Tensions erupted yesterday evening between House and Senate Republicans over the strategy to attack ObamaCare during the budgetary process over the next few days in Congress. After John Boehner announced that the House would deliver a defunding CR to the Senate as advocates like Sens. Ted Cruz and Mike Lee had demanded for weeks, a few House members got annoyed when it appeared that Cruz and Lee made it sound as though they had shrugged off any hope of pushing it through. Rep. Sean Duffy took to social media to express his frustration with both (via David Freddoso):
He added a somewhat longer statement to his Facebook page:
House Republicans have stood firm. We have voted to defund, repeal & delay #Obamacare dozens of times. It is time for Sens. Cruz & Lee to show they can hold the line against Senate Democrats.
Let’s hope they do not surrender before the fight even begins.
Can Americans count on Sens. Cruz & Lee to join us?
Rep. Tom Price was a little more diplomatic:
House Republicans are turning words into action to defund #Obamacare. Ball will be in the Senate’s court.
One unnamed source was even more colorful than Duffy:
Wow. House gop leadership aide just told me “Wendy Davis has more balls than Ted Cruz.” #gopvsgopugliness
But the anger was widespread, David Drucker reported:
What got Duffy — and his less-vocal House colleagues — so upset? Shortly after Boehner’s announcement, Ted Cruz released a statement that put the responsibility for forcing the Senate to adopt defunding on the House, rather than himself and his defunding allies in the upper chamber:
Cruz, a tea party favorite, is one of the most vocal proponents of defunding the Affordable Care Act, President Barack Obama’s health care reform law. He’s spent months championing the cause. But on Wednesday, as House Republican leaders unveiled their latest plan for sinking Obamacare — tying a measure to defund the law to a must-pass resolution that keeps the government running — Cruz thanked House Republicans for their fight, and said they’re on their own.
“[Democratic Senate Majority Leader] Harry Reid will no doubt try to strip the defund language from the continuing resolution, and right now he likely has the votes to do so,” Cruz said in a statement. “At that point, House Republicans must stand firm, hold their ground, and continue to listen to the American people.”
Aides to top Republicans in the House, where GOP leadership has already been struggling to keep the party together on the measure, were beside themselves. And once granted anonymity, they didn’t mince their words.
“We haven’t even taken up the bill and Ted Cruz is admitting defeat?” fumed one senior GOP aide. “Some people came here to govern and make things better for their constituents. Ted Cruz came here to throw bombs and fundraise off of attacks on fellow Republicans. He’s a joke, plain and simple.”
Another aide said Cruz’s comment “exposes how [Senate conservatives] have deliberately misled their constituents and the grassroots for eight weeks. This isn’t leadership, it’s hypocrisy.”
Byron York argues that House defunders should have listened more closely to Cruz over the last few weeks:
The unhappiness is understandable. But perhaps those Republicans now angry at Cruz should have listened to him more carefully all along. In his speeches promoting the defunding campaign, Cruz, a Harvard-educated lawyer, chose his words closely, not claiming that defunders had the votes to prevail but instead suggesting that they might somehow spur a popular uprising against Obamacare in which an enraged populace would pressure reluctant lawmakers to change their positions — and then vote to defund.
Cruz’s rhetorical strategy was on full display during a late August trip to New Hampshire, home to the nation’s first president primary of the 2016 race. In an appearance at a state GOP fundraiser, Cruz repeatedly said the Obamacare fight could not be won in Washington DC. “The only way we’re going to succeed in defunding Obamacare is if it comes from the American people,” he said. “This is not a strategy of trying to convince Washington, DC. It’s a strategy of empowering the American people.”
Cruz was saying, in an indirect but still clear way, that Senate Republicans did not have the votes to defund Obamacare. (I wrote this at the time; see here.) Cruz went on to outline a plan in which, if enough people signed a petition at the website dontfundit.com, and then got in touch with their senators and representatives to urge them to support defunding, public sentiment would force lawmakers who now oppose defunding to change their minds and support it. “The only way we’re going to succeed in defunding Obamacare is if it comes from the American people,” Cruz said.
