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Is There Life in Health Care Reform?

Scott Brown; drawing by John Springs

In politics, as in life, there’s often a very fine line between a fluke and an earthquake. They can even be mistaken for each other. In many ways, Scott Brown’s upset victory over Martha Coakley on January 19 for the Senate seat long held by Edward M. Kennedy, just as Congress was nearing agreement on the health care bill, was a fluke. The confluence of seemingly unrelated events had more impact than any of them would have had individually. Even the date of Kennedy’s death last August had major consequences: if it had happened a month later, the President might already have signed a health care bill into law by the time the election was held. A senior Democratic House strategist told me, “Had we known that Massachusetts was in play, we’d have worked through the Christmas break and might well have been done before the election.” The bills passed by the House on November 7 and by the Senate on the day before Christmas were quite similar. (Nancy Pelosi and Harry Reid and their aides, in consultation with the White House, had seen to that.)

As a result of intensive negotiations in early January, the bills were more than 95 percent alike by the time of the Massachusetts election. Two major issues remaining had to do, first—thirty-seven years after the Roe decision establishing abortion as a constitutional right—with Congress having adopted provisions in the health care bill that make it difficult (the Senate) or even impossible (the House) for women who received federal help to purchase abortion coverage with their own funds (really!); and, second, with excise taxes on the more expensive (“Cadillac”) plans, which labor objects to.

Republicans had applied the theory that the longer a bill is delayed, the weaker it becomes. Their real goal was to kill it. They gave Senate Finance Chairman Max Baucus just enough encouragement that he engaged in a months-long effort to get Republican backing for the bill. The idea, shared by the White House, was that a bill with bipartisan support would have more legitimacy with the public; but the negotiations kept going long after it was clear that the Republicans didn’t want to help. (He got the vote in committee of Maine’s Olympia Snowe, who made a big show of her reluctance to give it—the diva who wouldn’t leave the stage—and then voted against the bill on the Senate floor.) Finally, even the White House gave up on Baucus and scheduled Obama’s speech to Congress on health care on September 9, to encourage his committee to wrap it up. By the time the Senate finally passed its bill on Christmas Eve, Coakley was losing altitude, but no one seemed to notice.

An election outcome is usually caused by a number of factors, but national observers tend to look for national implications. In fact, Coakley broke a fundamental rule of running for office. Having swept the primary, she took the final election, five weeks later, for granted. As a Democratic senator said to me afterward: “There’s a saying that there are only two ways to run: unopposed or skeered.” He added, “She wasn’t unopposed.” Though she had run for the nomination on the fashionable demand for “change,” the handsome, sly, and wily Brown beat her at her own game. Because no one realized in time that it was a real race, there were no exit polls, but a telephone survey by the highly respected Hart Research Associates on the night of the election called it “a working-class revolt,” saying that the survey “reveals to Democrats [the cost]of not successfully addressing workers’ economic concerns.” Yet the survey also concluded that by a two-to-one majority, voters said they decided on the basis of the candidate, not because they were “sending a message to Washington.”

The Hart firm also interpreted the results as “not a call to abandon national health care reform,” pointing out that “Brown actually lost among the 59 percent of voters who picked health care as one of their top two voting issues.” It was another fluke that Massachusetts was the only state with a comprehensive health care program, which Brown had supported, but he said therefore he didn’t want the people of Massachusetts to pay for the health care of people in other states.

Nevertheless, many people jumped to the conclusion that the election was a rejection of the pending health care bill. The bill itself, its perceived shortcomings and flaws notwithstanding, stood to be the greatest advance in health care coverage for Americans in decades, if not ever. At least 30 million more people would receive coverage; those who could not afford health insurance would receive subsidies; those with coverage would be relieved of the worst depredations of the health insurance industry, such as rejecting people on the grounds that they had “preexisting conditions” or cutting off care of a patient because it was becoming too costly. Access to Medicaid would be significantly expanded. Presumably a start would be made on getting some control over the ever-burgeoning health care costs to this country. Moreover, it could be the last chance for significant health care reform for a long time.

Even before the Massachusetts election, it was evident that progressives were probably at the peak of their political power for some time to come: typically, the party of first-term presidents loses seats in the midterm elections, and the outlook for the Democrats in 2010 was already ominous. Elections in 2009 for governor in Virginia and New Jersey, as well as various polls, indicated that independents, who had swung the 2008 election to Obama, were leaving the Democrats in droves. And the closer a controversial bill gets to the midterm elections, the more the incumbents become uneasy about it. This is why Obama, who had campaigned hard on the issue, made it his first domestic priority; key figures on Capitol Hill told the White House that it was reasonable to expect Congress to pass it by August 2009.

