The Catholic University of America
Nov 4 2009

Health Care Reform and Dynamics of the Legislative Process

Posted by Matthew Green at 4:00 PM Economy | Government & Civil Society

As the old saying goes, making laws is like making sausage:  you don’t really want to see what goes into it.  But there’s another way in which the two are similar:  it’s hard to understand the process when you are only looking at one component at a time. 

This would seem to be the case for the path Congress and President Obama have been following in trying to enact major health care reform legislation.  All of the jockeying, deal-making, and outside opining at every stage can make the process seem as if it involves periodic swings between certain death and inevitable victory (a point nicely illustrated in a recent Washington Post cartoon by Tom Toles.)
Some of the commentary on this process has been quite smart, especially on the underlying issues at stake (for instance by our own Ernie Zampelli).  But much of it has been, in my opinion, naïve or short-sighted.  To counter it (or, I suppose if you disagree with me, add to it), herewith are four general “truths,” as I see them, about the legislative process that have been illustrated by the current attempt by Congress and the president to pass health care legislation.

1. See-sawing is not uncommon.  Many proposals in Congress have faced predictions of certain failure on the way to becoming law.  The North American Free Trade Agreement, for example, which passed the House and Senate in late 1993, was at one point declared “dead” by a Clinton official.  Similarly, success has sometimes been assumed for bills that later died, like the Clinton health care reform proposal (which had considerable momentum in the fall of 1993).
Big bills are often controversial ones; their final content may change as they wend their way through the legislative process; and unforeseen events can rescramble the political environment considerably.  For these and other reasons, there is usually far too much uncertainty about outcomes for anyone to predict them accurately.  It’s therefore usually best to take with a grain of salt immediate predictions of what will happen to major legislation under Congress’ purview – including health care reform.

2. It’s all about the votes.  Politics involves the art of the practical, not (just) the ideal.  Some liberal activists have decried Democrats for not whole-heartedly embracing a government-run health care program (the so-called “public option”), but there is little point in putting a public option into a final bill if a majority can’t be found in Congress to vote for it.  As Senate Finance Committee Chairman Max Baucus said when a public option was proposed during committee mark-up of the bill, “No one has been able to show me how we can count up to 60 votes with a public option.  I want a bill that can become law.”  Those who complain that the bill doesn’t have a public option may assume that party leaders can easily build majorities to vote for the proposal (or any proposal they want, for that matter).  But party leaders are not omnipotent, and lawmakers are not puppets.
To be fair, adding a less-than-popular provision to a bill can make sense – provided there already exists a near majority of votes in favor of it.  Doing so can build momentum, put remaining would-be opponents into the position of having to say no to their own leaders, and create a bargaining chip to win votes (i.e. drop the unwanted provision in exchange for votes on the remainder of the bill).  This is a time-honored leadership tactic in Congress.  It may also be one reason for why Senate Majority Leader Harry Reid recently announced that the Senate’s health care bill would have a public option – even as he, Baucus, and others have previously declared that there weren’t the votes for it.  (Most commentators, like Dana Milbank, have ignored this possibility.  One notable exception is Ezra Klein.)

3. All politics is local (voters).  Former Speaker Tip O’Neill famously remarked that “all politics is local,” meaning that one should pay attention to the concerns and needs of one’s local constituencies in order to stay in office.  We have seen this attention to local politics matter for health care reform:  it helps explain why Democrats who hail from conservative-leaning congressional districts would resist a public option, even as national polls show solid support for such a plan
It’s also probably why the summer town hall protests seemed to work well in slowing momentum for health care reform, since they suggested deep unhappiness with reform among lawmakers’ own constituents.  But their power may have declined as lawmakers began to question whether those coming to town hall events were actually from their districts (such as Minnesota Rep. Betty McCollum) or, as some bloggers have suggested, were supporters of Lyndon LaRouche.  This is why I append the word “voters” to O’Neill’s dictum.

4. There are often no electoral penalties for voting “no”.  Some have been surprised or even incredulous that congressional Republicans would be so uniformly against President Obama’s health care reform plan, but the fact is that few Republicans are likely to be punished for voting against it.  That may be because they represent conservative districts.  But it’s also because voting against something can be a safer strategy than voting for something.  People may be unhappy with the status-quo, but they might become even more displeased with what replaces it, while forgetting how unhappy they were before.  And, if a new law does become popular, people tend to forget (if not forgive) the minority that opposed it.
Take, for instance, the approval of Medicare in the House in 1965, which passed by a wide margin (313-115).  Sixty-five Republicans voted for it, while 73 did not – but neither group suffered much at the polls for their vote:  97% of G.O.P. bill opponents who ran for reelection in 1966 won, as did 98% of bill supporters.   (Notable members of the former group included Gerald Ford, Robert Dole, Robert Michael, and young Illinois congressman named Don Rumsfeld.  None of their careers seemed to suffer from their “no” votes.)  If that vote had little apparent impact on Republicans’ electoral fate, why would today’s G.O.P. believe any differently about the current health care reform initiative?

In short, the consideration of health care legislation in Congress has been an exciting and uncertain journey to follow, but it’s best to think about the big picture and not take each twist and turn at face value.  Lawmaking, like sausage-making, tends to follow a familiar pattern, regardless of what the end result will be.



Brett wrote on 11/05/09 12:53 PM

On point 3, I thought that some of the drama surrounding opposition to the public option by, for example, Blanche Lincoln was that polling data in Arkansas showed support for the public option. Same thing in Connecticut. Don't know about District-level data, and maybe Senators respond to different dynamics than House members.

Matthew wrote on 11/05/09 1:09 PM

Good point, Brett. Polls don't always measure intensity, yet it's vocal constituents who get more of lawmakers' attention; that might explain Sen. Lincoln (along with a fear of losing moderate voters in her impending reelection bid). Lieberman shows how lawmakers can be driven by other considerations besides voter preferences. (Maybe, in his case, his own policy preferences? Or perhaps he's still mad at his party for not backing him in 2006?)

Nate wrote on 11/05/09 9:37 PM

I was hoping that you'd have more to say about actual sausage making.
H. Sage

H. Sage wrote on 11/16/09 10:51 AM

Two questions:
1. Is there a role for the president in crafting such complex and controvercial legislation? And what has that been in the past/how do you see the president influencing the process now?

2. On point #1, though outcomes cannot be predicted in cases such as these, are there indicators of momentum that can be used?

Matthew wrote on 11/16/09 3:22 PM

Yes, presidents can play a critical role for major legislation, something I probably should have mentioned. For instance, they can contribute to #1 (see-sawing), #2 (mobilizing votes), and #3 (lobbying legislators' constituents). With respect to health care, Obama has certainly participated with #1 (his speech to the Hill in September helped shift momentum).

Momentum is probably not measurable, but one could try proxy measures (like monitoring newspaper op-eds) or, after the fact, preliminary whip counts of votes in Congress (to see if there are "shifts" towards one side or the other prior to the actual vote).