Health Care

Harry Reid Saved Obamacare—but at a Price That Could Still Kill It

The Senate leader rescued the bill when it looked doomed. But the messy legislative process gave its opponents new life in court.

WASHINGTON, DC - JULY 15: Senate Majority Leader Harry Reid (D-NV) speaks at a press conference following the weekly Democratic policy luncheon July 15, 2014 at the U.S. Capitol in Washington, DC. Reid spoke on immigration and women's rights issues during his remarks. (Photo by Win McNamee/Getty Images)
National Journal
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Dylan Scott
March 27, 2015, 8:57 a.m.

Harry Re­id summoned all of his par­lia­ment­ary acu­men and polit­ic­al savvy to pass Obama­care in 2010, but the sac­ri­fices he made to do so still threaten both the law and the Demo­crat­ic Party lead­er’s le­gis­lat­ive leg­acy.

Shortly after Pres­id­ent Obama signed the bill in­to law in 2010, Re­id called it “the most im­port­ant thing we’ve done for the coun­try and the world.” And on Fri­day, Jim Man­ley, a long­time former Re­id aide, told Na­tion­al Journ­al that the sen­at­or would place Obama­care “at the top” of his list of ac­com­plish­ments after more than 30 years in Con­gress and a dec­ade as Sen­ate Demo­crat­ic lead­er.

“There would be no [Af­ford­able Care Act] today” without Re­id, who an­nounced his re­tire­ment Fri­day, says Norm Orn­stein, a con­gres­sion­al schol­ar at the Amer­ic­an En­ter­prise In­sti­tute.

There may, however, not be much of an Af­ford­able Care Act soon, at least one that func­tions the way its founders en­vi­sioned.

(RE­LATED: Sen­at­or Harry Re­id’s Ca­reer in Pho­tos)

A cent­ral piece of the law is cur­rently at the mercy of the Su­preme Court, thanks to a con­ser­vat­ive leg­al chal­lenge ar­guing that the law as writ­ten doesn’t al­low its cru­cial tax cred­its on the fed­er­al in­sur­ance ex­change, which 30-plus states use. As many as 9 mil­lion people could lose their cov­er­age if the justices side with the plaintiffs, un­do­ing much of what the law has achieved.

But while no law passed by Con­gress is per­fect, the Af­ford­able Care Act was par­tic­u­larly flawed by its un­usu­al jour­ney through the Cap­it­ol, as even its sup­port­ers have ac­know­ledged time and again. Those im­per­fec­tions have giv­en the law’s op­pon­ents re­peated op­por­tun­it­ies to ask the courts to un­der­cut it.

The latest chal­lengers seize on just a few words—”es­tab­lished by the State”—and they would be un­likely to have a case had Demo­crats made even a minor tweak.

So how did the Af­ford­able Care Act be­come law with a flaw that could sink its fu­ture but seems so easy to fix? The an­swer comes from the com­plic­ated pro­cess Re­id used to res­cue the health care bill when it was on the brink of fail­ure.

(RE­LATED: Obama­care Prom­ises Tax-Sea­son Sur­prises)

While his nemes­is, then-Minor­ity Lead­er Mitch Mc­Con­nell, united the GOP against the bill, Re­id had to mol­li­fy a caucus that ranged from so­cial­ist Bernie Sanders, agit­at­ing for a pub­lic op­tion, to con­ser­vat­ive Ben Nel­son, who needed a $100 mil­lion Medi­caid kick­back (which was later re­moved) and oth­er con­ces­sions to sup­port it.

Nev­er­the­less, Re­id pro­duced a bill and cor­ralled his con­fer­ence around it, and the Sen­ate cleared its ini­tial health care re­form le­gis­la­tion in the days be­fore Christ­mas 2009. At the time, fi­nal pas­sage looked prom­ising: Demo­crats had the House, the White House, and with 60 sen­at­ors and a united caucus—the votes they needed to to over­come a Re­pub­lic­an fili­buster in the Sen­ate.

