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Heather Higgins — Conservatives: Stop Enabling Obamacare July 31, 2015

By Heather R. Higgins

National Review Online, July 31, 2015

Unless conservatives change their strategy soon, history is likely to record them as the unintended enablers of Obamacare’s expansion.

Yet another key moment for a turn toward free-market reform is upon us. Will congressional Republicans again pursue a strategy that sounds serious but results in Obamacare’s unimpeded implementation? Or will they try to actually impede the law in real time and make clear to the American people which party is on their side as we approach 2016?

The Right often criticizes the Left for getting lost in good intentions while ignoring the real-life consequences of its policies. Sadly, the Right hasn’t noticed that it has been effectively doing the same thing by focusing solely on the whole loaf of full repeal, and ignoring the fact that their strategy does nothing to slow the entrenchment of Obamacare, while in fact precluding other options that would have constituted — and still could constitute — real wins.

Since the Affordable Care Act became law, conservatives have twice before let an unobtainable perfect be the enemy of a possibly attainable good (see “History of a Shutdown,” NRO, 10/23/13). In both instances, proposals for incremental changes would have mitigated the damage done by Obamacare in real time, and conservatives would have won credit with the American people for being serious about its undoing. In both instances, most conservatives were inclined to support the proposals, but both times, conservative groups that rate the votes of members of Congress wouldn’t settle for anything less than full repeal. They announced they were scoring against these proposals — and so, without sufficient conservative votes, the proposals died.

Advocating full repeal and defunding rather than trying to enact partial measures sounded good. But the result was that not a penny less was spent by the government, no part of Obamacare’s implementation was challenged, and the law become more entrenched.

Now there are two more proposals queued up, both of which appear at first blush to be in line with GOP principles, but both of which, if enacted, will likely hurt, not help, the larger cause of Obamacare repeal.

The first proposal is repeal of the medical-device tax. If a stand-alone repeal of this tax is passed now — as opposed to simply a temporary moratorium to minimize its harms — it will likely cause the medical-technology industry, one of the few deep-pocketed allies in the cause of full repeal, to sit out the full-repeal fight in 2017; perhaps worse, it will reinforce the charge that the GOP cares more about corporations with lobbyists than about average Americans. It also would set a precedent as just the first of many corporate “fixes” to the Affordable Care Act, which would further erode the small cadre of business interests that at present would benefit from full repeal.

The second is the plan to use the reconciliation process — in which only 51 votes are needed in the Senate, rather than 60, to pass a bill that affects government spending and revenue — to get a near-full-repeal bill to President Obama’s desk . . . so that he can veto it. Even the most vocal proponents of this strategy presume that that is the best we would get: a veto.

There are good reasons to have a vote to repeal Obamacare. Not least is the fact that there are many new senators since 2010; they have not had a chance to vote for or against repeal of the law, and it would be useful to get them all on record.

But there is no value in getting President Obama to veto something everyone expects him to veto — that would only elicit a collective yawn. It would create zero problems for Democrats. Moreover, the overreach would leave many wondering if Republicans are really serious about minimizing the harms of the law, slowing its spread, and paving a pathway toward an improved health sector. This would all potentially hurt us, rather than help us, in 2016. Worse, under any scenario, it again is a gift to the Left, leaving Obamacare unimpeded, intact, and metastasizing.

If the GOP is serious about undoing the ACA, other strategies can produce a better outcome on all those fronts.

First, the focus on President Obama is misplaced — he isn’t running in 2016. The objective should be to minimize the law’s damage while actually making it easier to repeal and replace in 2017.

So, instead of wasting the effort to pass a bill that would be purely symbolic — because of Obama’s veto — we should focus on a proposal that would actually slow the law’s implementation (this would be a real win, if only a partial one) and that would be hard for Democratic lawmakers who are planning to run again in 2016 to vote against.

