A few minutes after the Supreme Court issued its landmark decision upholding President Obama’s health care law last summer, a senior adviser to Mitch McConnell walked into the Senate Republican leader’s office to gauge his reaction.
McConnell was clearly disappointed, and for good reason. For many conservatives, the decision was the death knell in a three-year fight to defeat reforms that epitomized everything they thought was wrong with Obama’s governing philosophy. But where some saw finality, McConnell saw opportunity — and still does.
Sitting at his desk a stone’s throw from the Senate chamber, McConnell turned to the aide and, with characteristic directness, said: “This decision is too cute. But I think we got something with this tax issue.”
He was referring to the court’s ruling that the heart of the 2010 Affordable Care Act, the so-called individual mandate that requires everyone in the country to buy health insurance or pay a penalty, was a tax. And while McConnell thought calling the mandate a tax was “a rather creative way” to uphold the law, it also opened a new front in his battle to repeal it.
McConnell, a master of byzantine Senate procedure, immediately realized that, as a tax, the individual mandate would be subject to the budget reconciliation process, which exempted it from the filibuster. In other words, McConnell had just struck upon how to repeal Obamacare with a simple majority vote.
The Kentucky Republican called a handful of top aides into his office and told them, “Figure out how to repeal this through reconciliation. I want to do this.” McConnell ordered a repeal plan ready in the event the GOP took back control of the Senate in November — ironic considering Democrats used the same process more than two years earlier in a successful, last-shot effort to muscle the reforms into law.
In the months that followed, top GOP Senate aides held regular strategy meetings to plot a path forward. Using the reconciliation process would be complicated and contentious. Senate rules would require Republicans to demonstrate to the parliamentarian that their repeal provisions would affect spending or revenue and Democrats were sure to challenge them every step of the way. So the meetings were small and secret.
“You’re going in to make an argument. You don’t want to preview your entire argument to the other side ahead of time,” said a McConnell aide who participated in the planning. “There was concern that all of this would leak out.”
By Election Day, Senate Republicans were ready to, as McConnell put it, “take this monstrosity down.”
“We were prepared to do that had we had the votes to do it after the election. Well, the election didn’t turn out the way we wanted it to,” McConnell told National Journal in an interview. “The monstrosity has ... begun to be implemented and we’re not giving up the fight.”
Indeed, when it comes to legislative strategy, McConnell plays long ball. Beginning in 2009, the Republican leader led the push to unify his colleagues against Democrats’ health care plans, an effort that almost derailed Obamacare. In 2010, Republicans, helped in part by public opposition to the law, won back the House and picked up seats in the Senate. Last year, GOP presidential nominee Mitt Romney’s embrace of the individual mandate while Massachusetts governor largely neutralized what had been a potent political issue.
But, in the next two years, Republicans are looking to bring the issue back in a big way. And they’ll start by trying to brand the law as one that costs too much and is not working as promised.
Democrats will be tempted to continue to write off the incoming fire as the empty rhetoric of a party fighting old battles. But that would be a mistake. During the health care debate, the GOP’s coordinated attacks helped turn public opinion against reform. And in the past two years, no more than 45 percent of the public has viewed Obamacare favorably, according to the Kaiser Family Foundation’s tracking polls. Perhaps even more dangerous for Democrats, now-debunked myths spread by Republicans and conservative media remain lodged in the public consciousness. For instance, 40 percent of the public still believes the law includes “death panels.”
During the legislative debate over the law, Democrats promised Obamacare would create jobs, lower health care costs, and allow people to keep their current plans if they chose to. Those vows, Republicans argue, are already being broken.
The Congressional Budget Office, the Hill’s nonpartisan scorekeeper, estimated that the health care law would reduce employment by about 800,000 workers and result in about 7 million people losing their employer-sponsored health care over a decade. The CBO also estimated that Obamacare during that period would raise health care spending by roughly $580 billion.
McConnell’s office has assembled the law’s 19,842 new regulations into a stack that is 7 feet high and wheeled around on a dolly. The prop even has its own Twitter account, @TheRedTapeTower.
“All you got to do is look at that high stack of regulation and you think, ‘How in the world is anybody going to be able to comply with all this stuff?’ ” GOP Sen. Orrin Hatch, told National Journal. “And I’m confident that the more the American people know of the costs, the consequences, the problems with this law, then someday there are going to be some Democrats who are going to join us in taking apart some of its most egregious parts.”
In fact, just a few hours after that interview last week, 34 Democrats joined Hatch on the Senate floor to support repealing Obamacare’s medical-device tax. Though the provision passed overwhelmingly, it doesn’t have a shot at becoming law because the budget bill it was attached to is nonbinding. Still, Republicans see it as a harbinger of things to come.
