ANALYSIS/OPINION
It all started with Speaker Paul Ryan’s conclusion that a House version of the Obamacare repeal could not get through the Senate without a filibuster by the Democrats. He wasn’t confident that Majority Leader Mitch McConnell could round up the 60 votes required to break a filibuster. But the Speaker has been around Washington for a long time. He figured out a way to get the repeal through both houses of Congress on a straight party line vote.
That left the replace issue facing a Democrat filibuster, but he calculated that he could win enough Democrats to break or even forestall a filibuster if he had enough momentum behind him. After all, by that time, Obamacare would be gone, all the tax savings would be in sight, and the Dems would not be able to explain to their constituents why they had voted against a continuation of at least some form of subsidy—even if it meant going into Medicaid or declaring a tax credit for their new insurance policies. With the momentum at his back, Ryan figured the Republicans had a good chance of winning everything. So, he gambled everything.
The speaker was always focused more on process than he was on content – a key mistake. His proposal was very clever, but very complicated. It was based on a three-phase strategy:
1) Shape the repeal in the form of a budget reconciliation bill, which needed only a majority of votes in both Houses. However, the reconciliation bill could not include any new legislation. Only changes to existing law could be included.
2) A feature of the Obamacare legislation was a delegation of almost unlimited authority to the HHS Secretary to change any and all regulations pertaining to the implementation of the legislation. With the reaffirmation of this authority, Dr. Tom Price, the new HHS Secretary, could virtually take apart Obamacare brick by brick. This was phase two of Ryan’s strategy.
3) Phase three was when all the good stuff – which requires new laws – could be voted on by both Houses and sent to him president for signature. Victory!
So, what went wrong? Ryan made some key assumptions which turned out to be wrong. The most basic mistake was his assumption that, because only a year ago the House and Senate had placed a comprehensive repeal and replace bill on President Obama’s desk (for veto), consensus among Republicans would be easily achieved.
That assumption should have been tested and accompanied by a national promotion which included all the key constituencies of the Republican Party, and the President should have been enlisted to spearhead the public debate. All this before the introduction of the bill. As it was, there was no consultation outside the small circle of the leadership, and no public consensus to fall back on when troubles arose. Quite the opposite: even the rank and file Representatives had not seen the proposed bill before it was introduced.
The second assumption that proved mistaken was that the House Republican Caucus would understand and trust the complicated process (called “regular order”) proposed by the Speaker. This could not have been farther from the truth. Upwards of two-thirds of the caucus – as well as the President — had never experienced “regular order.” Regular order is the way legislation moves through the long, burdensome process from introduction to law. It begins with introduction at the House committee level, goes through debate and amendment to a subcommittee vote, and from there on to the full committee which repeats the same process. If both the votes are affirmative, the proposal moves to the floor of the House, where it again goes through testimony, debate and amendment.
If it passes the House, it then goes to the Senate, where the process is again repeated up to three times. If the Senate passes the bill in a similar but amended form, that proposal goes to a Conference Committee, composed of representatives of both Houses who try to reconcile the differences between the two versions of the proposed law (called a “mark-up’). If the Conference can produce a definitive version of the bill, that version goes back to both Houses for ratification. Even at this late stage, the bill may fail if either House defeats it.
That is “regular order”. Most of the current Congress has never experienced it. Recent practice has been to wrap everything everybody wants into one huge “Omnibus” bill, and then after much debate, usually facing an emergency, the omnibus bill is voted up or down. This is what the current members are used to in important actions. Such a practice provides plenty of political cover for nearly everyone. For someone to come along and tell these people that they must go through a long, tedious process to even get to the “good (important) stuff” is like asking them to believe in a fairy tale. They just can’t do it.
So, what is the result of this failure? That, of course, is not yet known. However, one thing is clear, Speaker Paul Ryan has lost the confidence — to a more or lesser degree – of the President, the White House staff, and his Caucus. Whether he can regain his stature among the key players is today an open question. He has significant assets in his favor. He is young and smart. He was overwhelmingly elected to his position, almost against his will, and retains the friendship and support of much of his caucus – though not the numbers or enthusiasm as before. If he learns from this episode, he can probably recover. The same can probably be said of the President, though perhaps not all the President’s men (and women).
More important is the impact on the President and his agenda. His switch to the economy is a wise decision. The economy is his sandbox, where he can and will take the lead in formulating, advocating and leading the Congress to a truly significant outcome. The cancellation of the trillion or so tax dollars which should have been available from the repeal of Obamacare will, however, make the financial legislation significantly more difficult to pass.
Right now, public confidence in the Republican government is shaken. But I would argue that the President was less damaged by the health care failure than was Paul Ryan. Most people know that Mr. Trump was cheerleading for the home team rather than coaching the players. But if he fails on this one, 2018 will bring torture to his presidency, and 2020 its execution.
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