Sorry, the ObamaCare Repeal battle is not over.

Politico reports that the Senate Republicans are working on a new compromise based on “block grants” giving states much more power to waive the ACA. The most signifiant news is which Senators are putting together this bill: Lindsey Graham (SC), Dean Heller (NV), and Bill Cassidy (LA). [Update: I’m also linking to legislation expert David Super’s post more generally on how this bill is still alive, despite the internet’s fascination with a random anonymous Reddit user, whose argument doesn’t even make sense.] 

First, we need to review the votes last week to see how close the Senate was to passing a real bill. Of course, the Skinny Repeal got all the attention, and it was even more serious than cable news reported. It received 49 votes, even with all of the warnings by Graham and McCain that it was a “fraud” and a “disaster.” If it had passed, Paul Ryan only committed to bringing it to “conference” for the Senate and House to work on a compromise. But Ryan did not promise that the House would never vote on it. When the conference would inevitably stumble or break down, Ryab could always threaten to pass the Skinny Bill into Disaster Law in order to force the Senators back to the table and coerce a bill closer to the House’s AHCA (the thing Trump called “mean.”)

But even more relevant as a policy barometer, the Senate also voted on BCRA, the thing McConnell hammered out in secret. Its effects would be remarkably similar to AHCA (22 million lose insurance by 2026, worse coverage, and higher premiums for many, but hey, lower taxes on the rich!). Here is the most troubling part of the story: on the crucial procecural vote on BCRA, the vote was 43-57, but a closer look shows how close the GOP is to a compromise. Here are the 9 Republican no votes on BCRA:

From the right (Tea Party-types): Rand Paul, Cotton, Lee, Moran, and Corker (more or less).

From the center-right: Graham, Heller, Collins, Murkowski

In the end, when the only option left is a compromise repeal or leaving ObamaCare in place, the right wing will vote “yes” on repeal. Then all the GOP needs is Graham and Heller to vote yes to get to 50 (and then 51 with Pence). And Graham and Heller are writing this new bill.

McCain voted “yes” on BCRA already. And Graham is his BFF in the Senate, so he will support him, especially once Graham makes sure this bill follows the “regular order” that McCain demanded in his big speech last Tuesday (criticizing McConnell’s secret process). Graham is talking directly to the House conservatives, through Freedom Caucus chairman Mark Meadows. If Graham can get the House Freedom Caucus to agree, then it’s all the more certain the Senate’s right wing will compromise, too.

What about the problem that many of BCRA’s provisions required 60 votes to get cloture (and get past a filibuster)?  Do we really want to count on Mitch McConnell playing fair and keeping any old rules that stand in his way?

I hope that all the positive reaction across America to McCain’s dramatic vote (alas, some manufactured drama) will keep him voting “no.” But I fear that he will vote with his BFF Graham, and voe to boost Heller’s reelection by giving him cover. So if we can’t count on McCain, then we desperately need to find one more Senator to stand with Collins and Murkowski. The only other possible hopes are Capito and Portman, but they voted for both BCRA and the Skinny Repeal.

So this fight is far from over. And once you review the actual votes from this last battle, the signs are clear that we could lose the next battle.

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and political ambition (a cause of mass incarceration), and "The Imaginary Unitary Executive," on the myths and history of presidential power in America.

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