“Constituent pressure is overriding the view that virtually all Democrats have had that Obamacare is sort of like the Ten Commandments, handed down and every piece of it is sacred and you can’t possibly change any of it ever,” McConnell said. “When you see that begin to crack then you know the facade is breaking up.”
Of course, Republicans are doing their best to highlight and stoke the kind of constituent anger that would force Democrats to tweak the law. In fact, if Democrats come under enough pressure, Republicans believe they might be able to inject Obamacare into the broader entitlement-reform discussion they are planning to tie to the debt-limit debate this summer.
But that is a long shot. If Republicans hope to completely repeal the health care law, they have to start by taking back the Senate in 2014 and would likely need to win the White House two years later. Still, some Republicans think the politics are on their side.
“I’m not one of those folks who ... because I didn’t support something, I want it to be bad. I want good things for Americans. But I do think this is going to create a lot of issues and … affect things throughout 2014 as it relates to politics,” Republican Sen. Bob Corker said. “The outcome likely will create a better atmosphere for us.”
Republicans will need to win half a dozen seats to retake the chamber. So, what are the chances?
“There are six really good opportunities in really red states: West Virginia, North Carolina, Louisiana, Arkansas, South Dakota, and Alaska,” McConnell said last week. “And some other places where you have open seats like Michigan and Iowa. And other states that frequently vote Republican, an example of that would be New Hampshire. So, we’re hopeful.”
And earlier this week, Democratic Sen. Tim Johnson put his home state of South Dakota in play when he announced he will not be running for reelection in 2014.
In addition to trying to win back the Senate, McConnell will have to protect his own seat in two years. McConnell has made moves to shore up his right flank to fend off conservative challengers. He’s hired fellow Kentucky Republican Sen. Rand Paul’s campaign manager, who helped Paul defeat the establishment candidate McConnell backed in the primary.
In the meantime, Republicans will continue to, as GOP Sen. John Barrasso put it, “try to tear (Obamacare) apart.” And the GOP suspects it might get some help from moderate Democrats less concerned about protecting Obama’s legacy than winning reelection.
It’s just the latest act in a play that saw McConnell give more than 100 floor speeches critical of Democratic reforms and paper Capitol Hill with more 225 messaging documents in the 10 months before Obamacare’s passage. Away from the public spotlight, McConnell worked his caucus hard to convince them to unite against the law, holding a health care meeting every Wednesday afternoon. GOP aides said they could not remember a time before, or since, when a Republican leader held a weekly meeting with members that focused solely on one subject.
“What I tried to do is just guide the discussion to the point where everybody realized there wasn’t any part of this we wanted to have any ownership of,” McConnell recounted. “That was a nine-month long discussion that finally culminated with Olympia Snowe’s decision in the fall not to support it. She was the last one they had a shot at.”
Indeed, some Republicans remember opposition forming organically as it became clearer where Democrats were headed, crediting McConnell for crystallizing the issue. Asked who unified Senate Republicans against Obamacare, Corker recalled, “I think it happened over time.… As time moved on, it just seemed that this train was going to a place that was going to be hard to support.”
McConnell had finally won his long-fought battle to unite the conference against Obamcare. And some Republicans credit McConnell with being first to that fight.
“He had the Obama administration’s number before almost anyone else,” Hatch recalled. “He began laying the groundwork for this fight very early, in private meetings and so forth, and really was the first one on our side in the ring, throwing punches just about how bad it was for families, businesses, and our economy.”
“There’s been no stronger fighter against this disastrous law than Mitch McConnell,” he added.
And as McConnell’s war continues, Democrats have begun positioning themselves for the next battle. Leading up to last week’s three-year anniversary of the law’s passage, Democrats held press events touting its benefits, claiming more than 100 million people have received free preventive services; 17 million children with preexisting conditions have been protected from being denied coverage; and 6.6 million young adults under 26 have been covered by their parents' plan.
Democrats wisely rolled out many of the easiest, most-popular Obamacare benefits first. The next few years will see the implementation of provisions that are both more complicated and controversial, like creating state-based insurance exchanges where people can buy coverage. Asked about the political ramifications of possible implementation problems, Democratic Sen. Max Baucus, a chief architect of Obamacare, sidestepped the question saying, "My job is to do my best to make sure this statute works to help provide health care for people at the lowest possible cost."
Far from a full-throated assurance that everything will run smoothly, Baucus’s answer hints at the dangers Democrats face as Obamacare comes online.
And with the law moving from the largely theoretical to the demonstrable, the health care debate is poised to return to intensity levels not seen since before the law passed.
For congressional Republicans, it’s probably their last, best chance to turn opposition into political gain.
And much of that job falls to McConnell, a brilliant defensive coordinator who will have to play flawless offense if he hopes to take control of the Senate next year.