Monday, February 9, 2015

ACA Follies

You may not have heard, but the Republicans have a new plan to replace Obamacare with a true conservative alternative.  They are bringing in Bibi Netanyahu to be the new ACA Czar.

You have to admit, for just a moment, you thought it possible.  But, there is an ACA plan, and it is fabulous. As to “new”, well, “new” is a term of art.  As Dana Milbank points out in the Washington Post, the “new” plan is almost word-for-word cut and paste from something they introduced over a year ago, but didn’t publicize very much.  The “Burr, Hatch, Upton Obamacare Replacement Plan” looks stunningly like the “Burr, Coburn, Hatch Obamacare Replacement Plan.”  Senator Coburn retired, so Orrin Hatch gets moved up in the billing, and Fred Upton (Republican Congressman from Michigan and current Chairman of the House Committee on Energy and Commerce) rides in the caboose.  After that exhausting expenditure of time and energy replacing the digital signs, they had to rest, and left everything else alone.

Why bother with an ACA replacement, since every realist knows that what the GOP wants (and has now expressed no less than 56 times) is repeal without the “replace” part?  Because, opposing Obamacare was easy—it was both philosophically abhorrent to Republicans to expand medical coverage to those who didn’t have it, and it was great politics.  But governing, which is what the GOP desperately wants to do in 2017, is a little different, and they know it.  Hence, the great new plan.  

The Republicans have begun to realize they have a political problem.  Actually, that’s not quite accurate.  In fact, they anticipated it years ago when ACA was first enacted, but reaped so much electoral hay out of it that they forgot.  ACA is type of entitlement program, just like Social Security, Medicare, Medicaid, SNAP, veterans benefits, and a countless other smaller line items that give a leg up to a certain class of people.   All of us are united in hating big government and taxes and regulations and programs, but our ire tends to abate quite markedly when we benefit.  We like those things, and feel “entitled” to keep them.  The GOP knew that in 2009, which is why they fought it tooth and nail.  They forgot it afterwards in their glee over the 2010 mid-term elections. ACA became the carbuncle on the donkey that couldn’t be lanced, and the GOP was more than happy to keep inflaming it.

We are at a crossroads right now.  Not only does the GOP control Congress and the majority of the statehouses, but they also have teed up before a conservative Supreme Court King vs. Burwell, which, if it goes the GOP way, will absolutely eviscerate the law by invalidating a key funding structure. 

That makes life good?  Not necessarily. What the GOP (and the Democrats) and, I would hazard to say, even the nine Justices on the Supreme Court may have lost in all the sound and fury was just how complex the ACA really was, not just from a programmatic and drafting perspective but also from a psychological one.  It is a different type of entitlement. Not like, say, Social Security, that you age into and keep.  But rather something that creates benefits (and burdens) that can wax or wane over a period of time, or because of changes in an individual’s personal or family situation.  Embedded in ACA are a lot of components that are appreciated by many people episodically, such as those relating to pre-existing conditions, portability, the ability to obtain individual policies in the exchanges, and being able to keep your children on your coverage through age 26.  While those pieces may not mean everything to everyone at every time, and nothing for some (like seniors, who already have their entitlement), they do have a lot of attractiveness to a wide swathe of the electorate at some point in their lives. Kill off ACA, rip it out by its roots, and the losers you create will be real ones, not just predominantly angry political opponents.

This unusual asynchrony creates an extraordinary challenge for the political system.  The GOP has been operating under the assumption that everyone hates Obamacare, and their full-scale, no-hold-barred assault (including some extremely questionable plaintiff-shopping in King vs. Burwell) means they will be greeted as liberators the moment the dragon has been slayed.

That is not necessarily true, and the latest “Burr Hatch Upton” reiteration may (may) indicate that there is some awareness of that amongst their wise men.  Part of politics is optics, and the optics of aggrieved seniors talking about the Founders and wearing three-cornered hats is not nearly as potent as that of a single commercial showing a worn-from-worry-but-proud middle-aged couple recounting the story of their wonderful 24 year old daughter, with a preexisting condition she has triumphed over, and who had cobbled together three part time jobs with no benefits, then got sick with no coverage because the Republicans took it away from her. That image, in some form or another, must (or at least should) keep the smarter heads in the GOP up at night.

It ACA flawed legislation?  Without a doubt, and its very complexity and inherent contradictions create opportunities to attack it legislatively and through a highly skeptical court system often looking for an excuse to invalidate it, even if that does amount to what many feel would be an extraordinary moment of judicial activism. 

We could, of course, fix those flaws.  We could take some vetted conservative ideas and apply them to existing ACA legislation, and improve it. But we don’t, and we won’t, because the fix involves moving from politics to policy, and when the Democrats passed ACA without a single Republican vote and the Republicans responded by defining uncompromising resistance to it as an article of faith, it weaponized the issue. Burr Hatch Upton is just a fig leaf for repeal without replace.  If the Republicans were serious about amending the law constructively, they would put some meat on those bones, pass it in Congress the way they like it (they have the votes) and send it to Mr. Obama, and then real negotiating would begin.  But amending the law legitimizes it, and they can’t bring themselves to do that.  So, other than a little self-plagiarizing, and hoping the Supreme Court takes another whack in King vs. Burwell, they are paralyzed beyond throwing the long-ball of government shutdowns or waiting until 2017.

I think the GOP is making a gigantic mistake—a gigantic political mistake.  They have a unique opportunity to make substantial changes in ACA while keeping the most generally desirable parts, and get the credit for fixing it.  But I don’t think they have the emotional capacity to do it.  They have lusted after repeal so long they can’t give up the dream.  They are going to let down that middle-aged couple with the brave 24 year old. 

I am reminded a bit of Mr. Spock, who once told a rival,  “After a time, you may find that having is not so pleasing a thing after all as wanting. It is not logical, but it is often true.”

January 9, 2015

Michael Liss

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