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opinion | Simon van Zuylen-Wood

Scott Brown’s presence is still being felt in Washington

Scott Brown and Mitt Romney stood at a New Hampshire farm in July, shortly before Romney endorsed Brown.

Jessica Rinaldi/Globe Staff

Scott Brown and Mitt Romney stood at a New Hampshire farm in July, shortly before Romney endorsed Brown.

The outcome of Scott Brown’s senatorial challenge in New Hampshire is sure to produce a mass outpouring on the broader implications of the race. If he loses, we will learn that carpetbaggers revolt the people of New Hampshire. If he wins, Mitt Romney, who endorsed him, should run for president in 2016. Whatever happens, we should probably take a closer look at his slick new Barbour rain jacket, which appears to have replaced his trusty brown barn coat.

Think of what we learned from his last two Senate contests. Brown’s 2010 victory over Massachusetts Attorney General Martha Coakley foretold the Tea Party revolution. His 2012 loss to Elizabeth Warren was the result of a coming wave of left-wing populism. While the desire to paint Brown as a bellwether for national trends has at times been overwrought, there is a legitimate sense in which his presence can be felt in Washington.

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Take, for instance, this week’s latest blow to the Affordable Care Act, delivered in the form of a 2-to-1 appellate court ruling from the D.C. Circuit. The decision hinged on the health insurance marketplaces that the federal government set up for states that declined to do so themselves. The three-judge panel ruled that the health insurance tax credits that consumers receive are meant only for consumers “enrolled through an exchange established by the state,” as the text of Obamacare states. Thirty-six states currently run federal exchanges, meaning more than seven million people could lose their insurance subsidies if the ruling stands.

While many have decried the court’s narrow reading of the law, there’s little dispute that the legislation was poorly drafted. And for that, we have Brown to thank. As Yale Law professor Abbe Gluck pointed out last December, Brown’s victory over Coakley left Senate Democrats unable to dot the i’s and cross the t’s on the legislation. “Because the Democrats lost their 60th filibuster-preventing vote,” she wrote, “the version that had passed the Senate before Brown took office, which everyone initially had thought would be a mere first salvo, had to effectively serve as the final version.”

It’s also worth examining Brown’s response to another ruling on Obamacare: the Supreme Court’s recent “Hobby Lobby” decision, which granted businesses the right to exempt themselves from the law’s mandate to provide birth control coverage, on religious grounds. Confronted on the campaign trail by a persistent reporter for The Guardian, Brown resorted to hiding in a restaurant bathroom to avoid giving his opinion on the ruling. The only statement he would make on the matter is this: “Scott Brown supports women’s health care and access to contraception, but by injecting government into every aspect of our lives, Obamacare threatens all our freedoms. The best solution is to repeal it.”

This bit of linguistic jujitsu speaks in part to the fallout Brown received from co-sponsoring the “Blunt Amendment,’’ which would have gone further than “Hobby Lobby” in granting employers the right to deny women contraceptive coverage, and which Warren invoked to great effect during his 2012 race. (Brown has attributed his defeat directly to his support for the amendment.) More broadly, Brown’s hedge is emblematic of a struggle Republicans are facing in framing their opposition to Obamacare. Already in 2012, polls demonstrated that while a majority of voters opposed the law, they supported its main provisions. More recently, a July survey found that 74 percent of Republicans receiving Obamacare benefits are happy with their new plans. Small wonder that conservatives are hoping legal challenges, rather than congressional action, will gut the law.

Finally, there is Dodd-Frank, the financial reform law enacted four years ago this week. For fans of tighter banking regulations, the news has not been encouraging. According to CNN, little more than half of the law’s provisions are in place, thanks to an interminable rulemaking process. The delay has much to do with the lobbying done by the financial industry to water down the law.

And a good chunk of that effort, in turn, has centered around the bill’s “Volcker Rule,” which seeks to ban commercial banks from speculative investments. Brown, who voted in favor of Dodd-Frank, nonetheless won support from Wall Street by weakening the Volcker Rule before the law’s passage, and then appealing to the Treasury Department a year later to create additional loopholes. That spirit remains alive and well: Banks are pushing to circumvent the rule’s mandate that they divest from one particular set of potentially risky assets, called collateralized loan obligations. (Kind of like collateralized debt obligations — the complex financial instruments that essentially crashed the economy.)

Of course, there’s one sense in which Brown probably isn’t representative of a broader national trend. In November, Republicans are poised to regain control of the Senate. Brown — Barbour-wearing, Romney-tainted carpetbagger that he is — is currently losing his race by 10 points, according to the polls.

Simon van Zuylen-Wood is a contributing writer at National Journal Magazine.
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