Political Theater at its Worst

Politico's Jennifer Haberkorn and Manu Raju reported last week on discussions among Senate Republicans about whether and how to use parliamentary procedure tied to the Budget Reconciliation process to repeal the Affordable Care Act (Obamacare) in the next Congress.

Explaining the technical elements of this effort are not necessary for this particular blog post, but this process would allow the Senate Republican majority to pass legislation repealing Obamacare with a simple majority of 51 votes without Democrats being able to filibuster it. 

Any discussion occurring on this topic, and any effort to use reconciliation to repeal Obamacare represent political kabuki theater at its worst. Simply put, such an effort would be utterly and completely disingenuous and would indicate that Republicans care far more about appeasing their base than they do governing. 

Make no mistake about it, most elected Republicans (if not all), genuinely believe that the Affordable Care Act is bad public policy. I've seen very few policy based explanations (i.e. the ACA will cause these negative consequences) as to why the law is such bad policy (as opposed to ideological ones that view the ACA as greater government intrusion into the healthcare system and into people's lives). But I don't doubt the genuineness of this belief. 

Regardless, however, of what Republicans genuinely believe, they cannot repeal or destroy the Affordable Care Act before at least the spring of 2017. President Obama will veto any legislation that the next Congress passes to repeal the Affordable Care Act or to gut its core. 

Overriding such a veto would require the support of 13 Democratic senators. Based on National Journal's 2013  vote rankings, that would require the support of liberal stalwarts Jeff Merkley (OR) and Tim Kaine (VA), and socialist Bernie Sanders (VT). The odds of that happening are roughly equivalent to me being offered a job with a $1 million per year salary, a date with Jennifer Lawrence, and a body guaranteed to last me without major issue until age 105 in the next 24 hours. 

As such, any repeal vote would represent political theater designed to signal Republicans' dislike for the law, and to let the conservative base know that elected Republicans agree with them about Obamacare, and are doing everything they can to destroy the law.

There would be no real governing cost to holding a regular vote to repeal Obamacare in the Senate. Democrats would filibuster, the bill would go nowhere, and Republicans could lament the Democratic obstruction. Attempting to use reconciliation to vote to repeal Obamacare, however, has real governing consequences.

As Haberkorn and Raju detailed, attaching repeal of the Affordable Care Act to budget legislation could imperil other legislative priorities that have an actual chance of becoming law—such as corporate tax reform, or even individual tax reform. If President Obama vetoes a budget reconciliation bill because it repeals the Affordable Care Act, Congress could not subsequently pass another reconciliation bill including tax reform (or any other legislative priority). 

While all of this procedure can be arcane and confusing, the ramifications of this distinction are huge. If tax reform, for example, is not part of a budget reconciliation bill, it would be subject to a Senate filibuster. Thus, it could only be achieved with the support of at least 60 senators. This hurdle might allow a coalition of liberal and conservative senators who disliked a compromise tax reform bill for different reasons to come together to torpedo it. 

Using the budget reconciliation bill to stage a symbolic and fruitless attempt to repeal Obamacare also would undoubtedly irritate and antagonize President Obama pointlessly. After 5 years of rhetoric and countless House votes, the vast majority of the public is well aware that Congressional Republicans loathe the law and that there is absolutely no way that the president will allow them to repeal it. 

The suggestion that Republicans are even contemplating using reconciliation to repeal the ACA should bother Americans, because it calls into question post-election Republican promises to focus on governing and to work with the President where possible. Passing such reconciliation legislation would be highly controversial and acrimonious. It would also likely occupy a substantial amount of the finite legislative calendar time because it would involve significant parliamentary maneuverings. 

All of these consequences would make it more difficult to pass other consequential, much needed, and possible legislation, ranging from tax reform to increased transportation funding—all in the name of a symbolic effort that represents the prioritization of politics over legislating. 

The American people are well aware that, if given simultaneous control of Congress and the White House (including 60 senators), Republicans plan to dismantle the Affordable Care Act by any means necessary. They do not have to resort to legislative contortions to prove this point.

This use of reconciliation would undoubtedly please the conservative base. It is exactly kind of tactic that Senator Ted Cruz (R-TX) advocates, because it would represent the maximum possible effort that Republicans could take to destroy a law that they have pledged to repeal.  

Yet, Republicans would be far better off operating as they did on the recently passed "CRomnibus." Thanks to the give and take of the traditional (but rarely seen today) legislative process, that bill carried many Republican favored policies into law (including the highly controversial banking provision that enraged liberals). 

Make no mistake about it, Democrats must understand and accept that the only way to accomplish anything over the next two years is to accept certain Republican priorities becoming law in exchange for some Democratic priorities becoming law. Divided government necessitates this sort of horse trading. 

