Is There Life in Health Care Reform?

By Elizabeth Drew

In politics, as in life, there's often a very fine line between a fluke and an earthquake. They can even be mistaken for each other. In many ways, Scott Brown's upset victory over Martha Coakley on January 19 for the Senate seat long held by Edward M. Kennedy, just as Congress was nearing agreement on the health care bill, was a fluke. The confluence of seemingly unrelated events had more impact than any of them would have had individually. Even the date of Kennedy's death last August had major consequences: if it had happened a month later, the President might already have signed a health care bill into law by the time the election was held. A senior Democratic House strategist told me, "Had we known that Massachusetts was in play, we'd have worked through the Christmas break and might well have been done before the election." The bills passed by the House on November 7 and by the Senate on the day before Christmas were quite similar. (Nancy Pelosi and Harry Reid and their aides, in consultation with the White House, had seen to that.)

As a result of intensive negotiations in early January, the bills were more than 95 percent alike by the time of the Massachusetts election. Two major issues remaining had to do, first—thirty-seven years after the Roe decision establishing abortion as a constitutional right—with Congress having adopted provisions in the health care bill that make it difficult (the Senate) or even impossible (the House) for women who received federal help to purchase abortion coverage with their own funds (really!); and, second, with excise taxes on the more expensive ("Cadillac") plans, which labor objects to.

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Republicans had applied the theory that the longer a bill is delayed, the weaker it becomes. Their real goal was to kill it. They gave Senate Finance Chairman Max Baucus just enough encouragement that he engaged in a months-long effort to get Republican backing for the bill. The idea, shared by the White House, was that a bill with bipartisan support would have more legitimacy with the public; but the negotiations kept going long after it was clear that the Republicans didn't want to help. (He got the vote in committee of Maine's Olympia Snowe, who made a big show of her reluctance to give it—the diva who wouldn't leave the stage—and then voted against the bill on the Senate floor.) Finally, even the White House gave up on Baucus and scheduled Obama's speech to Congress on health care on September 9, to encourage his committee to wrap it up. By the time the Senate finally passed its bill on Christmas Eve, Coakley was losing altitude, but no one seemed to notice.

An election outcome is usually caused by a number of factors, but national observers tend to look for national implications. In fact, Coakley broke a fundamental rule of running for office. Having swept the primary, she took the final election, five weeks later, for granted. As a Democratic senator said to me afterward: "There's a saying that there are only two ways to run: unopposed or skeered." He added, "She wasn't unopposed." Though she had run for the nomination on the fashionable demand for "change," the handsome, sly, and wily Brown beat her at her own game. Because no one realized in time that it was a real race, there were no exit polls, but a telephone survey by the highly respected Hart Research Associates on the night of the election called it "a working-class revolt," saying that the survey "reveals to Democrats [the cost]of not successfully addressing workers' economic concerns." Yet the survey also concluded that by a two-to-one majority, voters said they decided on the basis of the candidate, not because they were "sending a message to Washington."

The Hart firm also interpreted the results as "not a call to abandon national health care reform," pointing out that "Brown actually lost among the 59 percent of voters who picked health care as one of their top two voting issues." It was another fluke that Massachusetts was the only state with a comprehensive health care program, which Brown had supported, but he said therefore he didn't want the people of Massachusetts to pay for the health care of people in other states.

Nevertheless, many people jumped to the conclusion that the election was a rejection of the pending health care bill. The bill itself, its perceived shortcomings and flaws notwithstanding, stood to be the greatest advance in health care coverage for Americans in decades, if not ever. At least 30 million more people would receive coverage; those who could not afford health insurance would receive subsidies; those with coverage would be relieved of the worst depredations of the health insurance industry, such as rejecting people on the grounds that they had "preexisting conditions" or cutting off care of a patient because it was becoming too costly. Access to Medicaid would be significantly expanded. Presumably a start would be made on getting some control over the ever-burgeoning health care costs to this country. Moreover, it could be the last chance for significant health care reform for a long time.

