An interesting turn of events in Georgia. Here is a quick summary of implications that this election outcome could have for healthcare in the years ahead:
The process through which changing health care policy may have changed (i.e., the Democrats will use “reconciliation” where nothing would have happened with a Senate Republican majority), but have the chances of actually getting something accomplished changed? For the Democrats to be successful in using reconciliation, Majority Leader Schumer will need ALL 50 Democrats – OR – to peel off moderate Republicans.
Will Sen. Manchin (D-WV) support a “public option”? Probably NOT. And Sens. Collins (R-ME) and Murkowski (R-AK) likely will NOT, so you can’t peel away moderate Rs here.
Will Manchin agree to increasing the ACA’s premium subsidies and/or blowing off the 400% of FPL eligibility limit and/or eliminating the “firewall”? Maybe, but will Manchin be willing to increase the corporate tax rate and/or capital gains rate and/or support a wealth tax to pay for any or all of these? Probably NOT. Same goes for Collins and Murkowski. Sure, Collins and Murkowski might support making increased premium subsidies available to everyone, but how to pay for this will likely lose their support.
I do think that a Medicare Buy-In is much more in play now. BUT, what about the progressives in the House? They will think a Medicare Buy-In does NOT go far enough. Speaker Pelosi will NOT be able to pass a Medicare Buy-In bill with Republican votes, even if they tried to make it like a Medicare Advantage Buy-In.
With regard to the Senate filibuster, I believe that there is NO way it goes away. Manchin was adamant about NOT voting to eliminate the filibuster. And, I think some of the new Democratic Senators from AZ and some other Democrats like Sen. Hassan (D-NH) would have a hard time getting to YES on eliminating the filibuster. BUT, it only takes one Democrat to say NO, and that Democrat is Manchin.
Here is a wild card to think about: Manchin could get so much pressure placed on him (and publicly criticized), maybe he reacts negatively and switches to an Independent and caucuses with the Republicans, tipping the majority back to the Republicans. This is what Jim Jeffords did in 2000. Jeffords was a Republican, switched to Independent, and caucused with the Democrats, allowing the Democrats to take the majority in the Senate.
Last comment: It is more likely that this wild card scenario does NOT materialize, which means, the Biden Administration and the Senate Democrats will for sure use reconciliation to move health care changes. It is important to emphasize that the reconciliation process is a limited process, and unless the provision included in the reconciliation bill has a “revenue” or “spending” impact, the provision CANNOT be included in the bill. And even if there is a “score,” the provision may still get bounced if the Senate Parliamentarian feels that the policy associated with the proposed change is so significant that is outweighs the “score.” This is what happened to the Republicans when they tried to repeal and replace the ACA, and why their efforts were turned into swiss cheese.
Also note, reconciliation is a partisan process. For example, the 2010 ACA reconciliation process (which I lived) did NOT get any Republican votes. Yes, Sen. Snowe (R-ME) voted YES on the bill in the Senate Finance Committee, but NO on the overall bill. Same goes with the failed ACA repeal and replace reconciliation exercise and the 2017 Tax Reform reconciliation process…there were NO Democrats voting YES. For 2021, Schumer has to expect that he is NOT going to get any Republican votes, so he will have to keep Manchin and other moderate Democratic Senators on board with any and all health care changes included in a reconciliation bill. AND, Speaker Pelosi will also have to corral the House Democrats left flank.
Again, just my quick thoughts as I focus in on the election outcomes. More to come with time…
Chris Condeluci, JD, LLM is principal and sole shareholder of CC Law & Policy, a legal and policy practice that focuses on the Patient Protection and Affordable Care Act (“ACA”) and its impact on stakeholders ranging from employers and third-party administrators to health IT companies and hospital/health systems.
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