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Handicapping GOP prospects of repealing Obamacare in the 114th Congress

The probability of some repeal of Obamacare has increased in the 114th Congress, based on the repeal record of all landmark laws enacted since the 1950s. But the highest risk of repeal comes in the fifth Congress after a law is passed. 

It didn鈥檛 take them long, did it?

Just a few days into the 114th聽Congress, Republicans in the House passed not one, but two bills to undo elements of the Affordable Care Act.

What follows is the first of two posts about the effort to 鈥渞epeal Obamacare.鈥� For today, I鈥檒l address two big picture elements of these repeal efforts.聽 Next week鈥檚 post will tackle some finer questions, looking in particular whether Republicans are likely to succeed in repealing Obamacare.

What follows is based on two papers I鈥檝e written on the topic of policy repeal. See for example聽聽published in the journal聽. In brief, for this project I dug through various historical documents and created a dataset of all major repeals since the late 1800s. With this data, I developed a statistical model that examines when and why repeal happens.

Republicans are serious this time

I first want to suggest that, this time around, Republicans are 鈥渟erious鈥� about repealing Obamacare. I also want to use last week鈥檚 votes to put repeals in historical context.

Recall that, in the 113th聽Congress, the Republican-controlled House of Representatives passed more than 50 measures to undo Obamacare. Most of these votes were on bills designed to repeal all or most of the law. Notably, this聽颈蝉苍鈥檛聽how laws are usually undone.

First, the word 鈥渞epeal鈥� is synonymous with various actions: defunding, invalidation by the courts, sunset provisions, amending activity, etc. All are tied to a broader topic, 鈥減olicy change,鈥� but are technically different actions.

Second, it鈥檚 quite rare for a law to be repealed in its entirety. I found in the course of my research that this is true throughout history, but especially true today given the increasing complexity of legislation. Rather, individual provisions (often, a tiny fraction of a bill) are modified or repealed.

For example, in 1988 Congress passed the Medicare Catastrophic Coverage Act and, just a year later, repealed major elements of it. Observers remember this landmark law as one of the 鈥渟hortest-lived pieces of social legislation鈥� (see Eric Patashnik鈥檚 excellent聽聽鈥淩eforms at Risk,鈥� pg. 74).聽 But even in this extreme case, some elements of the MCCA remained in place after those repeals were adopted.

What鈥檚 important here is that, even if Republicans are successful in their repeals efforts, it鈥檚 likely that major elements of Obamacare will remain in place. Indeed, some aspects of the law are incredibly聽.

Now, in the 113th聽Congress, because Democrats controlled the Senate, Republicans knew their chances of repealing the聽entire聽Affordable Care Act were almost exactly zero. Voting to repeal the whole bill wasn鈥檛 a 鈥渟erious鈥� attempt but was, instead, an act of what political scientists call 鈥減osition-taking.鈥� Note: that鈥檚 not a criticism. In some ways, you could argue the whole repeal drama in 113th聽Congress was a 鈥済ood thing鈥� because it gave voters a clear choice between two policy alternatives (i.e. voters knew what the two parties would do if given control of the House and Senate).

Here鈥檚 the point: What happened in the first few days of the 114th聽Congress was something qualitatively different than what happened in the 113th聽Congress. On the surface, you would think that, after winning control of the Senate in rather dramatic fashion, Republicans would once again advance a bill to repeal the聽entire聽Affordable Care Act. But again, that鈥檚 not how laws are usually undone.

Instead, Republicans advanced two piecemeal bills that target specific provisions of the act. Ergo, they鈥檙e going about it in a very calculated manner this time around (contrary to the wishes of some hardliners, who see this piecemeal approach as increasing the law鈥檚 strength).聽 On Tuesday, the House passed a bill to exempt Veterans from what counts towards businesses鈥� employee limit.聽 It passed 412-0. And on Thursday, the House passed a bill that changes a provision defining the work requirement regarding what鈥檚 considered 鈥渇ull time鈥� employment. It passed 252-172.

As a whole, don鈥檛 be surprised to see Republicans succeed in the 114th聽Congress modifying or even repealing some elements of the Affordable Care Act this session. In fact, I think it鈥檚 an inevitability.

The likelihood of repeal will Increase in聽the聽115th and 116th Congresses

In next week鈥檚 post, I鈥檒l examine specific factors that affect the probability of repeal. However, policy repeal has a broader pattern. Here鈥檚 a chart with what you need to know:

The chart (from聽)聽is the hazard of repeal after passage for all landmark laws enacted since the 1950s. Higher values聽indicate a greater聽likelihood of repeal in a subsequent Congress聽while lower values indicate a lower likelihood of repeal.

What the figure shows is that repeals become increasingly likely up to five subsequent Congresses (or 10 years) after a law is enacted. We can see that the 鈥減eak鈥� in the likelihood of repeal is in the fifth Congress after passage. After this 10-year window, repeals become increasingly less likely for the reminder of a policy鈥檚 lifecycle. After about 20 Congresses have passed (or, 40 years), repeals have just a 4 percent chance of happening.

Now, because this is the 114th聽Congress, we鈥檙e at just three Congresses since the law was enacted. Big picture: the probability of some repeal has indeed increased in the 114th Congress, but we鈥檙e still two Congresses (or, four years) from when the law will be most 鈥渁t risk.鈥澛� (Note: This is based on the general pattern of repeal. Specific factors will vary.)

Certainly, that鈥檚 bad news for Democrats (i.e. the worst 颈蝉苍鈥檛 here yet). However, the good news for Democrats is that if the law survives for the next decade (for example, if Hillary Clinton wins election in 2016), the probability of repeal begins to drop off precipitously.

Why does this regular pattern exist? In the first part of a policy鈥檚 lifecycle, soon after it was signed by the president, when major elements or the law are being implemented for the first time, flaws begin to develop such that the original law needs to be revisited. In other words, it鈥檚 normal for lawmakers to revisit legislation after they observe its real world performance. After the 10-year period, however, laws become 鈥渋nstitutionalized鈥� such that modification or repeal is difficult to accomplish. Consider entitlement programs (like the Affordable Care Act).聽 It鈥檚 hard to repeal a policy that provides groups of citizens with some material benefit.

Jordan Ragusa publishes his Rule 22 blog at http://rule22.wordpress.com/.