But such negotiations require trust among the President, Congressional Democrats, and Congressional Republicans. Successful legislation would also require both sides to bargain in good faith, settle for half a loaf, and be willing to infuriate their bases. 

The discussion of using reconciliation to repeal Obamacare unfortunately and ominously signals that Republicans would rather antagonize the President, pass up a chance to achieve major legislative goals, and appease their base than do these things. 


Would the Affordable Care Act Have Been Bipartisan in 1993?

Historians typically shy away from counterfactuals, because they like to explain what happened, not what might have happened if A,B and C were different. But today I'll make an exception because I think looking at a counterfactual from the past will help us to understand the present. 

I've long believed that if President Clinton had proposed something like the Affordable Care Act in 1993, a version of the bill would have passed with overwhelming bipartisan margins. 

The impetus for this blog was a Kaiser Health News article mentioning the similarity between the Affordable Care Act and John Chafee (R-RI)'s health care proposal in 1993, which was the main Republican alternative offered in the Senate to President Clinton's healthcare bill. Chafee's bill had twenty-one co-sponsors, including Republican Leader Robert Dole (R-KA) and 2 Democrats.

I won't go through the specific similarities between the two bills, but suffice to say, people who view the Affordable Care Act as some sort of massive statist, leftist boondoggle might be surprised how similar it is to the Republican proposal from 1993. 

It actually makes sense that the Affordable Care Act approaches the Republican proposal from 1993, because Democrats learned from the searing experience of failing to pass health care reform in 1994.

When they got the opportunity to pursue the goal of universal healthcare again in 2009, they wanted to ensure that they did not fail again by trying to pass something politically unpalatable that drew the opposition of the key industries who helped to shape the public's perceptions about the 1993 Clinton proposal. 

The cynic might say, well, if the Affordable Care Act mimicked the 1993 Republican plan, why did it draw a grand total of 0 Republican votes on final passage? 

The answer is that the Republican Party moved substantially to the right between 1993 and 2009. 

My research reveals that 11 Republican senators in 1993 (Cohen, Kassebaum, Durenberger, Danforth, Specter, Packwood, Hatfield, Chafee, Jeffords, Gorton, and Stevens) had either lifetime American Conservative Union ratings of 65 or below as of 1996 (100 is the most conservative), or average ACU scores of below 65 between 1981 and 1996 (Gorton had an average of 65.71, but a lifetime score of 62). 

Additionally, other pragmatic conservatives served in the Republican caucus in 1993, including Senator Larry Pressler (R-SD), who had accumulated moderate scores early in his career, but became more conservative over time (this year Pressler ran unsuccessfully for Senate as an independent, because of disagreements with the Republican Party), Senator John Warner (R-VA), and Senator Richard Lugar (R-IN). 

Eight of the ten other moderate Republicans were among the 19 Republican cosponsors of Chafee's bill. That leaves a pool of roughly 21 Republicans who likely would have been amenable to some sort of moderate health care overhaul in 1993 that achieved universal coverage. 

Given that Democrats controlled 56 Senate seats (57 before Senator Kay Bailey Hutchinson (R-TX) won a special election in June 1993), the pool of senators who might have gone along with this sort of proposal would have been 78, far beyond the 60 needed to cut off a filibuster. 

That cushion of 18 senators would have allowed the bill to adapt in order to appease liberal senators, who, undoubtedly, disliked elements of Chafee's proposal. 

For example, the Chafee bill required universal coverage by 2005. Liberals would have opposed the 12 year lag in achieving what had been a goal dating back to FDR's presidency (see the work of David Blumenthal and James Morone for some of this history). 

Many of the moderate and liberal Republican senators also cared deeply about the federal deficit and balancing the budget. As such, there likely would have been substantial haggling over how to help people afford health care coverage without busting the budget (indeed, as Paul Starr noted in 1995, one flaw in the Chafee plan was its lack of a revenue source to finance subsidies). 

Nonetheless, the general framework of the proposal likely would have allowed for the necessary legislative give and take that could have achieved a satisfactory outcome. 

Some might wonder, why, if a bill hailed as a liberal achievement 17 years later could have passed, did President Clinton not achieve health care reform in 1993? A complete answer would take a book or long article—but I aim to offer an explanation in the next 7 paragraphs. 

This 1994 Newsweek reconstruction offers an explanation. Many scholarly explanations also exist, such as Theda Skocpol's Boomerang. Starr's account provides an insider explanation

In brief, Clinton believed that healthcare reform had been one of the main mandates with which he had emerged from the 1992 election. He campaigned on the issue, and likely did not feel the need to do much compromising given the large Democratic majorities in Congress and this perceived mandate.

First Lady Hillary Clinton, who helped design the Clinton proposal, reinforced any desire not to compromise, and not to work to mollify concerns from business executives about aspects of the plan (such as its employer mandate). 

