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Election “Politics” Update

Election “Politics” Update

by Christoper E. Condeluci, Principal and sole shareholder of CC Law & Policy PLLC in Washington, D.C.

How Could Democratic Health Care Policy Changes Make Their Way Into the Law?

  • In my last update, I commented on what Democrats may try to do if the ACA was struck down by the Supreme Court, and I enumerated a number of health care policy changes that I could see Democrats pursuing. My comments were based on the assumption that Former Vice President Biden is elected President – AND – the Senate majority flipped to Democratic control.
    • Analysis: It’s important for me to note that if the Democrats control Washington, DC after the elections, I do NOT believe that it will even matter whether the ACA is struck down. In my opinion, the Democrats – who would now be in control of Washington, DC – would pursue these health care policy changes NO MATTER what. In my last update, I also suggested that Democrats would use the Senate’s “reconciliation” process to get most – but not all – of their health care policy changes into the law. HOWEVER, there is ANOTHER way that Democrats could get these health care policy changes into the law. This OTHER way is by ELIMINATING the Senate’s “60 vote threshold,” which is commonly referred to as the “filibuster.” In this case, Democrats could enact ALL of their health care policy changes and NOT be limited by the “reconciliation” rules.


Eliminating the Senate’s Filibuster – Who’s Talking About It? 

  • These days, a lot of smart people in Washington, DC are trying to figure out whether a Democratic Senate majority would effectively ELIMINATE the filibuster.
    • Analysis: Currently, we are hearing that Democratic operatives and political strategists are ALREADY planning to pressure a new Democratic Senate majority to END the filibuster in January 2021 as one of their first orders of business. We are also hearing from former members of the Senate – like former Senate Majority Leader Harry Reid (D-NV) – publicly saying that if the Senate flips in the upcoming election, the new Democratic Senate majority should 100% GET RID of the filibuster.  President Obama also made very pointed statements on ELIMINATING the filibuster. You also hear current sitting Democratic Senators like Elizabeth Warren (D-MA) and Jeff Merkley (D-OR) advocating for the ELIMINATION of the filibuster. AND, you even hear some Democratic Senators like Senator Chris Coons (D-DE) – who is viewed as a Senate institutionalist, and who has NEVER supported ENDING the filibuster before – come out and say that he would “entertain the idea” of ENDING the filibuster if Senate Republicans actively try to block newly elected President Biden’s agenda. Most of the Democratic Senate candidates are saying the same thing, and even Former Vice President Biden (who is also considered a Senate institutionalist) said he would consider supporting an END to the filibuster if elected President. Before I continue, let me put something into perspective for you: Just last week, Senate Republicans tried to pass what people are calling a “skinny” Stimulus Package. Guess what happened?? Senate Democrats “blocked” this bill by voting against it, thus NOT allowing Senate Republicans to get the necessary 60 votes to move the legislation to final passage (i.e., Senate Democrats “killed the bill” through the filibuster). Ummmmmm, I am NOT being critical here because I personally support the MAINTENCE of the filibuster – BUT – Senate Democrats just used the filibuster to their own advantage to “block” a Republican agenda item. YET, sitting Democratic Senators – as well as former Majority Leader Reid who himself deftly used the filibuster to “block” Republican agenda items during his tenure as the Democratic Senate Leader – are calling for the ELIMINATION of the filibuster if Democrats take control of Washington, DC. Make NOOOO mistake, Senate Republicans have deftly use the filibuster to “block” Democratic agenda items too, so I am NOT trying to be one-sided here. BUT, what I am trying to say is that it seems a bit ironic that the filibuster is currently being used by Senate Democrats, yet they are calling for the END of the filibuster next year if they are the majority party. Personally, I find it disingenuous because you can’t have it both ways. Now, many people reading my above comments may be saying, Chris, there is NO irony or people being disingenuous here. Senate Democrats are merely using the Senate rules that are currently in place. If that means they can “block” a Republican agenda item, then they SHOULD be able to that. AND, if a new Democratic Senate majority wants to ELIMINATE the filibuster if and when they take control of the Senate, they SHOULD be allowed to do that too. I 100% agree!! Again, I am NOT trying to disrespect how the “game” is currently being played, or how the “game” may be played in the future. BUT, what I am trying to lead you to is this: BE CAREFUL WHAT YOU WISH FOR.


