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Building On Donald Trump’s First Legislative Victories


Yesterday afternoon, Donald Trump finally notched two significant legislative successes. It was not his doing: the Freedom Caucus and moderates convinced by sending more money to pre-existing conditions brought the American Health Care Act (AHCA) through the House and sent the Obamacare revision to the Senate. In the Senate, the budget omnibus bill Trump favors was pushed through. It will spend more than $1 trillion and keep the government running until September. It passed with a vote of 79-18, and all 18 votes against were Republicans.

Breaking down what happened with these two Trump legislative successes illustrates what we should expect from the coming years. First, a significant portion of the House and Senate Republicans are pragmatic partisans—roughly 170 in the House and 25 in the Senate. They will go along largely with whatever the White House wants, even if they resent it.

Then there is a handful of members in the moderate position in both chambers who can block very narrow votes, but otherwise lack the power to dramatically alter legislation. Then there is a strong core of conservatives who are largely skeptical of Trump’s White House, but want to get to yes by pushing legislation to the Right. They are able to do so on matters where the divide on votes is harshly partisan, such as on the AHCA. But they are unable to do so when Democrats side with the partisan pragmatists, who feel confident that they won’t suffer for voting for something Chuck Schumer and Donald Trump both like.

The Way to Win Concessions

While conservatives are content with making the AHCA more acceptable to their principles, on the omnibus they were stuck fuming over spending concessions to Democrats. But the truth here is that Trump, running into a potential shutdown for the first time, showed himself to be willing to capitulate on several fronts.

Trump could mitigate this in the future by escalating his priorities, laying out a series of funding issues that, if not to his liking, will receive an automatic veto. Schumer will likely rise to the bait, and Trump may have to veto a future deal for that reason. He should be prepared to do so, and as a lead-up to the midterms, when geography will put Democrats on the defense in the Senate. It will take conservatives close to the White House to convince the president of such a strategy.

But on the health care front, conservatives should feel more enthused. They have successfully sent a message to the White House and to House leadership about what can happen when they listen to internal resistance instead of just trying to roll them. The AHCA was improved in a number of ways, as Yuval Levin writes: “As I suggested around here a few weeks ago, state waivers from federal insurance regulations are (unlike much of what Republicans have tried so far this year) an idea native to the actual circumstances Republicans now face: the uneven (at best) commitment of some Republican members to actually doing anything about Obamacare, the constraints of the budget reconciliation process, and the sheer multiplicity of problems now confronting the individual insurance market in different parts of the country.

“It is also responsive to what House Republicans have learned about the priorities of different factions within their coalition in the course of the prior rounds of this internal debate. The Freedom Caucus prioritizes deregulation of the individual insurance market to lower costs and constrain the federal role. The moderates prioritize coverage levels and protection for people with pre-existing conditions. These are both very worthwhile sets of causes to prioritize, and they are in some important respects compatible. But rather than try to arrive at a single overall balance between them, the approach House Republicans are now pursuing says to state governments that they can have relief from the rules that drive up costs and make their insurance markets unsustainable if they themselves propose alternative rules that would still protect people with pre-existing conditions and make coverage accessible. This course recognizes that different states will approach the tense balance between these priorities differently, and allows them to do that—thereby perhaps also enabling congressional Republicans to achieve the precarious political balance they require.”

What Happens Next

Passage yesterday was step 1 of 3. The AHCA now moves to the Senate, where it is likely to be dramatically changed. Early comments from Senate members indicate they plan to alter the legislation significantly to achieve passage and run the complex parliamentary traps on the reconciliation process. The House should be fine with that. There are numerous problems with the AHCA that need to be fixed to achieve workability. Of course, I favor a much more aggressive approach to reform. But I doubt the Senate has that kind of steel in its spine.

Meanwhile, former aides to President Obama, Democratic activists, and Obamacare supporters generally spent yesterday freaking out. They accused Republicans of literally voting to make thousands and millions die. This was the most angry we’ve seen them since the election. This confuses me, I confess. Did they really believe that Speaker Ryan’s stumble in the initial run at repeal was the end of this story? Of course not. The political incentives are too great.

As for those freaking out because they believe the talking point that 24 million Americans will lose insurance coverage because of this legislation, they ought to step back and look at the larger picture. Obamacare is being revised and aspects of it repealed because it failed to deliver on its promise.

It did not lower costs, for families or for government. It did not spur competition that would improve insurance markets. It did not improve care. It did not become a popular health care program along the lines of Medicare. It did not allow people to keep the plan or the doctor they liked. Watch the video below and you’ll see three of the most influential wordsmiths of the Obama administration laughing about this, sure that the program they helped make real is permanent.

Democrats Refuse to Offer Good-Faith Opposition

Obamacare’s failure is why it is vulnerable. As Republicans engage in a partial repeal and partial revise effort, Democrats should be seeking to prod Republicans into deal-making rather than accusing them all of genocide. But they’ve fallen into that trap, and seem unlikely to stop—and the emotionally driven stories told in the public square by people who don’t understand health care policy will continue to fuel them.

Yesterday The New York Times published an article titled: “Pre-Existing Conditions: Evaluating Competing Claims.” Written by a former PolitiFact fact-checker, it mentions and links to Jimmy Kimmel’s recent viral plea regarding his son, which you’ve doubtless seen by now and has been responded to by former President Obama and Hillary Clinton.

