Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, March 26, 2010

Health Care Reform (4): The Political Sustainability of the Legislation is Undermined by Its Partisan Approach and Public Opposition

[This is the fourth in a series.  You can view the full series on one page here.]

Understandably anxious about having passed a narrowly partisan bill – steered through by an unpopular congressional leadership and signed by an unpopular president over the opposition of most Americans – President Obama and the Democratic Party now must try to make the political case to the American people that they knew what was best for us all along.

Toward this end, hopeful Democratic Party politicians have taken to citing other major social programs, such as Social Security and Medicare, as showing how controversial Democratic legislative initiatives become celebrated historical landmarks.  They claim that these legislative programs had also been passed by Democrats over Republican opposition.  In the same way, they argue, the American people will learn to love the new health care program and reward, rather than punish, the Democratic Party.

The Democrats are whistling past the political graveyard.  This new political spin is a political myth.  What happened this past week truly was unprecedented.  Never before has a major and potentially transformative social welfare initiative been enacted by Congress without broad-based bipartisan and embracing public support.  And, as a consequence, whether genuine health care reform will take effect remains uncertain.  Building and maintaining solidarity with the disadvantaged, for whom those future uncertainties are most dangerous, has been made far more difficult.

In 1935, when Social Security was enacted, Democrats did not force through a narrow partisan scheme over Republican opposition, even though Democrats enjoyed an overwhelming majority in Congress and had the enormously popular President Roosevelt in the White House.  In fact, Republicans voted for Social Security by a vote of 81-15 in the House and 16-5 in the Senate (here).  Republicans had preferred an alternative measure that would have created a true trust fund whose assets could not be withdrawn and applied to other government spending (what a blessing today if that alternative had prevailed).  Nonetheless, on the final vote, Republicans stood solidly behind Social Security.

In 1965, Medicare was enacted with nearly unanimous Democratic support and the support of nearly half of Republicans in Congress (70-68 in the House and 13-17 in the Senate) (here).  The legislation was promoted and signed by Democratic President Johnson who stood high in the polls as well, soon after his landslide victory in 1964.

By contrast, the Patient Protection and Affordable Care Act of 2010 was enacted on a strictly partisan vote by unpopular politicians and over public opposition.  In the House this past Sunday, all Republicans and 15 percent of Democratic representatives opposed the bill. The Democratic congressional leadership that cajoled and dealed and wheeled the legislation through to slender passage are held in such low regard by the public that one barely breaks into double digits and the other falls below it, with Speaker Pelosi at 11 percent and Majority Leader Reid at 8 percent (here).  President Obama has seen his approval rating plummet over his first year in office.  In the latest CNN poll, a majority of Americans now disapprove of the president (here). On the eve of the House vote, a CNN/Gallop reported that nearly 60 percent of Americans opposed the bill (here).

For a snapshot of the extent of public antipathy toward the Democratic leadership, as its pursues a liberal agenda including the government-centric health care legislation, we should look to the State of Indiana.  Along with states like Virginia and North Carolina, Indiana had been one of those pivotal states that President Obama brought into the Democratic column in 2008.  Now President Obama attracts an approval rating of only 39 percent in Indiana, with 60 percent disapproving (here and here).  The Democratic health care bill was opposed by 63 percent and strongly opposed by 54 percent of the Indiana electorate.

I do assume those polling numbers for Democrats to improve in the coming days and weeks.  For one thing, having fallen to such historic lows, there is nowhere to go but up.  Moreover, in politics as in sports, nothing succeeds like success.  President Obama and the Democratic leadership have won a legislative victory, which will give them a boost in public regard.  And people will see a thing or two in the reports about the health care legislation that they like and improve its reputation, for a time.  But these polling tick-ups likely will be a fragile bubble.

And that bubble may burst as Americans learn what their health care insurance will cost for the coming year.  When people open their benefits letters from their employer this fall and see yet another round of premium increases for the next calendar year, people are going to be angry.  I imagine that many will exclaim, “What the *#$&*@ is this?  I thought the Democrats had fixed this!”

