White House

Even After Big Victory, Health Care Future Uncertain

President Barack Obama speaks in the East Room of the White House in Washington, Thursday, June 28, 2012, after the Supreme Court ruled on his health care legislation.
National Journal
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George E. Condon Jr.
June 28, 2012, 6:26 a.m.

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.

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