver a subsidy for coverage through the
states, allowing each state to tailor the benefit differently. And various
approaches to Medicaid reform have been proposed.
The differences among these proposals involve serious
tradeoffs, and it certainly remains the case that most congressional
Republicans have not thought deeply about them and are not immersed in the
details of health care. But the Republican health-care debates now occur mostly
within the general boundaries of an approach long laid out by various
conservative health experts, translated into legislation in different ways by
Price, Senator Bill Cassidy, and others, and backed by House Speaker Paul Ryan
and the relevant committee chairmen in both houses.
There are important opponents, of course, and there are
arguments about important particulars within the boundaries of this approach.
But the raging debates about its basic elements have faded some. On the
substance of health reform, Republicans aren’t that much further from agreement
than Democrats were about their own approach eight years ago.
Making Health Care Great Again
But the Democrats got from a general outline to a
legislative process only after a Democratic president took office and advanced
a particular version of their overall approach. And that brings us to Donald
Trump.
It is strange that we should reach him this late in our
story, but that is how the post-election Republican health-care debate has
worked so far. And that fact underlies a fair bit of the chaos. Getting from a
debate to a law was always going to require a president who settles some of the
open questions and pushes the process forward. Whether that will happen under
the incoming president is still unclear, and that is a primary reason that the
fate of the effort to repeal and replace Obamacare is itself hazy.
For one thing, the attitude of Trump and his team toward
the dual-reconciliation strategy has sometimes been unclear to many
Republicans. Almost everything Trump himself has said in public so far has
suggested he is not a fan of the strategy. From his earliest post-election
interviews, he has said he does not want to see a period of uncertainty after a
repeal is enacted before some replacement takes shape.
In a November 16 interview with 60 Minutes, his first discussion of the subject after the election,
Trump was asked what would happen in the period between repealing and replacing
the law. He said:
We’re going to do it
simultaneously. It’ll be just fine. We’re not going to have, like, a two-day
period and we’re not going to have a two-year period where there’s nothing. It
will be repealed and replaced.
In a January 11 press conference, in response to a
similar question, he said:
It’ll be repeal and replace. It
will be essentially, simultaneously. It will be various segments, you
understand, but will most likely be on the same day or the same week, but
probably, the same day, could be the same hour.
Everything he said publicly in the intervening two months
made the same point, albeit equally obliquely: Repeal and replace would be
simultaneous. Public reports from people who spoke with Trump privately about
this (most notably Senator Rand Paul) have suggested the same. And Trump’s own
tweets on health care have vaguely pressed Republicans to be careful on this
front.
On January 15, in an interview with the Washington Post, Trump even suggested
that his team would propose its own health-care reform, and that it would cover
everyone now covered and at lower costs. And he again distanced himself from
any approach that would separate the repeal of Obamacare from its replacement.
And yet, this repeatedly expressed view of the
president-elect’s has had remarkably little effect on the Republican debate
about strategy. This seems in part to be a price of Trump’s style. The way in
which he has expressed himself on this question (and others) suggests to people
immersed in the issue that he is talking off the cuff, without command of the
particulars.
After Rand Paul announced he had spoken with Trump, who
agreed with him about making repeal and replace simultaneous, one congressional
staffer suggested at a Capitol Hill meeting on health care that his boss could
call Trump and get him to say the opposite. After Trump’s news conference last
week, several members and staffers suggested (independently) that Trump must
mean that repeal and replace should take
effect simultaneously, rather than that they should be enacted
simultaneously, in which case congressional Republicans were already on the
same page as Trump. (And of course, that could very well be what Trump meant.)
After Trump’s Washington Post
interview this past Sunday, the conservative health-care universe, including
some people on Trump’s own team, quickly concluded that the separate
administration plan he described was entirely a figment of Trump’s imagination.
But another reason that Trump’s statements about repeal
and replace have not shaken up the strategy is that Trump’s team has, at least
since the new year, mostly been cooperating with House and Senate leaders in
advancing the dual-reconciliation approach and looking for ways to improve it.
