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It’s Baaaccck! Health Care Law Again Front and Center in Midterms

As voters worry about health care, Dems flip the pre-existing script

Sen. Claire McCaskill, D-Mo., speaks at a July 19 press conference in the Capitol on pre-existing conditions. (Sarah Silbiger/CQ Roll Call file photo)
Sen. Claire McCaskill, D-Mo., speaks at a July 19 press conference in the Capitol on pre-existing conditions. (Sarah Silbiger/CQ Roll Call file photo)

Missouri Democratic senator Claire McCaskill is taking an approach in her fight for re-election that would have been unthinkable in her race six years ago — she’s defending the health care law.

The two-term, red-state senator has attacked her opponent, Missouri Attorney General Josh Hawley, for joining a suit brought by conservative state officials seeking to overturn the law and has rebuked the Trump administration for undercutting its protections.

“There is no question that the No. 1 issue in this country right now is what are we doing to relieve the anxiety about increasing prices and the uncertainty as to whether or not you’ll be able to get insurance for your child who has cystic fibrosis or for your husband who has diabetes,” McCaskill said at a press conference this summer.

That stands in stark contrast to Democrats’ reluctance to discuss the issue during previous campaigns, when the law was more controversial. McCaskill dodged questions on it during her 2012 race, leading one local television reporter to produce an entire segment accusing McCaskill of “hiding” her position.

The issue was so toxic that the conservative group Crossroads GPS generated attention with an ad declaring, “Obama-Claire brought us Obamacare, and that’s bad medicine for health care.”

The health care law, known as the Affordable Care Act or Obamacare, and its protections for pre-existing conditions are enjoying growing popularity after Republicans fell short in their efforts last year to overhaul it.

Democrats are now touting the same thing that, in recent election years, Republicans had used as a cudgel against them. The shift marks a turnaround in the electoral dynamics of the past eight years, when many Democrats, particularly in moderate areas, shied away from health care topics while Republicans reliably shouted for repeal.

Take the West Virginia Senate race. The most conservative Democrat in the Senate, Joe Manchin III, released an ad this month in which he shoulders a gun and shoots a paper representing the pending health care lawsuit that was backed by his opponent, state Attorney General Patrick Morrisey. The commercial mimics a 2010 Manchin ad in which he shot an environmental bill and, reflecting the different politics of the time, vowed to repeal “the bad parts” of the health law.

Morrisey’s campaign hits Manchin for siding with “Washington liberals” on health care issues.

For months, polls have shown that health care is a top issue for Democratic voters, and candidates are leaning into that. A poll conducted in August by the nonpartisan Kaiser Family Foundation, which has closely tracked how health care is playing into the 2018 campaign, found that 27 percent of registered voters said health care was the most important issue for candidates to talk about, trailing only corruption in Washington.

In recent campaign cycles, Democrats were on defense on the issue, facing protests and criticism for enacting the 2010 health law as voters blamed them for all of their health care concerns, said Ian Russell, a congressional strategist at Beacon Media who previously worked for the Democratic Congressional Campaign Committee.

“But now, Republicans own everything that’s going wrong,” he said.

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Democratic leaders are urging candidates to stay focused on kitchen table issues, such as the concerns they raised about health care coverage and the law’s protections for pre-existing conditions, amid a constantly churning news cycle.

“We want to stay very, very focused on the health and financial security of America’s working families,” House Minority Leader Nancy Pelosi of California said this month. “Central to that is the issue of pre-existing medical conditions not being a barrier to access to quality, affordable health care insurance.”

Republicans, who hope a stronger economy will turn out voters, are responding by warning that some Democrats’ goals of expanding Medicare eligibility could reverse the nation’s economic gains. They argue those goals could change traditional Medicare and lead to higher taxes.

The focus on health care extends beyond the campaign trail. Democrats tied protections for pre-existing conditions — which the Trump administration declined to defend against the lawsuit brought by conservative state officials — to President Donald Trump’s nominee for the Supreme Court, Brett Kavanaugh. They argue that Kavanaugh could rule on a case that could overturn those protections, or the law in its totality, if confirmed. During his confirmation hearings last month, Kavanaugh declined to take a position on the case.

Senate Democrats running for re-election in states that Trump won have nearly all brought up pre-existing conditions protections this summer in campaign ads and videos and at events. Republicans are affirming support for the protections too, with legislation and ads of their own.

More than half (52 percent) of all pro-Democrat TV advertisements in August mentioned health care, including 13 percent referencing the health care law specifically, according to an analysis by the Wesleyan Media Project. In the same month, 21 percent of pro-Republican TV ads referenced health care, and just 1 percent referenced the ACA specifically, the same analysis showed.