Then, in Janu­ary of 2010, Scott Brown threw everything in­to chaos. Sen. Ed­ward Kennedy, the long­time Mas­sachu­setts Demo­crat and lib­er­al health care stal­wart, had died in Au­gust, but Demo­crats be­lieved they were near-cer­tain to keep his seat and their 60-vote ma­jor­ity. But the up­start Brown bested Mas­sachu­setts At­tor­ney Gen­er­al Martha Coakley in the Janu­ary 2010 spe­cial elec­tion, break­ing Re­id’s 60-seat-strong fire­wall against a Re­pub­lic­an fili­buster.

Some in the party wavered: then-White House Chief of Staff Rahm Emanuel re­portedly urged Obama to scale back his am­bi­tions. Rep. Barney Frank of Mas­sachu­setts pub­licly doubted that com­pre­hens­ive health care re­form could still be achieved. But Re­id and House Speak­er Nancy Pelosi de­vised a plan to fin­ish the job: The com­plic­ated pro­cess known as budget re­con­cili­ation, which re­quires only 50 votes to pass in the Sen­ate but lim­its how the le­gis­la­tion be amended.

(RE­LATED: The Eight Cra­zi­est Stor­ies About Harry Re­id)

It took two bills, shuttled back and forth between the cham­bers in the last half of March, and Re­id’s thinned ma­jor­ity with­stand­ing 30-plus amend­ments from Re­pub­lic­ans. On March 30, 2010, Obama signed the Health Care and Edu­ca­tion Re­con­cili­ation Act of 2010, which put the fin­ish­ing touches on the ACA and turned it in­to law.

“I think it was the ex­ample, the prime ex­ample, of sev­er­al things about Re­id that many of the ste­reo­types miss,” Orn­stein said. “It’s not just his mas­tery of the pro­cess. It’s also that, this pub­lic im­age of Re­id as this bom­bast­ic guy who of­ten ex­hib­its thug­gish be­ha­vi­or, masked that trust, and the af­fec­tion, vir­tu­ally all the mem­bers of his con­fer­ence have for him.”

Demo­crats cel­eb­rated, but with the vic­tory came a caveat. Amend­ing the le­gis­la­tion that passed be­fore Brown’s vic­tory, and then re­con­cil­ing it with the House’s bill, was dif­fi­cult un­der the con­vo­luted pro­ced­ure that Re­id and Pelosi took. There was nev­er a con­fer­ence com­mit­tee, and so there was nev­er a chance to make the type of minor fixes and tech­nic­al cor­rec­tions that most le­gis­la­tion re­ceives in the fi­nal stretch.

“We meant to clean it up in con­fer­ence, but we nev­er got to con­fer­ence,” one staffer said in early 2014. “It’s def­in­itely in­art­fully draf­ted.”

(RE­LATED: 5 Years In, 5 Bus­ted Pre­dic­tions About Obama­care)

And the lack of one of those minor fixes has opened a win­dow for a con­ser­vat­ive leg­al chal­lenge that strikes at the heart of the law. In King v. Bur­well, the plaintiffs ar­gue that the let­ter of the law doesn’t al­low Obama­care’s cru­cial tax cred­its on Health­, which 30-plus states and mil­lions of ACA en­rollees use.

Demo­crats al­lege that the clause cent­ral to the plaintiffs’ case is simply poorly worded and that the rest of the law makes their in­ten­tion to al­low the cred­its every­where clear. But one lower court has already ruled against them, and des­pite their cer­tainty, the Su­preme Court’s mar­gin looks likely to be 5-4, one way or the oth­er.

The leg­al struggle is an­oth­er in a con­stant string of re­mind­ers of how con­ten­tious Demo­crats’ health care ef­fort has been since the day they put it for­ward—as well as a re­mind­er of the high wire Re­id walked to move it through the Sen­ate.

“He’s a man who loves work­ing hard, but when it came to that bill, he gave it everything he’s got,” Man­ley said. “The thing died any num­ber of times, but he nev­er wavered in his de­sire to get it done.”

Still, time—and nine Su­preme Court justices—will tell wheth­er that achieve­ment stands, or wheth­er the forces that al­most blocked it in the Sen­ate will even­tu­ally find a way to take it down. The fal­lout from the bill’s darkest hour, and the wrangling Re­id used to save it, is still un­fold­ing.


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