Stop me if you’ve heard this one before: A Democratic president takes power amid a national crisis, his power bolstered by Democratic majorities in the House and Senate. The economy is in the tubes, people across the country are hurting, and the ever more radical Republican Party doesn’t seem to care. This new president promises to enact a bold policy agenda, one that will bring relief to working people, but first he has to thread the needle between the centrist and moderate factions of his own party.
This was the political situation in 2009 when Barack Obama took office and Congress began crafting what became the Affordable Care Act, a piece of legislation that was either a triumph or a travesty, depending on whom you ask. More than 10 years after its passage, Obamacare still functions as a kind of Rorschach test for political ideology: Even as mainstream Democrats have yoked themselves to the law, Republicans have spent the better part of a decade trying to repeal it and the progressive left has rallied around a single-payer plan intended to replace it.
Now, for the first time since Joe Biden whispered to Obama that the health care law was a “big fucking deal,” the former vice president and his Democratic counterparts in Congress are in the legislative driver’s seat, albeit with slimmer majorities in both chambers. Thus the party is now in a position to learn from its mistakes, to apply the lessons of the Obamacare fight to the big policy conflicts of today. The only problem is that no one can agree on what those lessons are.
A new book by the reporter Jonathan Cohn, one of the foremost health care journalists in the United States, purports, if not to answer that question, then at least to provide a jumping-off point. The Ten Year War: Obamacare and the Unfinished Crusade for Universal Coverage is not the first reported book about the Affordable Care Act, but it is the first to examine both the law and the decade-long political rollercoaster that followed its passage. As a result, the account hovers somewhere between journalism, the first draft of history, and a history written by the victors. And this is a story about a victory, but a Pyrrhic victory. It is a story about taking one step forward, then taking one step back, then taking one step forward, then getting your foot shot off.
As you have probably heard, the U.S. health care system is weird. As the modern medical ecosystem evolved over the course of the twentieth century, most developed countries instituted some kind of government-run health insurance system, either a centralized single-payer program or a tightly regulated quasi-private market. The U.S. was not among those countries, and as a result most people ended up getting coverage through their employers, who acted as brokers between their employees and big private insurers. Over time these insurers began to target companies with younger, healthier populations, luring them in with the promise of low premiums and excluding from coverage those with preexisting conditions. Meanwhile, the millions of people whose employers didn’t offer coverage or who didn’t have employers were out of luck.
By the time the flaws in this system became obvious, the health insurance industry had become, if not too big to fail, then at least too big to shut down without angering a lot of people who liked their employer-sponsored coverage. The trillion-dollar question then became: How do you force private insurers to cover everyone without driving the insurers into bankruptcy? Almost every president from Truman onward tried and failed to answer this question, like a succession of petitioners attempting to answer the riddle of the sphinx. At least before Obama, the two men who got closest were Bill Clinton and Mitt Romney.
Clinton in his first term almost managed to pass a health bill that now looks like a prototype for the ACA: As Cohn has it, the bill attempted to “blend the liberal goal of universal coverage with the conservative principle of relying on the free market.” The government would require all large employers to buy private insurance for all their workers through a marketplace, and would also set a national standard for that insurance, which would force insurers to cover those with preexisting conditions.
The bill fell apart almost as soon as it came together—the victim of vociferous opposition from conservatives and lobbying groups—but just a decade later Romney brokered a similar reform deal as governor of Massachusetts, notching what up to that point was the biggest “success” on the health care front since Medicare. The Massachusetts law mandated that all individuals purchase coverage, set up state exchanges where they could shop for plans, and offered a hodgepodge of subsidies for low-income residents. In a quaint anachronism, the bill was endorsed by leaders of both parties as well as the health care industry and even conservative groups like the Heritage Foundation. There was no public option, no price control, nothing too grand, but it worked. A lot more people got covered.
A few years later, having promised transformative health reform on the campaign trail, Obama took office with everything he needed to get it done. His party had bicameral control of Congress and was ready to seize the opportunity it had let slip during the Clinton years, plus there was tacit buy-in from many of the same industry groups who had trashed the Clinton effort. The recent success of Romneycare, meanwhile, suggested that there might be some hope for legitimate bipartisan negotiation.
Now, nobody said it was going to be easy, but nobody expected it to be quite so hard.
The effort began in the House, where Henry Waxman and a number of other committee chairs crafted a plan that expanded on the Massachusetts blueprint—it included an individual mandate, state exchanges, guaranteed coverage for those with preexisting conditions, and a bevy of subsidies anchored by state-by-state Medicaid expansion. Negotiations were fruitful at first, but they seized up over the summer owing to a pair of unwelcome developments. First, there was a crucial segment of pro-life Democrats who wouldn’t support the bill without new restrictions on abortion funding. Second, the fledgling Tea Party movement had marshaled all its resources to attack the reform effort, shouting down members at town halls over “death panels” and other Fox News–peddled canards.
