The mid-term elections this week delivered Democrats not only control of the U.S House of Representatives, but a net gain of at least seven governorships, eight state legislative chambers, and over 350 state legislative seats.
The substantial Democratic gains carry major implications for health reform. At the federal level, it means that Congressional Republicans can no longer unilaterally repeal or weaken key provisions of the Affordable Care Act (ACA), place per capita caps on Medicaid spending, or convert Medicare into a private voucher program. However, the greatest impact occurred at the state level, where voters in three states (Idaho, Nebraska, and Utah) approved referendums mandating that their state participate in the ACA’s Medicaid expansion, while new Democratic governors in Kansas, Maine, and Wisconsin remove major obstacles to expansion in those states and also make it likely that they will cancel plans to impose work requirements for newly-eligible adults and weaken ACA requirements through federal waivers. In addition, a new Democratic governor in New Mexico is expected to result in the creation of a Medicaid “buy-in” program for those with low-to-moderate incomes, while Democratic control of the Colorado Senate should remove the lone roadblock to legislation creating a Medicaid buy-in, reinsurance program, and state subsidies for those ineligible for ACA tax credits.
Republicans had controlled an unprecedented 33 governorships before the election, but the partisan split is now almost equal (with Republicans still controlling 26). Democrats recovered roughly a third of the state legislative seats that they lost since 2010 and now maintain “trifectas” (governorship, House, and Senate) in 14 states (up from six last year). Republicans still hold “trifectas” in 23 states after losing full control in Kansas, Michigan, New Hampshire, and Wisconsin (though gaining a “trifecta” in Alaska). For the first time in more than a century, only one state (Minnesota) will have a 2019 legislature with divided control.
Democrats also “flipped” at least four Attorneys General seats in Colorado, Michigan, Nevada, and Wisconsin and now hold a 27-23 majority nationwide. Wisconsin Attorney General Brad Schimel (R) was a lead plaintiff in the Texas lawsuit brought by 18 Republican Attorneys General (and two Republican governors) seeking to strike down the entire ACA, including the protections against pre-existing condition discrimination. His successor has pledged to withdraw Wisconsin from that lawsuit and other Democratic newcomers are expected to follow.
Republicans were able to expand their majority in the U.S. Senate by up to two seats (depending on a recount in Florida). Furthermore, existing Medicaid expansions in Alaska and Ohio may be eliminated or modified by new Republican governors while Montana voters failed to approve a tobacco tax required to extend their expansion past July 1st. To date, no state has eliminated a Medicaid expansion under the ACA, although new Republican governors in Arkansas and Kentucky did impose additional work requirements.
It is not immediately clear what the impact of divided Congressional control will mean for the President’s “blueprint” to reduce prescription drug prices. There already is bipartisan consensus on legislation to restrict the use of “pay-to-delay” patent litigation settlements between generic and brand-name drugmakers, as well as some agreement on increasing oversight over the federal Section 340B Drug Discount Program and expanding Medicaid drug rebates. However, the Pharmaceutical Research and Manufacturers of America (PhRMA) expressed concern that losing the House could compel President Trump to make deals with Democratic leaders to advance more expansive reforms that he supported as a candidate but did not include in his “blueprint”, such as giving Medicare Part D the authority to negotiate drug prices or allowing the importation of lower-cost prescription drugs from other countries.