What a Republican Senate Majority May Mean for ObamaCare

Much has been written about the possibility that Republicans could win control of the Senate in the 2014 elections. In fact, some prognosticators have given Republicans a better-than-even-money shot at taking the Senate back. If Republicans keep the House and garner the net six seats necessary to win a Senate majority, what does that mean for health policy and politics in the next Congress? In particular, what does it mean for the continued implementation and expansion of the Patient Protection and Affordable Care Act, otherwise known as Obamacare?

I hear these questions a lot, having served as the Republican health policy director for one of the key Senate health policy committees in 2006, the last time Republicans held a majority in both houses of Congress. The one thing I know for sure is that Republicans simply can’t pick up where they left off in 2006, but that answer is far from satisfying.

This much, we know: if Republicans regain both houses in January 2015, health policy in the 114th Congress will be dominated by a showdown between a Republican Congress and a Democratic White House over the future of Obamacare. The challenge for Republicans will be how to balance the desire of the party faithful for repealing Obamacare with the reality that President Obama would never permit it under his watch.

The first test for a new Republican Congress would arrive early in 2015, when hundreds of campaign promises to repeal the 2010 law come due. It’s likely that the House and Senate leaders would schedule repeal votes during the first 100 days of the next Congress, and it’s also likely that President Obama would veto the repeal bill in fewer than the 10 days’ time granted to him under the Constitution. Without significant Democratic support, there is no chance that House or Senate leadership would be able to muster two-thirds of each body to override the President’s veto.

So that’s that. And that’s also when things could get interesting.

Once Republicans have held the almost-obligatory Obamacare repeal vote, it’s likely they will move to repeal some of the least popular provisions of the law. The individual mandate to purchase health insurance would probably be at the top of the list, along with the mandate on larger employers to offer health insurance as an employee benefit.

It’s possible that Republicans would seek to tie the two together, paying for the loss of the employer mandate penalties by using the savings that the Congressional Budget Office would attribute to eliminating the individual mandate. While the President would almost certainly veto such a gambit, Republicans can be expected to continue hammering away at the employer mandate, considering that some Democrats and left-leaning policy analysts have expressed a willingness to do away with it.

A Republican Congress would also likely seek to repeal many of the taxes that serve as the financing mechanism for Obamacare’s health insurance subsidies and Medicaid expansion. The health insurance tax and medical device tax, in particular, are sources of Republican ire.

Of course, not even the rosiest electoral outlook for Republicans gives the party a 60-seat supermajority in the Senate, and Democrats would certainly filibuster Republican attempts to repeal all or parts of Obamacare through regular order. However, the filibuster isn’t available to the minority in the budget reconciliation process. Expect a Republican majority to use budget reconciliation as the mechanism through which they seek to repeal what they can of Obamacare, just as a Democratic majority used the budget reconciliation to pass Obamacare in 2010.

In addition, since 2010 House Republicans have tried to “de-fund” the implementation of Obamacare through the annual appropriations process, without much success. A Republican Senate would be a much more willing partner in this process, which would put the day-to-day administration of Obamacare at risk.  The danger with this approach is the possibility that it leads to another government shutdown such as happened in 2013, with considerable blowback on Congressional Republicans.

Even if Republicans keep the House and take back the Senate in 2014, President Obama will still hold the veto pen for the next two years. It’s safe to say he’ll be forced to use that pen more than he has in the previous six years combined. The challenge for Republicans will be to come up with a legislative strategy that recognizes the limitations of not having control of the White House, yet uses the power of full control of Congress to force President Obama into making concessions. 

From my experience serving as a Senate Republican staffer when Republicans last held the Congressional majority, this is easier said than done – even at a time when Republicans held the White House too. Since the size and nature of their constituencies are different, there will always be policy differences between House and Senate Republicans. There are also differences between the chambers in how control of floor debate can be exerted, and these differences have policy ramifications as well.

So winning the Senate back in 2014 guarantees Republicans nothing. Whether winning matters depends on whether Republicans are able to work through their policy and institutional differences and execute a smart and cohesive legislative strategy on Obamacare. But that is a question Republicans hope they have to face in the next Congress!