Even before the Massachusetts election, it was evident that progressives were probably at the peak of their political power for some time to come: typically, the party of first-term presidents loses seats in the midterm elections, and the outlook for the Democrats in 2010 was already ominous. Elections in 2009 for governor in Virginia and New Jersey, as well as various polls, indicated that independents, who had swung the 2008 election to Obama, were leaving the Democrats in droves. And the closer a controversial bill gets to the midterm elections, the more the incumbents become uneasy about it. This is why Obama, who had campaigned hard on the issue, made it his first domestic priority; key figures on Capitol Hill told the White House that it was reasonable to expect Congress to pass it by August 2009.

Even though until the Massachusetts election the Democrats held sixty Senate seats (the first time a party had done so for thirty years)—just enough to shut off a filibuster—the Democrats themselves were divided in their degree of support for the bill, with some seeming opposed, and some, such as Blanche Lincoln, of Arkansas, facing daunting reelection challenges, while the Republicans were united against it. Therefore, Harry Reid and the White House had very little room to maneuver. And while Nancy Pelosi had a more progressive caucus, it was not enough to get bills through the House without the support of some moderate or conservative Democrats. (Hence she had to accept the harsh anti-abortion restrictions of the cartoonish Congressman Bart Stupak of Michigan.) In sum, in the Senate we have a parliamentary system, which depends on party discipline, but not majority rule; it's not a workable system.

Therefore, while the health care bill could be changed at the margins, at some point the question became not whether the bill would meet most of the progressives' expectations but whether there would be a bill at all. It was a lot easier for progressive critics to attack the bill, and say that it should be significantly changed—arguing in particular that it should not rely so much on the flawed existing private insurance system—than it was to find sufficient votes to change it. The bill that emerged from the Senate probably went about as far as could be expected, in view of the political realities. Sheldon Whitehouse, a freshman Democrat from Rhode Island who is widely seen as increasingly influential in the Senate, told me, "The vast majority of Democratic senators pushed the more conservative members of the caucus about as far as they could be pushed. We couldn't get any more from our more insurance-oriented members." As for Obama's role, Whitehouse said, delicately, "I don't think the President would add much to the equation. I think the internal pressures of the caucus took it about as far as it could get."

Yet numerous critics in and out of Congress publicly denigrated the bill for not going far enough. Howard Dean, who obviously delighted in the television attention he was getting, and who certainly should have understood the reality, called the Senate bill without the much-discussed public option (for which it was clear from the outset that there weren't enough Senate votes) "a farce." In mid-December, he urged, recklessly, that the Senate should set the bill aside and start over. Under pressure from annoyed Democrats, he backed off.

Opinions about the significance of the public option were mixed. Some influential reform advocates didn't believe that it was so critical, and thought that its advantages could be made up in other ways, in particular through rules governing the insurance exchanges that were to be set up—but they didn't want to say so out loud for fear of alienating the Democratic left. Even some senators who preferred the public option but knew that there weren't the votes for it said privately that it had been made into an "icon," blown out of proportion. This was the calculation that Obama made: he sometimes gave it lip service in order to appeal to his base, but never really fought for it.

The Republicans had decided even before Obama was sworn in that they would use the rules to deny him success on every major issue. Such obduracy was without precedent in modern times. Even if they hadn't gone that far, it would have been impossible for Obama to achieve the bipartisanship he had so easily and naively promised in the campaign. The days of bipartisanship were already long gone. For sociological and political reasons, the electorate had changed; the center had just about disappeared. Former Senate Majority Leader Tom Daschle says that the last time the Senate acted in a spirit of comity was in the 1980s. The situation of 2009–2010 is different: it's not a matter of the two parties being unable to compromise on the substance of policy; it's a matter of one party deciding to deny the other any political achievements at all.

