Since I came to Washington in 1969, I have been immersed in Congress and its policy process. I have seen many instances of unpopular bills considered and at times enacted. I have seen many instances of bills put together behind closed doors. I have seen bills enacted and repealed after a public backlash. I have seen embarrassing mistakes in bills, and lots of intended consequences.
But I have never seen a process like the one Senate Majority Leader Mitch McConnell is using in the Senate with his so-called Better Care Reconciliation Act, BCRA, to presumably repeal and replace the Affordable Care Act; nor have I seen lawmakers responding to the bill, and their own constituents, this way.
Let’s take a brief look at a couple of Congress’s greatest hits: one unpopular bill and one crafted in private. Perhaps the most notorious in terms of unpopularity was the aptly named Medicare Catastrophic Act of 1988, which was substantially repealed just a year later after an intense backlash from a group of more affluent seniors upset that their costs would go up. The visual imprinted in many minds was hundreds of enraged elderly chasing Illinois Representative Dan Rostenkowski down a street in Chicago as he sought refuge in his car after a rancorous town meeting.
Sure sounds like a parallel to today. But consider: The 1988 act was an open and thoroughly bipartisan effort to fulfil one of Ronald Reagan’s promises, to protect seniors against financial disaster; it actually provided a substantial set of benefits for poorer seniors, but because it was financed entirely within Medicare, it included additional taxes on wealthier seniors, many of whom already had some of the benefits in the bill through their supplemental insurance. There was a lot of debate over the elements in the bill during its deliberations, but no real controversy at its passage. But after its enactment, the more well-to-do seniors, inflamed by a distorted attack by a rival group to AARP, reacted to the costs without considering the benefits, leading Congress the next year to repeal most of it. The repeal of its prescription drug benefit triggered another controversial law, President George W. Bush’s Medicare Part D, in 2003.
What about bills crafted in private? Take a look at the two-year spending deal reached in 2013 by House Budget Chair Paul Ryan, a Republican, and Senate Budget Chair Patty Murray, a Democrat. Many of the details were in fact worked out in private sessions between the two and their staffs. The deal averted a draconian sequester for both defense and domestic spending that neither side wanted. And they worked out a series of tradeoffs, avoiding the worst kinds of pain, keeping the government open, and adding a bit more to deficit reduction along the way, while also finding a two-year deal to keep the same crisis from emerging the next year.
To be sure, this was not a deal that followed the regular order of open conference committee deliberations. But it was a process that House and Senate leaders of both political parties endorsed. And it was one where at every step along the way, Murray and Ryan reported back to their party leaders, and their caucus members, what was going on. It was, especially for the time, a commendable effort to find bipartisan consensus. Which it did.
Now let’s look at BCRA. It started, of course, with McConnell bypassing the committees that deal with health policy, both Finance and Health, Education, Pensions, and Labor (HELP) by handpicking 13 Republican senators—all middle-aged and elderly white men—to work in complete privacy to draft the bill. Besides women like Senators Susan Collins and Lisa Murkowski, McConnell also left off Senator Bill Cassidy of Louisiana, a physician with deeper knowledge of health policy than nearly all of the 13 chosen. The gang of 13 kept their vow of omerta, leaving even their Republican colleagues at sea during their sessions. And of course, McConnell brushed aside peremptorily any notion that Democrats would be brought into deliberations, or consulted.
Nor were the groups representing those on the front lines of health policy and delivery, including doctors, hospitals, insurers, nurses, those with debilitating diseases, and more, consulted or included. One of the more striking, and embarrassing, moments came when McConnell—who had overcome polio as a child—refused to meet with the March of Dimes, the non-profit founded in the New Deal era to combat the disease.
The bill that emerged was, of course, a catastrophe. It was not a carefully constructed health-policy bill, but basically a vehicle to give ginormous tax cuts to the wealthiest among us, financed by almost $800 billion in cuts from Medicaid, while also adding immensely to the health-care costs of poor and older Americans. The CBO score was devastating. And despite repeated vows to vote before the July 4 recess, McConnell had to take the bill back to the drawing board. Over the recess, we saw another remarkable phenomenon. Senators who went back home, ostensibly to meet and communicate with their constituents, instead mostly behaved as if they were in witness protection programs—doing everything they could to avoid town meetings or any gatherings with voters, or in some cases to hold meetings only with a pre-selected group to keep out those who would be hurt by the health bill.
The next iteration of the McConnell bill made a concession to Senator Ted Cruz to nail down votes from the radical members of the Senate GOP that health experts said would blow up insurance markets. It pared down some of the tax cuts, primarily to give McConnell a $200 billion-plus slush fund to lure recalcitrant Republican senators; he promptly threw in $42 billion more for opioid treatment to corral Senators Rob Portman of Ohio and Shelly Moore Capito of West Virginia, and tossed billions more to Alaska to nail down Senator Lisa Murkowski.
But despite adding $172 billion to stabilize insurance markets, the bill kept all the provisions to blow up Medicaid, dealing victims of the opioid disaster a much larger blow than the additional $42 billion, continued to defund Planned Parenthood, and drew sustained condemnation for every major health industry group, every major health policy analyst, a slew of governors including Republicans like John Kasich of Ohio and Brian Sandoval of Nevada. And the approval of the bill with the public stood at 38 percent in a Kaiser poll, lower than any piece of significant legislation I can ever recall.
Compounding all this, McConnell was intent on moving the bill before a new CBO score, even pushing to substitute a number from the Department of Health and Human Services. Along the way, to build support among wavering senators, administration officials led by HHS Secretary Price and Vice President Pence offered reassurances and statements that were simply false—so much so that Republican Ohio Governor John Kasich actually called out his own vice president.
