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.
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.
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.
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.”
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 HealthCare.gov, 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.