President Obama’s stunning victory on Thursday in the Supreme Court is a surprising validation of his dogged refusal to give ground on his 2008 campaign promise to provide health insurance for the millions of Americans who live in daily dread of disease or sickness. Just about everybody not on the White House staff expected a conservative high court to invalidate key parts of the law Obama pushed through Congress in 2010. But the president prevailed, dealing a severe blow to Republican hopes to ride "Obamacare" to big victories in November.
But before the White House gets too carried away in celebration, the reality is that the Court’s decision, as historic as it is, does not guarantee the survival of the law that is the signature accomplishment of Obama’s first term in office. This big legal victory gives the president a second chance to do what he flubbed the first time -- persuade the country that this is not a partisan exercise. For even after this decision, the health care law still is far from the permanent reform he envisioned when he hailed its passage as answering “the call of history.” More than two years later, it remains deeply unpopular despite surviving this legal challenge. Its implementation faces threats of sabotage and its repeal is only as far away as the next election that empowers Republicans to keep their promises. And it is far from a sure political winner in the upcoming election.
This was not how the White House expected it to be. They believed that the country would come to like the new law once they saw that it provided them benefits and understood that it did not threaten their own health insurance plans. But what was an article of faith in 2010 and 2011 has run aground in 2012. Polling shows that individual components are popular. But, as indicated in an ABC News/Washington Post Poll released on Wednesday, that doesn’t mean people like the overall bill any better. In fact, the survey, conducted June 20-24, shows that 52 percent dislike what has been dubbed “Obamacare” while only 36 percent view it favorably.
That the president now understands these numbers was evident from his statement in the East Room. In victory, he was restrained and serious -- no dancing in the end zone when the game is only in the third quarter. And there were certainly no claims that the law has been a political winner, only open acknowledgement that the long debate has been "divisive" and the wry observation that "it should be pretty clear by now that I didn't do this because it was good politics." He well knows the political challenges ahead.
Even on a day when the president’s lawyers celebrate doing their job well, it is clear that most of these political and practical problems could have been averted or at least moderated if Obama had taken a different approach when he was crafting the legislation. He might have heard that “call from history.” But he didn’t heed the lessons of history. He was willing to be the first president since the Civil War to attempt to ram through a major social change – a program that would touch just about every American – on a party-line vote with no support in Congress from the opposing party. Full of hubris and with complete control of both Congress and the White House, the president’s advisers did not feel the need for bipartisanship in 2009. They viewed it as a luxury, not a necessity.
Other presidents pushing big programs grasped the futility of trying to shut out the minority party. Even those who had large enough majorities to force their wishes on Congress understood that they needed their accomplishments to appear legitimate to the people and so survive the inevitable change in political cycles that would shift power in Washington. Certainly, Presidents Franklin Roosevelt and Lyndon Johnson understood that. Roosevelt settled for far less than he wanted in Social Security in 1935, complaining privately that it “had been chiseled down to a conservative pattern.” But he won over 16 of the 21 Republicans in the Senate and 81 of the 96 Republicans in the House. In the next election, in 1936, those who campaigned to repeal Social Security seemed out of the mainstream. GOP presidential nominee Alf Landon was in a minority when he argued that the law was “unjust, unworkable, stupidly drafted, and wastefully financed.” He lost all but two states.
Three decades later, Johnson, who won his first congressional race in that 1936 election and had studied FDR, showed he had learned the lesson. Again, he had big majorities. But Johnson made sure that he did not pass the Civil Rights Bill of 1964, Medicare in 1965, or the Voting Rights Act of 1965 without significant Republican votes. On both civil rights bills, the GOP margins were even bigger than the Democratic margins. Medicare was closer, but drew 13 Republican votes in the Senate and 70 in the House. “We had overwhelming Democratic majorities in the House and the Senate,” recalled former Democratic Rep. Lee Hamilton, who was a freshman from Indiana in 1965. “He could have passed any bill he wanted to. He had the votes. But he chose to negotiate with the Republicans because he did not want to pass such an important bill on a party-line vote... As a result, Medicare was able to be implemented effectively. It had legitimacy.”
That, added Hamilton who now heads the Center on Congress at Indiana University, “has to be the model.” When you pass a major piece of legislation on a party-line vote, he said, “It makes it extremely difficult to implement the legislation effectively, because there are so many ways the opposition can interfere, disrupt, delay, or block the implementation of the legislation.” Certainly, that has been the case with health care. And it remains a threat even after Thursday’s Supreme Court ruling. Finding a way to win over some Republicans will be a major imperative after November’s election.
The White House, of course, howls in protest at any suggestion the president did not make a good-faith effort to enlist Republicans. Aides point to the much-ballyhooed seven-hour bipartisan health care “summit” at Blair House in February 2010 and to repeated invitations to Republicans to come on board. But the process was flawed from the beginning when the White House left the writing of the bill to Democrats, gave little support to the “Gang of 14” or the “Gang of Six”, and made it clear that there would be no give on medical-malpractice reform even though that could have wooed Republicans. And there was very little personal reaching out by the president to individual GOP members or senators.
But this Court decision, said former Democratic Rep. Tony Coelho, gives the president something he needed going into the election. “It makes him look strong and look like a leader,” he said. “It helps diminish the notion that it is a partisan political deal.” Coelho, who was in the House for 11 years representing a California district, was a House staffer when Medicare passed. He places the blame for the lack of Republican votes on the 2010 health care law on the early decision by GOP leaders to oppose anything the president offered. “Today’s leadership has a hard time cutting deals with Democrats,” he said.
Now, because of the Supreme Court, the pressure shifts back to Republicans to explain why they want to repeal a measure that the Court has judged to be constitutional and that offers some attractive things to voters. And the opportunity is there for Democrats to show skeptical voters – especially those crucial independents who now may be willing to take a second look – that there is something in this law for them.