On health care, Trump’s policy team (which includes some conservative
health-care experts, lawyers, and former officials) has cut a very different
figure than Trump himself. They have been careful, steeped in the details, and
engaged with key players both in Congress and in the health sector.
That engagement so far seems largely to have focused on
developing a set of executive and regulatory actions that could help stabilize
the individual-insurance market during any transition period. Conservative
health experts did an enormous amount of detailed work on this front well
before Trump was elected (or even nominated), with an eye to a possible
Republican president, and Trump’s team has built on that work. With regard to
legislative strategy, meanwhile, they have not resisted the dual-reconciliation
approach but have encouraged congressional Republicans to include some elements
of a replacement in an early reconciliation bill along with a partial repeal,
rather than leaving it all for later.
Congressional Republicans have tried to ignore Trump’s
inscrutable statements to reporters and Olympian potshots delivered through
Twitter and, instead, just deal with his staff. It is a disposition they may
need to hone in the coming years to contend with a kind of standing crisis in
the executive that seems unlikely to abate. But they should also notice that in
this instance, as will probably be the case in many others, Trump is actually
steering them toward caution, despite his bombastic style. And warnings to be
cautious should not simply be ignored.
For politicians, populism is after all frequently a form
of timidity, a way of never straying far from the most intensely engaged
voters. Such an attitude generally cannot lead the way, but it should influence
it. That way of understanding the utility of Trump’s instincts — unmoored as
they are from both political ideas in a traditional sense and many practical
realities yet sensitive to certain crucial voter impulses — will not come
easily to Republicans. But it could help them make the most of the
circumstances in which they find themselves. Seeing Trump as a kind of
empowered one-man focus group of cable-news viewers, for good and bad, could
help all involved and might even mitigate some of the dangerous dysfunction of
this period just a little.
For now, Republican leaders have responded to Trump’s
statements and the urgings of his staff by suggesting that they might include
some elements of a replacement in the early reconciliation bill, and by
stressing that the two parts will take effect at the same time even if they are
legislated separately. At a CNN town hall on January 12, for instance, House
Speaker Paul Ryan said, “We want to do this at the same time, and in some cases
in the same bill.” The same day, Senate Finance Committee chairman Orrin Hatch
said in a statement, “We should definitely work on making the largest possible
down payment on the Obamacare replacement with the budget reconciliation bill.”
It remains to be seen — and to be decided — just what
this down payment could consist of. Members have talked about some loosening of
the rules governing Health Savings Accounts, and some measures to keep insurers
from bolting the exchanges during a transition, and returning some regulatory
power to the states. But they may be open to considering whether more ambitious
steps toward a conservative health reform could make it into an early
reconciliation.
Beyond this adjustment in response to Trump’s remarks,
congressional Republicans are still unsure how to work with the incoming
administration. Trump’s style, some uncertainty about who is in charge on his
staff, and a touch of resentment at his vague public criticism of their
strategy has left many uneasy about committing to any path. They fear getting
far down the road toward legislation only to have Trump hear it criticized on Morning Joe and then declare on Twitter
that he’ll veto it.
But in the absence of a real alternative, the
dual-reconciliation strategy remains the default. Both houses of Congress
passed the preliminary budget resolutions needed to pave a path for that
strategy last week. That doesn’t mean the votes will be there for an early
partial-repeal bill. But it means that’s the plan.
Repeal Plus
Can the strategy work? It’s possible, but it would
probably require the early reconciliation bill to involve a more robust down
payment than is now in the works.
For a dual-reconciliation strategy to actually enable
repeal and replacement, the first step would have to enable the ones to follow
rather than undermine them. That means the early reconciliation bill would have
to ensure that the individual insurance markets continue to function during the
transition period to a post-Obamacare health-care system, and it would have to
clearly lay the policy foundations for conservative reforms to follow. A carbon
copy of the 2015 reconciliation bill would not achieve these goals.
What might it take to achieve them? There are many steps
the new administration could take to smooth the transition. Trump’s health-care
team has a good sense of what these will need to be, which they have further
sharpened in detailed discussions with the major insurers since the election.
