The Affordable Care Act (ACA) is not on the ballot this election, but its fate is very much up for grabs. The law will likely survive if President Obama is re-elected and Democrats maintain control of the Senate, but is vulnerable otherwise. Republican leaders have threatened to use the same parliamentary tactics to repeal the law that Democrats used to pass it, including a budget-reconciliation process requiring only 51 votes in the Senate instead of the filibuster-proof 60. At least five alternative paths have been identified that Republicans could pursue to halt the law’s implementation through regulatory and budgetary means should full repeal fail.
It would be a mistake, however, to look only at the top-of-the-ticket races when considering what is at stake on Tuesday. Whether reformers or opponents have the upper hand in 2013 will also be shaped by what happens in state-level elections. The role states play in the ACA’s success has important implications not only for how the reform is implemented, but also for how it is has been opposed and how we should understand what is at stake this election cycle.
As the site of decision-making for key elements of the law, states became a primary battleground almost immediately. Thirteen states filed a lawsuit challenging the law’s constitutionality within hours of President Obama’s signature. Campaigning against the ACA in 2010, Republicans not only won control of the U.S. House of Representatives, but also had a net gain of six governorships, 12 state lower houses, and seven state upper houses. This gave Republicans full control of 23 states, compared to the 11 controlled entirely by Democrats. The rightward shift in 2010 had important consequences for how the ACA has been implemented. Particularly dramatic moments of defiance came when governors returned tens of millions of dollars in grant money that would have helped create state-based health insurance exchanges they had previously supported.
In January, Jones wrote that the success of these challenges, and thus the fate of health reform, will largely be determined by four key events in 2012: 1) state legislative sessions, 2) the Supreme Court’s ruling, 3) the final deadline for a key federal grants, and 4) Election Day. Despite great uncertainty and a wide range of predictions, the law survived the first three largely intact, thereby increasing the importance of the fourth.
The outcome of each event strengthened the role of states in implementing the law. Perhaps most importantly, states now have the option of expanding Medicaid. Less noticed was that almost immediately after the ruling the Obama administration extended the final deadline to receive a Level 2 exchange establishment grant from June 29, 2012 to August 15, 2014. As a result, states that refused to create an exchange so as not to undermine their lawsuit are given another chance.
The ACA’s survival to this point means that the 2012 elections may be the last real opportunity opponents have to stop the law. However, the lesson that “new policies create a new politics” should be a warning to Republicans that full statutory repeal will be very difficult even if they control both the executive and legislative branches; the longer the law survives, the more difficult it is to defeat. The better Republicans do across the country in November, the more options are available to them in 2013.
Federal State-Level Races
The effects of this cycle will be shaped by the outcome of five sets of elections: two national and three state-level. In fact, even the critically important campaigns for control of the federal government will be determined at the state level. The presidential election is essentially a contest over a handful of states such as Ohio, Florida, and New Hampshire, each with its own flavor of ACA politics.
Similarly, although 33 Senators will be elected in November, control of the U.S. Senate is expected to come down to 11 toss-up races. Whoever wins, it seems likely that the margin will be slim. In addition to high-profile races such as between two former governors in Virginia, quirky elements of races in smaller states may have national implications. For example, former governor Angus King (I-ME) has not yet announced which party he would caucus with if he wins the seat vacated by Olympia Snowe (R-ME). Similarly, Todd Akin’s (R-MO) “legitimate rape” comment revived Claire McCaskill’s (D-MO) chances of re-election and Richard Mourdock’s (R-IN) rape comments tightened the race for the open seat in Indiana, a state President Obama is expected to lose.
The Senate race in Massachusetts has deep symbolism for health reform. Scott Brown’s (R-MA) election to Ted Kennedy’s former seat nearly killed the ACA in 2010. Ironically, his race may prove to be one of the tipping points affecting whether Republicans gain control of the Senate and thus how successfully they are able to pursue repeal.
The three sets of state officials with power to either authorize or inhibit full implementation of health reform are governors, state legislators, and insurance commissioners. First, governors play a crucial role in decisions about the Medicaid expansion and creation of an insurance exchange. Twelve are up for election in 2012, with the races in Montana, New Hampshire, and Washington too close to call.
Changes of power in Missouri, North Carolina, and Washington are possible, each with potentially significant implications for how health reform is implemented. Each of these states has had contentious debates over the ACA and a new governor could shift the dynamic in either direction. For example, Washington’s Attorney General, Rob McKenna (R) made his mark by joining the multi-state lawsuit against the ACA, despite Governor Christine Gregoire’s (D-WA) support of the reform and opposition of the lawsuit.
A significant election has already occurred in which Scott Walker (R-WI) became the first governor in U.S. history to survive a recall election. Ironically, his need to raise money from conservatives may have toughened his stance against health reform; two days after the recall election was triggered he returned the state’s $38 million innovator grant which he had previously defended.
Second, elections are being held in 44 states for more than 6000 legislative offices. Top of the ticket races will likely drive turnout and results, but much is still up for grabs. Republicans currently control 60 legislative bodies, compared to 37 controlled by Democrats and two that are tied. Approximately forty chambers are controlled by a margin of 10 seats or less though it is difficult to predict how many will change control.
Some of the most interesting state legislative elections have already taken place in Republican legislative primaries. Republicans worried they would be labeled socialists within their party if they implemented any part of the law, even to preserve state autonomy by creating an exchange, and would then be beaten from the right as was U.S. Senator Bob Bennett (R-UT). Whether the moderate or extremist primary winners prevail on Tuesday will significantly shape the tone in capitals around the country, and with it the fate of the Medicaid expansion and insurance exchange in many states.
Finally, if the top of the ticket elections result in the ACA’s survival, down-ticket officials such as insurance commissioners will play an important role in its implementation. In ten states this position is elected instead of appointed, with elections being held in 2012 in Delaware, Montana, North Carolina, North Dakota, and Washington. The full implication of elected insurance commissioners remains to be seen, though it will be interesting to see whether Democratic incumbents who support the ACA in North Carolina and Washington will be re-elected even if a Republican wins control of the governorship.
In summary, to understand the ACA’s fate, it is important to keep an eye on the states. Whether the law survives will mostly be determined by who wins control of the presidency and the Senate. What happens if the law survives will largely be shaped at the state level.