Published 12/1/2014
Elizabeth Fassbender; Kristin Brackemyre

Midterm Elections Flip Senate, Shift Priorities

What does Republican wave mean for health policy?

Although a handful of races are yet to be determined, Republicans have decidedly taken control of the U.S. Senate, extended their majority in the House of Representatives, and won a number of governor’s races that were considered toss-ups until the last minute. (See “State Races Will Impact Health Care.”)

As of this writing, Alaska’s Democratic Senator Mark Begich had yet to concede, although Republican challenger Dan Sullivan led by more than 7,000 votes. A runoff in Louisiana is scheduled for Dec. 6, and Republican winners in these races would increase the GOP’s margin in the Senate.

Republican Senate candidates were winners in Arkansas, Colorado, Iowa, Montana, North Carolina, South Dakota, and West Virginia, have already given the GOP the seven seats it needed to become the majority party. In addition, Republicans strengthened their hold on the House, picking up at least 13 seats, with half a dozen House races still undecided. (See “A Closer Look at Congressional Races.”)

As a result, Democratic President Barack Obama will find himself working with two Republicans—Kentucky’s Sen. Mitch McConnell, who is likely to be the next Senate majority leader, and Ohio’s Rep. John Boehner, who will retain his position as House majority leader. Although all three have called for compromise and cooperation to pass necessary legislation, the Affordable Care Act (ACA) remains a politically divisive issue. In separate press conferences, Sen. McConnell and Rep. Boehner renewed their commitment to repealing the ACA, and the president pledged to veto any repeal measure.

What will get done?
In an editorial published in The Wall Street Journal after the election, Rep. Boehner and Sen. McConnell discussed the tasks ahead. They pointed to bills to “remove barriers to job creation and lower energy costs for families” that had previously passed the House, saying the legislation would provide an obvious and potentially bipartisan starting point for the new Congress. They also highlighted bills that would authorize construction of the Keystone XL pipeline and legislation encouraging employers to hire more veterans.

“We’ll also consider legislation to help protect and expand America’s emerging energy boom and to support innovative charter schools around the country,” they wrote. “Enacting such measures early in the new session will signal that the logjam in Washington has been broken, and help to establish a foundation of certainty and stability that both parties can build upon.”

Despite the Senate Republicans’ numerical advantage, they still have to face the possibility of a Presidential veto, especially with regard to enacting health policy changes. For this reason, it would be very difficult to repeal core provisions of the ACA, and a full repeal is nearly impossible. Overriding a certain presidential veto would take 60 Senate votes, and Republicans are still short of that number.

Instead, the Republican Senate will likely take up certain unpopular ACA provisions such as the medical-device tax, the Independent Payment Advisory Board, and coverage mandates. Although the president has said that the individual mandate requiring most Americans to have health insurance coverage is “a line I can’t cross,” employer mandates requiring that certain employers provide coverage for full-time employees are vulnerable. The administration has already delayed implementation of the employer mandate twice; Republicans could look for small changes like redefining the 30-hour-per-week definition of a full-time employee.

However, such a change would be expensive. Finding ways to pay for the changes has never been an easy task for either political party. For example, adjusting the bar for full-time work to 40 hours would cost $83 billion over a decade, according to the Congressional Budget Office. Additionally, eliminating the 2.3 percent tax on medical devices would cost $29 billion over a decade, according to the Joint Committee on Taxation.

The sustainable growth rate (SGR) formula for physician reimbursement under Medicare and reauthorization of the Children’s Health Insurance Program (CHIP) are also likely targets for action in the new Republican-controlled Congress. Again, finding ways to pay for a permanent repeal of the SGR will be difficult. Earlier this year House Republicans unsuccessfully tried to delay the individual mandate. The president’s continued commitment to the mandate as a central component of the ACA practically ensures a veto if they try again.

“Lame duck” efforts
With the elections over, Congress enters its “lame-duck session,” so named because not all of the sitting members of the existing Congress will be returning in the new Congress. The lame-duck session lasts from the date of the election until the 114th Congress begins in January, although the actual number of days Congress is in session varies.

This period provides an opportunity to pass politically difficult legislation. The lameduck session also offers legislators who are retiring or who lost their re-election bids a final chance to push on their legislative priorities.

Initially, however, both parties will spend time organizing for necessary shifts. The Republican majority in the Senate will be structuring their committees; the most drastic change in the next Congress will be the new slate of GOP committee chairmen. Leadership elections for both the House and the Senate, including new Democratic and Republican chairmen for the Senate’s campaign arms, are also scheduled.

First up will be necessary year-end legislation. Funding to keep the government open runs out on Dec. 11, so the parties will attempt to develop a long-term spending bill that would last through most of next year. Congress will also try to clear a host of lapsed business tax provisions and renew a government-backed program that helps insurance companies protect against terrorist attacks. Democrats may also push to confirm various executive and judicial branch nominees, including a new attorney general, before the 113th Congress adjourns in mid December.

For more information, visit the AAOS Advocacy website, http://advocacy.aaos.org

Elizabeth Fassbender is the communications specialist in the AAOS office of government relations; Kristin Brackemyre is the staff manager for the Orthopaedic Political Action Committee.