The biggest legislative day for the 115th Congress and President Donald Trump – without much competition – is lining up to be this Thursday, when the House is scheduled to vote on the mutating American Health Care Act, the secretively conceived and widely disparaged “replacement” for the Patient Protection and Affordable Care Act. Written without the input of most of the House Republicans, affected health care industry groups, impacted patient organizations or senators who will have to respond to a House-passed bill, the road forward proves to be rocky. However, when the dust settles (and it may not be on Thursday), I will go out on a limb and predict the House will pass something that the President will define as “amazing.”
My willingness to make a prediction has less to do with the details of the AHCA than the politics. After years of horsing around with make-believe “ACA repeal” bills, the House Republicans have had to put a real legislative plan on the table. Let’s stipulate it is a stinker: there is no more sophisticated term for a bill that throws 26 million people off health care, undermines the economics of the health care industry, and showers hundreds of billions in tax relief on the wealthiest Americans. It wasn’t that long ago (1993 to be precise) that it was Democrats who united groups like the American Medical Association, the pharmaceutical industry and insurance companies to denounce health care legislation. Now, all those groups are condemning RyanCare, or TrumpCare, or whatever name will ultimately be stenciled on this abomination.
A terrible process creates a terrible bill. Not only did Republican leaders hide their cards from their own members and Democrats alike, but they insisted on proceeding without a word of testimony, a day of open hearings or the sina qua non standard for serious policymaking, a score of the cost and impact from the Congressional Budget Office. When CBO delivered the bad news, after two committees had already marked up the bill, the GOP leadership naturally trashed the non-partisan office. That kind of high-handedness doesn’t sit well with serious policy people or many Members, for that matter. There is a reason CBO, not the President’s Office of Management and Budget, has long provided the definitive analysis of the impact of proposed legislation: it is nonpartisan and unusually accurate which aggravates Democratic as well as Republican majorities.
Republican myth makers like to assert that the Democratic health bill was similarly developed in secret and foisted upon an unsuspecting and uninformed Congress in 2009, except that the GOP’s characterization is utterly untrue. Three House Committees spent 100 hours in hearings, listening to 181 witnesses; they held well-publicized mark-ups at which 239 amendments – Democratic and Republican – were offered and 121 were accepted. In the Senate, the bill received 53 hearings and 8 days of mark-up during which they considered 135 amendments. There were bipartisan discussions in Committee and at the White House. There were extensive consultations with medical, patient, hospital, drug and other impacted groups. And there was a CBO score before floor action (which predicted a trillion dollars in budget savings). Any comparison of the ACA process to the stealth AHCA is as phony as the Trump Tower wiretaps.
Republicans, commentators and those who are taken in by them also love to rationalize their secrecy by quoting Speaker Nancy Pelosi’s statement – one line in a long speech about health care – that “we have to pass the bill so that you can find out what is in it,” conveniently leaving out the remainder of the sentence, “away from the fog of controversy.” Pelosi was perhaps overly optimistic to imagine that Republicans would ever allow the ACA to be “away from the fog of controversy,” but she certainly was not suggesting no one knew what was in a bill that had been the subject of such detailed and prolonged discussion and negotiation. Rather, she was admitting the obvious about the legislative process: as legislation undergoes repeated amendments and ping pongs back and forth between the House and Senate, one can never say what the “final” version of a law is until the last stage in its creation. We can’t say what the final score in a baseball game is in the 7th inning either but that doesn’t make the game illegitimate.
Lacking much commitment to sound policy, Speaker Paul Ryan is feverishly offering up amendments to buy much-needed conservative votes. Not surprisingly, some House Republicans are uneasy with a bill that could deprive thousands of constituents of their health insurance – many of them Trump voters who hate ObamaCare but sure love that ACA that covers their unemployed spouse or their special needs kid. And there are the Freedom Caucus zealots, always happy to impose parliamentary chaos with Cat-in-the-Hat irreverence, who are harrumphing they will never support a bill they have denounced as “ObamaCare 2.0.”
Despite these observations, however, Ryan is likely to cobble together the 216 votes he needs to pass whatever concoction the AHCA has morphed into by Thursday, for the simple reason that he does not want ACA repeal to die on his watch. And this argument, more so than the details of the bill, is what will doubtless find resonance among 216 Republicans, though perhaps not many more. House members reflexively gag at arguments that their bills must be tempered to accommodate the whims of senators, who can drag out the filibuster rule or the rulings of the Senate parliamentarian when needed to muscle the House into submission. The House often anticipates such Senate obstinate behavior by passing legislation that satisfies the House’s internal politics, recognizing that a reckoning with reality lies somewhere down the road.
The atmospherics are different in the Senate. Where Ryan can afford to lose a couple of dozen Republicans and still pass a bill, the Senate margin is far tighter, only 2 votes. While a significant number of House members can vote “no” because their particular district demands it (as was the case with Democrats in 2009), a senator has to confront the impact across an entire state — a broader view of reality that causes grief to people like Lisa Murkowski, Susan Collins, Rand Paul and Rob Portman. A “yes” vote from these senators has draconian impacts on hundreds of thousands of constituents who have health insurance for the first time thanks to the ACA. The House hardliners are right: the Senate will alter whatever the House sends over in order to accommodate Senate realities. Then will come the moment of truth: can Paul Ryan cobble together the 216 votes needed to pass a Senate version that, for example, might retain Medicaid until 2020 (when everyone undoubtedly hopes cooler heads will prevail and the phase-out is scrapped)? Unless circumstances change dramatically (and they won’t), Ryan will not be able to count on Democratic votes to pass the Senate bill, so a displeased Freedom Caucus could still sink a more moderate Senate work product.
For the moment, such a scenario is down the road and a far more immediate test awaits Ryan. President Trump lumbered over to the Hill today for a pep rally in support of the AHCA and predictably put his foot into it, musing that any Republicans who voted against the bill on Thursday might lose their seats in 2018. (The translation of the not very subtle dog whistle, in the words of a Republican inside the room, “If you don’t get behind this … it looks like you’d be ripe for a primary.”) Things may have changed since my departure from the Hill four years ago, but in my experience, presidents secure more votes when they exude charm rather than venom, and that is undoubtedly true for a president who is likely less popular in most districts than the members of Congress he was threatening. Yet Trump, utterly unschooled in Hill deference, not only issued the broad threat but singled out Freedom Caucus Chairman Mark Meadows with a promise, “I’m gonna come after you” if the North Carolinian doesn’t swallow his pride and embrace Ryan’s bill. Meadows has not responded favorably, advising that such warnings “don’t bring us closer to ‘yes.’ If anything, they have an opposite reaction.”
Time will tell how the politics and the policy play out, surrounded by the continuing chaos that is the Trump Administration. It is important to remember that today’s Republican Conference has been unable to enact any complex legislation without Democratic votes since assuming the majority in 2011. Believing they can succeed on something so convoluted as health care, with the entire health industry opposing them, is difficult to fathom. As former Speaker John Boehner noted last month, “Republicans never, ever, one time agreed on what a health care proposal should look like. Not once.” Will they have done so when the fight over AHCA is over? Maybe, but negotiating the policy and political labyrinth is going to be awfully confounding for an unproven and inexperienced majority.