By contrast, the Wesleyan Media Project found in October 2016 that 12 percent of pro-Republican Senate ads and only 1.3 percent of Democratic ads mentioned the health care law. In 2014, the group said Democrats virtually ignored the law in ads, focusing on issues like taxes and jobs, while a September report from that year found 27 percent of Republican ads mentioned the law.

Some Democratic ads target House Republicans directly for voting for the 2017 House health care bill, even citing committee votes.

“Congressman Leonard Lance voted for a disastrous health care plan that would increase costs on older Americans,” said an August ad released by House Majority PAC, a Democratic group. The ad cited the New Jersey Republican’s vote in the Energy and Commerce Committee to advance a bill, although Lance voted against the measure on the floor. Lance’s race, against Tom Malinowski, a former State Department official, is rated Tilts Republican by Inside Elections with Nathan L. Gonzales.

Groups that favor the law hope to amplify their message in the final stretch of the campaign. Health Care Voter, an initiative that says it has registered more than 750,000 people to vote on the issue of health care, embarked on a seven-figure ad campaign that will run in more than 20 congressional districts meant to highlight how incumbent Republicans voted on the repeal measure last year.

“Much of the work is making sure that people who are heading to the polls know that their representative voted to strip health care away from their constituents and also mobilizing voters who, you know, might be on the fence about getting out to vote and making sure they know how their representative voted,” said Tim Hogan, a spokesman for the group.

One candidate the group is targeting is in Maine’s 2nd District, where Democrat Jared Golden, the assistant majority leader in the state House, hopes to unseat Republican Rep. Bruce Poliquin.

Golden said health care has been a major issue in the state over the past two years. The effort to expand Medicaid there, which Republican Gov. Paul LePage has resisted despite a voter referendum passing last year, has kept the focus on the issue. Golden also plays up his ties as a former aide to the state’s senior senator, Republican Susan Collins, who won kudos from many constituents last year for voting against the Republican repeal bill.

“That whole debate around repeal was everywhere in the news cycle up here,” Golden said in a phone interview. “Ultimately I think seeing the House vote to repeal — including Bruce Poliquin — and then Susan Collins and Senate Republicans saying we can’t just repeal without trying to fix this was a wake-up call for a lot of people in Maine.”

Golden said he expects older voters to determine the election, and supports a plan to allow people over 55 to opt into Medicare coverage. Poliquin has released an ad saying Golden supports a “risky scheme” that would “end Medicare as we know it.”

Republicans’ reaction

As Democrats focus on the health care law, Republicans are hoping to exploit divisions within the opposing party and remind voters that Democrats first passed the law.

Progressive candidates campaigned throughout the primary season on the idea that the federal government should offer coverage to all or much of the population through a so-called Medicare for All program, which Republicans are pointing to as a move toward government-controlled health care.

A video released by the National Republican Congressional Committee in August, for example, targets the Democrat seeking to unseat New York GOP Rep. John J. Faso.

“Antonio Delgado said he’s for ‘all the options on the table,’ including a single-payer health care system,” it says. “We can’t afford his extreme agenda.” That race is rated Tilts Democratic by Inside Elections.

Delgado said in an email that allowing people to buy into Medicare is an “achievable first step” toward moving to a program like Medicare for All.

“This allows people who want to keep their coverage the option to do so while driving down premiums and deductibles,” he wrote. “It ensures that health care will be affordable and universal.”

Jesse Hunt, the national press secretary for the NRCC, said Medicare for All plans are popular among progressives, but not necessarily swing voters who will determine tight races.

“We’ve put forward what we feel is a more free-market, patient-centered approach to dealing with health care issues in our country,” Hunt said. “Democrats have decided to make it about single-payer health care. They’ve created a choice for voters this cycle.”

Robert Blendon, a professor of health policy and political analysis at Harvard University who directs the Harvard Opinion Research Program, said the Medicare for All approach has so far largely become a litmus test for candidates who want to demonstrate their progressive credentials. If Republicans point to a candidate’s possible support for expanding Medicare, it could be to suggest to voters that the Democrat is open to raising taxes, he said.

“If I was in a really mixed district, implying that the other candidate was going to raise my taxes, it could be a very real issue,” he said.

Still, Blendon said support for pre-existing conditions could prove to be a more salient campaign issue given the public’s overwhelming support, particularly in states that will determine which party controls the Senate next year.

Like McCaskill, other Senate Democrats running in red states are focusing on protections for pre-existing conditions, the law’s most popular provision, after the Department of Justice declined to defend those provisions in the legal challenge from conservative state officials.

Those officials, led by the Texas attorney general, argue that the health care law became unconstitutional when Congress acted last year to effectively repeal the mandate that most Americans get coverage starting next year. Their reasoning is based on a 2012 Supreme Court ruling that upheld the law as constitutional in part because the penalty raised revenue, which Congress has the power to do in raising taxes.

