When the Affordable Care Act was passed in early 2010, people made lots of predictions about how its implementation would proceed, in both practical and political terms. While the law's opponents all agreed that it would be a disaster from start to finish, the law's supporters were slightly less unanimous, if nevertheless optimistic. Most figured that though there would probably be problems here and there, by and large the law would work as it was intended, enabling millions of uninsured Americans to get coverage and providing all of us a level of health security we hadn't known before.
And that's what has happened. But there was one other assumption among the supporters that's worth examining anew, now that most of us agree the law isn't going to be repealed. Like every large and complex piece of social legislation, it was said, the ACA would have to be tweaked and adjusted over time. For instance, when it was passed in 1935, Social Security excluded agricultural and domestic workers, just coincidentally shutting most African-Americans out of the program. Those workers were added later on, and other changes were made as well, like adding cost of living adjustments to account for inflation. Medicare, too, has undergone changes both large (like adding a prescription drug benefit) and small. So what are the possibilities for adjusting the ACA in the near future? In the current atmosphere—one not just of intense partisanship, but one in which one party has made venomous opposition to this law the very core of its political identity—can we hope to actually fix the things about the law that might need fixing?
The administration has already made some changes to the law using its executive authority. Most notably, it has delayed the employer mandate; as it stands now, the mandate won't fully take effect until 2016. As it happens, few people are particularly enthused with the employer mandate in its current form; conservatives have never liked it, and more than a few liberals have their doubts about it. As Mike Konczal recently explained, there's an alternative:
The employer mandate has been another major roadblock for the ACA. The current "Obamacare" plan requires employers with more than 50 full-time workers to pay a part of the health care costs for employees who work more than 30 hours a week, or pay a fine. This is unpopular with employers, and it fuels larger worries that workers are getting their hours capped or that expanding businesses are hitting a major road bump the moment they reach 50 employees.
As the Roosevelt Institute's Richard Kirsch writes, the way the final House bill tackled this issue was much smarter: Under the House plan, employers that didn't provide health care to their employees would pay a percentage of payroll as a tax to cover health care. Consequently, there would be no incentive to juke the number of new hires or their hours. Also, current health insurance premiums don't vary according to an employee's income, which discourages employers from hiring lower-wage workers. Charging a percentage of payroll for coverage would help companies cover the costs even as the system moves towards the exchanges.
If you were a Republican who cared about this issue, this would be a perfect opportunity to change the law in a way you'd like. It wouldn't be giving up something to get half a loaf, it'd be giving up nothing to get half a loaf. Democrats and Republicans could agree to change the mandate, whether it's to more closely resemble the original House version of the bill, or something else. I'm sure that creative legislators could come up with any number of ways to produce the maximum number of people with employer-sponsored coverage—or even, now that the exchanges seem to be working quite well, devise a new way for employees to use them without employers just getting off the hook for providing coverage.
But we all understand the present reality, which is that no Republican is willing to work with Democrats to improve the ACA, even in ways that address particular complaints conservatives have about the law, because that's considered collaboration with the enemy and would guarantee you the wrath of the Tea Party and a primary challenge from the right. Within the GOP, changing the law for the better is actually thought to be a terrible sin, while making futile gestures in opposition to the law while tacitly accepting its existence in its current form is thought to be the height of ideological integrity.
It's possible that over time, as the repeal fantasy looks more and more ridiculous, Republicans will begin to grow more open to legislation making changes to the ACA to improve its operation. That's what logic would dictate, but anything other than fist-shaking opposition to the ACA may remain politically toxic for a long time in the GOP.
But maybe there's something Democrats can do to affect that conversation. It's easy for them to just say: "If Republicans really cared about improving people's lives they'd join with us to make improvements, but instead they'd rather just have talking points." It's even true. But that doesn't get you anywhere. So perhaps Democrats could try getting more specific. They could come up with whatever they think is the best way to deal with a weakness in the law, like the current form of the employer mandate. Turn that into a bill. Start moving it through the legislative process in the Senate. Force Republicans to answer specific questions about it, like: "Congressman, you've criticized the current employer mandate. Tell me why you think this new proposal isn't an improvement."
I'm not naïve enough to think that all Republican opposition to improving the ACA is going to melt before the power of those questions. But it only helps Republicans if they can stay vague in their discussions of the law. The more specific the discussion gets, the harder it is for them. And at least you could introduce the idea of Republicans joining with Democrats to improve the law, which is something barely anyone has brought up until now.
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