If TrumpCare stalls in Senate, House Republicans better watch their backs

As the House marches toward a difficult vote on the leadership’s proposed American Healthcare Act (AHCA), we all can benefit from some reflection on the history of new presidents asking the House to cast hard votes.  

Time and again, brave members have heeded appeals to party loyalty and the need to stand by their new president only to be hung out to dry when the legislation reached the Senate.  In the end, the members paid the price for their votes without getting any of the promised rewards, either a legislative victory or the gratitude of an empowered president.

{mosads}The most striking example of this in recent memory is President Clinton’s 1993 proposal for a “B.T.U. tax,” a broad-based energy tax designed to reduce deficits and carbon emissions.  After massive arm-twisting, a host of special-interest concessions, and fervent appeals not to undercut the first Democratic president in 12 years, House Democrats grudgingly passed a reconciliation bill containing the tax.  

Presaging Speaker Ryan’s insistence that the AHCA presents a binary choice on repeal of the Affordable Care Act (ACA), President Clinton insisted to House members that his economic plan could not survive without the B.T.U. tax.  The crucial votes came from Democrats with rural districts where raising the cost of driving was less popular than a plague of locusts.  

Vulnerable Republicans feel the heat on ObamaCare replacement bill https://t.co/cUNlb99S2n pic.twitter.com/OJDULWSNwu

— The Hill (@thehill) March 9, 2017

Two weeks later, before the Senate had even begun to consider the reconciliation bill in committee, President Clinton declared that he did not “want to get into a name game” about whether the legislation needed to contain a B.T.U. tax or some other revenue measures.  His Treasury Secretary then declared that the final legislation would not contain a B.T.U. tax, killing it immediately.  House Members were left with no cover for their votes.  Republicans under Newt Gingrich rode those votes and other scandals to a sweeping victory in the next year’s mid-term elections, with rural Democrats particularly hard-hit.

A partial repeat came 16 years later, during President Obama’s first year in office.  Bowing to intense pressure not to hamstring the new president as he wrestled with a battered economy in the face of implacable partisan opposition, a bare majority of the Democratic House passed ambitious cap-and-trade climate change legislation.  It died in the Senate without a vote, leaving House Democrats with nothing to show for their tough votes.  

Unlike President Clinton, President Obama did not explicitly abandon them.  But he never had a viable plan for getting the legislation through the Senate, especially with health care reform already consuming much of the Senate’s time and attention.  In the end, three dozen members that voted for the climate change bill lost their seats and the chamber flipped.

The problem with casting hard votes for bills that ultimately die is that voters have no lived experience with the legislation. Critics can characterize the proposals in the worst possible light, knowing that no practical evidence can ever refute them.  

Ryan: Trump is “all in” on ObamaCare replacement plan https://t.co/3ULaGJZBNc pic.twitter.com/lLeZC4o4e0

— The Hill (@thehill) March 15, 2017

With 20 Republican senators representing states that expanded Medicaid under ACA, it is inconceivable that anything like the House bill could ever pass the Senate.  Indeed, once the AHCA clears the House, the Trump administration likely will start from scratch in negotiating a bill in the Senate. The House Democrats whom President Clinton persuaded to vote for the B.T.U. tax in 1993 were shocked that he betrayed them so quickly after passage; today’s House Republicans are already on notice of President Trump’s mercurial approach to policy-making.

Superficially, the House must go first on any ACA repeal because it is legislation relating to revenues.  The Origination Clause, however, has a well-known hack, if the leadership wants to use it: The Senate can pass its version of the legislation first, then hold it at the desk to await a bill sent over by the House.  That would allow House members to see if the president can negotiate a deal in the Senate at all and, if so, whether the legislation that has a chance of passing is worth the cost of a vote that will anger older constituents facing dramatic premium increases.  

That approach may annoy interest groups clamoring for ACA repeal “now now now”, but will those groups really be there to defend vulnerable House Republicans if the AHCA stalls in the Senate and Democrats start running attack ads over their votes?  Legislative failures rarely engender much gratitude, as the members that voted for the B.T.U. tax could tell you.  

David A. Super is a professor of law at Georgetown Law. He also served for several years as the general counsel for the Center on Budget and Policy Priorities.

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