October 30, 2020
By Emmarie Huetteman, Kaiser Health News
Democrats are favored to win both chambers of Congress after years of campaign-trail promises about health care. But with a pandemic, a more conservative Supreme Court and lingering disagreements between progressives and moderates, it could be difficult for Democrats to turn those promises into law.
In the final days of the campaign, COVID-19 and the threat posed to the Affordable Care Act and Roe v. Wade by the court’s bolstered conservative majority are consuming congressional Democrats — right down to keeping them in Washington well after they would usually go home to campaign.
Even if they capture the Senate in this election, Democrats are not expected to win a decisive enough majority to pass bills without some support from the GOP. The Senate’s filibuster rules could force Democrats to stick to legislation that can attract 60 votes — if they do not move to eliminate that requirement, as some are advocating.
Frederick Isasi, executive director of Families USA, a health consumer-focused organization that supported passage of the ACA more than a decade ago, said a slim margin could make it “exponentially more difficult” to pass major health care legislation.
Although progressives are pushing for more dramatic changes, Isasi said Democrats would have to consider, in particular, which measures their senators who won close races in more conservative states could support.
“There’s going to be a lot of focus on making sure that they can support this because the vote will be so tight,” he said.
Democrats argue that consumers’ concerns about health care, which led them to secure a House majority two years ago, will drive them to White House and Senate victories this fall. It has been 10 years since Democrats controlled both chambers of Congress and the White House. One week before the election, the political modeling website FiveThirtyEight gave former Vice President Joe Biden and Democrats an 87-in-100 chance of winning the presidency; a 73-in-100 chance of winning the Senate; and a 96-in-100 chance of holding the House.
A recent poll from KFF shows voters preferred Biden’s approach to health care over President Donald Trump’s on every key issue, including handling the pandemic. (KHN is an editorially independent program of KFF.)
Democrats set high expectations early in the presidential campaign, with progressive candidates during the primaries arguing over sweeping proposals for government-funded insurance before Biden won the nomination. He championed a more incremental approach of giving consumers an option to purchase a public insurance plan, which would also be free for some based on need. That plan is now part of the party platform.
But the pandemic, and the Trump administration’s decision to largely leave states to manage the health and economic repercussions, has changed the subject. On many popular issues like insuring more Americans and ending the practice of surprise medical billing, Democrats look no closer to agreement than they were months ago — even as the pandemic has made problems worse, with nearly 27 million people losing their employer-sponsored insurance in its first two months.
Sen. Patty Murray of Washington, expected to take over the Senate’s health committee if Democrats win, called health care affordability “a top priority for Democrats.”
“The bottom line for me is that everyone in this country should be able to get the health care they need without worrying about the cost — and I think this pandemic and economic crisis have underscored how important that is,” Murray said in a statement.
But the disagreements that pitted Biden against progressives like Sens. Bernie Sanders (I-Vt.) and Elizabeth Warren (D-Mass.) during the primaries remain, with the party’s more liberal voices pushing for dramatic reforms to drive corporations out of the health care system. And in the halls of Congress, Democrats from traditionally “red” states may find fixing the ACA an easier sell than a government-funded public insurance option.
There is a lot of “ideological diversity” among Democrats, said Rodney Whitlock, a health care consultant who spent years working as a Republican Senate aide. Although Democrats like to refer to themselves as an inclusive, “big tent party,” he said in a recent podcast that such diversity can make it harder to agree and get much done, even if the party is in the majority.
Observers warn the party’s calculations could change if Democrats move to eliminate the Senate filibuster, removing one of the minority party’s most effective means of opposition.
If Democrats win control of Congress and the White House, there would be “incredible support among Democrats” to eliminate the filibuster to achieve their goals, especially on health care, said Robert Blendon, a professor of health policy and public opinion at Harvard University who has a new article on the election in the New England Journal of Medicine.
Democrats will effectively have a year to advance their agenda before the next election, he said, and liberal voters, who make up about 50% of Democratic voters, are angry about how Republicans have managed power and eager to embrace universal health coverage.
Their argument boils down to this: “This is our chance in history, and we’re not going to do it because we can’t get three votes” in the Senate, Blendon said.
“Policies that currently would have no chance in the Senate could come into play in 2021 if the legislative filibuster is removed,” Whitlock recently wrote. If that happens, he added, the health care industry would need to reevaluate proposals “that would have once seemed highly theoretical and unlikely.”
Without the power to set the agenda or the numbers to pass their proposals, congressional Democrats have spent the Trump presidency telling Americans — in heartbreaking public testimony, impassioned floor speeches and reams of stalled legislation — that they are the party to trust with health care.
These days, Democrats are quick to mention the need to shore up the Affordable Care Act, which Republican attorneys general and the Trump administration are seeking to overturn through a case the Supreme Court will hear Nov. 10.
Though even conservative scholars say Republican arguments in the case are weak, Democrats worry the death of Justice Ruth Bader Ginsburg and the confirmation of Justice Amy Coney Barrett could endanger the law.
If the ACA is overturned, other legislative priorities likely would fall by the wayside as lawmakers address the potential elimination of coverage and consumer protections affecting millions of Americans.
While in the minority, Democrats have proposed numerous ideas to strengthen the ACA, leaving some measures on the table for Democratic leaders to revisit when in power.
In June, the Democratic-controlled House passed legislation aimed at increasing coverage and affordability, including by capping insurance costs at no more than 8.5% of income. The bill would grant Medicare the authority to negotiate drug prices — drawing from a proposal crafted by House Speaker Nancy Pelosi and House Democratic leaders in 2019 and included in Biden’s platform.
That proposal initially ran afoul of progressives, though, who argued they had been cut out of writing the bill and that it was not aggressive enough.
Democrats also have failed to reach a consensus on banning surprise medical billing, which generally occurs when patients receive care unknowingly from a doctor or provider who is not in their insurance network. House Democrats disagreed earlier this year on proposals to solve the problem. A bipartisan proposal in the Senate also stalled, and efforts to ban surprise billing during COVID-19 proved ineffective.
In the meantime, as Democratic candidates talk up ideas like the public option to energize voters as voting draws to a close, Democratic leaders are making less specific promises.
“For the last four years, Donald Trump and Republicans have sabotaged the Affordable Care Act in the hopes of causing our health care system to collapse,” Sen. Chuck Schumer of New York, the Democratic minority leader, said in a statement. “If we Democrats win back the White House and the majority in the Senate, we will strengthen and improve our health care system to make it cheaper and easier for everyday Americans to get the care and coverage they need.”
This article originally appeared on Kaiser Health News.