Obamacare and the Perils of Narrow Majorities

As the Republican alternative to Obamacare winds its tortuous way through Congress, the parallels with the big mistake President Barack Obama and congressional Democrats made eight years ago are unmistakable. Such large changes to society should only be done with a broad coalition, otherwise they risk being undermined by our very system of government.

The grand bargain at the heart of America’s constitutional system is consensus yields power. After years of unfair treatment at the hands of King George III and Parliament, the young republic was understandably hesitant to centralize governing authority. It was only due to the many crises of the 1780s—unmanageable public debt, interstate rivalries, foreign interference, and civil unrest—that Americans decided to empower a national government. But there was a catch: Our government would be capable of doing many great things, but only when a broad segment of society agreed on the actions. By widely separating powers, the Framers effectively created a diverse array of veto points where social groups that felt their rights were about to be infringed could organize to stop the government in its tracks.

We have come a long way from this original vision. In many respects, power has become far more centralized in recent decades. But the centralizing tendency has been countered in other ways. For instance, the federal government regularly uses intermediaries to accomplish its purposes. Take Medicaid—a partnership between the federal government and the states, which gives the latter a role in deciding how public benefits will be distributed. Medicare, for its part, provides no direct benefits to citizens, instead relying on doctors and hospitals to voluntarily agree to the terms the government has set. There is also the filibuster—the rule in the Senate that empowers a minority of 41 members to prevent a final vote on all manner of legislation. This is not a legislative instrument the Framers created, but it is consistent with the idea that any new policy needs broad-based support.

Interestingly, President Barack Obama—who lectured on constitutional law at the University of Chicago—failed to appreciate this as he pushed the Affordable Care Act (ACA) through Congress in 2009 and 2010. Though the policy was extremely divisive, he and his congressional allies rammed it through anyway. Their insistence on reorganizing the American health care system without a broad coalition created a number of negative side effects.

When the voters of Massachusetts elected Scott Brown in 2010, they empowered Senate Republicans to filibuster the conference report that reconciled the House version of Obamacare to the Senate version. In response, House Democrats decided to approve the Senate bill as it stood. Unfortunately, that piece of legislation had a number of poorly written sections. For instance, the main point litigated all the way to the Supreme Court in King v. Burwell was that the Senate bill seemed to provide public subsidies only for states that set up their own exchanges. The Court did the Obama administration a favor by effectively looking the other way on what was, at best, a sloppily worded provision. This is the sort of error that could have been rectified in a conference between the House and Senate. But because the Democrats did not have a sufficiently broad consensus at that point, they could not finish the process properly.