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On the Appeal of Repeal

This is the 160th article that we will have written on health care reform over the course of the past year. As nice as it might be to move on to another subject, the debate over health care reform isn’t going away any time soon, as the bill the Democrats passed last night will undergo a variety of political and legal challenges before the bulk of its provisions go into effect in 2014.

The sexiest of these challenges is the threat of repeal, which is the subject of an editorial in seemingly every conservative news outlet today. But it’s also one of the least likely to threaten the bill. Repeal is not impossible — not by a long shot — but it’s unlikely.

For starters, although repeal may certainly be an important rhetorical force in campaign-trail debates later this year, the first point at which it will be a substantive threat to the Democrats is January 20, 2013, at which point they are no longer guaranteed to control the White House. Until that time, because of the President’s veto pen, it’s not just figuratively but literally impossible for Republicans to amass enough manpower in the Congress to override a veto from Obama.

But the Republicans will have a small window of opportunity in 2013. To have a chance, they’ll need:

(i) A majority of the House. Even if a handful of Blue Dogs were willing to sign on to the effort, it’s unlikely that such measures could be pushed to the floor so long as the Democrats controlled the chamber. So an outright majority is probably needed. But this is the relatively easy part — the Republicans may very well already have taken over the House in 2011.

(ii) 60 senators. Remember that filibuster thing that the Democrats hate? Now it can be their friend! Of course, some narrow parts of the bill could be excised through reconciliation or budget bills, which require a simple majority. But the problems with trying to repeal the broad thrust of the legislation through reconciliation are parallel to the ones that would be realized in trying to pass the bulk of legislation through reconciliation. Changes to the things like the creation of the insurance exchanges, or the new regulations imposed on insurers, would violate the Byrd Rule. The Republicans’ options would be further constrained because legislation passed under reconciliation is supposed to be deficit-reducing. Although the Republicans could certainly make some surgical strikes via reconciliation, we’re still probably talking about a 60-vote majority in order to repeal its most impactful provisions.

But 60 seats is not totally impossible. The Republicans could conceivably get to about 50 Senators this year. And then 2012 presents them with more opportunities for gains, since it’s the echo of the 2006 cycle in which Democrats won nearly all of the competitive seats. Say that Republicans get to exactly 50 Senate seats later this year; they’d have to win 2012 races in, say, Nebraska (Ben Nelson), Virginia (Jim Webb), Missouri (Claire McCaskill), Montana (Jon Tester), Florida (Bill Nelson), Ohio (Sherrod Brown), West Virginia (possible Robert Byrd retirement), Wisconsin (possible Herb Kohl retirement), California (possible Diane Feinstein retirement), and Washington (Maria Cantwell). Although the Republicans also have a couple of tough defenses (Scott Brown, John Ensign, perhaps Olympia Snowe), 60 is doable if the political climate remains fairly toxic for the Democrats in 2012.

(iii) A Republican president. Of course this is doable as well, although the Republicans are not the favorites and whatever problems Obama might be having now tell us very little about what his standing will be in two years. In addition, Intrade thinks that there’s roughly a 50 percent chance that the Republican nominee will be either Mitt Romney or Sarah Palin, either of whom is problematic because Romney probably can’t win on a message of repealing Obamacare when it’s so similar to Romneycare, and Palin probably can’t win, period.

Basically, the likelihood of these three things happening is concomitant with the chances of there being a Republican wave election in 2012 — enough for them to win almost every competitive Senate seat and enough to drag what might be a fairly weak Presidential candidate across the finish line — as well as winning enough Senate seats later this year to put them within striking distance. It’s hard to know what the chances of that are — 10 percent perhaps? Recall that the economy is liable to be at least somewhat better in 2012, and that some voter anger may be quashed by any gains that Republicans are able to make in 2010. Although Republicans would clearly need to win a lot of Senate seats in November to bring them within striking distance of 60 in 2012, I’m not actually sure it helps them in terms of 2012 to win control of the House later this year, since they’d lose some of the advantages of anti-incumbency and since Boehner, et. al. would have a difficult time getting much done in a divided government — they’d either be spitting into the wind or would wind up compromising with Obama on a lot of issues, which might tend to entrench the status quo (Obama keeps the Presidency, Republicans keep the House.)

It’s also important to recognize that the Republicans will not necessarily have public opinion on their side in the repeal debate — even though Obamacare is unpopular. As Matt Yglesias reminds us, even those polls that show a solid majority opposed to Obamacare (and many polls don’t) have some of that opposition coming from the liberal end of the spectrum. CNN’s latest poll, for instance, has just 43 percent opposing Obamacare from the right — another 13 percent oppose it from the left but they’ll want improvements and almost certainly not repeal. This FOX News poll, if you’re willing to excuse its major issues with question ordering, shows something similar: although 55 percent oppose Obamacare, only 45 percent favor a repeal, with some of the opposition breaking off to want an expansion of the bill instead.

The Republicans could hope to capture some of these voters with a message of reform rather than repeal, but that could quickly get muddled: are they admitting that some parts of Obamacare are good? Could they keep the popular parts and banish the unpopular parts in a way that was remotely fiscally responsible? (Answer: no, or the Democrats would have tried to do the same.)

Although it’s difficult to predict whether Obamacare will become more popular or less so prior to its implementation, the safest assumption based on the way public opinion is formulated right now is that the repeal message will have a lot of appeal to the 40 percent of the country or so who oppose the health care bill from the right (almost all of whom do so strongly), but will fairly quickly encounter diminishing returns as it tries to struggle up to 50 percent. In a midterm cycle like 2010, where turnout can be lopsided, this could nevertheless be a net benefit to the Republicans. It’s less likely to be so in 2012 when turnout will be more robust — but 2012, not 2010, is the cycle upon which repeal actually depends.

If Republicans do want to maximize their chance of making good on their repeal window, then, they probably ought to (i) redirect 2010 resources from House races to Senate races and (ii) work behind the scenes to promote a non-Palin, non-Romney Presidental candidate, particularly someone like Paul Ryan who has some street cred as a fiscal conservative and a policy wonk and (iii) think carefully about how everything they do right now will reverberate not just later this year, but also in 2012.

Nate Silver is the founder and editor in chief of FiveThirtyEight.