Eliminating the Senate’s Filibuster – Be Careful What You Wish For

  • Okay, so I just gave you a tangible – very recent – example of how Senate Democrats effectively used the filibuster to “block” a Republican agenda item (i.e., the Republican “skinny” Stimulus Package).
    • Analysis: Now, it is well-accepted by people on both sides of the aisle that the recent use of the filibuster by Senate Democrats was primarily for “political” reasons (i.e., to prevent President Trump and vulnerable Republican Senators up for re-election from being able to say out on the campaign trail that they are “helping people and the economy”). Make NOOO mistake, Republicans have used the filibuster for the same exact “political” reasons too, so NO ONE is “pure” here. It is ALSO important to point out that the current Senate Democrats did NOT use the filibuster ONLY for “political” reasons.  Senate Democrats ALSO used the filibuster as leverage to get Republicans to agree to specific Democratic demands for inclusion in a Stimulus Package. Note, Republicans have also used the filibuster as leverage to get their demands met too, so this is nothing new. Having said all of that though, imagine a world WITHOUT the filibuster.  Senate Democrats could certainly move virtually ALL of their current policy goals during President Biden’s entire 4-years in the White House (e.g., immigration reform, police reform, voting rights reform, protecting the climate through some form of the New Green Deal, some form of single-payer health care like a “public option” and a Medicare Buy-In, etc.). BUT, what happens in 2024 when say Nikky Haley is the Republican Presidential nominee facing President Biden (at age 81) or Kamala Harris who will leverage the Vice President’s role to run for President. What happens if Nikky Haley is elected President? And what happens if the Senate flips back to Republican control as a result? The filibuster would be GONE!! And ALL of the “political” leverage that Democrats had in, for example, 2020 would be GONE too. That is a long way of saying this: Yes, ELIMINATING the filibuster in 2021 would allow Democrats to get ALL of the priorities on their policy “wish list” into the law.  BUT, it just seems short-sighted because come 2024 to say 2028, ALL of these policy changes could be dismantled. AND, Senate Democrats would have ZERO leverage to keep these cherished policy changes part of the law. All because the filibuster is now GONE.


Eliminating the Senate’s Filibuster – A Brave New World

  • In my opinion: If the filibuster is GONE, it would CHANGE EVERYTHING.
    • Analysis: Think about it, when the “political pendulum” swings every 4 or 8 years (because it always does), we would have each political party trying to dismantle what the party in power did just years before. And with NO filibuster, it would be MUCH easier for each political party to put the kybosh on what the other political party got into the law and just started to implement before losing control. We would have so much UNCERTAINTY. Now, some of you may be saying, Chris, the Trump Administration and a Republican Congress (at least up until 2018) caused a TON of uncertainty as the Administration and Congressional Republicans tried to “dismantle” policies that the Obama Administration put into place and started implementing in the years before President Obama left office. AND, you would be right! BUT, with NO filibuster, I believe we would have uncertainty on STEROIDS. And this constant churn of policy and law changes would be very BAD business.  Think about how much $$ stakeholders have to expend to research, understand, and start complying with a new change in the law (just look at the amount of $$ spent on compliance with the ACA). Then, think about this law change changing yet again where stakeholders must spend another huge chunk of $$ to research, understand, and start complying with that change. Lawyers and policy analysts like me would LOVE this because we would be the beneficiaries of this constant churn and the amount of $$ that is spent on understanding the see-sawing changes in policy and law. BUT, I personally believe this would be VERY BAD. Also, I believe that the hyper-partisan world that we currently live in will get that much MORE hyper-partisan. It would be partisanship on STEROIDS. “Moderates” in the Senate are already a dying breed.  “Compromise” is already a dirty word. In a world with NO filibuster, I believe “moderates” in the Senate would become extinct, and there would be NO MORE “compromising.” It would be a “my way or the highway” and an “us against them/you must pick a side” environment. YES, we are toeing-the-line on already living in this world. BUT, we are NOT quite there yet.  With NO filibuster, I believe we would cross over the Rubicon. The bottom-line is this: ELIMINATING the filibuster would FUNDAMENTALLY change how policy is made at the Federal level. And while ENDING the filibuster so a particular political party can finally get their policy priorities into the law may be attractive to those who support these policy goals, I truly believe that GETTING RID of the filibuster would be BAD for the future of our country. I would be saying this same thing if Republicans were poised to run Washington, DC just like the Democrats are poised to run DC. In other words, I am NOT just saying this because it is convenient timing.