But the NYT doesn’t check Kimmel’s comments for accuracy in the text, except to say: “It was less common for insurers to deny coverage to children with pre-existing conditions, such as Mr. Kimmel’s son, than to their adult peers, Larry Levitt of the Kaiser Family Foundation said. ‘But it certainly did happen,’ he said.”

But how often did it happen? Kimmel claimed it happened quite a lot. “Before 2014, if you were born with congenital heart disease like my son was, there was a good chance you’d never be able to get health insurance because you had a pre-existing condition. You were born with a pre-existing condition. And if your parents didn’t have medical insurance, you might not live long enough to even get denied because of a pre-existing condition.” That’s a significant claim, and certainly many people find it moving. Is it so wrong to ask that it be backed up with facts?

I’ve since asked the writer, whose Twitter bio invites suggestions for fact-checks, that she do so. This is important, after all. Kimmel’s appeal is understandably emotional. But his claim—that before 2014, there was a good chance infants born with congenital heart defects would never be insured, is an audacious one considering the facts.

As Hadley Heath Manning notes: “Anyone who has welcomed a new baby knows that you have 30 days to add a new son or daughter to your health insurance plan. This was the case before Obamacare, and it’s the case now. What many people may not know is that, even before Obamacare, insurance companies added newborn infants at standard rates, regardless of their health condition, because of guaranteed renewability laws.”

So to be clear, we’re talking only about the children of the uninsured, and we are supposed to take it on Kimmel’s word that a significant number of those born with congenital heart defects never received insurance of any kind—government or private—through the massive number of Medicaid, CHIP, and high-risk-pool programs already in existence prior to Obamacare? PolitiFact looked into it and could only find two cases of children denied insurance coverage based on a pre-existing condition.

The Weaknesses in the Congenital Heart Attack

This point is lost in the shuffle, of course. People like CNN’s Matt Lewis have gotten huge blowback from saying Kimmel’s emotional monologue wasn’t the “right move.” And MSNBC’s Elise Jordan has not been the only one to use it as an attack on the GOP, saying that “dead babies” are not “good messaging.” Well, tell that to Planned Parenthood. But all this suggests a binary situation: that before Obamacare, children born with congenital heart defects were facing a death sentence and their parents facing bankruptcy because of our existing system.

If what Kimmel says is true, why didn’t we see more buy-in to the programs for those denied coverage based on pre-existing conditions?

According to research cited by the Centers for Disease Control, from 1999–2006, there were 41,494 deaths related to congenital heart defects in the United States. That number includes much older individuals—a bit fewer than half of those deaths were among infants aged one or younger. 20,000 deaths of the youngest and most vulnerable among us is of course a sad result, and our hearts should go out to anyone facing such calamity. But our survival rate in America for children born with non-critical defects has risen to 97 percent, and for critical defects has risen to 75 percent—69 percent of whom will make it to 18. That’s an incredible medical feat considering how low rates of survival were in the past.

Today, there are more than 2 million children, adolescents, and adults living with congenital heart defects. They will face increased costs over their lifetime, yes, and we should do what we can from a policy perspective to mitigate that. A bigger question would be why, if what Kimmel says is true, we didn’t see more buy-in to the programs for those denied coverage based on pre-existing conditions.

Of the 2 million or more people living today with a congenital heart defect, how many were denied insurance for a pre-existing condition? Enrollment in the pre-existing condition insurance plan Obamacare created for those denied coverage peaked in early 2013 at 114,959. Assume for the sake of Kimmel’s argument that this number is made up entirely of people with congenital heart defects. What about the other 1.9 million?

Perfect Insurance Is No Good If Nobody Sells It

The larger point is this: nothing about this situation requires a massive overhaul of the entire American health care system to better aid those born with congenital heart defects. And it ignores what’s actually going on right now all across America with the existing insurance market.

Nothing about this situation requires a massive overhaul of the entire American health care system to better aid those born with congenital heart defects.

Sarah Kliff, no Obamacare critic, yesterday cited examples of insurers pulling out of entire areas as the reality of how Obamacare explodes. Aetna is now pulling out of Virginia’s individual market, citing big Obamacare losses. And Medica, the last insurer selling individual health policies in most of Iowa, is likely to exit the state.

Let’s accept for the sake of argument that what Kimmel says is true, that all 20,000 of those poor infants born with congenital heart defects in the space of seven years before Obamacare’s protections died uninsured and without quality care. My question for anyone citing that story would be: What does it matter if the government requires insurers to do something if the insurer isn’t even selling insurance in the marketplace? You can force insurers to change a product. You can’t force them to stay in business to sell it.

To act as if the AHCA represents the end of coverage for infants with congenital heart defects is just not true. It represents supporters of Obamacare making the same mistake so many critics of Obamacare did—ascribing to it too much importance, as if before Obamacare American health insurance was the Wild West, and after Obamacare all was government-run. The truth, as always, is a lot more complicated than that—and it’s important, particularly in this policy arena, to know the truth. Republicans who want to achieve true Obamacare repeal need to know the truth, and demand it of those who cover what they do.