A stunning example occurred in late January. After Obama said he would support a proposed bipartisan fiscal commission, which would recommend politically difficult cuts in the federal budget, to be voted up or down by Congress (along the lines of the base-closing commission), seven Republicans who had sponsored the proposal actually voted against it—enough to defeat it. Obama said he would set up a commission by executive order, but it won't have the same power, and some key Republicans announced that they would boycott it.

Because of the filibuster rule, it's been assumed for many years that anything controversial, even bringing up a bill for debate, needs sixty votes (sixty-five until 1975). In the past, filibusters, or threats of them, had been made by a faction of the Senate, or of a party, or by representatives of a region (Southerners opposed to civil rights bills), and motions to end filibusters were usually bipartisan. When the health care bill was before the Senate, with all the Republicans lined up against it, the Democrats' needing sixty votes meant that every single member of the Democratic Senate caucus was a potential king or queen. Each senator was in a position to make demands, or to threaten to kill the bill. More of them behaved this way—putting themselves ahead of the greater good—than might have been expected. Each time, the White House and the Senate leadership had to decide between accepting an undesirable amendment or letting the bill die.

The Republicans have long been more respectful of hierarchy than the Democrats; this tendency was greatly enhanced after Newt Gingrich and his allies took over the House in the 1994 midterm elections and methodically accrued more and more power to the Speaker's office. As Gingrich's acolytes moved to the Senate in large numbers, they took with them their ways of exercising power and their scrappiness, their disdain for traditional Senate comity. And the Senate Republicans have their own ways of enforcing discipline. In mid-December 2009, Republicans were threatening to filibuster the defense appropriations bill for the acknowledged purpose of delaying consideration of the health care bill, which was to follow. (They were thus holding up pay and supplies for the troops fighting in Iraq and Afghanistan; if the Democrats did that, they would be charged by the Republicans with treason.)

The Democrats believed that they had a deal with Thad Cochran of Mississippi, the senior Republican on the Defense Appropriations Committee and widely admired as a courtly and honorable man, to adopt some amendments he wanted to the defense bill; in return he would provide the sixtieth vote to shut off the filibuster on defense appropriations. (One Democrat was holding out on this vote.) But then the Senate Republican leaders, in particular the dour whip John Kyl of Arizona, leaned heavily on Cochran, telling him that the Republicans had to stick together and make the Democrats come up with their own sixty votes. "It was kind of an agonizing ordeal for me," Cochran told me later.

In some instances, Republicans who might shun the leaders' demands are given indications that their future committee assignments might be affected; and they can be made to feel very lonely in conference meetings. Cochran's Democratic colleagues watched in amazement as the last man they thought wouldn't keep his word quietly raised his hand to cast his vote (he couldn't even say it) against shutting off the filibuster on the defense bill, and quickly left the Senate floor. If the Republican leadership is willing to treat Cochran—who is third in seniority among Senate Republicans and would be chairman of the Appropriations Committee if the Republicans were in the majority—in this way, it's not hard to imagine how more junior members are treated.

The President, his aides, and other leading Democrats were already aware that rage was building among voters as a result of the same facts that were frustrating the administration: despite all its efforts, the bailouts, and the stimulus, unemployment remained high. Though gains had been made, fear that the recovery wasn't real was holding it back. A major economic adviser to the President told me not long ago that by November 2010 unemployment might well reach above 10 percent because, as the economy presumably improved, more people who had stopped looking for work would reenter the job market.

Though Obama had in fact achieved more than any recent president in his first year in office, and his personal popularity remained relatively high, his approval rating was falling fast, and he was widely seen as a failing president. Obama was getting more criticism than credit for his actions to keep the economy from falling into a depression—a subject that hadn't come up in the campaign—and in his State of the Union address in late January he distanced himself as far as possible from the bank bailout. ("I hated it. You hated it.") Still, White House aides understood that—"not without reason," one adviser told me—much of the public saw the Obama administration, as the saying went, as more concerned about Wall Street than Main Street.