Eliminating the Senate’s Filibuster – A Brave New World (Cont.)

  • While this may sound academic, if the filibuster rule is ELIMINATED, I believe this would be akin to changing the Constitution.  Some historians will disagree with my statement here, but I believe it rises to this level.
    • Analysis: What I mean is this: The founders of our country did NOT invent the filibuster. BUT, the founders of our country DID structure the Senate in such a way where the rights of the minority party are protected, and the Senate rules were developed in such a way where the Senate is a more deliberative body than the House. Apologies for the Civics lesson, but I analyze things this way: The founders of our country carefully structured a Congress with 2 Houses (i.e., a bi-cameral institution), where the House of Representatives has a “majority rule” (i.e., an up-or-down vote) on all legislation, and the number of representatives each State can send to the House is based on the population of the State (i.e., the more populous the State, the more representatives that can be sent to Congress). In the Senate, on the other hand, each State can only have 2 Senators, regardless of the population of the State.  This structure is intended to protect the rights of the minority party so – as the founders framed it – “the Senate would not be made up of rabble-rousers imposing majority rule on smaller States.” The founders also gave Senators a 6-year term (instead of the 2-year term in the House) to – as the founders framed it – “guarantee Senators’ independence from short-term political pressures.” NOW, the historians will tell you that the “filibuster” was first contemplated in 1806, used somewhat sparingly before and after the Civil War, and ultimately memorialized as a Senate rule in 1917. Then, in 1975, the “60-vote threshold” was officially created. Historians will also tell you that the frequency in using the filibuster exploded in the 2000 to 2018 time-frame. Sooooooo, while the 60-vote threshold (i.e., the filibuster) was NOT necessarily something that came out of the Constitutional Convention, I personally believe that if the filibuster is ELIMINATED, the rights of the minority party would no longer be protected, and instead, the minority party (which could be Democrats OR Republicans at any given time) would be “rolled” by the majority party (which could be Democrats OR Republicans at any given time). I am of the view that there MUST be some checks-and-balances, especially in this day-and-age.