The process in the Senate started with Max Baucus, a legendary Montana Democrat whose job was to sketch a Massachusetts-esque bill and to find a way to pass the full package through regular order, rather than using the 50-vote reconciliation option to ram something through. Baucus chose regular order and spent months trying to convince Republicans to support the effort; at one point, almost the entire Democratic Party mounted a charm offensive on the fickle Olympia Snowe, Republican of Maine, who famously declared that “my vote today is my vote today … it doesn’t forecast what my vote will be tomorrow.”
As you might have heard, both sides had to make compromises. Pelosi gave the pro-life bloc what they wanted and worked out a bill with a public option and a big Medicaid expansion. On the Senate side, the abortion question wasn’t an issue, but Baucus never even included a full public option because he knew he couldn’t get 60, and later axed even a miniature version when the unaccountable Joe Lieberman came out against it. In the final weeks, Senate Majority Leader Harry Reid doled out favors in exchange for senators’ votes: He promised Bernie Sanders money for community health centers, offered Mary Landrieu more money for Louisiana, and inserted a Nebraska-specific “Cornhusker Kickback” for the rogue senator Ben Nelson that would have covered the state’s share of Medicaid expansion funding.
The Obama administration then stepped in to help merge the House and the Senate bills, perhaps the most difficult task of all given how many individual lawmakers had their own personal Rubicons when it came to the negotiations. In a twist worthy of Aaron Sorkin, the Democrats lost a Massachusetts special election in January, putting a Republican in the seat once held by health care champion Ted Kennedy and leaving them shy of the 60 votes they needed. “We had a very sinking feeling,” one adviser recalled. It was only yet another Sorkin twist—the news that Anthem was jacking up premiums in California—that shocked the House into holding together for the final vote.
Now that it’s done, the whole thing seems like a fait accompli, but it’s impossible to overstate how close the effort came to failing. No matter how you feel about the law’s success vis-à-vis the goal of universal coverage, the remarkable thing about this story is clearly the fact that Congress was able to pass anything. At one point, Cohn says, “Zeke Emanuel texted me with a status report. ‘Dead Dead DEAD.’ The next morning, Zeke sent a one-word update: ‘Alive.’”
Cohn’s primary task as historian-in-waiting for the Affordable Care Act is to find a satisfactory explanation for why the Obama-Pelosi-Reid triumvirate succeeded where so many others had failed.
One of Cohn’s theories is that Obama was the first president who pushed hard enough to get the job done. His book portrays the president as both scrupulously attentive to policy details and uniquely committed to health care as an issue: Cohn reminds us that Obama’s mother, Ann Dunham, died of cancer while getting slammed by huge medical bills, and also that he had made universal coverage a talking point during his time in the Illinois state Senate. Once Obama took office, better angels like Rahm Emanuel and David Axelrod pleaded with him almost immediately to let the issue go; no less an authority than Joe Biden gave what one source called a “tirade” against reform, saying, “We shouldn’t do this. This will be terrible for us.” And yet Obama pressed onward, at one point “seizing on” a New Yorker article by Atul Gawande as evidence that the issue was too important to drop.
Cohn also gives us what we might call the Small Man Theory of History, showing how a lot of minor players worked behind the scenes to save the law from failure. We are introduced not only to legislative titans like Baucus and Kennedy but also to an army of economists, staffers, lobbyists, and advocates who pushed or pulled the debate in one direction or another—Ron Pollack, Chip Kahn, Jeanne Lambrew, Nancy-Ann DeParle, and so on. It’s impossible for anyone but the author to keep track of all these people, but you get the point: It is the apparatchiks and quants, as much as the big dogs, who chart the course of political history. Cohn’s previous book, Sick, documented how our health care system screws over ordinary people, but here he stays mostly inside the Beltway, and the effect is to show just how removed the process of political sausage-making can be from the on-the-ground reality of “issues”; could it really be that thousands of lives depended on a bunch of pencil pushers sitting in a paneled room off the Senate floor? Well, yes, and we would do well to remember that.
The most likely explanation, though, is just that the right people happened to be in the right place at the right time. The Democrats had a chunky majority in the House and an almost filibuster-proof grip on the Senate—at the time, the party held seats in Louisiana, Nebraska, and both Dakotas. The two chambers were controlled respectively by a masterful vote-whipper and a deft broker of compromise. The recent example of the Romney reform gave Blue Dogs the political cover to stay involved, and even brought Republicans to the table for a bit, while the steadfast determination of the lead Democrats prevented industry and medical groups from stonewalling the negotiations—as Baucus’s team told the drugmakers, you can be at the table or on the menu.
