First thoughts on the Senate vote NOT to repeal the ACA

At 1:29 am EST on July 28, 2017, the last of three closely-watched Republican United States Senators (Senators) announced their votes on the “skinny repeal” bill, a bill intended to partially repeal the Patient Protection and Affordable Care Act (aka ACA, aka Obamacare).

According to Anna Maria Barry-Jester of the data journalism website FiveThirtyEight.com, the intent of this bill was to…

…effectively end the individual mandate and the employer mandate, delay the medical device tax, make some changes to waivers states can use to change how they comply with insurance regulations, and defund Planned Parenthood for a year.

 This was actually the third time the United States Senate (Senate) had voted to repeal (and possibly replace) the ACA that week.

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Just bear with me while I review recent history.

As I wrote here, on May 3, 2017, after not having the votes to pass an earlier draft, the United States House of Representatives (House) voted 217-213 for the American Health Care Act (AHCA), a significant step toward repealing and replacing the ACA.

The AHCA, however, was then declared “dead on arrival” in the Senate. Knowing this, Senate Majority Leader Mitch McConnell (R-KY) made a strategic decision. Rather than draft an ACA-repeal-and-replace bill using “regular order”—introducing legislation in appropriate Senate Committees (starting with the Health, Education, Labor and Pensions [HELP] Committee), holding public hearings, listening to testimony from a wide range of witnesses, marking up the bill in these Committees (seeking bipartisan support in the process), voting the bill out of the Committees, then bringing the bill to the Senate floor with ample opportunity for amendment and debate—McConnell instead designated 13 Republican Senators (all men) to write a bill in secret. The process was so secret, in fact, that one of those 13 Senators, Mike Lee of Utah, publicly complained that even HE did not know what was being drafted.

What ultimately emerged from this unusual process was the Better Care Reconciliation Act (BCRA).

For any reader not familiar with Senate procedure, here is an explanation of the bill’s title. A piece of legislation introduced on the floor of the Senate can be defeated simply by preventing it from coming to a vote, most effectively accomplished by a filibuster, which requires 60 votes to overcome. Effectively, then, any bill would require 60 yes votes to pass. One exception to this rule is legislation required to “reconcile” bills authorizing spending with bills appropriating funds for that spending. This reconciliation process only requires a simple majority to pass (if all Senators voted, that would be 51 votes, or 50 votes plus that of the Vice President, as President of the Senate). The Senate parliamentarian must rule on whether any legislation meets the requirements of reconciliation.

This bill was first introduced, as an amendment, on the Senate floor at just before 3 pm EST on July 25, 2017. The plan was to swap the text of the unlikely-to-pass AHCA with the text of the BCRA.

One day before the vote, 80-year-old Republican Senator John McCain, home in Arizona recovering from surgery to remove a blood clot from over his left eye and having just been diagnosed with a form of brain cancer called glioblastoma, announced that he would fly to Washington, DC in time for the votes.

The first vote was a “motion to proceed to debate.” It passed 50-50, with Vice President Mike Pence casting the tie-breaking vote. All 46 Democratic Senators (and two Independent Senators who caucus with the Democrats, Angus King of Maine and Bernie Sanders of Vermont) voted No, as well as two Republican Senators: Susan Collins of Maine and Lisa Murkowski of Alaska.

Senator McCain voted Yes on this “motion to proceed;” had he not returned to the Senate from Arizona, the motion would have failed 50-49 (or, more likely, McConnell would have delayed the vote until after the August recess).

Immediately after the vote, McCain was recognized on the floor of the Senate. Sporting a fresh, angry scar over his left eye, McCain proceeded to blast the Senate for violating its own longstanding traditions on how to craft and debate legislation, calling for a return to the “regular order” I described earlier. After explaining that he voted for the motion to proceed only to allow the vote to proceed, McCain announced, “I will not vote for this bill as it is today. It is a shell of a bill.”