Some of Obama's achievements were simply lost in all the hubbub over the health care bill. Some were simply confused with one other (many thought the stimulus bill and the bailouts were the same thing). Obama was proving at risk of fitting that most dangerous of political descriptions: a disappointment. His campaign aides had portrayed him as a "transformational figure" who would have a vast following ready to march for him, helping him pass his legislation. But this following didn't materialize once he came to office, in part because people who had set aside time to help him win the presidency had other things to do with their lives, in part because the Obama administration has been neither well organized nor effective at summoning the predicted following for his programs. Obama seemed to have lost his magic.

There's no question that the health care bill was sinking in popularity before the Massachusetts vote (but it was not, as Brown said recently on ABC's This Week, "on its last legs"). The interesting question is why it was losing support. In an NBC/Wall Street Journal national poll shortly before the Massachusetts election, only 33 percent of the public approved of Obama's health care plan. Yet this same poll indicated that 40 percent of the respondents wanted reform efforts to do more, not less. My own view is that it was their impression of what happened as much as what actually was going on that caused so many people to turn against it. The process became confused with the substance. The analogy between legislating with sausage-making fits here particularly well—"People who love sausage should never see it made." The legislating on the health care bill was widely followed in the media; people saw the sausage being made.

Moreover, a number of people behaved very badly, showing for all the world to see that they put themselves ahead of the greater good. (Not all did, by any means, but enough to disgust the public.) Getting attention and taking home as much bacon as possible (even at the expense of other states and the bill itself) and ideological posturing (pushing for something that had no purpose except being divisive and getting the legislator proposing it on television as a result) were too much in evidence. Inevitably, much of the public became fed up—forgetting the purpose of the whole enterprise. Perfectly intelligent people told me that they no longer cared whether the health care bill passed after Ben Nelson of Nebraska, a conservative Democrat (and former insurance executive) who used his necessary sixtieth vote to great advantage (he had already been complicit in modifying the stimulus bill for the worse), arranged to get his state exempted from paying fees for the expanded Medicaid program. (This followed the "Louisiana Purchase" by which Mary Landrieu obtained an extra $300 million in Medicaid money for her state.)

People shocked by these arrangements overlooked that such deals, if not of this magnitude or open brazenness, take place all the time. But the Nelson deal caught people's attention and blew it out of proportion; watching the health care bill move through Congress was like being in a hall of mirrors in a fun house. Everything, it seemed, was distorted. Nelson, however, got flack from his own state because he had gone too far, and after a while tried to get rid of the amendment, but because of the legislative impasse he was stuck with it. What were Senate leaders or White House aides thinking about when they accepted Nelson's ransom demand? Or Joseph Lieberman's rejection of a proposal to expand Medicare coverage? (Lieberman, though he got there first, was not alone in his opposition.) They were asking themselves, one of them told me, whether it was worth rejecting these proposals, only to lose the bill.

But citizens who were so turned off by the Nelson deal that they were ready to give up on the health care bill weren't adequately informed about the bill itself, and this gets back to the treatment of the health issue in the press and on television and the Internet. The Nelson story was a big story; what was in the health care bill was not. The messiness and the anger on Capitol Hill were the story. The media also had a large part in polarizing the public over the bill. As cable outlets and blogs become more ideological, on both the left and the right, people have become more inclined to seek out the ones they agree with. And the outlets stir up ratings through exaggeration and combat.

Though Obama never submitted his own bill—which might have helped but he didn't want to be seen losing on some of its provisions—he said again and again what he wanted the health care bill to be, or what it was, but the press didn't think that was news. What good the bill would do, even what it would do, didn't fit in with the story the press wanted to tell. The people who appeared most often as guests on television—to the point of aching tedium—were those who had objections to the bill, particularly those on the left such as Dean, and Anthony Weiner, a New York House member, who complained repeatedly about the absence of the public option, long after it was clear that the Senate wouldn't accept it; and the Socialist-Independent Bernie Sanders, who clung to the fantasy of turning the whole thing into a single-payer system. One unfortunate upshot of Obama's decision not to get very involved publicly until the final negotiations was that his presidency became too defined by the goings-on on Capitol Hill, the deal-making. The clear impression was that Obama was not leading.