Those who argue that reconciliation should be used for repeal cite essentially three reasons: First, they say that, because the Republicans have more than enough senators (54) to pass a reconciliation bill, Democratic votes are irrelevant and can be ignored. Second, they say that is especially true since President Obama’s veto is guaranteed no matter what is put on his desk. Third, they contend that if something less than full repeal would get enough Democratic votes, then there is no reason to do it through reconciliation — the 60-vote threshold wouldn’t be a problem. These assumptions bear scrutiny.

To the first two points: Democratic votes matter hugely, since the actual passage of anything is not possible without them. This is particularly true when it comes to putative vetoes: President Obama has a history of talking tough about vetoes, but if enough Democrats vote against the president, those vetoes never materialize — as in the repeals of the CLASS Act (the unworkable long-term-care insurance scheme enacted as Title VIII of Obamacare), the onerous 1099 tax reporting requirements that would have buried small businesses in Obamacare paperwork, and most recently the Corker–Cardin Iran bill. If Obama did use the veto anyway, again getting some Democratic votes matters: Republicans alone can’t override a veto.

To the third point: Lemmings don’t die alone. The psychology of legislators acting in groups is clear: When perceived negative consequences are low, the propensity to act in concert with others is high; but when perceived negative consequences increase, legislators display a greater likelihood to act in their own perceived self-interest.

But legislators are not lemmings and have a strong inclination for personal survival. Knowing that passage has a lower threshold — and is, therefore, more likely — increases the likelihood that Democrats will buck their leadership’s ideological agenda and vote instead for something that helps them politically with their constituents back home.

If 60 votes are needed, Democrats know a bill will likely fail, so they don’t need to worry about the personal political implications for themselves. But if the threshold is only 51, and — this is important — the bill is something their constituents would want and think is reasonable and obvious (for example, repeal of the individual mandate, and possibly the employer mandate, perhaps coupled with a temporary moratorium on the medical-device tax pending full repeal for everyone), the pressures from home increase, the ranking of the various decision-making imperatives changes, and some Democrats are more likely to feel compelled to join Republicans in voting for it.

So the lower reconciliation threshold actually improves the odds of actual passage, and, the more Democrats side with Republicans, the less likely President Obama is to veto. But even if he does veto, Democrats whose constituents support the bill will feel more pressure to help gain the two-thirds majority needed to override the veto.

Conservatives have a choice. They can use reconciliation for a symbolic vote on full repeal, which cannot pass and has no capacity to actually affect Obamacare, and will leave many Americans wondering if Republicans are really serious about repealing and replacing Obamacare.

Politics is the art of the possible, and Reagan’s advice — take our wins slice after slice rather than demanding the whole loaf at once — is apropos.

Or they can use reconciliation for something partial but real, with broad bipartisan support, that will diminish the harms and entrenchment of Obamacare. In that scenario, either congressional Republicans will get something enacted that actually slows Obamacare, or they will at least have clarified for the American people which lawmakers can be trusted to vote for something self-evidently sensible, thus teeing up repeal for a serious fight after 2016 and leaving Democrats to explain why they were on the wrong side of a broadly popular bill.

The American people — who in both 2010 and 2014 elected a Congress that was supposed to actually do something about Obamacare, not just stake out utopian positions — want a win, even if it is only in one battle, not the whole war. Politics is the art of the possible, and Reagan’s advice — take our wins slice after slice rather than demanding the whole loaf at once — is apropos. The Republicans should use reconciliation to prove to the American people that they are on Capitol Hill to do what they were elected to do: minimize the damage and metastasis of Obamacare until a Republican president is elected who will sign legislation to replace it with true free-market reform.

Heather R. Higgins is president and CEO of Independent Women’s Voice, which authored the Repeal Pledge on Obamacare, and runs A Bridge to Better — a project to advance efforts to minimize the harms of Obamacare and lay the groundwork for genuine reform.

Posted on National Review Online, 7/31/15