You’ve got to give it up for the political media: Somehow, through sheer force of will, we’ve actually managed to turn the most complex and consequential piece of legislation in decades into Washington’s version of March Madness — just another step for American politics down the ruinous Road to Sports Center. No longer is the health care law about the uninsured or “bending the cost curve,” or any of that boring stuff. Now it’s all about beating the spread.
Can the Obama administration get to 6 million by the original enrollment deadline next week, or even after the extension into next month? Is it a victory if the president comes within 500,000 of the goal, or a crushing defeat? Maybe we can break it down in a chart.
The truth is that whether it takes six weeks or six months to meet the next arbitrary benchmark, the health care law is now embedded in the society, and it’s not going anywhere. So the only important, longer-term question, and the one that almost no one is talking about, is whether our ailing political system can actually function well enough to make it work.
I recently thought about a conversation I had with Max Baucus, then the chairman of the Senate Finance Committee and now ambassador to China, at around this time in 2009. Barack Obama and Democratic leaders on the Hill were just starting to open talks about a health care bill, and Baucus told me he was adamant about getting some Republicans behind it. He rejected the idea that Democrats could unilaterally push a contentious bill through the Senate with a simple majority, through a budget maneuver known as “reconciliation” — which is exactly what ended up happening.
I asked Baucus why it mattered. Whether a bill passed with bipartisan acclaim or through the use of some arcane legislative gimmick, it would still be law, right?
Sure, Baucus told me, you could ram through a health care overhaul on a partisan vote. But you wouldn’t be able to sustain it.
As it happened, Democrats didn’t have a whole lot of choice. Republicans ultimately made a decision to oppose any reform, and it became clear that if Obama were going to achieve his party’s 70-year goal of universal coverage, he was going to have to do it in a way that left Congress and the country deeply divided. I’m not going to second-guess that strategy now.
But Baucus turned out to be prescient. He wasn’t only saying that a law passed by one party alone would be litigated or overturned. Baucus’s larger point was that this kind of sprawling social legislation, which Congress hadn’t really endeavored to pass since the 1960s, doesn’t end with a single vote. Inevitably, it needs to be tweaked and revised, as conditions change and unintended consequences reveal themselves. A massive undertaking like health care reform isn’t so much a single law as it is a yearslong process, and one that requires some buy-in from both sides.
Look at Social Security, which Franklin Roosevelt signed into law in 1935, over the objections of factions in both parties. Just four years later, Congress made sweeping changes to the new program, expanding its reach to widows and fatherless children while also tinkering with the financing mechanism so that workers could see benefits sooner. It wasn’t until the 1950s that agricultural and workers in service industries — many of them African-Americans who had been left out of the initial law — became beneficiaries, too. The Harvard sociologist Theda Skocpol, who has written extensively on the program, says it wasn’t until the Nixon administration that Social Security really became enshrined as the untouchable program we know today.
The imperfect health care law will need tinkering, too. We may need to raise or otherwise amend the threshold of 50 employees that triggers a mandate for an employer to provide coverage, so that employers aren’t tempted to fire their 51st and 52nd full-time workers to avoid the mandate, and so that more workers can take advantage of the exchanges. Sen. Mark Begich, an Alaska Democrat, has proposed adding a new “copper level” policy choice to the exchanges, which would offer less expensive plans with less elaborate coverage, and broadening tax credits to make more small businesses eligible.
Such changes would affect only the coverage side of things, though; the more pressing concern in years ahead may well have to do with reining in costs. Looking to make the law politically palatable, Democrats front-loaded most of the benefits that were sure to be popular (eventually, anyway), while pushing off a lot of the cost-saving measures. Some liberal defenders of the law will tell you this is all well and good, because health care costs have been growing at a much lower rate recently anyway, which they attribute chiefly to the effects of the new law.
But in fact, economists say there are probably several explanations for the slowing growth in expenses — chief among them that consumers simply seek less medical care during a steep recession. And this means that as the economy slowly rebounds, and as the retirement of the boomers accelerates, cost containment may once again become a pressing problem.
A centerpiece of the law was the creation of the Independent Payment Advisory Board, which, in the event of rapidly rising costs, is supposed to recommend cuts to Medicare. But IPAB, as it’s known, is anathema to a lot of lawmakers in both parties, and the likelihood of it being convened successfully is roughly the same as that of Kevin Spacey actually becoming vice president.
There are sensible fixes one could consider. There’s a congressional proposal floating around that would take some of the law’s pilot projects for reducing costs, like bundling payments for hospitals and doctors together, and expand them to the entire system now. Congress could also ratchet up the so-called Cadillac Tax — a surcharge on the most lavish plans — so that it does more to discourage overspending, which is something labor unions bitterly oppose.
Meanwhile, three recognized policy experts from different parts of the ideological spectrum — David Kendall of the centrist Democratic group Third Way, Stuart Butler of the conservative Heritage Foundation and Len Nichols, who runs a nonpartisan health policy center at George Mason University — have proposed that the federal government share more of the cost savings from state-run programs with the states themselves, as a way of incentivizing reform on the local level.
There’s no question where the public stands here; according to the most recent polling from the Pew Research Center and the Kaiser Family Foundation, more voters want to keep and improve the law than scrap it altogether. The problem is that Republicans, catering to their most ardent ideological base, still scream “repeal.” And while Democrats mouth talking points about improving the bill, they’re in too much of a defensive crouch to follow through.
“Right now, no one wants to talk about this stuff,” Third Way’s Kendall says of fellow Democrats. “How do you say it without looking like you’re being disloyal to the Obama administration?”
The optimist in me thinks the dynamic around this could well change after this year’s elections. Midterm elections are all about turning out the base, after all, and they tend to bring out the most reflexive impulses in either party, as do presidential primaries. By sometime in 2016, however, a Republican nominee will be trying to broaden the party’s appeal, and a Democratic nominee will be trying to put some distance between herself (or himself) and the current administration. That could lead to a logical next phase where we debate ways to amend the law, rather than arguing about whether its passage marked the onset of the Apocalypse.
Deadline dashes make for good sport. But the health care law is here to stay, and it’s an unfinished work.