Obama's and his administration's performance on the day after the Massachusetts Senate election was dismaying. Obama told George Stephanopoulos in an ABC interview that morning that the White House had seen Coakley's loss coming for a week, but they clearly weren't prepared. They lacked both talking points and strategy, and the result was a mess. First, the President mentioned a legislative procedure, although no one knew what he was talking about, and then he made matters worse by suggesting that the bill might have to be pared down to its more popular parts, which was not only an early retreat but would be more difficult than it sounded, because the bill's main parts were in equipoise.

Popular insurance reforms, such as guaranteeing that no one would be rejected because of preconditions, were interconnected with ways to pay for them—by guaranteeing insurance companies more customers, which required a mandate to buy insurance policies. This, in turn, would require subsidies for those who couldn't afford insurance. Obama's press aides spent the rest of the day cleaning up after him, by saying that the President still preferred that Congress pass a major health care bill. The absence of a clear statement from the White House led panicked Democrats on Capitol Hill to make contradictory and often incoherent comments.

A similar thing happened with the President's speech to a Democratic National Committee meeting on February 4, in which he suggested a time-consuming process, and the possible outcome that the bill could die. Once again, aides had to fan out to clarify that Obama still wanted a bill, and I'm reliably told that there are meetings at the White House every day on how to salvage the bill.

The problem isn't, as this White House, like many before it, concluded, that it wasn't "communicating": it communicates all the time, sending aides out to deliver messages on talk shows and putting the President before the cameras (and TelePrompters, which should go) all the time. The problem is that they convey contradictory messages and that the President is far better at rhetorical eloquence than he is effective at explaining what needs to be done. He sometimes ruminates—and gets in trouble. White House aides complain that the press "overinterprets" what the President says, but by now the Obama White House should understand that that's how it works.

And Republicans seem to win the "talking points" time and again. The wise Vin Weber, a former Republican congressman and now a lobbyist, says that the problem isn't that the Republicans are so much better than the White House at creating "talking points," but that "it's very difficult to put together positive talking points on health care. It's very complicated. In fact, it's very hard to find a time when health care was a winning political issue." Weber recalled the famous incident when, after Congress in 1988 had passed a bill to provide Medicare coverage, for a fee, for catastrophic care, House Ways and Means Chairman Dan Rostenkowski, its chief sponsor, was chased away in his car by an angry Chicago mob; three months later the bill was repealed. So administrations trying for health care reform tell themselves, as the Obama administration has done, that people would like the bill when it came into effect and would then stop focusing on the bad things it might do.

Mostly for financial reasons, however, the main part of the current health care bill wasn't to go into effect until 2014. So the administration came up with a list of "deliverables"—advantages they could give people before then. But through repetition and lies, the Republicans were winning the propaganda debate. Time and again, they spoke of a "government takeover of health care." On the night the House passed the bill, Minority Leader John Boehner engaged in a long rant that included warnings that people would go to jail if they didn't buy health insurance. Meanwhile, the White House's rationale for the bill wandered from being a way to reduce the deficit, to a way to protect consumers, to a moral imperative, to, more recently, something that would produce jobs.

By the time of the State of the Union address, the President and his aides had wanted to "pivot" from health care to legislation to provide more jobs; the dragged-out consideration of the health care bill had been agonizing for them, as well as politically damaging. So he pivoted anyway. Advocates of health care reform complained; but in the midst of all the commotion about the Massachusetts election and the evidence of a working-class revolt, Obama would have looked like the doofus he isn't had he led off with yet another argument for health care. But he insisted that he hadn't given up on it, because not to succeed would be a political disaster for him—and as he pointed out in the speech, "I know this problem is not going away."

