On Washington: Once Again, Push for Gun Control Collides With Political Reality

Despite immense pressure to act, members of Congress are badly divided and prospects for consequential agreement seem slim.

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Editorial: We All Must Live With Mitch McConnell’s Proudest Moment

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Credit Ariel Davis

Remember when the Senate confirmed Barack Obama’s Supreme Court nominee, Merrick Garland, the veteran federal appeals court judge, to replace Justice Antonin Scalia, who died suddenly two years ago this month? It was a brilliant tactical move by Mr. Obama — picking a moderate, widely respected jurist who had won the highest praise from top Republicans, and giving the court a majority of Democratic-appointed justices for the first time in nearly half a century.

Oh, right. That’s not what happened.

Let’s pause to recall once again what did happen: Justice Scalia’s body wasn’t even in the ground before Mitch McConnell, the Senate majority leader, said he would refuse to consider any nominee President Obama might put forward. The reason, he claimed, was the importance of letting Americans “have a voice in the selection” by voting in the presidential election, which at the time was nine months off. It was his coded way of saying he intended to preserve the court’s Republican-appointed majority at any cost.

Against long odds, Mr. McConnell won. Now parked for life in the seat where Judge Garland should be sitting is the ultraconservative Neil Gorsuch, who we’re supposed to believe represents the “voice” of a citizenry that preferred Hillary Clinton by a margin of nearly three million votes.

That enormously consequential swap is already having concrete effects on American society, and very likely will determine the outcome of a case the justices heard on Monday — a challenge to the ability of public-sector unions to charge nonmembers for expenses related to collective bargaining, such as negotiations over wages, hours and working conditions. The plaintiff says his First Amendment rights are violated by being forced to pay these so-called fair-share fees to a union whose political positions he disagrees with.

Legally, this should be an easy win for the unions. The Supreme Court upheld fair-share fees four decades ago in a unanimous ruling it has reaffirmed repeatedly, and on which more than 20 states have relied in negotiating thousands of contracts covering millions of public employees, including firefighters, teachers and police officers. The logic is simple: When the government is an employer, it has more control over its employees’ speech than over that of regular citizens. Any burden the fees impose on employees’ First Amendment rights is justified by the need to eliminate free riders — workers who enjoy union benefits without having to pay for them, which can deplete the unions’ resources in states where they are legally required to represent all workers, members and nonmembers alike. Anti-union advocates dismiss the free-rider concern, but it’s very real: In states that have ended the fees, more than one-third of public-school teachers are free riders.

None of this seems to register with Justice Samuel Alito Jr., who has made no secret of his dislike for that 1977 opinion, Abood v. Detroit Board of Education, and has been searching for the votes to overturn it for at least six years, writing opinions intended to set up its demise. Justice Alito probably assumed he had victory in hand in 2016, when the court considered the same question in a case brought by California public-school teachers against their union. But when Justice Scalia, whose remarks during oral arguments strongly suggested he would provide the fifth vote against the union, died a few weeks later, the case deadlocked.

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On Washington: ‘Repeal and Replace’: Words Still Hanging Over G.O.P.’s Health Care Strategy

The uncertainty has reignited the fight to define the health insurance program in the public mind, with Republicans and Mr. Trump painting it as a disaster, and Democrats portraying it as a success that provides security to millions of Americans, many of them Trump voters. Democrats have latched on to their own catchphrase, warning that repealing the law will “Make America Sick Again” — a twist on the Trump campaign’s “Make America Great Again” theme.

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The notecard on which Josh Holmes, then a top communications adviser to Mr. McConnell, first wrote the “repeal and replace” slogan for the Republican strategy in opposition to the Affordable Care Act.

Republicans have derided the Democratic message — personally developed by Senator Chuck Schumer of New York, the new Democratic leader — as trite and ineffective. But Democrats like it and believe that it goaded Mr. Trump into a more direct and complicating role in the Republican deliberations over how quickly to propose a replacement for the health care program.

They say Republicans are still relying on Mr. Holmes’s years-old brainchild because they are groping for a replacement with their new unified government days away. Democrats see the confusion as a victory in their push to thwart repeal or slow it down while wringing all the political advantage they can from the attempt.

After a series of late-night Senate budget votes that laid the procedural groundwork for repeal with no certainty on what was to follow, one Democrat delivered a new punch line.

“This is called repeal and run,” Senator Claire McCaskill, Democrat of Missouri, said on Twitter as the Senate was voting. “Chaos is coming.”

Mr. Trump’s involvement has muddled the issue further as he and Republican leaders in Congress have offered differing timetables for when a Republican alternative might be unveiled, underscoring again how difficult it can be to push through an agenda even for a party that controls all the levers of government.

The origin story of the “repeal and replace” mantra is also a reminder of how pivotal strategic messaging has been throughout the health care debate. It has produced some of the more memorable political lines in recent years, from “death panels” to “If you like your health plan, you can keep your health plan” to “Obamacare” itself. After Republicans began throwing that term around as a pejorative, Mr. Obama embraced it.

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Senator Chuck Schumer of New York, the Democratic leader, during a news conference this month in Washington on Republican attempts to repeal the health care law. Credit Zach Gibson/Agence France-Presse — Getty Images

Even before landing on “repeal and replace,” Republicans scorched Democrats with buzzy phrases. In his book “The Long Game,” Mr. McConnell recounted how he instructed his legislative experts to identify special provisions that had been added to the health bill to win over wavering Democrats.

His communications staff would then “brand” these legislative sweeteners with catchy but disparaging nicknames to build opposition and public distrust for the law. The result: the “Louisiana Purchase,” “Gator Aid” and the memorable “Cornhusker Kickback,” to tarnish provisions inserted to woo senators from Louisiana, Florida and Nebraska.

“In some ways, we were enjoying ourselves,” Mr. McConnell acknowledged in his book.

The same communication strategists who originated those terms were brainstorming on March 22, 2010, while Mr. Holmes jotted ideas on a notecard. When he hit on “repeal and replace,” the McConnell team decided it had what it needed. The big question was whether they could get lawmakers to embrace it. That answer would come quickly.

“I think the slogan will be ‘repeal and replace,’ ‘repeal and replace,’” Mr. McConnell told reporters the next day. “No one that I know in the Republican conference in the Senate believes that no action is appropriate.”

Mr. Holmes said a turning point came shortly after, when Representative Mike Pence of Indiana, who was then in charge of political messaging for House Republicans, and is now the vice president-elect, latched on to the phrase. That caused conservative resistance to the “replace” aspect of the debate to evaporate.

Mr. Holmes acknowledged that he had to create only the phrase, not the actual replacement.

“I don’t do policy,” he said with a laugh.

But Republican lawmakers and leaders of the new administration do have to do policy. And they may need to do it fast if they are going to assure Americans that they intend to fulfill their seven-year-old promise to not just repeal the law, but also replace it.

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