But congressional Republicans might have to take some key steps legislatively —
for instance, by appropriating funds for Obamacare’s cost-sharing reductions
during the transition period. And they might be wise to have the early
reconciliation delay the termination of the individual mandate until the new
system takes effect, rather than ending the mandate immediately. This would also
significantly improve the CBO score of the early reconciliation bill’s effect
on the uninsured rate.
Meanwhile, to lay the groundwork for replace, Republicans
could include in the early reconciliation bill a provision for one or two years
of a new funding stream — whether it is available as a credit to individuals or
as a per capita payment to states that develop new insurance rules — that would
help people in the individual market access coverage. This would take effect
after the termination of Obamacare’s subsidies, taxes, and mandates (and so two
or three years after enactment of the early reconciliation bill), could be used
for the purchase of any state-approved insurance coverage, and would provide a
bridge to a new system without yet fully defining it.
This approach might also help Republicans root out
Obamacare’s federal insurance regulations, which otherwise probably cannot be
undone in reconciliation. By creating an alternative funding stream that
applies to insurance purchased under alternative rules, Republicans could
effectively repeal the heart of Obamacare in the very process of replacing it.
They would render irrelevant the insurance regulations they cannot yet repeal.
If reconciliation is the only vehicle available to Republican reformers, then
repeal simply might not be possible without replace.
But piling all of this into a quick early reconciliation
bill would be an enormous challenge — perhaps more than the congressional
committees can handle on short order. Ultimately, therefore, this advice may
add up to arguing that Republicans should put aside the dual-reconciliation
approach rather than expand it. Separating much of a repeal of Obamacare from
most of a replacement for it, as the dual-reconciliation strategy would do,
risks preventing both a full repeal and a real replacement.
A Year of Action
As an early reconciliation bill is developed and scored,
many congressional Republicans will probably come to recognize this danger and
may find other reasons — both political and practical — to grow uneasy with the
dual-reconciliation approach. That could drive them to push for a more robust
down payment on replacement, or it might undermine the strategy and send
Republicans searching for another.
This would not be the end of the world. The momentum
argument for early action is a strong one, but it need not be decisive.
Republicans should consider their steps carefully and avoid some obvious
mistakes — including those the Democrats made in enacting Obamacare.
If the dual-reconciliation strategy falls through, the
first fallback would need to involve including the key elements of both repeal
and replace in the later, fuller reconciliation bill for the 2018 budget year.
It would of course also be wise to pursue any elements of a replacement that
might be achievable outside the reconciliation process, with enough Democratic
support to reach 60 votes. But the Democrats have little incentive to cooperate
with any Republican health reforms, so while Republicans should seek their
support and be willing to make some real concessions for it, they should not
expect to gain it at this point.
The danger of a trial-and-error approach to finding a
legislative strategy on health care is that it will lead to inaction and a
fallback to the status quo. But rather unusually, total inaction is not an
option in this case, because the status quo is not sustainable. The economics
of the Obamacare exchange system is untenable in many parts of the country. And
if Republicans can articulate their vision of health policy — including a
competitive individual insurance market regulated by the states and an approach
to Medicaid reform — they will find that they can readily justify reforms that
provide greater stability, help reduce insurance costs, give people more
options, and make coverage more attractive to the young and healthy. Whether
alone or with some Democrats, they will have to act.
At this point, the intra-Republican health-care debate is
chaotic and uneasy. There is no unanimity on substance and not much of a margin
for internal dissent. And it is still unclear whether the new administration
can help steer Congress toward any particular path. But major legislative
efforts are always chaotic and uneasy. They proceed in fits and starts and
frequently seem on the verge of collapse. The difference between success and
failure often depends upon a combination of strategy, luck, and a willingness
to take action.
On health care, Republicans have long lacked the latter
in particular. But in that respect, at least, this time could well be
different. The GOP has been preparing for this opportunity for years, and it
now faces both a party electorate and a health-care system that will not allow
for endless indecision. It is too soon to know what the final product will look
like, and whether a series of reconciliation bills or some uneasy combination
of partisan and bipartisan measures will emerge. But it does seem likely that a
year of intense action on health care is beginning.
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