What a GOP-Controlled Congress Could Mean for the Affordable Care Act

In a matter of weeks, the midterm election will determine the balance of legislative power between Democrats and Republicans. With many observers expecting Republicans to win enough seats to gain control of Congress, could the party repeal the Affordable Care Act?

First, let’s take a look at the math.

Republicans are expected to maintain their majority in the House. In the Senate, there are currently 53 Democrats, 45 Republicans and two independents (both of whom caucus with the Democrats). Thirty-six seats are up for grabs in the midterm election, 21 of which are held by Democrats and 15 by Republicans.

To control the Senate, the GOP needs to gain six seats. As of Oct. 16, FiveThirtyEight predicts there is a 60.8% chance of the party doing just that, while the Washington Post puts the GOP’s chances at 93%.

Even if the GOP assumes control, a simple majority is no guarantee of progress on the party’s favored policies. Specifically, the GOP needs 60 votes to overcome a filibuster in the Senate.

But perhaps the biggest roadblock is that a repeal comes down to one vote: President Obama.

Add that up and there is a zero chance of repeal, at least until 2016.

So, What Could Happen to the ACA?

Assuming that Republicans nab control of Congress, a GOP majority in the Senate could still have a significant effect on the ACA.

In an ironic twist, Republicans might be able to use the same technical procedure — reconciliation — that Democrats used in part to pass the ACA to slowly pick apart the law. GOP lawmakers could attach anti-ACA provisions to budget legislation that would need only 51 votes to pass. However, reconciliation is a lengthy and complex process, and it could end in an Obama veto.

The GOP’s best hope is to find unpopular provisions of the law and develop legislation that could attract support from Democrats. Obama might have a harder time vetoing “bipartisan” legislation, particularly coming from a Senate that has been gridlocked for years.

Health policy experts who talked with California Healthline agree that Republicans will go after specific provisions of the law. They disagree on which provision marks the GOP’s best chance to chip away at the law. Here are two possibilities.

Risk corridors

According to Dan Holler, communications director for Heritage Action, the provision will “be a big focus” for the GOP. 

Under the provision, health insurers who enroll a higher-than-expected number of sick people through the insurance exchanges can receive federal payments to offset their costs. GOP lawmakers have called for the provision to be revised, arguing that it is a taxpayer-funded “bailout” for insurers.

Holler thinks the risk corridors issue is a winner for the GOP largely because it “has the ability to reposition the Republican Party in the mind of the voters.” He adds, “[Y]ou’re talking about a potential bailout for insurance companies. That is something that would be very popular politically, not just with the conservative base, but also with a lot of Americans who … are distrustful of how things work in Washington, with well-connected special interests getting ahead while [they are] getting behind.”

Employer mandate

Joseph Antos, a health policy expert at the American Enterprise Institute, thinks the more likely target is the ACA’s provision requiring most companies to offer health insurance to their employees.

Antos notes that the Obama administration already has delayed the employer mandate and argues that it could do so again, in part because he says the Treasury Department is unprepared to move forward with it anyway. He adds, “Let Congress take the initiative, rather than waiting for the Treasury to come up with some new reason why they won’t implement it.” 

Further, Antos adds that changing the reporting requirements for the employer mandate, which he says many mid-sized businesses would struggle with, could gain bipartisan support.

Whatever the Strategy, the GOP Must Be Cautious, Experts Say

Even if they aim just to incrementally change the ACA, Republicans still must walk a careful line: They can’t look like they’re attempting to improve the law. That’s a criticism many more moderate GOPers faced earlier this year, when lawmakers farther to the right pushed hard on an ACA repeal.

Antos tells California Healthline that a big challenge for a GOP-controlled Senate would be the scope of whatever action the party takes. He says, “One of the biggest problems Republicans are going to have is the entry point. Are they willing to entertain a small change in the law, even if it is extremely popular with the voters? I think in the end, they will, because part of their challenge is to demonstrate to all the voters that they can actually run a government.”

Antos adds that Republicans must take action, regardless of where it goes. “Congress has essentially done nothing since 2010, not just on health care, but on anything, and so Republicans really have to step up,” he says, adding, “I think their strategy is to send things that everybody likes and the president will sign, or send things that everybody likes that the president won’t sign. Either way they win.”

Meanwhile, Holler thinks that the strategy of taking on individual pieces of the ACA falls into “two buckets,” only one of which is “fixing Obamacare.” In the first bucket, Holler says the more you help “people that are being harmed by Obamacare,” the “less of a coalition you have supporting getting rid of the entire thing and starting over.”

The other bucket includes strategies that are not “making the law more stable and less controversial.” He places the risk corridors provision in the second container because “you could make the argument that if you take the risk corridors piece out, insurers are then being negatively impacted by the law.”

Is an ACA Repeal Package Really Off the Table?

The bottom line is that with a presidential election coming down the pike, a Republican win in 2016, plus the GOP controlling Congress, could spell end for the ACA. All of the experts California Healthline spoke with insisted that full repeal of the law is not off the table.

Still, repealing the ACA would be difficult, for two reasons:

  1. Republicans might not maintain control of the Senate for long. As Ezra Klein notes in Vox, the 2016 Senate elections are “even more favorable” to Democrats than the 2014 election is to the GOP. There are 34 seats up for grabs in 2016, and 24 of those are held by Republicans.
  2. Repealing major legislation, especially a law as large and complex as the ACA, is politically risky. By the time there’s a new president, the ACA will have been through three enrollment cycles, and potentially tens of millions of U.S. residents will have gained coverage. Making any changes to that coverage would be a major optics issue, particularly for a party that made such a fuss about plans being canceled because they did not meet the ACA’s minimum coverage standards. It could also mean eliminating a number of popular provisions, such as the ban on discriminating against people with pre-existing conditions or allowing children to stay on parents’ insurance plans up to age 26.

Any GOP president’s challenge would be to assure the public that the rug won’t be pulled out from under them.

Says Antos: “Abolishing [the ACA] without allowing people to keep what they have is a politically unwise thing to do.” He adds, “It’s language versus reality. … I think a Republican president would absolutely have to say they would repeal [the ACA], but it wouldn’t stop just with that phrase. They would, ideally, go on to say what they would replace it with, and it would have to be serious and there would have to be some real details.”

But the notion that Republicans “want to take everything away and go back to the status quo” is misleading, Holler says. He notes that both candidates in the 2008 election campaigned on the idea that the U.S. health care system was “broken,” and neither party “wants to go back to that.” Rather, Holler says, “What Republicans and conservatives are saying is the way the Democrats went about fixing it was totally wrong and we’re going to try something different.”

Around the nation

Here’s what else is making news on the road to reform.

The delicate dance of the GOP governor. The Atlantic chronicles the difficulties Republican governors face in dealing with the ACA. On the one hand, GOP governors must find a way to work with the law to best serve their residents. On the other hand, they must hew the party line, which is that the law must be repealed. Case in point: Ohio’s John Kasich, who this week said an ACA repeal is “not gonna happen” and then later backtracked.

Uninsured and unaware. The Kaiser Family Foundation’s most recent tracking poll finds that nearly nine in 10 uninsured U.S. residents are unaware that the ACA’s second open enrollment period is set to launch in November. Meanwhile, two-thirds of uninsured respondents knew little or nothing about the law’s exchanges.

Not doctor approved. A new survey finds that nearly half of doctors polled gave the ACA a failing grade. Ilya Somin, writing in the Washington Post‘s “The Volokh Conspiracy,” examines what that means for the law and whether voters should defer to physicians’ opinion. 

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