Cross-posted from our joint Raising Women’s Voices campaign

Two weeks to the day after the world watched in horror as an insurrectionist mob rampaged through the United States Capitol, President Joe Biden and Vice President Kamala Harris joined congressional leaders in walking those same halls of democracy in a moving show of both the fragility and resilience of the American project. Once settled in the White House, the new president went to work signing a record 15 executive orders, rapidly unwinding some of the Trump administration‘s most notable policies — from ending the Muslim ban to halting construction on the southern border wall to re-joining the Paris Climate Agreement and the World Health Organization. As we noted last week, a host of executive actions related to women’s health are expected later in the month.

Meanwhile on the other end of Pennsylvania Ave, the new vice president was swearing in three new Democratic senators — Rev. Raphael Warnock and Jon Ossoff, both of Georgia, and Alex Padilla of California — officially giving Democrats a 51-50 majority in the Senate (with Harris serving as the 51st vote). The Senate then quickly confirmed Biden’s first cabinet nominee, Director of National Intelligence Avril Haines.

The Senate’s schedule over the next few weeks is likely to be dominated by the dual challenges of confirming the new president’s nominees while holding the impeachment trial of the former president. But other urgent legislative needs await related to the Affordable Care Act (ACA) and the pandemic.

Potential actions to protect and expand the ACA

Even with Donald Trump hunkered down in Florida, the ACA is still at risk from repeal thanks to California v. Texas, the lawsuit filed by over a dozen Republican attorneys general. But Congress could take action quickly to neuter that threat. The crux of the lawsuit depends on the fact that the ACA’s individual mandate to purchase health insurance is technically still the law even as the tax penalty that once accompanied it was repealed in the 2017 GOP tax bill. Led by Texas, the red states argue that the mandate is no longer constitutional without a tax attached to it.

There’s no guarantee how a Supreme Court packed with Trump justices will decide the case, but a single sentence bill either repealing the mandate or reinstating a nominal tax of, say, $1 would make the case moot without the Court weighing in. Reinstating any kind of tax would be unlikely to win enough Republican votes to overcome a 60-vote filibuster in the Senate and could be a non-starter even for Democrats. 

However, it’s possible that eliminating the individual mandate altogether would gain enough votes to overcome a filibuster, allowing Congress to send something to the White House to sign before the Court acts. Unlike its predecessors, the current ACA lawsuit has never really been popular among GOP senators and fewer still may want to vote down a bill that does nothing more than repeal the mandate. Democrats, meanwhile, would much rather replace the unpopular stick that was the now-defunct individual mandate with a much more popular carrot: making existing federal subsidies for buying health insurance far more generous.

That is exactly what the new Biden-Harris administration is proposing. Last week, the administration outlined a wide-ranging recovery plan designed to respond to the twin health and economic crises caused by the pandemic. One key component calls on Congress to “expand and increase the value of the Premium Tax Credit to lower or eliminate health insurance premiums and ensure that enrollees — including those who never had coverage through their jobs — will not pay more than 8.5 percent of their income for coverage.”

HealthInsurance.org notes that “this second provision would primarily help people with income near or a little above 400 percent of the poverty level, and could make a substantial difference in the affordability of coverage for some households that currently have to pay full-price for their coverage — sometimes amounting to well over a quarter of their income.” This group was most likely to drop their ACA coverage after the mandate’s tax penalty was repealed, while those households whose insurance premiums were covered by the ACA’s subsidies have largely continued to enroll, even in the face of Trump’s executive sabotage.

Other legislative proposals under consideration include a version of the health care expansion bill (nicknamed “ACA 2.0”) passed by the House last year. That bill (which we wrote about here) would also encourage Medicaid expansion for the remaining twelve holdout states.

The challenge for Senate Democrats: decorum or democracy?

But it’s likely that none of Democrats’ plans for expanding health coverage or a host of other urgently needed reforms, including restoring the protections of the Voting Rights Act and creating a pathway to citizenship for undocumented immigrants, can overcome a filibuster. And many provisions won’t qualify under the rules of budget reconciliation.

New York Times columnist Ezra Klein framed the dilemma this way: “Democrats can expand democracy, or they can keep the filibuster. But that's the choice. … What is more important: Democracy or decorum? Which is preferable: Avoiding short-term conflict by embracing the illusion that the system is working as is, or avoiding long-term breakdown by fixing the system, even if it's a fight?”

For the moment, the outcome remains to be seen. Right now, Senate Republican Leader Mitch McConnell is pressuring the new Democratic majority to take any future filibuster repeal off of the table as part of a deal establishing Senate rules for this Congress. McConnell has leverage because the Senate could be paralyzed without a new 'organizing resolution' to kick off the new Congress — some Republicans even still retain their chairmanships until a new resolution is adopted — and the organizing resolution can be filibustered. As the Wall Street Journal reports, "That means Mr. Schumer would need 60 votes to push forward, and he is unlikely to overcome that hurdle if Mr. McConnell is opposed."

Even if Senate Democrats are unwilling to eliminate the filibuster immediately, taking the option off the table will simply greenlight the obstructionism that hampered the McConnell era. While there are positive signs, Senate Democrats need to hear from us about holding the line on this fight. It's up to us to ensure that we don’t waste this opportunity, for we may not get it again.

Call your US senators at (202) 224-3121 and tell them not to cave to McConnell on the filibuster.

Sarah Christopherson is the NWHN Policy Advocacy Director and directs federal policy initiatives for Raising Women’s Voices.