For nearly the entirety of its five-year existence, the Affordable Care Act has been, in the eyes of most Republicans, the unfixable law. Repeal was the goal; gutting it was the only acceptable alternative. And for Democrats, it has been untouchable—a defining achievement of President Obama to be defended at all costs, not only against repeal but against any Trojan-horse attempts to dismantle it.
With few exceptions, that political dynamic has served to stifle just about any good-faith effort to bolster the law that reshaped the health-insurance market in the United States. The King v. Burwell case that almost resulted in millions losing federal insurance subsidies? It might never have made it to the Supreme Court had Congress approved the kind of routine technical corrections that follow most major pieces of legislation.
Yet in the wake of the Court’s June decision upholding Obamacare, lawmakers from both parties have, quietly and without fanfare, actually passed changes that seek to improve the law without threatening its core goals. In early October, Congress passed legislation that extended a provision giving states flexibility in how they define small businesses for the purpose of regulating insurances plans. It wasn’t what Joe Biden would call a big deal, but it was the first time since a year after the ACA was enacted in 2010 that the House and Senate had passed a standalone bill exclusively aimed at tweaking the law.
And in the budget deal that Obama signed on Monday, Congress repealed a requirement that large companies automatically enroll employees in employer health plans. The administration had not yet implemented that provision, but lawmakers and business groups pushed for its elimination because of fears that because of premium increases, some employees would be signed up for coverage they could not afford and others would get insurance they did not need if they were already covered under their spouse’s plan. (People already had the ability to opt out, but just like that auto-renewing magazine subscription, officials worried that few people would do so in time.) Negotiators included the change in the budget deal because it saved the government money, and they needed to offset spending increases as part of the agreement.
Taken together, the changes amount to minor-but-not-meaningless tweaks to the Affordable Care Act, according to congressional aides and outside health-policy experts. Katherine Hempstead, the director of the Robert Wood Johnson Foundation, said preventing the reclassification of small businesses was “a much bigger deal,” since the policy that would have occurred under Obamacare without action by Congress “would have changed a lot of people’s benefits, and potentially caused a lot of disruption.”
Requiring companies to auto-enroll employees was originally included in the law for reasons having to do with behavioral science. Under the theory of “status quo bias,” officials believed making enrollment the default option would lead to greater participation in employer plans, and thus more people getting insurance. But the administration soon realized that decisions about health coverage were more complicated, and it never made a serious effort to implement the policy, Hempstead said. After lawmakers discovered they could save money by scrapping it entirely, “the urge to drop it was irresistible to both parties,” she explained in an email.
These aren’t the first changes Congress has made to the ACA since Republicans took control of the House in 2011. Lawmakers repealed an IRS reporting requirement for businesses that year, and then in 2013, they eliminated a program providing long-term care insurance as part of a larger fiscal agreement, but only after the Obama administration had suspended its implementation over concerns it would fiscally unsustainable. Yet for the most part, the stalemate prevailed until earlier this year, when the Supreme Court confirmed the law’s validity for the second and likely final time.
The fact that bipartisan majorities in Congress acted at all on Obamacare might be more significant than the actual policy implications, said Topher Spiro, the vice president for health policy at the left-leaning Center for American Progress. “I think they’re minor corrections, but it’s still good that Congress is starting to show a willingness to improve the law,” he told me. “You’re starting to see the law become more normalized.”
So how did lawmakers manage to overcome the partisan paralysis surrounding Obamacare? In large part because they didn’t tell anyone they were changing it.
The first change passed both the House and Senate by voice vote—meaning no roll call was recorded—within a few days at the end of September and the beginning of October, a time when the Capitol was preoccupied with who would replace John Boehner as speaker of the House. There were no celebratory press conferences, and no bill signing at the White House. When I asked Republicans and Democrats about it last week, a few didn’t even know the policy they voted to change—an irony given how many Republicans complained that Democrats didn’t even read the 2,000-page Affordable Care Act before they passed it in 2010.
The repeal of the auto-enrollment requirement was tucked into the 144-page budget agreement that was unveiled just before midnight on a Monday and passed by both chambers of Congress about 75 hours later. Republicans claimed it as a victory for their side in the negotiations, while Democrats barely acknowledged it. Privately, Democrats told me the Obama White House had approved of the provision. “It wasn’t something Democrats or the administration really cared about,” said one House Democratic aide, granted anonymity to discuss what is still a sensitive subject. “There is nobody on our side who is losing any sleep over this provision going away.” When I asked Senator Charles Schumer, the third-ranking Democrat, about the Obamacare provision, the only thing he would say on the record was that he hoped Republicans “had given up their repeal crusade, because it’s going to fail.”
Republicans haven’t entirely given up that effort, at least publicly. But in the last couple of years it has comprised little more than show votes orchestrated by party leaders to demonstrate to conservative voters that they haven’t forgotten about repealing the Affordable Care Act. But their heart isn’t really in it, and hard-liners in Congress have noticed. Senators Ted Cruz, Marco Rubio, and Mike Lee have all vowed to oppose a House-passed repeal bill designed to circumvent the Senate filibuster because, they say, it doesn’t throw out the entire law. (Supporters counter that because of complex budget rules, that’s as far as they could go while still hoping to get a bill to Obama’s desk.)
Most Republicans have long since acknowledged that any hope of repealing Obamacare must wait for a GOP president—and probably a few more votes in the Senate. “Republicans have accepted the reality that as long as there’s a president named Barack Obama, Obamacare will not be repealed,” Representative Charlie Dent said. “At the same time, Democrats are acknowledging that there are some real problems with this law that need to be addressed.”
Will these pair of changes wind up as a blip on the partisan record of the Affordable Care Act, like the revisions that Obama signed in 2011 and 2013? Or do they signal a parting of the clouds over the law, a “normalizing” that will lead to the regular updates and tweaks that were made to Medicare, Medicaid, and Social Security in the years after their enactment? If it’s the latter, the list of suggested amendments is growing. Under pressure from unions, Hillary Clinton came out in favor of repealing the ACA’s “Cadillac tax” on high-end insurance plans, a policy that was controversial when the law was enacted but is a key part of its financing. There’s been a similar bipartisan coalition pushing to repeal the medical-device tax, and a more recent effort to relax other regulations on small businesses in the law.
It’s a trend that wouldn’t be popular with conservatives who only want Obamacare to unravel, or with Democratic diehards leery of admitting that some criticisms of the law had merit. Yet as Hempstead pointed out, there could be a benefit to politicians in the middle. “Both parties can claim limited victories,” she said. “Republicans can take credit for repealing two parts of the ACA that were strongly opposed by business groups. Democrats can say this shows that they are willing to improve their own policies.”
So far, Republicans and Democrats haven’t said much of anything about the changes to Obamacare they’ve quietly agreed to pass. The true sign of whether the politics have shifted may come when the two parties not only decide to improve the law, but to brag about it when they do.