How Will the Midterm Election Results Impact Healthcare Policy?

United_States_Capitol_dome_daylight.jpgTuesday's historic election radically changed the composition of Congress and the balance of power in Washington. While a few election results are still trickling in, Republicans are projected to gain around 60 seats in the House of Representatives, regaining majority control. Democrats will still control the Senate, albeit with a much slimmer margin. This new political landscape will necessarily impact the newly-enacted Affordable Care Act, as many Republican candidates used its repeal as their main campaign platform.

Legislation to repeal the health care reform law could pass the Republican controlled House early in the next Congress. However, a total repeal is unlikely given that Senate Democrats would no doubt filibuster such an attempt and President Obama still holds veto power. Moreover, some provisions of the bill that have already been implemented – such as the expansion of dependent care coverage and ban on preexisting condition exclusions for individuals under age 19 – have received popular support. Therefore, expect a more piecemeal attempt to dismantle or modify the legislation. For example, both parties have tried to repeal or amend the Affordable Care Act provision requiring all businesses, charities, and state and local governments to file 1099 forms if they purchase $600 or more in goods from another business after December 31, 2011. It is likely that this issue – which both the business community and the IRS consider a huge tax reporting burden – will quickly resurface when the 112th Congress convenes. Broader changes to health care reform will be more difficult as legislators debate what structure should replace the current law.

While repeal of the health care reform law is unlikely, Congress has other options to challenge the implementation of the law. Another method of crippling the health care law without actually repealing it is to deny funding to the agencies tasked with implementing many of the Act's provisions. In response to the election results, Roll Call reports that likely future House Majority Leader Eric Cantor (R-VA) has said that he "want[s] to see a defund vote go across the floor as soon as possible." Such a vote, if it were to occur, would be largely symbolic, given Senate Democrats' ability to filibuster and the President's inevitable veto. Now that the Republicans enjoy a House majority, Republicans also have the option of refusing to approve any appropriations bill that includes funds to carry out portions of the Act. By the same token, it is possible that Senate Democrats could similarly refuse to consider any appropriations bill that does not include health care funding, setting up a showdown between the two bodies.

Even without altering the law, House Republicans could aggressively challenge implementation of the law by holding oversight hearings. The Congressional Review Act is another tool Republicans may seek to use to overturn health care regulations. The battle over health care reform will not be limited to Washington. As Republican gains on November 2 extended to governorships and state legislatures around the country, state challenges to implementation of the Affordable Care Act could increase. Whatever the approach, in both Washington and state capitals the Affordable Care Act will face certain attack in the coming months. The law's impact on employer-sponsored health care will be at the forefront of the debate.

For more information on how the election will impact labor and employment policy, see Littler’s ASAP: How Will the Midterm Election Results Impact Labor & Employment Policy? by Ilyse Schuman and Jay Sumner.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.