If the GOP Wins

It's hard to find many upbeat and optimistic Democrats these days; many seem distinctly worried if not apoplectic about the 2012 elections. Thinking about those lofty days when Barack Obama was elected and sworn in as president of the United States, let's just say this wasn't the cruise that Democrats and particularly Obama supporters signed up for.

At the risk of sending more Democrats reaching for their Prozac, consider this not implausible scenario: Republicans lose 10 to 15 House seats but maintain their majority, albeit a more narrow one. In my mind, this is the single most likely outcome in the House. Across the way in the Senate, the GOP picks up a net gain of four or five seats, creating either a 51-49 or 52-48 Republican majority in that chamber. Now let's say Obama loses reelection, whether it's to Texas Gov. Rick Perry, former Massachusetts Gov. Mitt Romney, or any other GOP contender.

Obviously for Democrats, who less than two years ago held not only the presidency but also substantial House and Senate majorities, this scenario would represent something just short of the end of Western civilization as they know it. The conventional wisdom is that if Republicans pick up the presidency and a Senate majority while keeping control of the House, they would either starve or nibble away at the Patient Protection and Affordable Care Act (also known as the health care reform law), or at least as much of whatever the courts haven't thrown out. The U.S. Supreme Court has not yet weighed in on the matter.

But consider a second scenario. Let's assume that the first piece of legislation introduced in the House is H.R. 1, a bill to effectively repeal the health care law. Upon arriving in the Senate it is incorporated into the budget reconciliation process and therefore cannot be filibustered. Only 50 votes would be necessary, with the (Republican) vice president breaking the tie, or it could get 51 or 52 votes without the vice president even needing to weigh in. Thus in the first weeks of the newly minted Republican Washington, health care reform is effectively repealed-not just nibbled at or starved to death, or for that matter picked apart by courts.

It's important to note that nothing is ever quite as clear as it appears from the cheap seats in the upper deck. Reality is a bit more complicated. For example, under the "Byrd Rule" in the Senate, anything in the reconciliation bill not directly related to spending can be challenged and ruled out of order. Another practical consideration is that by throwing out the individual mandate and other aspects of the health care law that conservatives, Republicans, and some other folks don't like, it makes it difficult if not impossible to keep the parts that many voters actually support, for example the protection for those with preexisting medical conditions. In the absence of universal coverage, it's pretty hard to force insurance companies to cover new applicants with preexisting conditions.

One health care expert at a major law firm in town argues that "enormous amounts of work will have been done in preparation for going live in 2014 with the [insurance] exchanges, etc." He went on to point out that "outreach efforts to patients and beneficiaries will have begun and states will have invested capital in putting in place the legislation, regulations, and infrastructure needed to carry out their responsibilities. In addition, the private sector has spent vast sums" responding to the various provisions of the health care law, such as ones dealing with Accountable Care Organizations and benefit designs. "Also, what happens to the provisions already in effect, such as the extension of coverage to children up to age 26? What about the additional discounts for Part D beneficiaries in the doughnut hole? … Repealing [the health care law] may not be as easy as it sounds and may create confusion and anger among key constituencies."

Another really smart observer of Capitol Hill suggested that attaching the repeal to a debt-ceiling hike would be one way for conservatives to take the sting out of a debt-limit increase. That could be Plan B for Republicans and certainly another avenue that they could take.

One GOP health care expert worries that "Republicans may end up looking like the bad guys for putting the good parts of the bill at risk." In the end, the expert said, "their best hope is that the Supremes do the dirty work for them."

Some of the central elements in the Obama health care law really could be repealed. Even if Democrats are a sizable Senate minority, the filibuster might not be able to save the health care statute. While no one has doubted the importance of next year's elections, the stakes are even higher than many might think.