More than six hours later, the Senate defeated, 43-57, the replacement of the ACHA with the BCRA[1]. Nine Republicans—Collins and Murkowski plus Bob Corker (TN), Tom Cotton (AR), Lindsey Graham (SC), Dean Heller (NV), Lee, Jerry Moran (KS) and Rand Paul (KY)—joined all 48 Democrats/Independents in voting No. McCain voted Yes on this bill, making it somewhat unclear which bill he was opposing in his earlier floor speech.[2]

At around 4 pm EST on July 26, the Senate voted on a “repeal-and-delay” bill that would repeal the ACA (as much as could be repealed under reconciliation)[3] following a two year delay, ostensibly to give Republicans (more) time to craft a broadly acceptable legislative alternative.

This bill was defeated 45-55, with seven Republicans voting No. Joining Collins, Heller and Murkowski were Lamar Alexander (TN), Shelley Moore Capito (WV), Rob Portman (OH)…and McCain.

Thus far, only Collins, Heller and Murkowski had voted No on both “substantive” bills (BCRA, repeal-and-delay), with only Collins and Murkowski voting No all three times (motion to proceed, BCRA, repeal-and-delay).

Of course, so had every Democrat and Independent. More on that later.

These three votes were merely a prelude for the key vote scheduled for early on the morning of July 28.

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Technically, the final vote that took place that morning was not meant to be the final vote. As with the previous two votes, it was a vote on an amendment to replace the text of the AHCA with a new bill, in this case the “skinny repeal” bill. It was assumed that this would pass, and a series of amendments would be introduced and considered. The final vote on the amended “skinny repeal” bill would take place in the post-dawn hours of July 28.

The first sign that even the “skinny repeal” bill might not pass the Senate came at around 5:15 pm EST on July 27. Four Republican Senators (Graham and McCain, joined by Bill Cassidy [LA] and Ron Johnson [WI) held a press conference to declare that they would not vote for “skinny repeal”—which Graham called a “fraud” and a “disaster”—unless House Speaker Paul Ryan (R-WI) guaranteed that a) there would be a House-Senate conference committee and b) under no circumstances would the House simply pass the “skinny repeal” bill and send it to President Donald Trump to sign into law.

These four Senators  were publicly admitting that the “skinny repeal” bill was merely a vehicle to advance the ACA repeal-and-replace process to another arena, an arena in which they expected finally to draft ACA repeal-and-replace legislation that could pass both the House AND the Senate.

Notably, the full text of the “skinny repeal” bill had not yet been released, having purportedly been drafted over lunch earlier that day.

Put another way, the Senate was attempting to pass a bill almost nobody had seen, that the Senate did not want to become law, only so that a new bill could be written by an appointed group of House members and Senators. It is unclear how many, if any, Democrats would have joined that process.

By 9:46 EST that evening, Cassidy, Graham and Johnson had received sufficient assurance from Ryan that the House would NOT simply pass “skinny repeal” that they announced their intention to vote Yes on the bill they had just publicly declared a fraud and a disaster.

About nine minutes later, McConnell released the full text of the “skinny repeal” bill, now called the Health Care for America Act (HCFA), to the public. Debate commenced on the Senate floor, dominated by Republican Senator Mike Enzi of Wyoming, who refused to yield to Democratic Senators waiting to ask questions about the just-released bill.

I had been following both Twitter and the FiveThirtyEight live blog (worth reading in its entirety), so I was able to read this distillation of the conventional wisdom in real time:

Perry Bacon Jr. 11:19 PM  

The bill has out been out for about an hour, and I don’t think I’ve seen a single Republican senator who has committed to voting against it. Either we are going to see some kind of “West Wing”-style dramatic moment, or it’s passing. I would bet on passage.

It also meant, however, that at 12:15 am, I was able to read this Tweet from Steven Dennis:

I THINK WE HAVE NEWS!!!!

After McCain came on floor, he spoke to Cornyn, who appeared upset, turned around and gave a thumbs down to Daines.

