Vulnerable GOP Senators Bracing for “˜Political Issue of the Year’

Pressure is on Republicans up for reelection to choose policy fixing Obamacare if the Supreme Court rules their way.

WASHINGTON, DC - JANUARY 24: Senate Foreign Relations Committee member Sen. Ron Johnson (R-WI) questions Sen. John Kerry (D-MA) during his confirmation hearing to become the next Secretary of State in the Hart Senate Office Building on Capitol Hill January 24, 2013 in Washington, DC. Nominated by President Barack Obama to succeed Hillary Clinton as Secretary of State, Kerry has served on this committee for 28 years and has been chairman for four of those years.
National Journal
May 27, 2015, 4 p.m.

If Sen. Ron John­son of Wis­con­sin loses his job, it won’t be be­cause his con­stitu­ents lost their health in­sur­ance un­der Pres­id­ent Obama’s sig­na­ture law.

That’s the hope, or so it seems, be­hind John­son’s plan in case the Su­preme Court rules in the much-an­ti­cip­ated King v. Bur­well case to elim­in­ate sub­sidies re­ceived by 8 mil­lion people en­rolled in health care plans pur­chased un­der the Af­ford­able Care Act’s fed­er­al ex­changes.

Al­though Re­pub­lic­ans want to re­peal Obama­care just as badly as ever, the Court could end up strik­ing down the ACA’s sub­sidies long be­fore any new re­place­ment health care law could take ef­fect, po­ten­tially mak­ing cov­er­age un­af­ford­able for thou­sands, if not mil­lions, of people and throw­ing the in­sur­ance mar­ket in­to chaos.

John­son isn’t the only vul­ner­able GOP sen­at­or who has a strong in­cent­ive to put for­ward a solu­tion should the Court rule against the Obama ad­min­is­tra­tion. Sev­er­al Re­pub­lic­ans in danger of los­ing their seats to Demo­crat­ic chal­lengers rep­res­ent states with fed­er­al ex­changes, and the de­mise of the in­sur­ance mar­ket is not good fod­der for any reelec­tion cam­paign.

These vul­ner­able Re­pub­lic­ans in­clude Sens. John­son, Richard Burr, Rob Port­man, Mark Kirk, Roy Blunt, Pat Toomey, and Kelly Ayotte.

“I think if the Court rules for King, you’ll have the num­ber one polit­ic­al is­sue of the year. I don’t see any oth­er way,” said Doug Holtz-Eakin, pres­id­ent of the Amer­ic­an Ac­tion For­um, a cen­ter-right think tank. “This is the pres­id­ent’s sig­na­ture do­mest­ic ac­com­plish­ment. It’s threatened. It would re­quire a le­gis­lat­ive fix. It is highly un­likely Re­pub­lic­ans would do what the pres­id­ent asks.”

But only some of the at-risk sen­at­ors have said what they would do if King wins.

The chal­lenge to Obama­care hinges on four words ap­pear­ing in the part of the law deal­ing with cov­er­age sub­sidies, which are de­signed to help people af­ford health in­sur­ance that is man­dated un­der the ACA. The law says, the plaintiff’s ar­gu­ment goes, that these sub­sidies ap­ply only to ex­changes “es­tab­lished by the state”—ex­clud­ing the 34 ex­changes set up by the fed­er­al gov­ern­ment.

Re­pub­lic­ans gen­er­ally have three op­tions to choose from if the Court sides with King: They can do noth­ing, they can try to pass a “re­peal and re­place” bill, or they can put for­ward a re­sponse tar­geted to the King rul­ing.

Pres­id­ent Obama’s re­ac­tion to the first two op­tions is fairly pre­dict­able, Holtz-Eakin said: blame the GOP.

“I don’t think it takes a great deal of ima­gin­a­tion to think about the pres­id­ent with the power of the pul­pit com­ing out of the White House talk­ing about how Re­pub­lic­ans have crassly and in­dif­fer­ently tossed 7.7 mil­lion people off of their health in­sur­ance,” he said. “They can do some sort of re­peal and re­place, and then the pres­id­ent will counter with, ‘They are just tak­ing ad­vant­age of this mo­ment to do what they’ve been try­ing to do for polit­ic­al reas­ons for sev­en years, which would take us back to when in­sur­ance com­pan­ies ran Amer­ic­an health care.’”

Obama isn’t the only one who will blame Re­pub­lic­ans: Sen­ate Minor­ity Lead­er Harry Re­id re­cently said in an in­ter­view that if King wins, “that’s a prob­lem that the Re­pub­lic­ans have.”

So that leaves the tar­geted-re­sponse op­tion, which could in­clude John­son’s le­gis­la­tion, as the most at­tract­ive. While it would nev­er pass un­der Obama, John­son’s bill has gained the sup­port of many of his GOP Sen­ate col­leagues—in­clud­ing oth­er vul­ner­able in­cum­bents like Illinois’s Kirk and Mis­souri’s Blunt who rep­res­ent states most af­fected by the rul­ing—by mar­ry­ing con­ser­vat­ive prin­ciples with a polit­ic­ally fa­vor­able out­come, delay­ing any po­ten­tial loss in cov­er­age for months after the 2016 elec­tions.

“I think people are look­ing—if the Court rules as it should, with what the law states—what’s our re­sponse,” said John­son in an in­ter­view this month. “And I think it’s a pretty reas­on­able re­sponse. It en­com­passes the ob­ject­ives of giv­ing us an­oth­er chance to re­peal and re­place Obama­care.”