Even though until the Massachusetts election the Democrats held sixty Senate seats (the first time a party had done so for thirty years)—just enough to shut off a filibuster—the Democrats themselves were divided in their degree of support for the bill, with some seeming opposed, and some, such as Blanche Lincoln, of Arkansas, facing daunting reelection challenges, while the Republicans were united against it. Therefore, Harry Reid and the White House had very little room to maneuver. And while Nancy Pelosi had a more progressive caucus, it was not enough to get bills through the House without the support of some moderate or conservative Democrats. (Hence she had to accept the harsh anti-abortion restrictions of the cartoonish Congressman Bart Stupak of Michigan.) In sum, in the Senate we have a parliamentary system, which depends on party discipline, but not majority rule; it’s not a workable system.

Therefore, while the health care bill could be changed at the margins, at some point the question became not whether the bill would meet most of the progressives’ expectations but whether there would be a bill at all. It was a lot easier for progressive critics to attack the bill, and say that it should be significantly changed—arguing in particular that it should not rely so much on the flawed existing private insurance system—than it was to find sufficient votes to change it. The bill that emerged from the Senate probably went about as far as could be expected, in view of the political realities. Sheldon Whitehouse, a freshman Democrat from Rhode Island who is widely seen as increasingly influential in the Senate, told me, “The vast majority of Democratic senators pushed the more conservative members of the caucus about as far as they could be pushed. We couldn’t get any more from our more insurance-oriented members.” As for Obama’s role, Whitehouse said, delicately, “I don’t think the President would add much to the equation. I think the internal pressures of the caucus took it about as far as it could get.”

Yet numerous critics in and out of Congress publicly denigrated the bill for not going far enough. Howard Dean, who obviously delighted in the television attention he was getting, and who certainly should have understood the reality, called the Senate bill without the much-discussed public option (for which it was clear from the outset that there weren’t enough Senate votes) “a farce.” In mid-December, he urged, recklessly, that the Senate should set the bill aside and start over. Under pressure from annoyed Democrats, he backed off.

Opinions about the significance of the public option were mixed. Some influential reform advocates didn’t believe that it was so critical, and thought that its advantages could be made up in other ways, in particular through rules governing the insurance exchanges that were to be set up—but they didn’t want to say so out loud for fear of alienating the Democratic left. Even some senators who preferred the public option but knew that there weren’t the votes for it said privately that it had been made into an “icon,” blown out of proportion. This was the calculation that Obama made: he sometimes gave it lip service in order to appeal to his base, but never really fought for it.

The Republicans had decided even before Obama was sworn in that they would use the rules to deny him success on every major issue. Such obduracy was without precedent in modern times. Even if they hadn’t gone that far, it would have been impossible for Obama to achieve the bipartisanship he had so easily and naively promised in the campaign. The days of bipartisanship were already long gone. For sociological and political reasons, the electorate had changed; the center had just about disappeared. Former Senate Majority Leader Tom Daschle says that the last time the Senate acted in a spirit of comity was in the 1980s. The situation of 2009–2010 is different: it’s not a matter of the two parties being unable to compromise on the substance of policy; it’s a matter of one party deciding to deny the other any political achievements at all.

A stunning example occurred in late January. After Obama said he would support a proposed bipartisan fiscal commission, which would recommend politically difficult cuts in the federal budget, to be voted up or down by Congress (along the lines of the base-closing commission), seven Republicans who had sponsored the proposal actually voted against it—enough to defeat it. Obama said he would set up a commission by executive order, but it won’t have the same power, and some key Republicans announced that they would boycott it.

Because of the filibuster rule, it’s been assumed for many years that anything controversial, even bringing up a bill for debate, needs sixty votes (sixty-five until 1975). In the past, filibusters, or threats of them, had been made by a faction of the Senate, or of a party, or by representatives of a region (Southerners opposed to civil rights bills), and motions to end filibusters were usually bipartisan. When the health care bill was before the Senate, with all the Republicans lined up against it, the Democrats’ needing sixty votes meant that every single member of the Democratic Senate caucus was a potential king or queen. Each senator was in a position to make demands, or to threaten to kill the bill. More of them behaved this way—putting themselves ahead of the greater good—than might have been expected. Each time, the White House and the Senate leadership had to decide between accepting an undesirable amendment or letting the bill die.

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