By every past standard, and every logical standard of behavior in a representative democracy, this bill should be dead. It is not. Why not?
Republicans have no easy way out of a box canyon on health policy of their own making.
Eight years ago, when the Affordable Care Act was in its gestation period, then Republican Whip Eric Cantor said the GOP alternative to it was “weeks away.” It turned out to be 400 weeks. After ACA was enacted, we saw not a Republican alternative but 60-plus votes to repeal with a promise to replace. A week ago, when asked why Senate Republicans had to scramble to slap this plan together, Senator Pat Toomey of Pennsylvania said it was because none of them had expected Donald Trump to win. Think about that: Toomey was admitting that Republicans saw no need to come up with their own health plan in a Clinton presidency; they could just continue to work to sabotage Obamacare and take more votes to repeal without any replacement to be judged by the same standards as other bills.
There was another element to the box canyon. The ACA was fundamentally built on the Republican alternative to Clintoncare in 1993-94, as crafted by Charles Grassley, Orrin Hatch, the late John Chafee and the former Senator David Durenberger. Their alternative had competition for private insurers on regulated exchanges, and an individual mandate to buy insurance to broaden the risk pool and get rid of the burden of pre-existing conditions. When Republicans in 2009 decided not to cooperate with Democrats in Congress, but to unite in full-throated opposition to any plan that emerged, and then to work actively to delegitimize whatever passed, they created a big dilemma. Call Obamacare the worst thing since slavery, as Ben Carson did, vote over and over to repeal it root and branch—and you can’t then turn around and adopt its framework. That left no workable framework.
Of course there is a workable alternative: join with Democrats and fix the problems in Obamacare, stabilizing insurance markets, expanding Medicaid in the states that have failed to do so, finding ways to make the individual mandate work better to expand the risk pool more. But after a decade of success inflaming tribal warfare, that is not a path McConnell and Ryan are willing to take.
Republicans had no real interest in actually fixing the health-care system. This bill is far more a delivery system for tax cuts for the rich, paid for by cutting Medicaid.
Those tax cuts are the number one priority for conservatives in and out of Congress. But this could become a twofer. Conservatives have hated Medicaid ever since it was created in 1965. As Medicaid expanded to become the vehicle to pay for long-term care for the elderly along with care for the disabled and mentally ill, it became a huge government program. When Medicaid expansion became a core vehicle in Obamacare for giving health insurance to the poor, it became larger yet. So Republicans in Congress seized the moment to do something they have been unable to do in more than five decades—cut the program dramatically and shift the burden for the cuts largely to states. Doing so meant freeing up hundreds of billions of dollars that could then be used to pay for the first wave of deep tax cuts aimed especially at the richest among us. Indeed, the first BCRA iteration provided a boon for the 400 richest Americans that was large enough to pay for the Medicaid benefits of 725,000 Americans.
The tax-cut drive, however, was made much more complicated by budget rules. To get big tax cuts, Republicans have to avoid a Senate filibuster by Democrats; that means finding a vehicle that can bypass the 60-vote hurdle. Enter budget reconciliation. But reconciliation poses major hurdles to passing things that blow up deficits and debt. And reconciliation must be preceded by a budget resolution with instructions on what can be reconciled. ACA repeal was included in the budget last year—but not separate tax cuts. Those will require a new budget resolution and a second reconciliation bill. If Republicans can get a big part of their tax cuts done now, and paid for, it will make the second tax-cut bill much easier to craft within the rules.
Republicans don’t fear the backlash from a bill that will hurt lots of people, including their own voters.
Some think the simple fact of acting, and getting a policy victory, will help. Others may actually believe that the bill will work—hard as that is to believe. But the ideological view that cutting government magically brings freedom and prosperity and good health is strong among many Republicans in Congress. Nonetheless, the more rational or pragmatic ones know that this bill will hurt a lot of people, with a heavier concentration among the white working-class voters that are a mainstay of the current GOP. So why no fear? For one thing, the large tax cuts for the ultra-rich may guarantee that the web of billionaires contributing huge sums to 501(c)4s and other entities to help elect Republicans will double down. In the special election in Georgia’s sixth district, Democrat Jon Ossoff collected a mind-boggling sum for his campaign from small donors; if Karen Handel had not been able to match that with a flood of independent ads financed by big money, we might have seen a different outcome.
For another, with Justice Neil Gorsuch on the Supreme Court instead of Merrick Garland, states under GOP control and possibly even Congress will pass more and more draconian voter suppression laws (New Hampshire just joined the ranks) that will get a much more favorable treatment down the road. They will be aided by Trump’s outrageous new commission on voting, co-chaired by the king of voter suppression, Kris Kobach and including an all-star list of other voter suppressors, which is already intimidating voters. Money and voter suppression laws could well enable Republicans, even if this disaster of a bill passes, to keep control of both houses at least until 2020—and during that time, they can do even more to tilt the campaign finance system and narrow the electorate to their advantage.
Put it all together, and what emerges is a truly disturbing picture of a failed legislative process built on a deep distortion of representative democracy. A thoroughly partisan, ill-conceived and ill-considered bill, slapped together without the input of experts or stakeholders, done not to improve the health care system but to aid plutocrats, crafted in a fashion that will hurt millions and millions of Americans, by lawmakers doing whatever they can to avoid interacting with their own constituents. Dismaying, even despicable. And worse is that so many senators who should know better, and many who do know better, will actually vote for the monstrosity—and give this illegitimate process their imprimatur.