Ezra Klein is right. In a recent Washington Post column, the left-leaning policy wonk laid plain that the future of ObamaCare is at stake in next week’s elections. If President Obama wins and Democrats hold the Senate, the Affordable Care Act will survive. If Mitt Romney wins and Republicans take the Senate, the law is dead. It is the starkest of differences.

How likely is each scenario? At this moment Democrats have the advantage. According to Real Clear Politics, the president is running slightly ahead in six out of ten battleground states. He could actually lose seven of these, but still be reelected if he hangs onto Ohio, Wisconsin, and Iowa.

While key Senate races have tightened, such as Tommy Thompson in Wisconsin, Democrats have a slight advantage there too. If the elections were held today, Republicans would fall two seats short.

What would this future look like?  Implementing ObamaCare would be accelerated. HHS and states will have less than fourteen months to finalize major provisions of the law before they take effect on January 1, 2014.

Thousands of pages of regulation will be released shortly after the election, on everything from IRS rules for employers to essential health benefits to covering pre-existing conditions. It remains to be seen how prescriptive these regulations would be.

State officials will have to submit a blueprint for their insurance exchanges by November 16th. They will need to decide if they will create and exchange and how it will be designed.

They will also have to decide whether to expand their Medicaid programs, and they’ll need to determine essential health benefits and benchmark plans for the insurance options to be sold through their exchanges.

Hospitals will brace for additional Medicare reimbursement cuts, while at the same time prepare for a huge increase of newly insured patients with pent-up demand for medical services.

Facing a plethora of new requirements, rules, and potential financial penalties in 2014, businesses will look differently at the future of employer-sponsored insurance. Businesses will continue to shift away from defined-benefit plans to defined-contribution plans.

Many will weigh the costs and benefits of offering health benefits at all. Relatively few will stop offering coverage in 2014, as those decisions will need to be made next spring, but over time this shift will undoubtedly occur, adding more costs to government programs.

The alternate scenario in 2013 after a Republican election sweep couldn’t be more different.

A fierce political battle on par with the original debate over ObamaCare would ensue. Democrats fought for national health reform for decades, and would fight tooth and nail to save it.

However, the tables would be turned. The power of single-party rule Democrats enjoyed in 2009 to pass ObamaCare would now be wielded to bring it down.

Republicans would not have sixty votes to pass a full-out repeal of the law, but they would have a simple majority to gut the law through budget reconciliation.

Reconciliation prohibits the inclusion of legislation that is “merely incidental” to the budget, but any provision that does have a significant impact on the budget could be. And ObamaCare has many, given its nearly $2 trillion price tag.

Provisions that would be targeted for elimination include the Medicaid expansion, the individual mandate tax, subsidies, insurance exchanges, industry fees, Medicare cuts, and new taxes in the law.

Others may be included as well, such as funding for the CMS Innovation Center and the Prevention and Public Health Trust Fund. Perhaps even provisions like covering pre-existing conditions and community rating, which would equalize premium costs across a wide geographic area, could also be included.

What’s allowed in a reconciliation package would ultimately be determined by the Senate President, Paul Ryan, with counsel from the parliamentarian.

Implementation at the state level would halt. There would be no need to continue considering the law would cease to exist, though some may continue reforms at the state level.

Whichever scenario the voters choose next week will bring significant change. We will either move to a federally-dominated healthcare system, or we will step away from that precipice and pursue different reforms. Either way 2013 will be an interesting year.

David Merritt has been a health policy adviser to three presidential campaigns. He is a managing director at Leavitt Partners, the healthcare firm led by former HHS Secretary and Utah Governor Mike Leavitt. This post first appeared on The Hill’s Congress Blog.

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10 Responses for “Healthcare Law on the Ballot”

  1. There are two ways to achieve equitable health care in this country, which must be achieved if we are to remain a democracy.
    One is the “federally-dominated” slow, inefficient and winding road uphill, with as many detours as there are elections, because nothing federally dominated is ever precipitous.
    Or the conservative recipe for quick disaster first, and only then a precipitous enactment of single payer across the board in a desperate move to climb out of the bottom of said precipice. May actually be faster this way, but certainly more painful to more people who are of no interest to the neo-conservative movement, but are nevertheless the vast and growing majority of Americans.

  2. BobbyG says:

    You gotta love the Irony-Free Zone wherein it can be touted ad nauseum by RomneyAynRyan and broadly accepted uncritically that handing out federal “Vouchers” for health care insurance purchases is a “Free Market Conservative” notion. In particular given the softly played adjunct proviso that it’s gonna be only for those in need” — i.e., not the hated “entitlement” of the Dependent Class.

    How the strata of “need” will be evaluated and administered ongoing is, well, you know, picky, picky, picky… (Wait! I got it! He can just pilfer THAT section of ObamaCare, the one allocating “premium support levels tied to 100% – 400% of the Federal Poverty Level! Yeah!)

    The Late Ms. Rand gotta be spinning angrily in her grave wanting to choke you, RomneyAynRyan.

  3. DeterminedMD says:

    “Thousands of pages of regulation will be released shortly after the election, on everything from IRS rules for employers to essential health benefits to covering pre-existing conditions. It remains to be seen how prescriptive these regulations would be.”