Eliminating the Senate’s Filibuster – Gaming It Out

  • Now, I am NOT saying that Senate Democrats are going to be successful in ELIMINATING the filibuster if they take control of the Senate in 2021. BUT, I am also NOT saying that it WON’T happen. To me – and other analysts – we believe it will ultimately come down to how big of a majority Senate Democrats will hold.
    • Analysis: For example, my very smart friend I often times talk about suggested that if the Democrats hold a 55 seat majority, the filibuster is pretty much a GONER. If, however, the Democrats only hold say a 52 seat majority, well then, that changes the odds a bit. While that might sound obvious, I agree! BUT, before we even talk about how many seats Senate Democrats hold, we first have to ask this question: Will new Senate Majority Leader Schumer ask his Democratic Conference to vote on ELIMINATING the filibuster? On the one hand, I chalk Senator Schumer up as a Senate institutionalist. That is, I believe Senator Schumer believes in preserving the Senate rules, and I believe Senator Schumer believes in the concept of protecting the minority party’s rights. HOWEVER, Senator Schumer – as Majority Leader Schumer – will be under IMMENSE pressure from outside stakeholder groups, high-profile Democratic Senators within his own Conference, and leadership in a Biden Administration (and maybe even President Biden himself). Will Leader Schumer succumb to that pressure? Or, will new Leader Schumer NOT even need any pressure at all?  Rather, will Leader Schumer be the one pushing for ELIMINATING the filibuster on the first day the Senate gavels in for the 117th Congress? And, will Leader Schumer twist enough arms to get at least 50 votes (Vice President Kamala Harris being the 51st vote)? It could happen. But back to this 52 seats vs. 55 seats. While the Senate Democratic Conference is arguably getting pulled to the left, there are some moderate Democratic Senators who may NOT be willing to change the Senate’s long-standing rules. For example, 2 moderate Democratic Senators – Senator Manchin (D-WV) and Senator Sinema (D-AZ) – have indicated they are do NOT want to END the filibuster.  If the Democrats only hold 52 seats, that would be 2 votes that Leader Schumer does NOT have, which means Leader Schumer would have to get ALL 50 of his remaining Democratic Senators. Think about this: Maybe Schumer loses a Senate institutionalist in the same renegade type of way Republicans lost Senator McCain on the ACA “repeal and replace” vote? Or maybe one of the newly elected Democratic Senators from a State like Iowa or North Carolina or Georgia or Arizona (assuming the Republican incumbent loses) says NO to ENDING the filibuster? You can see how difficult things will be for Leader Schumer with only 52 seats. BUT, with 55 seats, Leader Schumer can afford LOSING the moderate Democrats, the Senate institutionalist, and possibly 1 or 2 of the newly elected Democratic Senators from States that lean Republican. The possibility of ENDING the filibuster increases exponentially at 55 seats. Last comments: At this point, we can game out what we think may happen to the filibuster based on how many seats Senate Democrats hold – BUT – what we CANNOT do is predict whether the Democrats will even re-claim the majority come November, let alone determine how many seats the Democrats might pick up. Yes, we can look at the current polls, and get some sense of whether Senator Ernst (R-IA) or Senator Thillis (R-NC) or Senator Gardner (R-CO) or Senator Perdue (R-GA) or Senator Collins (R-ME) or Senator McSally (R-AZ) are going to lose their re-election. BUT, there is NO guarantee that these Republican Senators are ALL going to lose (and it’s difficult to predict how many on this list will end up losing). Heck, maybe the Democrats lose Senator Jones (D-AL) and/or Senator Peters (D-MI) and/or Senator Shaheen (D-NH). I think you get the picture. It’s NOT easy to game things out.


Health Care Policy Update

Medicare May Run Out of Money In 2024 – Will Medicare Changes Be Made Over the Next 4 Years?

  • The Medicare Payment Advisory Commission (MedPAC) recently reported that the Medicare Trust Fund will go insolvent as early as 2024. While MedPAC (as well as the Social Security Trustees) have been sounding the alarm on the solvency problems these Trust Funds face for years now (only to be ignored by Congress and the Administration because the insolvency dates were typically 6 to 10 years away), it now seems a lot more real when insolvency of the Medicare Trust Fund could come only 4 short years from now.
    • Analysis: Based on everything discussed above, I think it is reasonable to ask this question: If we have (1) a President Biden, (2) a Senate Democratic majority, and (3) NO MORE filibuster, what types of changes to Medicare could we see? As stated, regardless of whether we still have the filibuster or not, I believe President Biden and Senate Democrats will likely pursue a “public option” in the individual market and a Medicare Buy-In program. BUT, if you add in the urgency of “saving” Medicare from its impending insolvency – coupled with the ELIMINATION of the filibuster – will President Biden and Senate Democrats go bigger than that? Could we see more sweeping changes pursued?  For example, a system that looks a lot like Medicare-for-All? Maybe the Medicare-for-All program that Kamala Harris proposed when Senator Harris was running for President (which is a Medicare-like program that is available to ALL Americans – even employees of employers – where the Medicare-like health plans are sold through private insurance carriers, kind of like how Medicare Advantage works today)? I think the bottom-line is this:  We already know that the upcoming election will be a pivotal one, and depending on the outcome, there may be significant changes on the horizon. Especially if Medicare is in as bad a shape as MedPAC says it is. And especially if the Senate’s filibuster is GONE.