How to reverse this week’s Obamacare defeat

My take on the political implications of the House’s failure to pass the GOP’s repeal-and-replace bill differs a little bit from John’s. In my view, the Democrats have good reason to be pleased by that failure, as things stand now.

The Democrats’ argument is straightforward. As Scott says, Republicans have been running against Obamacare for years — promising to repeal and replace it. Yet, with a big majority in House and the backing of the White House, they failed not only to deliver on their promise, but even to bring repeal-and-replace legislation to a vote.

The Republican rejoinder, as presented by President Trump, is that no House Democrat supported the bill. The point, though, is that no Democratic votes should have been required (or, of course, expected). The Republicans have the numbers in both chambers of Congress to repeal and replace Obamacare.

Thus, it seems to me that if Obamacare collapses, or even just continues to deteriorate, the GOP is likely to take most of the blame (again, as things stand now). Republicans promised to get rid of Obamacare and replace it with something better. If the Democrats obstruct this effort, the electorate may not hold the GOP to this promise. But if Republicans obstruct themselves, the electorate isn’t likely to forgive them if adverse consequences ensue.

This week, Republicans obstructed themselves.

This doesn’t mean, though, that Republicans should have passed the flawed House bill; nor does it mean that all is lost. Republicans can still get back on at least even terms in the Obamacare blame game. To that extent, I agree with John that the Democrats’ celebration is premature.

How do Republicans get back on even terms or better? I’d like to them proceed along something like the following lines:

First, later in the year, House Republicans should put together a comprehensive health insurance reform bill. It should include elimination of the individual mandate (so-called Phase I), elimination of offending regulations (Phase II), and additional reforms aimed at freeing up the market and driving down costs (e.g. permitting insurance sales across state lines and tort reform — Phase III).

If such legislation is drafted in consultation with the various Republican blocs in the House, the leadership should be able to pass it. The inclusion of Phase II and Phase III stuff should make the bill sufficiently appealing to the Freedom Caucus.

(By the time the legislation is drafted, the Trump administration may be well on along the path to Phase II regulatory reform. However, such reform should be included in the bill anyway in order to preempt litigation attacking new regs and because a new administration might change the regs again).

When the legislation I’ve described reaches the Senate, Republicans should try to enact it through reconciliation. The Democrats will move to block this and the Senate parliamentarian will back them.

At this point, Republicans should try to enact the legislation through the normal procedure. They will fail due to lack of Democratic support.

But two things will have happened. First, the Republicans will have put forth a serious proposal that it can defend in the court of public opinion. Second, the Republicans will have a reasonable basis for blaming the Democrats for the failure to repeal and replace Obamacare. In fact, they can blame the Dems twice — for not allowing them to proceed through reconciliation and for filibustering the bill.

At this point, the Republicans have two alternatives. They can move on and blame the Democrats. That’s probably the way to go.

Alternatively, they can remove from the legislation the provisions that clearly undermine the case for proceeding through reconciliation (e.g., Phase III stuff like tort reform) and seek to pass the bill by a simple majority. (It may be necessary to wait until next year to use this approach, since by this time reconciliation may already have been used for other purposes). If the parliamentarian rules that reconciliation still cannot be used, Republicans can throw up their hands and blame the Dems (and the parliamentarian) some more.

Or, Vice President Pence can overrule her. This approach should only be used if Republicans are reasonably sure (1) that a bill like this — i.e., one without things like tort reform and enabling sales across state lines — can get majority support in both the House and the Senate and (2) that the bill will produce good outcomes, e.g., reduced premiums/deductibles .

If they have such confidence, this approach has the advantage of actually repealing and replacing Obamacare with something substantially better. If they don’t, Republicans shouldn’t risk another defeat at their own hands.

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