The timing of the Clinton's healthcare push (he waited until September 22, 1993 to unveil a proposal, after several bruising political fights), the secretive process that shaped his proposal, its substance (especially the amount of bureaucracy), and Clinton's unwillingness to yield on certain provisions doomed the bill (the President held up a pen during a nationally televised address and threatened to use it to veto any bill that did not provide universal coverage, which boxed him in during subsequent negotiations). 

Clinton's chances of achieving universal coverage and a smashing political victory evaporated during the course of 1994. In December 1993, conservative strategist William Kristol famously urged Republicans not to compromise with the president, and instead to kill his bill for both policy and political reasons. 

Kristol's reasoning, opposition from small businessmen (and their trade groups, such as the National Federation of Independent Business), Republicans' improving electoral prospects as 1994 progressed, and Clinton's intransigence all combined to make Republicans less willing to engage in negotiations before it became too late to pass any sort of healthcare bill in an election year. 

As usual, luck, personalities, and institutional culture also played a role in closing the potential policy window for passing healthcare reform in 1993-1994. For example, formidable House Ways and Means Committee Chairman Dan Rostenkowksi (D-IL) abdicated his post after being indicted on May 31st, 1994. This left the far less formidable Sam Gibbons (D-FL) leading the committee, and trying to pass a healthcare bill. 

These blunders prevented a universal health care bill from passing in 1994, but a window existed in 1993 during which a more moderate proposal, similar to the Chafee plan, or the Affordable Care Act, could have passed with bipartisan support. 

Flash forward fifteen years to 2009, and President Obama faced a far different Congress. Although he had more Democrats in the Senate (60), he faced a Republican caucus that had far fewer moderates with whom to negotiate. Only two Republican senators (Snowe and Collins (ME)), had lifetime ACU scores below 65 after Senator Specter switched parties in April, 2009. 

The substantial pool of moderates who might have been amenable to the Affordable Care Act in 1993 simply did not exist in Congress in 2009. Not only did this make it more difficult for a bipartisan bill to develop, but it also placed enormous pressure on the few Republican moderates and pragmatists to hew to the party line, in order to avoid providing the bill with the imprimatur of bipartisanship.

Even as Senate Finance Committee Chairman Max Baucus (D-MT) labored to negotiate with three committee Republicans (including Snowe), his task verged on being impossible, because of ideological differences. The natural ideological partners who existed sixteen years earlier simply did not exist in 2009. 

Additionally, the rise of conservative media between 1988 and 2009 created a force that did not exist to the same degree in 1993 (talk radio really emerged as a political force in 1994, and Fox News and the blogosphere did not exist in 1993). 

The four Republican senators who had cosponsored the Chafee bill in 1993 and still served in 2009 (Bennett, Grassley, Lugar, and Hatch) had to worry far more about primary elections than general elections, which was not necessarily the case in 1994. Indeed, Bennett would not lose his bid for renomination at a 2010 state party convention in 2010, and Lugar would lose a 2012 Republican primary.

Supporting something along the lines of the Affordable Care Act would have been politically toxic for this group of senators after conservative media got done destroying them for their heresy. 

This exploration offers us hints as to why things that were routine legislatively for decades (such as correcting drafting errors in major reform legislation, or passing a farm or highway bill) have now become so difficult. The Republican Party has moved substantially to the right. This shift makes compromise far harder to achieve, even on the occasions that Democrats offered proposals, like the Affordable Care Act, that might have been considered centrist policy proposals in previous decades. 

This example also offers support for the notion of asymmetric polarization. Thomas Mann and Norman Ornstein have offered a persuasive case for asymmetric polarization in multiple venues (such as here and here). Yet, many in the center do not like the way that this argument places more blame on Republicans than Democrats.  

But the healthcare case shows that Democrats proposed a bill in 2009 that had as many similarities with the Republican proposal from 1993 as it did with President Clinton's 1993 proposal (if not more). Thus, it's hard to argue that they had moved far to the left on healthcare. 

The Republicans, by contrast, had become substantially more conservative— moderates had gone from 20% of their Senate caucus to a mere 5%. Thus, while Democrats deserve their fair share of blame for the current gridlock, it's easy to see why Republicans probably deserve more of the blame. 





Grubergate Part II: The Truth

MIT economist Jonathan Gruber, who advised policymakers on the economics of healthcare during the debate over the Patient Protection and Affordable Care Act (Obamacare), landed himself in hot water for the second time (demonstrating, again, why academics and politicians have fundamentally different goals and skill sets). Critics of the law discovered video of a Penn conference in which Gruber said the following

This bill was written in a tortured way to make sure the CBO [Congressional Budget Office] did not score the mandate as taxes. If CBO scored the mandate as taxes, the bill dies. So it's written to do that.

