Health reform and Congress

It hasn't been pretty

A victory within reach, but a worked example of America’s dysfunctional politics

A FEW treacherous skirmishes still lie ahead. But now that both House and Senate have passed their versions of a health-reform bill, Barack Obama soon hopes to announce a great victory: passage of the health reform he put at the top of his domestic agenda. When a bill emerges, and the president signs it into law, Democrats will hail the most significant social legislation America has enacted for decades. But the victory has a dark side. The titanic struggle has shown American democracy in a dim light.

In November 2008 Mr Obama won 53% of the popular vote, and the Democrats won handsome majorities in both chambers of Congress. That looked like a strong mandate to govern. And yet the battle for health-care reform has been both close-run and unedifying. Last year’s “town-hall meetings” spread the wild falsehood that Obamacare would create “death panels” to determine who would live and die. But the drama in Congress itself has been no prettier. Critics concentrate on four defects: the “undemocratic” Senate, the extreme partisanship of the parties, the lobbying of well-heeled pressure groups and the lure of the pork-barrel.

• The undemocratic Senate Every schoolchild is taught why the Senate has two senators from every state, regardless of population. But that does not make the representative consequences less perverse. The system theoretically allows politicians representing around a tenth of the population (ie, 41 senators from the 21 smallest states) to block any bill.

The constitution says that when the Senate is equally divided, the vice-president may cast a deciding vote. But the chamber has operated for decades under rules that were designed to overcome filibusters but are now used to require a 60-vote supermajority for most important bills. Since the Democrats have “only” 58 of the 100 senators, this gives exceptional power to any Democrat threatening to break ranks, and to the two independents who caucus with the Democrats. One of these, Joe Lieberman of Connecticut, administered the death blow to the “public option” (a government-run plan to compete with private insurers), one of the biggest ideas contained in the House bill and an early draft of the Senate’s.

• Extreme partisanship In a legislature of rugged individualists, the supermajority rule might at least force the majority to seek a broad consensus—no bad thing when far-reaching laws are proposed. But if the minority votes strictly on party lines the rule cannot work this way and becomes something less defensible in a democracy: a way for the minority to thwart the majority’s wishes.

And that is what nearly happened in the health debate. When the Senate voted on health on Christmas Eve, the Democrats reached their magic 60 but not a single Republican voted in favour. (In the 435-seat House only one Republican broke ranks.) Each side blames the other for the absence of compromise. Republicans say a Democratic party in hock to trial lawyers ignored Republican ideas, such as reforming the tort laws that drive up health costs. Democrats say the Republicans were never serious about reform and cared only about inflicting a defeat on the president.

Whichever side deserves more blame, the partisanship on display in the health fight followed a well-established trend. In its 57th annual study of voting patterns, published this week, Congressional Quarterly reported that Congress was more partisan than ever in 2009. More than seven out of ten Senate votes were what CQ calls “party-unity” votes, pitting a majority of one party against the majority of another. Cross-party coalitions of the sort that created Medicare and Medicaid in 1965 have become virtually extinct as politicians have deserted the middle ground.

• Lobbying Senator John McCain memorably called the 2003 energy bill the “no-lobbyist-left-behind” act. But the Centre for Responsive Politics, a non-partisan think-tank, expects that the amount spent on formal federal lobbying by the health and health-insurance industries (some $425m in the first nine months of 2009 alone) will break all records. And this is just a fraction of the two sectors’ total spend on television advertising and other efforts to influence the debate.

The fact that health reform is likely to pass in spite of this wall of money does not mean that Congress is impervious to the power of special interests. Much of the spending was designed to shape the bill, not to defeat the reform altogether.

Illustration by S. Kambayashi

Indeed, many industry groups lobbied in favour of reform—but only after cutting a series of pre-emptive deals with the White House. Mindful of the defeat of the Clintons’ health-reform effort of the 1990s, the Obama team worked hard to buy off potential foes in advance. The pharmaceuticals business was promised that reform would not cost drugmakers more than $80 billion over the next decade. Hospital bosses were told that reform would shave their revenues by no more than $155 billion—mere coppers in light of their gargantuan profits. The health-insurance industry accepted the inevitability of tighter regulation—in return for scooping up millions of healthy new customers compelled to buy insurance on pain of a fine.

Backstage bargains like these kept the plan afloat, but at the price of extinguishing some of the best ideas for reducing costs. The White House is unapologetic. “Let’s be honest,” said Rahm Emanuel, Mr Obama’s chief of staff: “The goal isn’t to see whether I can pass this through the executive board of the Brookings Institution. I’m passing it through the United States Congress with people who represent constituents.” That attitude, shot back Bill Galston, one of the slighted think-tank’s senior fellows, all but guaranteed that Congress would duck the hard issues.

• Pork When every vote counts, lawmakers who fail to bring a fat wedge of pork home to their district are in danger of looking like wimps. Most blatantly, Ben Nelson, a Democrat from Nebraska, withheld his support for the health bill long enough to force Harry Reid, the Senate majority leader, to promise that Nebraska alone would not have to bear any of the cost of future expansion of the Medicaid programme. Mr Reid dismissed the ensuing furore. “That’s what legislating is all about,” he said. “It’s compromise.” It may be no coincidence that two out of three Americans tell pollsters they disapprove of the way Congress does its job.