State Election Results and the ACA

Guest blogger David K. Jones is receiving his Ph.D. from the Department of Health Management & Policy at the University of Michigan School of Public Health
After two years of judicial, legislative, and electoral challenges, we can finally say with some certainty that the Affordable Care Act (ACA) is here to stay.  Republicans still control the U.S. House of Representatives and may continue to hold votes repealing the ACA, but their inability to capture the Senate or win the presidency makes it very likely that further attempts at repeal will only be symbolic.  Anti-ACA ballot initiatives passed in Alabama, Montana, and Wyoming, but failed in Florida, and are also symbolic in nature given that federal law quite clearly preempts these state efforts.
While Democrats show much higher levels of support for the ACA than Republicans, state level behavior does not fall precisely down political party lines. For example, states with Republican governors, such as Nevada, moved forward with the development of state health insurance exchanges before the 2012 elections. Republican governors in Florida and Mississippi expressedinterest in state exchanges this week. Some states, with Democratic governors, like Kentucky and Arkansas, have taken cautious steps forward on health reform.
Many more state-level decisions need to be made before January 1, 2014, when major components of the law are to be fully implemented.  States need to decide by November 16^thwhether to do their own exchange or by February 15^th whether to do so in partnership with the federal government.  In the coming weeks, the Department of Health and Human Services (HHS) is expected to release a large number of regulations on the exchanges and other elements of the law. As Tim Jost points out, additional federal funding is probably needed for the exchanges, which will be difficult given that Congress is trying to cut spending.  Important decisions remain for defining essential health benefits and states also have to decide whether to expand Medicaid eligibility in time to take advantage of a highly favorable match, or perhaps even to negotiate for a smaller-scale expansion.
With the law’s long-term survival secured by President Obama’s re-election and Democratic gains in the Senate, the dynamics of the next phase of implementation will largely be shaped by the result of Tuesday’s state-level elections. With the election behind us (in most places), what have we learned about the future of the ACA?  I analyze each set of offices below.
Governors
Eleven states voted for governor on Tuesday, with the incumbent party winning in every case except a Republican pick-up in North Carolina.  In 2013 there will be 30 Republican and 19 Democratic governors, as well as a Republican turned independent in Rhode Island.  Considering the dramatic gains by Republicans in 2010, Democrats are likely relieved to have not given up more ground.  Democrats held on to open seats in Missouri, Montana, New Hampshire, Washington, and West Virginia. Washington and West Virginia have both been leaders in creating exchanges and Republican victories in either place could have created further uncertainty around implementation in these states.
State Legislatures
The 2012 state legislative elections were historic in a number of interesting ways.  Although the number of chambers across the country switching party control was right on the average (approximately 13), this resulted in split legislative control between the parties in only three states.  According to the National Conference of State Legislatures, this is the highest number of legislatures controlled by a single party since 1944. Of the 46 states with unified control (note that Nebraska is a unicameral non-partisan legislature), at least 36 will have a member of the same party as governor, and 21 will be under unified Republican control.
Change in Party Control
Democrats gained a supermajority in the California legislature while Republicans lost their supermajority in the Arizona legislature. Implementation is already full speed ahead in California but may be easier now in Arizona.  Other flips may have implications for health reform.  Colorado was one of the first states to pass legislation creating an exchange, but struggled to take intermediate steps to get it running, in part because of political opposition in the House.  Democrats won back the House and now control both chambers and the governorship, making smooth implementation more likely.  One of the most significant flips may be in Minnesota, where Democrats now control both chambers.  Governor Mark Dayton (D-MN) and Democrats in the legislature tried many times to create an exchange but were blocked by health reform opponents.  Minnesota is now working to make the state-based exchange deadlines, and this may also make it easier to adopt the Medicaid expansion.
Similarly, Democrats not only won back control of the Maine Legislature, but gained relatively strong majorities in each chamber.  It will be interesting to watch how this legislature works with Governor Paul LePage (R-ME), who blocked implementation initiated under the previous administration and has been an ardent opponent of the ACA.  Democrats in New York increased their margin in the Assembly and may have narrowly captured the Senate; though in typical Albany fashion, this remains unclear until a few remaining holdouts negotiate their potential role in each party.  On the other hand, Republicans reclaimed control of the Wisconsin Senate, which Democrats had narrowly taken after June’s recall elections.
Republicans also secured control of both chambers of the Arkansas legislature. Democratic Governor Mike Beebe was not successful in bringing along the legislature to create an exchange, even when the branch was controlled by Democrats, and it may be even more difficult to get cooperation on the Medicaid expansion with the Republican-controlled legislature.  In any case, Arkansas’ plans for a state-federal partnership exchange are quite firmly in place.
Changing Margins
In some cases, a state’s chamber did not flip control but its majority’s margin changed enough to potentially alter the legislative calculus for issues like the Medicaid expansion.  For example, the Illinois and Rhode Island legislatures are both controlled by Democrats who support creating an exchange, yet neither has been able to pass enabling legislation.  Democratic majorities increased in both places, including doubling in Illinois.  Similarly, the Democrats gained outright control of the Oregon House after two years of split control.  The state created an insurance exchange under this arrangement and would likely be poised to adopt the Medicaid expansion.  Although Governor Rick Scott (R-FL) has said Florida will not expand Medicaid, the Republican majority dropped sizably in the House and Senate, which could affect the tone of the debate.  Finally, although Democrats did not win control of the Michigan House, the Republican margin there dropped in half.  Legislation to create an exchange has support from Governor Rick Snyder (R-MI) and passed the Republican-controlled Senate, but is stalled in the House.  The decreased margin may weaken opposition to the exchange and Medicaid.
On the other hand, in Tennessee, Republicans doubled their margin in the Senate and increased their margin by a third in the House.  Although the state has not yet created an exchange, it has been active in a number of ways that would suggest it would be well-positioned to expand Medicaid.  This may be more uncertain now.  Republicans in the Indiana House doubled their margin, making the state’s approach to ACA implementation more uncertain now.  Similarly, although Democrats maintained control of both chambers in West Virginia, their majorities decreased substantially in the House and Senate.  The state was one of the first to create an insurance exchange, but could struggle to further advance implementation . Margins in most of the rest of the states that have already created an exchange held steady.
Insurance Commissioners
All five incumbent insurance commissioners won re-election, in Delaware, Montana, North Carolina, North Dakota, and Washington.  It is not immediately clear what the implications will be for how the ACA is implemented, other than that in each case the status quo is likely to prevail.  In Delaware and Washington, this means moving forward with the exchanges that have already been created and the establishment grants that have been awarded.  In Montana and North Dakota this means doing nothing – neither state has created an exchange or received an establishment grant.  The status quo is not as easy to articulate in North Carolina where the state failed to create an exchange but has received a Level 1 establishment grant.
It is very difficult to predict how the next phase of health reform politics will play out.  Opponents of the ACA still have many opportunities to shape its implementation even though they have run out of opportunities to eliminate the entire federal law.  However, the results from last Tuesday’s election suggest that supporters will generally be in a better position to advance health reform, though the extent to which this is true varies greatly from state to state.