In terms of risk-rated subsidies, in a law that said health people are gonna pay in - if it made explicit that healthy people are gonna pay in, sick people get money, it would not have passed. Okay - just like the ... people - transperen- lack of transparency is a huge political advantage. And basically, call it the stupidity of the American voter or whatever, but basically that was really, really critical to get anything to pass.

Republicans gleefully pounced on the remarks to further their case against the law, while Democrats angrily denounced Gruber. David Axelrod, a former chief strategist for President Obama, tweeted that you'd find Gruber's picture under a definition of stupid in the dictionary. The House Oversight Committee even called Gruber to testify at a hearing next month. 

Overstating this outrage and its importance would be quite easy. After all, I have real doubts that the vast majority of the public even knows who Gruber is. Indeed, when people started referring to his remarks on Twitter last week, I wondered how Hans Gruber resurrected himself and what he did (If you don't know who Hans Gruber is, go watch Die Hard. NOW). 

Nonetheless, the outrage among the political class raises two important questions: did Gruber violate a taboo, but speak honestly, or did he speak out of bitterness, frustration or a failure to properly understand the legislative process? Additionally, did Gruber's comments reveal something untoward or nefarious about the legislative process?

Gruber basically spoke the politically inconvenient truth. Undoubtedly, calling the voting public stupid represented a poor choice of words and a foolish blunder for someone who should know better. Gruber would have been far better served using a phrase like uneducated about the political process and public policy, or under informed about policy matters.

Both would have been far more accurate and less inflammatory. Yet, speaking at an academic conference, Gruber displayed a political tin ear and employed shorthand that guaranteed that he'd make news and look foolish (Of course, as an academic, at an academic conference, he freely spoke in a way that no one in the political world would have done). He likely assumed that his audience would understand that stupid meant ill-informed about policy and the activities of Congress. 

This poor choice of words aside, as Ezra Klein wrote, Gruber otherwise spoke the truth. As anyone who has ever read R. Douglas Arnold's seminal Logic of Congressional Action knows, members of Congress always try to obscure the chain of responsibility for the costs (i.e. unpleasant aspects of legislation), while loudly claiming credit for the benefits. 

It's why Congress has created mechanisms to vote for congressional pay raises without actually voting on raises. The sad truth is that politicians who choose honesty over such maneuvering tend to find themselves in trouble politically (as Walter Mondale famously learned). Rather than being rewarded for their honestly, they are punished for whatever ill effect they've admitted to causing. 

Almost all legislation has costs and benefits. Even when those costs are diffused among the population, they still exist. Gruber was also undoubtedly correct that the attempt to hide these costs led to more complex legislation, which made it even harder for the public to be well informed. 

In fact, as the work of Suzanne Mettler, Brian Balogh, and Jacob Hacker has shown, Congress often produces needlessly complex legislation that obscures even its benefits in order to avoid stirring anxieties about government power and the welfare state. While members of Congress certainly try to make sure that constituents who benefit from legislation know that they deserve credit, they still steer clear of the sorts of ideological debates required by more simple, straightforward legislation. 

In fact, the paradox at work is that legislators feel compelled to create overly complex legislation to hide costs and benefits because it is difficult to explain the reasoning behind legislation in a culture of thirty second soundbites.

Congress understood that the claim that the Affordable Care Act raised taxes could be potentially fatal both to the legislation and to their careers. Congressmen did not believe that they could win the messaging debate, and explain the need for these provisions in a way that could counter the potency of simple accusations of burdening the taxpayer. The two or three minute explanation (I'm being generous here—it might be 15-20 minutes) of these provisions complete with citations to studies would never reach the public. 

But because of this belief, Congress made the legislation even harder for Americans to understand, and may have contributed to its unpopularity and to the suspicion that many people have towards the legislation and the legislative process behind it. 

The only way to undo this process of obscured costs and benefits and overly complex legislation would be for the public to engage with the legislative process to a sufficient degree that they understood minute policy details and ramifications. The public would also need to develop a newfound willingness to pay the costs for popular things (in the case of the Affordable Care Act, a ban on insurers disqualifying people because of preconditions). 

Gruber's comments certainly won't help in this regard. Nonetheless, we should understand that his careless word choice aside, Gruber spoke the truth, and identified a major problem with our political and governing processes. The practice he identified was not limited to or unique to the Affordable Care Act. Nor was Congress trying to fool the public about the Affordable Care Act. Rather, Congress was doing what it always does to protect itself against demagogues and talking points, and to ensure passage of legislation in a soundbite culture. 

This practice does a real disservice to the public's understanding of legislation, but it's more reflective of a systemic process flaw than a problem with the Affordable Care Act. The process itself also does not signal that legislation is bad. Merely that it is overly complex and might be better.