“Cornyn” is Senate Majority Whip John Cornyn of Texas and “Daines” is Montana Republican Senator Steve Daines, who earlier that day had tried to foment discord among Democrats by offering an amendment “that mirrored, word-for-word, the single-payer insurance program that Rep. John Conyers, D-Michigan, has proposed.” His hope was to get Democrats to cast politically unpalatable votes in favor of a Medicare-for-all system. It did not work, however, as every Democrat either voted No or “Present.” And as I point out here, support for a single payer health insurance system is not necessarily a politically damaging vote for Democrats.

Six minutes after Steven Dennis tweeted about McCain, the Senate began to vote on a motion offered by Democratic Senator Patty Murray of Washington, the highest ranking Democrat on the Senate HELP Committee, to send the HCFA back to the HELP Committee for further review. This motion failed on a party line 48-52 vote, which is appropriate since the bill had never been IN the HELP Committee in the first place.

At 1 am EST, however, after all Senators had voted, the vote was still “open.” This is because Republican Senators were suddenly concerned that McCain would vote No, and they wanted to delay the next vote (replacing the text of the AHCA with the text of the HCFA) as long as possible. If McCain voted No, while Collins and Murkowski also continued to be No votes on ANY ACA repeal bill, that would be enough to defeat the HCFA (48 D/I No + 3 GOP No = 51 No). On the Senate floor, live on C-SPAN2, Republican Senators (and Vice President Pence, who had arrived on the Senate floor to break a possible tie) could be seen huddled around McCain, and then around Murkowski, trying to get either of them to cast a Yes vote.

Finally, at 1:25 am EST, the Senate proceeded to vote on the amendment to replace the AHCA with HCFA.

Had every Senator actually declared their vote in alphabetical order during the roll call, this is what someone watching the vote would have heard from the Senate clerk:

[…]

“Ms. Collins. Ms. Collins, No. […]

“Mr. McCain. Mr. McCain, No. […]

“Ms. Murkowski. Ms. Murkowski, No […]”

While I believe Collins and Murkowski cast their votes when their names were first called, McCain waited until the roll call vote had reached Democratic Senator Gary Peters of Michigan to stride up to the clerk’s desk. He waved his right hand to get the clerk’s attention then said “No” while firmly turning down the thumb on his right hand.

The video of McCain’s vote, and the audible gasp it elicited from Democratic Senators, is a must see.

When all the votes were tallied, this final (?) attempt to pass the HCFA had been defeated, 49-51.

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As I continue to process the impact and import of this vote, I have four data-driven thoughts:

1. Collins (19.6% of the time), McCain (13.3%) and Murkowski (13.3%) are the three Republican Senators most likely to cast a vote against President Trump on any bill on which he has taken a clear position, according to the FiveThirtyEight vote tracker. These may not seem like very high percentages, but the median Republican Senator only votes against the Trump position 4.3% of the time.

Collins is one of only three Republican Senators to represent a state that Democratic Presidential nominee Hillary Clinton won in 2016. The other two are Cory Gardner of Colorado and Heller, who faces reelection in 2018. Collins and Gardner are not up for reelection until 2020, although Collins is reportedly thinking very seriously about running for governor of Maine in 2018. This is exactly the type of vote that burnishes bipartisan credentials.

McCain would be 86 years old if he chooses to run for reelection in 2022, something that may be much more unlikely following his cancer diagnosis. McCain had nothing to fear electorally from this vote.

Murkowski is not up for reelection until 2022, and she won her 2010 reelection campaign as a write-in candidate after losing the Republican primary to Joe Miller. So she clearly has an independent streak and also had little to fear electorally.

On the other hand, the Yes votes of Heller and Arizona Republican Jeff Flake, both up for reelection in 2018 in states Clinton either won or lost narrowly, may be more politically problematic. I am mildly surprised that at least one of them did not vote No once the bill’s defeat had become clear.

