The confirmation hearings for the suuccessor to HHS Secretary Kathlleen Sebelius could be an opportunity to discuss executive branch overreach. Photographer: Andrew Harrer/Bloomberg
The confirmation hearings for the suuccessor to HHS Secretary Kathlleen Sebelius could be an opportunity to discuss executive branch overreach. Photographer: Andrew Harrer/Bloomberg

With the resignation of Health and Human Services Secretary Kathleen Sebelius and President Barack Obama's (prompt, for a change) nomination of Sylvia Mathews Burwell to replace her, opponents of the Affordable Care Act see an opportunity to use the confirmation process constructively. What should that mean?

Obamacare opponent Ben Domenech has lousy advice for Republican senators:

This surprise resignation presents Republicans with an unexpected opportunity to refocus the conversation on Obamacare’s negatives, offers a chance to force vulnerable Senate Democrats to take a hard vote on Obamacare six months before the midterms, and serves to disrupt what had been a positive few days of media spin for the health care law into another conversation about its many failings.

Not exactly. It’s unlikely that a vote to confirm any executive-branch nominee will make a difference in midterm elections, but it's especially unlikely that highlighting problems with the ACA will make this particular vote tougher. “She voted for the person who replaced the person responsible for the rollout fiasco” isn't an effective line of attack.

And pretending that spin trumps substance always gets political hacks in trouble. Even the full resources of the Obama administration communications team could do nothing when the website didn't work in October and November. What's at stake now isn’t “a few days of media spin” that could be overcome by superior talking points, it’s 7.5 million cases of reality. If Republicans don’t grasp that, they’re not only going to flub the confirmation hearings, but the entire politics of Obamacare, too.

So what’s the better path? First, Republicans should ask themselves, who pays attention to cabinet confirmation hearings, anyway? Dedicated Fox News viewers don’t count, because they’ll attend to whatever is put in front of them, even when there’s no news hook. In reality, almost no one pays attention to these shows.

The big exceptions are the inside-the-Beltway elites and, in particular, those who are especially concerned about the policy areas covered by HHS. They should be the target of Republican efforts during the Burwell confirmation. And that’s why Obamacare opponent Philip Klein’s is smart to advise Republicans use the occasion to make the case that the ACA gives the HHS secretary unusually vast powers. And, I would add, the case that the administration has exceeded those powers. This is an unusually good opportunity for Republicans to press that (plausible, though hardly airtight) case to an an audience that might put pressure on the administration to change its approach to implementing the law.

Of course, Republicans (and Democrats) will recycle their broader ACA talking points, but they shouldn’t expect the spin to change anyone’s mind. I’m not saying they can change minds by focusing on executive power, but it is a constructive approach to the confirmation process.

To contact the writer of this article: Jonathan Bernstein at Jbernstein62@bloomberg.net.

To contact the editor responsible for this article: Max Berley at mberley@bloomberg.net