In sum, Democrats have a high hill to climb to convince Americans that they should be appreciative that this health care bill passed over public objections.  In my view, the primary reason for their persuasive difficulty is that they are trying to sell a bad bill.  To quote President Obama from the last campaign in another context, “You can put lipstick on a pig.  But it’s still a pig.”  But even if it were otherwise and the new health care program were everything Democrats say it is, it may be years before the average American will realize significant benefits because many of the provisions of the bill are back-loaded or not of general application.

Take for example the much touted guarantee that insurance companies must cover all persons with preexisting conditions.  For adults, that provision doesn’t kick in until 2014.  Moreover, while this legislative mandate will be of considerable value to those affected and prevent hardship in many cases, it probably won’t affect very many people.  Only a minority are affected by preexisting condition problems in the first place.  And most Americans with employer-based health insurance are already covered for preexisting conditions through their existing insurance plan.  (And, as an offset to those benefits, if experiences in states like Massachusetts and New York are any indication, after the preexisting condition rule does take effect in 2014, health insurance premiums will leap to the sky.)

Or consider the right to keep children on their parents’ insurance coverage until they reach age 26.  That provision does take effective this year.  But, again, the effect may be limited.  Some states, such as my State of Minnesota, already allow children to stay on a parents’ insurance plan until age 25, although with some limitations.  Many families have made other arrangements, adult children may already receive insurance through employers, and relatively inexpensive (if bare-bones) insurance plans are available for college students.

And, of course, the big entitlement parts of the bill that extend coverage to those presently uninsured will not be implemented until 2014.

Thus, Democrats are unlikely to find much cover between now and this fall’s elections or even the 2012 presidential election.

But my point here is about much more than the potential electoral consequences for a political party this fall, as much as I think they have been well-earned by the Democrats.  Just as importantly, the failure by Democratic Party leaders to compromise on the legislation, to change the unbalanced government slant of the bill, and to thereby achieve generous support leaves this bill without the deep consensus necessary to sustain the program.  Precisely because any meaningful health care reform will be controversial and require an ongoing series of political steps to bring into full operation, the legislation needs a political cushion of bipartisan and diverse public support for it to survive through to full implementation.  And as always, the most vulnerable in our society are likely to suffer the greatest from the collapse of the legislation and the absence of political grounding for its changes.

It didn’t have to be this way. Despite the political charge that Republicans have been merely the “Party of No” and offered no ideas, President Obama’s Health Care Summit demonstrated otherwise to a national audience.  Even President Obama was forced to concede that Republicans had offered thoughtful and legitimate measures and that their opposition to his plan reflected a sincere philosophical disagreement and not mere partisanship or obstruction.  Moreover, all through this long political journey, promising and bipartisan alternatives have been available, jointly introduced jointly by Democratic and Republican representatives (as described further tomorrow).

And it doesn’t have to stay this way.  The silver lining to the political vulnerability of the current legislation is that, as it unravels, the lost opportunity for genuine and broad-based reform might be reclaimed.  Acting alone, liberal Democrats have produced a piece of paper bearing a presidential signature.  But the Democrats cannot turn that paper into a funded and working program without broader and bipartisan support both in Congress and in the electorate in the years ahead.

That does mean that Democrats will have to compromise and that the most liberal, big government elements of the bill will have to be discarded, revised, or scaled-down. But, again, in light of the flaws, contingencies, and economic realities sketched in this serious of posts, the most controversial elements were unlikely to survive through to a functional, quality health care system in any event.  Republican compromise will also be required, since outright repeal is not likely.  And, as a victory for the Democratic persistence, Republicans may have to accept a greater level of government involvement in resolving the problem than they prefer, although much less than imposed by the recently-passed legislation.

So it’s not too late – we can still get to a bipartisan, moderate health care plan that has the necessary public support to survive.  What could be next for health care will be the subject of my next and final post in this series.

Greg Sisk


Sisk, Greg | Permalink

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