2. Lost somewhat in the focus on Collins, McCain and Murkowski is the fact that not a single Democratic Senator voted for ANY iteration of ACA repeal (with or without a replacement).

As I wrote here, Democrats face a serious challenge if they want to win back the Senate in 2018, despite only needing to flip three Senate seats to do so.

Of the 25 Democratic Senators facing reelection in 2018 (as opposed to only eight Republican Senators), 10 represent states Trump won in 2016.

Five of those 10 Senators—Joe Donnelly of Indiana (voted WITH Trump 46.7% of the time), Heidi Heitkamp of North Dakota (50.0%), Joe Manchin of West Virginia (54.3%), Claire McCaskill of Missouri (42.2%) and Jon Tester of Montana (37.0%)—represent states Trump won by solid double-digit margins.

On average, these five Senators have voted WITH Trump just under half of the time (46.0%). The median Democrat has voted WITH Trump just 23.9% of the time. In other words, these are the Democratic Senators most likely, along with the Independent King (43.5%) and Mark Warner of Virginia (41.3%), to defy their party leaders and support Trump.

So it is an extremely telling sign that not ONE of these vulnerable Democratic Senators (nor King or Warner) ever came close to voting to repeal the ACA. They clearly calculated that favoring the ACA was the smart move politically, even in their deep red states.

3. In this post, I list 31 Republican House members who voted for the AHCA and who represent districts which Clinton won and/or were close (margin <10% and/or GOP%<55%).

I would speculate that many of these 31 “vulnerable” Republican House members voted for the AHCA, a bill they may not personally have supported, with the hope that the Senate would ultimately pass a more politically palatable bill they could then support with more enthusiasm.

Instead, of course, the Senate was unable to pass ANY ACA repeal bill. These 31 Republican House members will now face reelection (in an environment projected to be terrible for Republicans, as I expand upon here and here) having to defend an enormously unpopular vote to repeal the ACA, with no actual legislative success to show for it.

4. On a related note: Republicans have been advocating for the repeal and replace of the ACA for more than seven years, since even before it became law in early 2010. This full-throated advocacy was a central reason they recaptured the House in 2010 and continue to hold it. Republicans have also voted to repeal the ACA dozens of times, knowing full well that President Barack Obama would veto any actual repeal bill.

Now that Republicans control the White House, the Senate and the House it is no longer enough, presumably, simply to cast a vote to repeal the ACA; nothing short of full repeal (with or without a replacement) will suffice for the Republican base after years of (perhaps misguided) promises.

And here I will speculate on where all of this might lead.

If there is one thing I learned as a student of political science (BA, Yale; AM, Harvard), it is that the party holding the White House fares poorly in midterm elections. This electoral underperformance results from a combination of three partisan actions: 1) voters of the party controlling the White House either become complacent or discouraged, and fewer of them vote; 2) voters of the “out” party are energized and enthusiastic about voting for their party candidates, and more of them vote; and 3) political independents tend to break heavily toward the “out” party to balance the actions of the Administration.

Not a single House or Senate Democrat voted to repeal the ACA, including the most vulnerable of them, signaling they believe ACA support will help them (or, at least, not hurt them) even in the most Republican areas. Republicans in swing districts may have voted for a repeal bill, but since the ACA was not actually repealed they will receive no credit for their vote (disgruntled Republicans may not vote, while Democrats and Independents will most likely vote against them).

I make no predictions about what will happen in the 2018 midterm elections, but I strongly suspect that this series of health care votes just made the Democrats’ prospects substantially better.

Until next time…

[1] This bill actually required 60 votes to pass because it did not meet the Parliamentarian’s requirement for a reconciliation bill.

[2] That said, if you view this vote as a PROCEDURAL vote—in essence, a motion to proceed to an entirely different bill—then this vote makes more sense. McCain was following all of the historic standard procedures of the Senate, like allowing bills to come to the floor for amendment and debate without objection.

[3] Technically, this was an amendment, introduced by Senator Paul, to replace the AHCA with a repeal bill from 2015.