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To Repeal the Health Law, You Need a Republican President

To Repeal the Health Law, You Need a Republican President

By Sean Trende - November 21, 2013

Josh Kraushaar, one of my co-authors on the 2014 Almanac of American Politics, and Megan McArdle have opined that the Affordable Care Act is so badly damaged that repeal over a veto by President Obama is now within the realm of possibility. I suppose anything is possible. After all, seven weeks ago, very few people would have predicted that the rollout would be this disastrous. Who knows where we’ll be in two to three months? The law could be functioning much better, in which case a lot of this discussion will be academic, or it could be functioning so poorly that Republicans will be on pace to make truly massive gains in the midterm elections.

Even in the latter scenario, however, I think it’s unlikely the law would be repealed with Obama in the White House. Let’s stipulate that if the president were to announce his willingness to repeal the law, it would probably be done tomorrow. Obviously, House Republicans would vote to repeal, and I don’t doubt that there are five Democratic senators who could be persuaded to cross over and vote “no” on the law. But I think it’s extremely unlikely that the president is going to agree to repeal his signature legislation. 

So both chambers would need to override his veto. To accomplish this, 290 members of the House and 67 senators would have to be on board. It’s fairly easy to identify 234 representatives and 45 senators who would vote yes -- that is, the Republican caucus. The tricky part is getting 56 Democratic representatives and 22 Democratic senators to do so.

Let’s start with the lower chamber. The House had a vote last Friday on Fred Upton’s “Keep Your Plan” bill, which many saw as a significant step toward repeal. This was also a “free” vote, meaning that there was little official pressure placed upon Democrats to vote with the president’s party, since the bill was going nowhere in the Senate. Here’s a breakdown of how members of the Democratic caucus voted on the bill, based on Obama’s 2012 vote share in their district:

This is more or less what we’d expect. Everyone in a district where Barack Obama got less than 45 percent of the vote cast an “aye” vote on Upton’s bill. Most of those in districts where he performed around his national vote share voted aye as well.

But things drop off pretty substantially after this. There’s a spike around the 57/58 percent mark, but that’s due to an anomaly of redistricting: There are four Illinois districts in this range where Obama’s vote share is probably inflated by a few points due to his “favorite son” status. If you remove these districts, only 18 percent of the Democrats in this range voted for the bill, and we get a more consistent slope.

The bottom line is that Democrats in districts that gave Obama 55 percent of the vote or more felt secure enough in their electoral fortunes that very few of them were willing to cast a “free” vote for what was effectively a partial repeal. Something drastic would have to change to persuade them to change their minds.

The task looks even more daunting when you look at the representatives who would be asked to cast vote number 290 for repeal. Here is a brief summary of the 285th through 295th most Democratic districts, using Obama’s 2012 vote share:

Almost all of these members won their last elections by healthy margins last year, and most of them won by healthy margins in 2010, a very good Republican year (note: Suzanne Bonamici’s “2010” number actually represents her victory in an early 2012 special election). From a practical perspective, it’s hard to see Ted Kennedy’s grandnephew voting to kill the dream.

Remember though, it’s not just a matter of getting some of these members to vote for a repeal. They are only relevant if every member in a less-competitive district votes for repeal as well. Ann Kirkpatrick, Steve Israel, Michael Michaud, Lois Capps, and Steve Horsford all passed on the free vote for the Upton bill, despite being in reasonably competitive districts, while members like Matt Cartwright, Joe Courtney and John Yarmuth have pretty liberal voting records and pretty safe districts.

So, realistically, Republicans would probably need five to 10 Democrats in districts even more Democratic than those listed above to vote for repeal. By now we’re really starting to get into the minority-majority districts and white liberal districts. It’s doable, I suppose, but extremely improbable, especially in the face of a likely full court press from the White House and House Democratic leadership.

The Senate presents a different challenge altogether. I was unaware of this, but there are actually 37 states where Obama won 54 percent of the vote or less in 2012. If every senator were up for re-election in 2014, I’d say that Republicans would have a shot there.

But the reality is different. Democrats are insulated by the calendar, and by retirements. Here is the list of Democrats from states that gave the president 54 percent of the vote or less, and when they are up for re-election. Members that are up for re-election in 2014 are bolded and underlined:

Will a member who isn’t up for re-election until 2018 really feel the need to vote for repeal? Maybe, but political memories are short, and I’d suspect that most of these senators will feel fairly confident that the political dynamic will be completely different five years from now, regardless of the votes they cast in 2014.

You also have to combine this math with two other observations. First, one of my law school friends was fond of saying that there is no such thing as a lukewarm hell. The basic idea is that once you’ve become a sinner, you’re far better off owning the sinner’s lifestyle than trying to straddle the line. You end up in the same place regardless, so you might as well have fun.

This is fully applicable to politics; it is basically a different articulation of Jim Hightower’s famous observation that the middle of the road is for yellow lines and dead armadillos. There’s no doubt in my mind that Mary Landrieu or Mark Pryor would be better off if they were campaigning today on having cast the deciding vote against Obamacare. But that ship has long since sailed. They were the deciding votes for passage, and they own the law.

To win re-election at this point, they need to make their opponents radioactive, and then hope for massive turnout from what is left of the Democratic base in their states. This is why Landrieu voted for the gun control bill, and why she is continuing to oppose repeal of the health care law (though she did introduce a gentler Senate version of the Upton bill). If she were to support outright repeal, it’s not clear that she would enhance her standing with conservatives all that much, and her liberal base would likely be infuriated and stay home. This is even more the case in more left-of-center states.

Finally, I am reminded of early 2010, when I’d look at whip counts and wonder how Democrats could possibly get Obamacare passed. My answer was always the same: This is why some people are Democrats in the first place. There are just certain things that people are willing to go down with the ship over, and health care is one such issue for Democrats. A large number of ostensibly centrist Democrats cast what they had to know were career-ending votes for the bill in 2010. I’m not sure why we wouldn’t expect a large number of openly liberal Democrats from fairly liberal jurisdictions to do the same this time around.

This isn’t to say that a veto override is inconceivable. It’s just extremely unlikely. If Obamacare crashes, I think an awful lot of Democrats will be willing to go down with the ship. 

Sean Trende is senior elections analyst for RealClearPolitics. He is a co-author of the 2014 Almanac of American Politics and author of The Lost Majority. He can be reached at strende@realclearpolitics.com. Follow him on Twitter @SeanTrende.

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