Given this almost miraculous set of historical circumstances, it seems almost beside the point to grade the law on an ideological spectrum between single-payer and free-market chaos. Just as Tolstoy said that War and Peace was “what the author wished and was able to express in the form in which it is expressed,” Obamacare was what Congress was able to pass in the form in which it was passed. For all the maneuvering and debate, all the sudden-death negotiations and last-minute tweaks, the overall battle lines did not really change. They had an idea that could pass, and they passed it; by the same token, they didn’t pass any other proposals because those couldn’t pass. This might seem tautological, but there’s a point. Yes, Obama sought Republican support, and yes the administration worked with industry groups to avoid the attack ads that had bedeviled Clinton, but in the final analysis the Democrats were arguing with themselves, tiptoeing only as far as their caucus could stomach to go.
Cohn frames Obamacare as a paramount example of “what change looks like” in the U.S.: “It is not nearly good enough,” he says of the law, “and yet so much better than what came before it.” In Sick, he advocated a transition to a single-payer system, and his other task here as a historian of Obamacare is to figure out why the law did not end up being better than it was. More than 25 million people still lack health insurance, and that number has grown in recent years as many private insurers have pulled out of the ACA’s state-subsidized exchanges; given that the law’s success hinges on a complex cocktail of subsidies and penalties, coverage gaps like these will probably never go away. Even for those who do have insurance, inflated drug prices, high deductibles, and out-of-network charges make medical care unaffordable and unpredictable. Democrats controlled the House, Senate, and White House when the Affordable Care Act passed, and so they bear some measure of responsibility for all this. Could they really not have done better? Why don’t we have Medicare for All?
The best explanation, again, is the least satisfying. It’s the one Sanders gives Cohn in The Ten Year War: There aren’t 60 votes for such a law in the Senate. But why is that? It’s easy to say that the drug and insurance lobbies have Congress in the palm of their hands, and indeed the industry’s war chest is formidable, but a singular focus on this aspect of the problem belies the fact that the industry has never had to fight a single-payer proposal, because no such proposal has ever gotten very far, much less come up for a vote. Can we really pin the blame entirely on corporate lobbyists?
No, the problem is even deeper, and has to do with the fulcrum of the single-payer debate, which is the termination of private insurance. As Cohn puts it, “Americans have a strong bias toward the status quo,” and as Republicans themselves learned in their failed efforts to repeal the ACA in 2017, it’s far more popular to dole out benefits than to take them away, especially when the benefit holders are middle-class voters. A single-payer system that eliminated private insurance would represent the most audacious raid on private industry in the history of the U.S., and the current political environment all but guarantees that around half the nation would see it as an attack on their liberty. If the transition doesn’t happen through the creation of a public option, or a gradual expansion of Medicare eligibility, it is hard to envision it happening at all.
Thus, in a fitting paradox, the lessons of Cohn’s account may have less to do with health care than with legislative strategy in general. The law may have inched over the finish line with 60 votes, but the most controversial pieces had to be passed through reconciliation. Meanwhile many of the law’s subsequent problems, chief among them the HealthCare.gov launch, can be traced back to compromises brokered during the negotiation process: In an effort to keep the bill’s outlays below $1 trillion, lawmakers slashed rollout funding for the website from $15 billion to $1 billion, assuming they would be able to get the money later. Even after the law passed, Republicans spent a decade trying to sabotage it any way they could: They passed zero-dollar funding bills, filed frivolous lawsuits, repealed the individual mandate, blocked the expansion of Medicaid, and came one John McCain thumb away from toasting the law altogether. Thus the lesson of Cohn’s Ten Year War seems clear: In Congress and the courts, legislative progress through regular order is impossible.
Meanwhile, given that the new Supreme Court seems ready and willing to gut the Chevron precedent that enshrines executive authority, it’s a safe bet that the 50-year expansion of presidential authority has probably reached its outer boundary. Thus it is not an exaggeration to say that progress in almost any area of policy must occur through a body that cannot pass it: The chamber’s 60-vote cloture threshold has already led to a perception of the modern Senate as a body that spends most of its time not passing laws. The nascency of this opinion can be seen in the parallel history of climate legislation: The Waxman-Markey climate bill, which passed the House in 2009 alongside Obamacare, would have created a transformative cap-and-trade emissions market, but coal-state Democrats prevented the bill from ever coming to the Senate floor. In Obama’s second term, John Podesta presided over a shift toward executive action as the main, if insufficient, avenue toward climate action, and it’s been that way ever since.
The Affordable Care Act, then, was the ultimate exception to the ultimate rule. That the law represents the biggest legislative achievement of the past half-century has obscured the fact that our present system is set up precisely to prevent such a thing from happening, and that over the last 10 years it has become even less likely that such a thing ever happens again. Only with a world-historical amount of good fortune, at a moment of perfect legislative convenience, could a strange and imperfect bill become law. Remarkable as its passage may have been, the moral of the story is clearly that we should never try it that way again.