Be Afraid

If Trumpcare can pass the House, it can pass the Senate.

Senate Majority Leader Mitch McConnell.
Senate Majority Leader Mitch McConnell, flanked by Sens. Cory Gardner, John Barrasso, and John Thune, on Capitol Hill on Tuesday in Washington, D.C.

Aaron P. Bernstein/Getty Images

“If you don’t keep the process moving,” Oklahoma Rep. Tom Cole told reporters Thursday morning, shortly before the House finally voted on the American Health Care Act, “you basically ratify Obamacare.”

That, in a nutshell, is why the House passed its health care reform bill. And it’s why no one should assume that the Senate won’t do the same, for the same reason.

Sure, the Senate is where bills go to die. Senators take great pride in this. This is why House Democrats, once they recognized that Republicans had the votes, warned their friends on the other side of the aisle that they would just be “walking the plank” by voting for an unpopular bill to no apparent end. It’s an open secret that plenty of House Democrats and their political operatives didn’t mind seeing the bill pass their chamber to get vulnerable Republicans on the record supporting something that had been polling at 17 percent—if it was just going to die in the Senate anyway.

But to anyone who assumes that this effort will die as most bills do—with a regal, dismissive tut-tutting from the Senate—did you see what’s just happened in the House? The wildly irreconcilable, slapstick House Republican Conference was able to pass a bill that more than a few of them thought was not just bad but a political existential threat. They chose to keep it moving, anyway, because they felt they had to. Why wouldn’t the Senate—whose Republican leader possesses far more competence than the House leadership combined—do the same?

As it stands, the Senate Republican Conference does not like what they see. As South Carolina Sen. Lindsey Graham tweeted Thursday morning, “a bill—finalized yesterday, has not been scored, amendments not allowed, and 3 hours final debate—should be viewed with caution.” And Nevada Sen. Dean Heller, the most vulnerable Republican senator this cycle, released a statement saying he couldn’t support the AHCA as written. “We cannot pull the rug out from under states like Nevada that expanded Medicaid,” he said, “and we need assurances that people with pre-existing conditions will be protected.” We should expect to hear more trash-talking of the AHCA from—just to rattle off a few names—Sens. Susan Collins, Lisa Murkowski, Bill Cassidy, Jeff Flake, Tom Cotton, Rob Portman, Cory Gardner, Rand Paul, Ted Cruz, Mike Lee, John Thune, Bob Corker, and Shelley Moore Capito in the coming days. And the coming weeks. The coming months, probably. (The Senate is slow.)

The senatorial sneers might even be as nasty as House Republicans’ sneers were when they first got wind of what they were considering.

No one outside of the House Republican leadership had anything positive to say when the bill was released. Members of the Freedom Caucus called it “Obamacare Lite” or “Obamacare 2.0” and refused to support it. North Carolina Rep. Mark Walker, chairman of the roughly 170-member Republican Study Committee, said that “absent of substantial changes, I cannot vote for the bill, and, in good conscience, cannot recommend RSC Members to vote for it either.” Moderates saw a bill that cut Medicaid by nearly 1 trillion dollars and wanted it to disappear. The bill’s horrific Congressional Budget Office score—and its conclusion that 24 million fewer Americans would have coverage if this bill passed—did no one any favors.

And then they set to work on it.

Leadership got the RSC on board with an amendment to move up the date of the bill’s Medicaid and tax cuts and to incentivize states to impose Medicaid work requirements.

This still didn’t bring on the conservatives of the Freedom Caucus, who complained that the bill didn’t address the Affordable Care Act’s regulatory cost drivers. Though House leaders had argued that they couldn’t address these issues in this bill because doing so would violate Senate reconciliation rules, it was more that they didn’t want to open up a political Pandora’s box. We saw why in March: As soon as House leaders, at the urging of President Trump, agreed to eliminate the ACA’s “essential health benefits” provision, moderates fled while conservatives just wanted more. The effort collapsed.

But then the Freedom Caucus, trying to avoid blame for the failure to repeal Obamacare, began negotiating with New Jersey Rep. Tom MacArthur, a co-chairman of the moderate Tuesday Group. After a few weeks, MacArthur released a supposed “compromise” amendment. The AHCA would no longer eliminate “essential health benefits”—it would just give states the option of doing so. It also made available state waivers to eliminate community rating by health status, which would allow insurance companies to charge sick people higher rates. In other words, the new AHCA gave states the option of allowing its insurers to price those with pre-existing conditions out of commercial insurance and into questionably funded high-risk pools.

The amendment got the Freedom Caucus nearly unanimously on board. The Tuesday Group and other vulnerable noes were furious at their own co-chairman for cutting a deal with the conservatives rather than allowing to die a toxic bill that could cost them their seats. What angered them most was that they knew they would have to fold and take one for the team. And they did. All that was needed, in the end, was a cosmetic amendment throwing a few more bucks at people with pre-existing conditions to create the gentle gust of wind necessary to bowl moderates over.

In short: Republicans found a way to pass this, because they believed they didn’t have a choice. If they didn’t do something, as Cole said, it would be a ratification of Obamacare, which they’ve spent nearly a decade promising to get rid of. So they did something. And so can the Senate.

To pass this bill, the Senate will likely rewrite how the bill allocates refundable tax credits. This will at least temper the problem of older, low-income people having to pay more than half of their income in premiums under the new health care regime. The Senate will also soften the bill’s Medicaid cuts in a way that provides enough cover to senators from Medicaid expansion states, such as Portman, Heller, Gardner, and Murkowski.

The last one in this group presents thorny issues for leadership. Murkowski has problems both with the bill’s treatment of Medicaid as well as its provision defunding Planned Parenthood, which wasn’t too controversial in the House. Fortunately for the Senate, they can punt: Since the House has already passed the provision, the Senate could strip it and leave the decision to conference negotiators when the two chambers mesh their bills. Once it gets through conference, those with any remaining opposition who voted for it in either chamber will feel obligated to get it across the finish line, having voted already and having gotten it that far. The Senate could also punt thorny questions into conference by just writing a new bill from scratch—perhaps with a similar architecture—rather than amending the House text.

That’s just the thing: As with the House, the Senate bill will not be the final legislative test before a health care bill heads to the president’s desk. The House is punting an unpopular bill to the Senate, and if the Senate passes a somewhat less unpopular version of it, they’ll just be punting to a conference committee between the two chambers to negotiate a final bill. The Senate’s job now is to move the process along. They may find it unpleasant. But will they find it more unpleasant than “ratifying” Obamacare?