    Again, how disingenuous and dishonest the Democrats have shown to be in passing and implementing this assault on America. You partisan proponents who have tried to shout down us dissenters irregardless if we have been pure partisan Republicans or just disgusted and disenchanted independents just reveal this law has never been about helping the public, just creating a law that hurts equally as much as helps.

    If there was a way to punish both sides at once who are screwing America with their extremist agendas, boy would I enjoy watching it play out! But, as my hero George Carlin pointed out so well, and I yet again echo it, it is not the politicians who suck, but, the public. Because as long as anyone with two legs and the ability to successfully complete the voting process can participate, elections are not about citizens who care, but just people who can participate.

    The people who founded this country, if there is an afterlife, they must be sorely disappointed how corrupted and disingenuous the state of affairs have deteriorated to be as now. If Mr Carlin was alive today, I would argue with him sincerely when he said only people who don’t vote can complain, because even in his sarcasm, you really can’t complain by not voting, but you sure can complain that if other alleged rights and responsibilities have been corroded and dumbed down to fit partisan agendas, it is time to redefine who has the right to vote.

    If immigrants who become legitimate citizens have to learn American laws and protocols better than those born here fail to learn in their education, what the hell does that say about natural born people have more access than those who come here after birth? Oh yeah, Republicans surely don’t have an interest to change that, and Democrats, well, getting legitimized takes too long to serve partisan goals. Either way, what does that tell you, independents!?

  4. While key Senate contest accept tightened, such as Tommy Thompson in Wisconsin, Democrats accept a slight advantage there too. If the elections were captivated today, Republicans would abatement two seats short.

  5. Ashley says:

    I think the most accurate way of knowing how likely a president candidate is of winning is to actually look at the market. Unfortunately looking at the financial market doesn’t really seem to work (although there has been a strong correlation between mistakes Obama has made during the campaign and the market surging and vice versa for Romney).

    Another market one can look at is the betting market which puts Obama at around $1.3 to win, to put this into perspective around four weeks ago he was as much as $1.45 to win.

    Either way, watching the results come in is going to be extremely interesting as a health provider.

  6. John Ballard says:

    Obamacare is here to stay. It is now a matter of law. And any newly-elected president takes an oath to uphold the law.
    The time is long past when opponents should get over it. And that goes for those hanging their hat on “reconciliation” as the silver bullet that will resolve all their objections.

    Do a search for “Obamacare is here to stay” and see what comes up. Take your pick of links to study.

    Better yet see Dr. Jost in Health Affairs.
    http://healthaffairs.org/blog/2012/09/20/dismantling-the-affordable-care-act-what-could-a-president-romney-and-hill-republicans-do/
    Read it and weep.

    He includes a concise summary of the Byrd Rule and how it acts as a constraint on Reconciliation. It should be remembered that ACA is a product of Reconciliation which opponents like to depict as some kind of parliamentary sleight of hand.

    Budget reconciliation bills in the Senate are subject to the “Byrd rule,” which is in fact a federal statute. The Byrd rule allows any senator to raise a point of order objecting to any “extraneous provisions” in a reconciliation bill. If the Senate parliamentarian upholds the point of order, a three-fifths majority of the Senate is necessary for the provision to remain in the legislation.

    As a reminder, the famous COBRA law (mandating employer-provided group insurance availability for six months following anyone’s discharge from a job) is an acronym for Consolidated Omnibus Budget Reconciliation Act.

    Of all the lies and promises that have come from the mouth of Mitt Romney, his promise to repeal and replace Obamacare is perhaps the most egregious and he knows it. (If he doesn’t know it, we’re in even worse shape than I thought.)

  7. DeterminedMD says:

    Hmm, once upon a time people would have said “slavery is here to stay, deal with it”. And the law has elements of slavery, so, are you telling us to just accept poor judgment of people who are voted representatives and just allow partisan platitudes to ruin opportunity.

    Good thing you weren’t around during Prohibition, ’cause you probably wouldn’t have been around too long if you just echoed a same attitude then.

    Poor laws are meant to be repealed. It won’t happen quickly, and I doubt Romney could repeal the whole thing early on in his alleged term, but, as I already highlighted what the author of the post wrote above per thousands of pages of regulations to be released in 2013, what, you have to wait for lots of negative outcomes to learn how Democrat monocracy can disrupt millions of lives, and they can just sit back in alleged insulated rooms in DC and just act like there are no consequences?

    Gimme a break!!!

  8. DeterminedMD says:

    Well, bring on those thousands of pages of regulations, and just Obummer spin it as ‘business as usual’, ’cause this guy it will be shown lets his ambassadors die without support, so what are a few million citizens in the next decade or so. You all wanted him back for four more years, so you get what you paid for. I’d say it would be fun to watch supporters here today write in a year or so they screwed up supporting this legislation now, but, I would rather be honest and say I really could care less what happens to supporters who will be abandoned once they realize the truth and want justice.

    The only thing I hope for is maybe reading someone say, “well, I guess that commenter DeterminedMD was right, this legislation was more damaging than we expected.” Yeah, well, it is not “I told you so” I am looking for, but just when do you all realize that politicians don’t give a s–t about the pubic?

    Oh yeah, not with the group I have been reading here these past 2 plus years!!!

  9. MD as HELL says:

    Time to secede

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