In light of Callie Gable’s (excellent) post on the Halbig decision, I want to add one very minor thought: the battle over Obamacare reflects the scope of its ambition and the failure of the Obama administration to secure the support of a meaningful number of Republican lawmakers. Leaving aside the merits of the Halbig lawsuit, which I am ill-equipped to judge, it’s fair to say that it gained traction in part because Obamacare is unpopular, particularly on the right, and it is unpopular in part because it offered relatively little to conservative constituencies. I realize that not everyone will accept this view, but bear with me. Consider what might have happened had Obamacare placed most of the Medicaid population on the exchanges, thus federalizing much of the Medicaid burden. This would have been a far more ambitious reform, yet it would have made health-system reform far more attractive to the states, and this in turn would have created an interesting wedge within the GOP. Naturally, those who support the law are inclined to think that Republican intransigence was a given, or that it reflects structural realities about partisan competition in a polarized age. That may well be true. I don’t raise this point to scold the president and his allies for how they went about passing the law. Rather, I raise it because I believe the Obamacare experience should serve as a cautionary tale for conservatives hoping to reform the health system and entrenched public institutions more broadly, particularly at the federal level.
In “The Phenomenology of Gridlock,” Josh Chafetz offered a really useful framework for understanding legislative politics. The basic gist is that legislative gridlock is less a thing than the absence of a thing, namely legislative action, and that what we should be thinking about are the conditions that are sufficient to motivate legislative action. The challenge with pursuing ambitious reforms in the United States is that legislative action requires a broad public consensus. House members are elected every two years, and they speak to local as well as national interests; Senators are elected to six-year-terms in staggered batches, and so any given Senator is spared the need to face the electorate two out of every three congressional elections. Presidents, meanwhile, are elected every four years. So the conditions that gave rise to the extraordinarily “productive” first two years of the Obama administration, in terms of legislation and policy change, are very hard to replicate: Democrats needed the twin debacles of Iraq and the 2008 financial crisis to build quite large legislative majorities in two successive elections in what remains a fairly evenly-divided country. Yet it is not unreasonable to suggest that Democrats stretched the bounds of the public consensus they had built, perhaps because this consensus rested on things like, say, reducing the U.S. footprint in Iraq rather than overhauling the health system, revamping the student loan program, or introducing a cap-and-trade system (the last of which was a measure that passed the House and failed in the Senate). Political success in our system leads to expansive, unwieldy coalitions that include groups with disparate and at times clashing interests, and this dynamic proved vexing for Democrats in 2009 and 2010 (and still does).
So what does this mean for conservatives? A few things:
(a) Realistically, you can’t pass sweeping, ambitious, transformative reforms of entrenched institutions, like health entitlements or the tax code, until you have a 2009 moment, i.e., until you have large partisan or ideological majorities in both houses of Congress and an effective, determined president. This is a tall order. There are legislative goals you can accomplish even if you fail to clear this bar, but these goals will, as a general rule, have to be more modest and incremental.
(b) In the event that you’re lucky enough to have a 2009 moment, it is vitally important that the legislative policy change you pursue is robust. Those who disagree with you will try to reverse or undermine your reforms, and in the first few years, at least, your reforms will be vulnerable to challenge, particularly if they give rise to a sizable and vocal class of net losers. The goal should be to devise policies that do an effective job of addressing a persistent problem, as this will create a constituency of net beneficiaries that will tenaciously defend the reform. Obamacare’s robustness is in doubt. But the program definitely has large numbers of net beneficiaries, and this has already made the politics of repeal more challenging than its conservative critics would like.
If conservatives use a 2009 to simply repeal Obamacare, it is unlikely that repeal alone will prove robust, as the underlying problems plaguing the health system will continue to do so. Any replacement agenda needs to be evaluated through this lens of robustness. Medicare Part D is derided by many conservatives. Yet it is a reform that has proven impressively robust: it addressed a problem (inadequate prescription drug coverage for seniors) that had grown politically relevant, it did so in a tolerably cost-effective manner, and while the program has been contested to some limited degree, its popularity has insulated it from the threat of repeal or retrenchment. No, it’s not an ideal model, for many reasons. It does, however, pass the robustness test. Can the same be said of various Obamacare replacement proposals? This is more true of some of them, particularly those that get the closest to an Obamacare-level of coverage expansion, than others.
Social Security strikes me as a good test case for this idea of robust reform. The genius of Andrew Biggs’ approach to Social Security reform is that he doesn’t simply address the (important) question of the fiscal sustainability of the program, as it is easy enough (intellectually if not politically) to simply cut benefits. The harder challenge, which Biggs takes up, is to make the program better at achieving its fundamental goal (ensuring that no older Americans live in poverty) while also making it more fiscally sustainable. He aims to achieve this goal by, among other things, sharply reducing or eliminating the Social Security payroll tax for workers over the age of 62, as the return to labor income past that age in terms of Social Security benefits is meager at best; his thesis is that reducing the payroll tax for these workers will encourage delayed retirement, which in turn will help improve Social Security’s finances. This idea, at least, is attractively robust, and it is an example of how conservative reformers need to think if their reform efforts are to survive the inevitable challenges from liberal critics.
Conservatives are drawn to abstract criticisms of government, most of which are well placed. However, he challenge of crafting robust reforms requires that we do more than act in accordance with our principles: it demands that we forge incompletely theorized agreements with the majority of voters who don’t think of themselves as ideological conservatives or libertarians, and who will embrace conservative policies if they make a palpable positive difference in their lives. When we’re in the terrain of reforming entrenched government programs, this is extremely difficult, as people almost always prefer the devil they know.