ACA
It was a true highlight of the early “Resistance” to the Trump Administration. Trump’s goal was to dismantle almost anything that Barack Obama achieved. And President Obama’s greatest achievement: The Affordable Care Act (ACA), bringing health insurance to millions of Americans.
It was already undercut by the Republican controlled Congress. The ACA was a “carrot and stick” approach to insurance. If you didn’t already have private insurance through your employer and refused to purchase it on the “marketplace”, you faced the “stick”. You were charged a tax “penalty”.
The Republicans lowered the “penalty” to zero and took away the “stick”. So those who wished to “go bare” and have no insurance at all, didn’t face consequences. That is, of course, until they got injured or sick. And from the ACA side, it allowed a lot of very healthy people to not contribute to the insurance pool. Their dollars were used to supplement the costs of sicker people.
GOP Control
Mr. Trump controlled the Presidency, the House under Speaker Paul Ryan, and the Senate under Mitch McConnell. Democrats rallied Americans to protect the ACA. There were marches on the Capitol, sit-ins in the hallways, and media pressure campaigns all over the nation. But in the end, the numbers favored the Republicans.
The House voted to repeal the Act, and it moved to the Senate. The Republicans had a 54 to 46 vote majority. They were clearly in charge but not the “super” majority of 60 required to end a Democratic filibuster. So the repeal was brought as a “budget reconciliation bill”. That allowed a simple majority of 51 to take away Obama’s crowning achievement.
There were a few Republican Senators wavering. They faced tough re-election campaigns in marginally Republican states, and the ACA was popular among the electorate. And some recognized that their Party had still offered no alternative to the ACA. Should Congress repeal the law, there would be no protections for those with pre-existing conditions, and no ability to carry young adults on their parent’s insurance. Both were extremely popular changes made by the ACA.
Maverick
And some felt that the process itself, using “budget reconciliation” to take a clearly non-budget vote, was just wrong. There were no hearings, no committees discussing the health care needs of America, no debate on the relative values of the Affordable Care Act. That led some to question the entire process. One of those was the Senior Senator from Arizona, John McCain.
McCain lived up to his nickname “Maverick” during the early years of Trump. He saw Trump as a charlatan and he called “ it like he saw it”. So McCain’s vote to repeal the ACA was hardly “in the bag”. Vice President Mike Pence was the point man for the Administration in the negotiations, and McCain wavered as the ultimate pressure was on to support his Party.
Thumb Down
But McCain was dying of a brain tumor. The normal political pressures of funding or lack of support didn’t have much impact on a man who would only live a few more months.
We all remember that final act. It was early in the morning, as the Senate was taking the vote. Those still up watching saw McCain huddle with Pence and McConnell. He then walk out of the Chamber as the votes were taken. Then he came in, and with an awkward motion of his tortured arm, stood in the front of the Clerk of the Senate and gestured – thumb down. The ACA survived.
It was about “regular order”. McCain, like the current President Biden, was a man of the Senate. The Senate was acting as a partisan arm of Donald Trump, not as the deliberative body where McCain “grew up” politically in his thirty years there. And while the “Resistance” took his vote on the ACA as a great victory – to McCain it was more about the role of the Senate than the law itself.
Get Things Done
After four years of Democrats watching Trump outrages, there is a tremendous pressure to get things done. The Voting Rights Act(s), Immigration and Citizenship Reform, upgrading the infrastructure, LGBTQIA rights, climate change, gun reform; all are on the list. And there is the direct impact of the Trump Presidency. How can we be assured that the almost dictatorial leadership will never be repeated?
Senate Democrats are asking themselves what price they might pay by changing the rules. They have a slim majority of one, based on Vice President Harris’s role as tie breaker. To pass any legislation by “regular order”, they must find ten Republican Senators to join in. And while there seems to be a “middle caucus” of ten less obstructionist Republicans, they don’t seem close to joining the Majority on anything so far.
By their tie breaking vote, Democrats could make the Senate a simple majority body. Or, like what has already been done with Judicial and Executive nominations, they can carve out more exceptions to the sixty-vote rule. They can change the “regular order” to get the agenda through.
Party Line
That is of course, if fifty Democrats stay in step with the “Party line”. As we saw in the COVID Relief Package, Democrats MAY negotiate with the Republicans, but they MUST negotiate with the more conservative members of their own Party, with Joe Manchin as the “poster boy”. And Joe Manchin, like John McCain, is a man of “regular order”.
For Democratic leadership, it’s difficult to put political pressure on a Democrat elected from West Virginia, a state that in 2020 voted almost 69% in favor of Donald Trump.
One final point. When Democrats “kill” or modify the Filibuster, the sixty vote rule, when Republicans regain the majority, they will follow the precedent and do the same. But McConnell could do that anyway, so that threat doesn’t go away no matter what the Democrats do now.
Change the Order
There are many things that Democrats can do – but the one “wrong” answer is impotence. A minority of Republican Senators cannot stop the flood of legislation that the House, and the vast majority of Democrats, want to get done. Should the Senate leadership somehow hide behind the veil of Republican filibusters, then the 2022 electorate will walk away from them.
It’s time for Majority Leader Chuck Schumer to make the deal: not with Republicans, but with Joe Manchin, Krysten Sinema, and the other “blue dog” Democrats. Whether it’s a total end to the filibuster, or some modification, the only acceptable outcome is to find a way to get things done. The Voting Rights Acts (HR 1 and HR 4) need to be at the top of that list.
