First published 3/23/11 on Organon
The good news is that it’s the Affordable Care Act’s first birthday. The bad news is that the ACA is sick and unloved, and its long-term prognosis is grim.
Nobody ever thought the ACA was perfect, and health reformers have by and large defended it on the grounds that it was a good start towards tackling the real problems in our healthcare system. Once the political storm surrounding the legislation subsided, the thinking went, we would be able to get down to the real, technocratic work of crafting evidence-based reforms that addressed the underlying crisis of escalating costs. As Don Taylor has written, we were “obviously wrong about that, and politically, the ACA remains toxic.”
Taylor has thought hard about how we might forge a compromise between the parties: by trading the individual mandate for universal catastrophic coverage, reforming medical malpractice, ending the preferential tax treatment for employer-provided insurance, and so forth. It’s an interesting package, worthy of discussion.
The problem, as I see it, is that the political goal posts aren’t fixed, and can’t be. By the next time a majority party is seriously ready to embark on major reforms, it will have galvanized support for an agenda, however vague. And when it moves to enact that agenda, even if based on terms to which the minority would have been amenable in previous years, the new minority won’t be amenable to those terms. Because those terms will be the ones they now define themselves against. Nor will a new compromise be forthcoming, because the new majority (or a considerable portion of the new majority) will have defined failure in the very terms that would constitute that compromise.
Maybe a different dynamic will emerge if Obama wins a second term alongside big GOP majorities in Congress. That might create a window more favorable to compromise. Maybe. But in the meantime? And afterwards? In my view it is becoming increasingly necessary to pursue structural political reforms that reduce the importance of compromise—or, rather, reforms that reward policy performance over compromise for its own sake. Compromise is desirable, but only when it is the result of two parties with definite interests negotiating their way to a mutually acceptable middle ground. If you make compromise a goal in itself, and you negotiate on the shifting sands of politics, you have a recipe for failure.
There are lots of hard problems in health policy. There’s information asymmetry, perverse incentives, overutilization/underutilization, and so on. In spite of all that, I would be optimistic about our prospects over the long haul, were it not for structural defects in our political system. Perhaps the most noteworthy of these defects is the filibuster—i.e., the 60-vote supermajority requirement for action in the U.S. Senate. The filibuster is not the only structural problem in American politics, nor perhaps even the worst. But it is one of the most egregious. In theory the filibuster’s supermajoritarian regime promotes consensus, ensuring all voices are heard and anchoring public policy in the political center. But in practice, in the new era of party discipline, it gives the partisan political minority the weapons it needs to hold fast to its own policy preferences and refuse cooperative engagement with the majority.
Electoral politics is zero sum, so it’s often going to be in the political minority’s rational self-interest to thwart consensus rather than compromise on big-ticket items. And there’s nothing wrong with that, except that as long as our central governing institution is so thoroughly constrained by the consent of the political minority, there is little chance for major, bipartisan legislative action on polarizing issues like health care. So it’s not “wrong,” it’s just a crippling cancer at the heart of the republic.
It might seem that supermajority rules make the ACA safer since it’s that much harder to repeal. And in a narrow sense that’s obviously true. But in a broader sense, as I mentioned up top, the ACA itself is just the groundwork for a larger project of health reform. If further legislative action is foreclosed because conservatives continue to reject the framework altogether, we’re sunk. Without Republican buy-in, the larger project of health reform is doomed.
So happy birthday, ACA. You might not survive to see many more of them.
Jim Hufford is a lawyer living in San Francisco and writing at Organon.