A few Senate Democrats reportedly are weighing whether to support the Republican bill to revise the definition of full-time work from 30 hours a week to 40 hours for the purpose of determining who must be covered under the healthcare reform law's employer mandate.
None of the senators mentioned, including an independent who caucuses with the Democrats, are up for election in 2016, so they're not facing any short-term political pressure to vote with Republicans to give them the 60 votes they need to prevent a Democratic filibuster. Still, powerful business groups are pressing them to support the legislation, which the House passed last week with 12 Democratic votes.
But there is a bigger threat to the Patient Protection and Affordable Care Act these Democratic senators should be thinking about. They must be aware that the Supreme Court in June may invalidate the ACA's premium subsidies in 37 states. That would cripple the law unless the GOP-controlled Congress somehow agrees to restore the subsidies. Surely the Democrats also know that the Republicans would demand a very high price for doing so—if they would even consider it.
So one wonders what Senate Democrats like Joe Donnelly of Indiana and Joe Manchin of West Virginia, who say they support the ACA overall, are thinking in being willing at this point to give up the 30-hour workweek rule, which might well be one of Democrats' bargaining chips.
Next Republicans will be asking Democrats to repeal the medical device tax, the Medicare Independent Payment Advisory Board, and the insurance risk-corridor system, which could be other negotiating chips. What will Democrats have left to offer in trade if the Supreme Court strikes down the subsidies?
Taking up the employer mandate issue now before the Supreme Court rules “doesn't make a lot of policy sense, though it's politically attractive for the GOP,” says Jonathan Oberlander, a professor of health policy at the University of North Carolina-Chapel Hill. The question, he says, is how many Senate Democrats “feel sufficiently politically vulnerable that they are afraid to vote to uphold the current workweek definition in the ACA.” Still, it's essentially a symbolic vote, he notes, because President Obama has promised to veto the bill.
Former Indiana Democratic Sen. Evan Bayh, now a strategic adviser at the McGuireWoods law firm, says Senate Democrats should vote on the merits of the Republican proposals as long as those measures legitimately improve the healthcare reform law and don't undercut its core purposes.
There's no reason to hold back to save bargaining chips, he argues. That's because if the Supreme Court wipes out the subsidies in the King v. Burwell case, he severely doubts there are any concessions Obama and congressional Democrats could offer Republicans that would persuade them to salvage the law.
“I can't imagine what would get Mitch McConnell and John Boehner to go back to their caucuses and say, 'Obamacare is on its deathbed and the Democrats are offering the following things that lead us to say let's revive it,' ” says Bayh, whose father was a U.S. senator and who was considered a savvy centrist during his two terms in the Senate. “They wouldn't do that for the 40-hour workweek or the device tax. You could throw in the Keystone pipeline and the kitchen sink and they still wouldn't revive it. Any Republicans who agree to reinstate the subsidies and therefore rescue the mortally wounded law would be eviscerated by their right wing and would face primary challenges. I can't think of any political calculus that gets them there.”
If Bayh is right, that's very bad news for reform supporters, and makes the stakes in the King case momentous. “I don't think it's right, I wish it weren't so,” he laments. “But it's all or nothing.”
Follow Harris Meyer on Twitter: @MHHmeyer
