Last week’s Insider addressed the role of the Affordable Care Act (ACA) in the November election. This installment tackles what the election means for ACA implementation going forward.

Preview of Coming Attractions (coming to a Congressional multiplex near you) The incoming House Republicans have made it clear that they will try to block implementation. We can expect:

— Repeated overall repeal attempts — Efforts to impede federal regulators via oversight hearings, legislation to block regulations and restricting funding (though probably stopping short of a game of chicken over passing a budget) — Repeal efforts aimed at selected provisions. These last efforts will be designed to try to force moderate Democratic Senators up for reelection in 2012 either to vote against the ACA or to take votes that can be used for attacks in the 2012 election. (Remember the attack ads claiming various Democrats supported Viagra for sex offenders?)

Repeal — a real threat or a political stunt? The first question confronting advocates is how to respond to repeal efforts — especially those focused on the individual responsibility requirement. Although they have no chance of passage in the short run, ignoring them would likely prove politically damaging. The goal of putting these forward is twofold: to try to keep the national conversation about the ACA focused on its least popular elements and to make Democratic Senators take tough votes. Even a vote in the Senate that attracts some Democrats, and especially enough to constitute a majority while falling short of 60 votes, will hurt the public perception of the ACA. The ultimate goal of opponents is to get some repeal or rollback measures on President Obama’s desk. By forcing a veto, Republicans hope to paint a picture of an obstinate Obama standing against the popular will. Advocates of reform can’t roll over in the short run if they want to win in the long run — even with House votes that cannot be won.

What about in the longer run? Many analysts do not believe that the individual responsibility requirement is in serious jeopardy because, they argue, repeal is not really in the interest of health care interest groups, particularly insurers.

Of course, it is impossible to be certain, but given their vociferous objections to the requirement, it is hard to see Republicans turning around and saying “just kidding” if they run the table in 2012. Although there may be some cynics in the party who see attacks on the individual responsibility requirement purely in terms of political opportunism, there are certainly many true believers in repeal. In addition, the requirement to purchase coverage becomes unworkable if much of the funding for the subsidies is wiped out (e.g. by restoring funding for Medicare Advantage overpayments or eliminating insurance and other taxes). Trying to implement the mandate without adequate subsidies would likely prove costly at the ballot box.

Also, looking to the first Massachusetts attempt at universal health care in the late 1980s, when business and health care industry groups abandoned their support for reform after the election of a Republican governor, you can’t assume the interest groups that supported the passage of the ACA will stay on course for coverage expansion in a different political environment if they think their bread is buttered elsewhere. You can be sure that the insurers and other interest groups have alternative plans and business models in place to deal with that eventuality.

Past performance is not a guarantee of future returns So, is the 2010 election a harbinger of doom for health reform? Not necessarily. First off, as we noted last time, the extent to which health reform drove the outcome is being vastly overstated by the incoming House majority. Approximately half of the country wants to see the ACA either implemented as is, or expanded. Constituencies that tend to support the ACA were underrepresented in the 2010 election relative to their participation in 2008 but may return to the voting booth in 2012.

Also, most of the provisions of the law continue to command majority support, making repeal a dubious political proposition. Defenders of the law will have an easier time mobilizing supporters going forward because it is an organizing truism that it is easier to organize against something being taken away than it is to organize for getting the benefit in the first place.

Furthermore, despite their complaining (and piling on to lawsuits) we are likely to see states with conservative administrations moving forward with implementation. Even state administrations that oppose the ACA may be reluctant to gamble on repeal. Failure to move forward on implementation would mean turning crucial state functions like Exchange operation (and access to state Medicaid coverage) over to the federal government. This will create momentum for implementation.

Finally, some of the big whopper lies that opponents have told will be shown to be untrue in the coming year (e.g. that the ACA requires you to pay taxes on the value of your employer-sponsored health benefits). As time goes on, implementation gains steam and more people are helped by the interim provisions, repeal will become less plausible and the claims of opponents will become less credible.

Nonetheless, the ultimate fate of the ACA rests on the results of the 2012 election and on the eventual decision of the Supreme Court. If 2012 results in a Republican sweep, it is highly uncertain whether Democrats in the Senate will have the will to filibuster repeal efforts. Meanwhile, the Supreme Court remains the wild card in the implementation debate. If court prognosticating is your passion, check out the discussion here:

Coming up next time: Spotlight on Medicare and Medicaid

— Michael Miller, Policy Director