A federal judge in the northern district of Texas has yet to rule on the case, and a ruling either way could be appealed, possibly leading to a drawn-out legal fight.

Hawley, McCaskill’s opponent, has pushed back on McCaskill’s attacks, saying he supports the protections and the lawsuit is about the law and individual mandate more broadly.

“Senator McCaskill would have you believe that the only way to cover pre-existing conditions is to keep all the failures of Obamacare,” he said in a statement. “That’s simply not true. I’m committed to covering those with pre-existing conditions, and we don’t have to break the Constitution to do it.”

Still, the lawsuit pushed pre-existing conditions to the forefront of several races, and voters generally support those parts of the health law. A Kaiser Family Foundation poll released this month found that about three-quarters of registered voters say it’s “very important” that protections for pre-existing conditions remain law.

“It’s been a gift to us politically,” said Brad Woodhouse, the campaign director of Protect Our Care, a group that supports the health care law. “It’s raised this issue higher in the public consciousness than it was before.”

Democrats are raising questions about whether Trump’s Supreme Court nominee Kavanaugh would vote to strike down the law.

“Ultimately if Kavanaugh wins confirmation, I think the ACA is in a real threat in the courts,” Woodhouse said, using the acronym of the law. “The only recourse at that point … is to send a message politically.”

Some Republicans want to push back on those arguments, saying they want to maintain the protections. Ten GOP senators introduced a bill in August that would ensure some coverage of pre-existing conditions, a response to the lawsuit and to the Democratic attacks. Democrats said the measure wouldn’t guarantee full coverage for pre-existing conditions.

“I don’t want the Democrats getting away with making it up that pre-existing conditions are going to change,” Senate Health, Education, Labor and Pensions Chairman Lamar Alexander, a Tennessee Republican and co-sponsor of the measure, told reporters at the Capitol.

Dean Heller of Nevada, the most vulnerable Senate Republican up for re-election in a state that Democratic presidential nominee Hillary Clinton won in 2016, released his own ad touting health care legislation he’d worked on that included pre-existing conditions, while saying his opponent, Democratic Rep. Jacky Rosen, hasn’t put forward her own plan.

Focus on November

Open enrollment for the 2019 plan year begins Nov. 1, five days before the midterms, similar to its start just before the 2014 and 2016 elections. But instead of Republicans slamming higher premiums under Obamacare like in past years, Democrats plan to be pointing fingers at Trump and congressional Republicans.

If Democrats hope to tap into voters’ anger over rising costs as Republicans did before, it may be harder this year to find a groundswell of outrage. Individual market premiums appear to be increasing at slower rates in many states ahead of the 2019 plan year, and consumers in a handful of states could even see their premiums go down.

“Certainly it’s hard to make stick the concept that there’s some sort of nefarious plot when you actually see prices going down,” said Matt Brow, president of Avalere Health, a consulting firm.

Average premiums for 2018 are set to increase by 3.6 percent compared to 2017, according to an analysis by Avalere and The Associated Press of proposed or final rates of 47 states and Washington, D.C. In 41 states, average premiums are set to be lower than in 2018 or increase by less than 10 percent.

More insurers are also set to participate on the exchanges this year, after some state officials had to take action last year to ensure there wouldn’t be any “bare counties” that had no insurers offering plans. The Avalere/AP study shows 19 states will have new insurers entering the market or insurers expanding their presence.

Supporters of the health care law have tried to show that the exchanges would have been even more stable in 2019 if the Trump administration had not sought to undermine the law. An August Brookings Institution analysis found that if Republicans hadn’t ended the penalty for not having health insurance coverage or taken other administrative steps, premiums would have likely decreased across the board. Groups that support the law have highlighted insurance companies that have said their rates would be lower if not for those actions taken over the last year.

Democrats’ best gambit may be to exploit GOP divisions, find consumer success stories and remind voters that bills Republicans considered last year were projected to increase the number of uninsured people.

Mollyann Brodie, executive director of public opinion and survey research at the Kaiser Family Foundation, noted that society has largely moved past topics linked to guaranteed coverage of pre-existing conditions, such as a resistance of workers to change jobs because of fear of losing coverage for their pre-existing conditions. Those provisions also apply to employer-sponsored coverage, which is how the majority of Americans obtain insurance.

“It’s something people can really quickly understand,” she said.

That puts Republicans, already on defense, in a difficult situation.

They have to answer to conservative voters who are annoyed that the party did not deliver on years of promises to repeal the health care law, but GOP candidates also have to prove that they support those popular protections, she said.

And many Republican voters still support repealing the law, according to Kaiser polling. In July, 77 percent of Republicans polled said they had an unfavorable view of the health law and 15 percent said they had a favorable view.

“It’s a much more complicated message for Republicans this time around, as to previously when they could just really rally and say the really simple, ‘Repeal Obamacare,’” said Brodie.

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