John­son’s pro­pos­al—like most of the oth­er King fixes that have been floated—ex­tends some form of fin­an­cial as­sist­ance un­til a new pres­id­ent is in of­fice. If it’s a Re­pub­lic­an, he or she would sign the Obama­care-re­peal bill that Obama wouldn’t.

But John­son’s bill, which would ex­tend the elim­in­ated sub­sidies un­til Au­gust 2017 while also re­peal­ing Obama­care’s in­di­vidu­al and em­ploy­er man­dates, hasn’t caught on with every threatened Re­pub­lic­an from a fed­er­al-ex­change state. Toomey of Pennsylvania, Burr of North Car­o­lina, and Ayotte of New Hamp­shire have yet to sign on as co­spon­sors. Neither has Ohio’s Port­man, who filed an amicus brief on the side of the plaintiff with five oth­er GOP sen­at­ors, giv­ing him­self an­oth­er lay­er of re­spons­ib­il­ity if King wins and al­most 200,000 Ohioans lose their sub­sidies.

These sen­at­ors have sev­er­al oth­er op­tions to con­sider. Sen. Ben Sas­se has in­tro­duced le­gis­la­tion that would al­low Obama­care en­rollees to con­tin­ue re­ceiv­ing as­sist­ance, and Sens. Or­rin Hatch, Lamar Al­ex­an­der, and John Bar­rasso have pro­posed a trans­ition­al peri­od al­low­ing people to keep their cov­er­age and states to set up their own in­sur­ance mar­kets. Sen. Bill Cas­sidy has out­lined a plan that would al­low states to opt out of Obama­care, say­ing his plan would build on the oth­ers.

Dan Mendel­son, CEO of Avalere Health, an in­de­pend­ent con­sult­ing firm, thinks there is an ad­vant­age to those who act be­fore the Court an­nounces its de­cision.

“If the Court rules for King and there is a groundswell of dis­con­tent and an­ger that bubbles back against the can­did­ate, they can’t then try to put the horse back in the barn,” Mendel­son said. “They have to take a stand be­fore the Court rules in or­der for this to be an ef­fect­ive com­mu­nic­a­tion strategy. If they don’t, they’re go­ing to look like they’re just re­spond­ing to pub­lic pres­sure—be­cause there will be pub­lic pres­sure.”

Holtz-Eakin isn’t so sure pitch­ing a fix be­fore the Court an­nounces its de­cision is ne­ces­sary, or even be­ne­fi­cial. He also doesn’t think it will mat­ter wheth­er or not a vul­ner­able sen­at­or put forth his or her own solu­tion or sup­ports someone else’s.

“I think it’s go­ing to de­pend on the can­did­ate,” he said. “Richard Burr has a long his­tory in health care. He doesn’t have to demon­strate that he has ideas on the is­sue. It’s not ob­vi­ous to me you have to demon­strate you have ideas on this, as long as you are a part of mak­ing sure there’s a solu­tion.”

Burr, along with Hatch and Rep. Fred Up­ton, in­tro­duced le­gis­la­tion re­pla­cing Obama­care pri­or to the March King or­al ar­gu­ments. But in a Feb­ru­ary in­ter­view with Fox News, he said he didn’t think Re­pub­lic­ans would be able to rally be­hind a single re­place­ment plan this ses­sion.

“We’re go­ing to know a lot more after the Su­preme Court hears the King v. Bur­well case, and that’s go­ing to be a short-term in­ter­im re­sponse,” he said. “The long-term is, how do we re­vamp this in 2017 and after so it works for Amer­ica’s pa­tients?”

It’s un­clear if Re­pub­lic­an sen­at­ors really need to choose; a dozen of their new col­leagues won seats in 2014 without hav­ing to elab­or­ate on a spe­cif­ic Obama­care al­tern­at­ive. Over half of the pub­lic hasn’t heard of King v. Bur­well, ac­cord­ing to a March Kais­er poll, al­though 65 per­cent of Amer­ic­ans be­lieve Con­gress should act so that people in every state can be eli­gible for fin­an­cial help to pur­chase health in­sur­ance.

Of course, post-King le­gis­la­tion alone won’t de­term­ine the elec­tion. And should sub­sidies be taken away and then some­how le­gis­lat­ively fixed, it’s real­ist­ic that 2016 GOP can­did­ates could find them­selves in the same old boat of dis­cuss­ing how to re­peal and re­place Obama­care down the road.

But for all the col­or­ful lan­guage Re­pub­lic­ans use to talk about the law’s short­com­ings—Burr called it “the Pres­id­ent’s health care de­bacle” in his Feb­ru­ary re­place­ment-plan an­nounce­ment—re­pla­cing is no simple task and there is no one-size-fits-all solu­tion.

Fer­gus Cul­len, a former New Hamp­shire GOP chair­man who pur­chased health care un­der the fed­er­al ex­changes after los­ing his cov­er­age, said in an in­ter­view, “It is in­ad­equate to [only] say I’m for re­peal­ing Obama­care,” as many Re­pub­lic­an voters see the “nu­ance and see gray.”

“It’s not an ab­stract de­bate or an ab­stract dis­cus­sion,” Cul­len ad­ded. “It’s one that is very real and af­fects real people in our com­munity, the people that every­body knows.”

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