The tactic would even work on Democrats, Cruz argued. “If you’re a Democrat, particularly in a red state, who’s up for election in 2014, and you start to hear from 5,000, and then 10,000, and then 20,000, and then 50,000 of your constituents, suddenly the calculus starts to seem very, very different,” Cruz told the New Hampshire audience.
There are two problems with that argument, though. The 2014 election is more than thirteen months away, and for Senators, the damage has been done with their votes to pass ObamaCare in 2010, not to block defunding now. The kind of groundswell that Cruz describes would take months to have the impact he desires, especially on Democrats, and it won’t have any at all on Barack Obama, who made it pretty clear in his first midterm that he’s not terribly interested in protecting members of his own party at the expense of his agenda.
This is even more of a futile gesture than that, however. Another problem is that defunding won’t stop the parts of ObamaCare from taking effect that Republicans most want to block, as I pointed out last week:
[Defunding] would create at least a de facto delay for a year for some of the ACA functions, but not all of them. Most of the funding for Obamacare comes from statutory spending and not budgetary spending, which takes the context out of the budget fight altogether. A recent Congressional Research Service analysis requested from Senator Tom Coburn (R-OK) showed that the IRS would still collect taxes, state and federal ACA exchanges would still operate, and most importantly, HHS would still fund subsidies for health insurance through them.
If the goal is to stop the subsidies, then the defunding strategy would not succeed, not unless its backers could get 60 votes in the Senate for a complete repeal of the entire ACA, along with Obama’s signature on it. That opportunity slipped away at the last election.
What about the delay strategy? Grassroots conservatives dislike this option as a kick-the-can-down-the-road strategy, but it has its advantages. First, a delay of the individual mandate and the ACA exchanges would actually achieve the goal of shutting down the subsidies, something that defunding won’t accomplish. Second, the Obama administration has provided ample precedent for delaying key parts of the ACA, both on its own and through Congress, complete with presidential signatures blessing them. Again on Senator Coburn’s request, the CRS detailed 19 instances in which the White House either approved Congressional delays on the ACA or instituted them administratively – most notoriously on the employer mandates and the insurer out-of-pocket caps, both of which cut against consumers while imposing a mandate to force them into the system anyway. …
While Obama would refuse to sign off on a repeal, the dichotomy of leaving consumers to twist in the wind while employers and insurers get valuable breaks might be enough for the White House to back down temporarily from this fight. After his Syria retreat, Obama has burned so much capital with fellow Democrats who publicly called for war just to see Obama back away that he may not have much choice but to let them off the hook with constituents angry over Obamacare.
Politico confirms that a shutdown won’t stop ObamaCare either, for the same reason:
Most of the rules and infrastructure required for the law are already in place — and a lot of the money has been spent. The administration has doled out its major regulations, distributed funding to states for setting up the exchanges, readied the data hub that will transmit subsidy and eligibility information and awarded grants to navigators, who could continue helping people enroll.
Major parts of the law — its Medicaid expansion and Medicare changes — wouldn’t be blocked under a shutdown, as they are mandatory spending. The subsidies to buy insurance in the health law are also mandatory spending — although not all of those are supposed to be paid out right away anyway. A shutdown affects only discretionary spending, the annual appropriations.
The law’s insurance market reforms requiring insurers to ignore pre-existing conditions and provide a robust set of health benefits wouldn’t be affected either. “Anything dealing with regulatory changes in the law will continue,” said the Bipartisan Policy Center’s Bill Hoagland, a veteran of the 1995 government shutdowns and a former Republican staff director of the Senate Budget Committee.
What will be more of a gray area are the furloughs for government workers that would be part of a shutdown or partial shutdown. The administration has some discretion here — and could keep workers on the job if they are implementing the law. Their pay may be from discretionary funds — but they are delivering a mandatory benefit.
Having the House pass the defunding effort once gives Senate Republicans the leverage they’ve demanded, and perhaps they can wrangle that into a delay for the exchanges and the subsidies, especially with the train wreck that’s coming in less than two weeks. But if Cruz and Lee can’t make defunding succeed now, then they’d better start thinking about a Plan B rather than push the responsibility onto the House to hold out for a stunt that doesn’t actually solve the core problem.
Cross-posted from Hot Air.