Obama was also criticized for not laying out in his speech a strategy for how to get a final health care bill, but there was no strategy. By this time, the House and the Senate, between which there have long been institutional tensions, were nearly at war. The House had passed some politically difficult bills (cap and trade to lower carbon emissions, regulatory reform of Wall Street, another jobs bill) that were lying dormant in the Senate. House Democrats were steamed up and threatening not to take up certain bills, such as immigration reform, until the Senate had done so.

Now that the Senate Democrats had lost their sixtieth vote, working out a final health care bill had become vastly more difficult, as a number of other things promised to be. (To rub it in, Scott Brown got himself sworn in a week earlier than planned, on February 5.) Without sixty votes, the Democrats couldn't simply reopen the Senate bill to incorporate the changes that the Democratic House and Senate leaders had agreed upon. Instead, the Senate Democrats wanted the House to adopt the Senate bill, and then both chambers would adopt a "reconciliation" bill (which would require just fifty-one votes in the Senate) that would include most of the final changes.

But House Democratic leaders, mistrusting the Senate—and not liking it, either—balked at doing that. Pelosi stated definitively that she couldn't get enough House votes to pass the Senate bill, unless the Senate passed the reconciliation bill first. And the Senate said that the rules made it impossible to adopt the reconciliation bill first (the House disagreed). Some of the changes couldn't be put in the reconciliation bill, which can only deal with matters that affect the budget. This would call for a third bill, which no one knows how to pull off.

Logically, there should still be a way to get a bill passed. But logic went out the window on January 19. The situation was as much psychodrama as legislative stalemate. The perfectly reasonable argument was made to Democrats in Congress, mainly by the administration, that, having voted for the bill already, it would be worse for them to fail to pass it than to pass it, but this seemed not to be heard. If Obama didn't exert himself for the bill on which he'd spent most of his time in office thus far, it would be not just a political catastrophe for him but leave a scar on his presidency. Longtime observers—members of Congress and people who deal with them—say they have never seen such a sour mood on Capitol Hill, affecting both members and staff alike. One longtime Democrat said to me recently:

The moderates are paranoid, the liberals are upset, the leaders are frustrated and losing the trust of everybody. There's no level of trust between the Senate and the House or the White House and everyone else. There has been a breakdown of the kind of chemistry you need to get this kind of thing done.

The opportunity might have been lost as a result of a misreading of a fluke in Massachusetts. To successfully remedy this misreading would require a certain amount of will, but, at least in the Senate, whatever will had been present appears to be fading. A senior Senate Democratic aide said to me at the end of the week after the election, "There isn't a member of our caucus that isn't concerned after what happened last week." A few days later the same person sent me the following e-mail:

Every option is bad. The leaders in the House and the Senate want to get a bill but enthusiasm is waning in the rank and file. They want us to focus on jobs. Still think we can get it done but have no idea how.

Obama's move to take the issue to the Republicans by inviting them to a half-day, bipartisan meeting at Blair House on February 25 to discuss health care—without, as the Republicans had been insisting, scrapping the pending bill and starting over—was intended to show the public (and wobbly Democrats) who the obstructionists are. (And Obama's recent televised meeting in Maryland with House Republicans had been a big hit.) The invitation was also intended to answer public criticism, now registering in the polls, of "backroom deals" (Landrieu, Nelson) and Republican taunts that Obama hadn't followed through on his ill-considered campaign pledge to put health care negotiations on C-SPAN. (That's not the way real negotiations get done, and Obama, new to national politics, probably never dreamed he'd be taken seriously. Or he spoke without thinking.)

The Republicans believe that their strategy of denying Obama legislative victories is a winning one. If the meeting on February 25 doesn't lead to a serious bill, White House aides made it clear that the President would go ahead and try to get a health care bill anyway. Somehow.

—February 9, 2010