Second Order Effects Premise of Article:
The Affordable Care Act (ACA) should be a lesson in what not to do when one has all of the levers of power. The Second Order Effect of the Legislation that this article discusses is the consistent opposition by the Republicans. This article is not about the goodness or badness of the ACA. The article is about the process that was used to pass the legislation and the Second Order Effect of unilaterally passing major legislation and the resulting unilateral opposition.
Background:
Most major legislation that has passed through Congress has been bipartisan. Social Security, Civil Rights Act of 1964, Medicare, Medicaid; all passed with significant support from both parties. ACA was passed purely by the Democrats. In fact, any complaints that the ACA didn’t go far enough can’t be blamed on the Republicans because all of the compromises in the legislation were between factions in the Democratic party. None of the amendments proposed by the Republicans were in the legislation as it was passed by the Senate and none of the Republicans voted for the legislation. The Senate version ended up as law that the President signed.
Second Order Effect:
Because no Republicans voted for the ACA, they have nothing invested in its success. In fact, they have everything to gain by continuing to oppose it. The law has been unpopular since before its passage and the Republicans have done everything they can to show how the law has failed. Like all major legislation, the law has some major issues that need to be corrected. It is not in the Republicans best interest to try to fix the law and so the only thing they are willing to entertain has been repeal of the law. The Republicans have had control of at least the house since 2010 so the Democrats don’t have any legislative way to fix the law. And some would say that the passing the ACA helped the Republicans gain majorities in the House and the Senate.
Given the acrimony over the ACA, it is unlikely that the law will survive a Republican victory at the polls. It is likely that the when the Republicans gain control of congress and the Presidency they will repeal the ACA. Since the Supreme Court called the law a tax law and the Demacrats used procedural rules that by-passed the requirements for super majority in the Senate; the Republicans will likely use these actions to prevent a filibuster of a repeal in the Senate. So, the Republicans will not need a super majority in the Senate to repeal the legislation. Whatever the Republicans do to replace the ACA, it is unlikely that they will leave any of the existing legislation.
Lesson for both parties:
- Passing legislation without support from the minority party is a formula for continued opposition. In this case, the opposition to the law was a major talking point and tool to energize the Republican base.
- Passing legislation using rules that by-pass the requirements in the Senate for a super majority makes it easy for the opposing party to undue the legislation when control of Congress and the Presidency changes.