Democrats are working hard to portray the inevitability of Obamacare, characterizing GOP efforts to repeal it as political theater while President Obama himself fights a rearguard action by suggesting he’s open to revisions.
But the spin coming out of the Democratic camp and the offers of flexibility mask a reality the White House is well aware of: Obama’s signature achievement is in serious danger of getting killed by its opponents.
There are three reasons for this.
First – and this undergirds the other two reasons by making them more likely – Obamacare is not popular. Recent polls show opposition running ahead of support by, on average, about a seven point margin. Obama and his Democratic allies jammed nation-changing legislation through Congress even though the measure was unpopular. They promised to make people like it, and they have so far failed. It’s hard to maintain a law people don’t like.
Second, it appears Republicans may only need 50 Senate votes – assuming a Republican is elected president – to sink the law. Many have assumed until now they would have to get 60 to break a Democratic filibuster.
But according to an analysis by former Bush National Economic Council Director Keith Hennessey – an analysis that was also described today in a Wall Street Journal column by Karl Rove – Republicans can destroy much of the law through the “reconciliation” process used to pass the budget. A reconciliation bill avoids the usual Senate rules and requires only 50 votes to pass. According to Hennessey:
Reconciliation is a procedural tool primarily used to change spending and revenues, deficits and debt. Repeal of the subsidies, the individual mandate, the insurance provisions, and the Medicaid expansions would, in each case, directly affect spending and revenues, so it would be a straight-up-the-middle use of reconciliation for deficit reduction.
Republicans need gain only three more Senate seats – hardly an improbability – to get to 50. They’ll also have to steal the White House, and that’s not an improbability, but it’s no easy task. The health care law itself, unpopular as it is, may make each of these outcomes more likely.
The third reason Obamacare is imperiled is what we’ve seen in the courts. Two federal judges have ruled against the insurance purchasing mandate, without which the law – as a practical matter and possibly as a legal matter – can’t stand. The Supreme Court will eventually decide, and many expect a 5-4 decision to go whichever way Justice Anthony Kennedy says it will go.
And don’t be mistaken, popular sentiment is a factor here too. It is often said that the Supreme Court is influenced by public opinion to a far greater degree than the Justices would acknowledge, even to themselves.