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Health Reform in Peril

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As a tenured professor, it is easy to take potshots at politicians for their failure to enact health insurance reform legislation. After all, I don’t face angry voters and the need to raise copious amounts of money just to be competitive (the latter made even more treacherous after yesterday’s Supreme Court ruling on campaign finance). I also don’t face a party caucus with disparate views on numerous contentious issues.

Nonetheless, I’d like to offer a few words in support of Tim’s cogently argued posting on how the Democrats should respond at this point. First, I prefer many of the House provisions. But the question for me, as succinctly framed by one of my friends who is not a health policy analyst, is whether the Senate bill “will be an improvement of the health care system in this country…not for me or you personally but for this country?” My answer is yes. Therefore, I support Tim and others who argue for enacting the Senate bill as it as and attempting to improve over time.

Second, it’s no use pointing fingers–the damage is done. Third, there are still 59 Democrats (or nominal Democrats) to 41 Republicans. True, the 41 Republicans are disciplined and almost unanimously opposed to any compromise with the Democrats on health reform. The Obama administration’s seemingly ongoing attempt to find common ground with Republicans on health reform reminds me of Charlie Brown relying on Lucy Van Pelt to hold the football while he kicks it. Every time, Lucy pulls away once Charlie starts to kick.

Same thing with bipartisanship in this environment—it won’t happen as long as Republicans smell weakness on the other side. Short of capitulation to Republicans’ vision of health reform (a market-based approach), I see minimal possibilities for serious bipartisan cooperation. No matter what legislative strategy the Democrats adopt, the Republicans will furiously oppose it. What’s their incentive for collaborating?

Fourth, if the economy improves and the unemployment rate declines, the Democrats will have a much better story to tell (and will be able to portray their success as doubly impressive given the Republicans’ collective obstructionism) than appears now. To be sure, this is a rather large if.

To revive the legislation, the Democrats must be willing to take bold legislative action. That means, either: 1) completing the reconciliation process and holding the vote before Mr. Brown is sworn in; 2) enacting the Senate’s version right now; 3) using the budget reconciliation process to enact portions of the current legislation; or 4) changing the filibuster rules, as Republicans’ threatened to do during the Supreme Court nomination hearings for Samuel Alito. (Changing the filibuster rules deserves a separate discussion.) Each of these presents obvious problems. Aside from Tim’s analysis, what’s attractive to me about the second option is that enacting the Senate bill provides leverage for any future negotiations. For example, once the law is in place, the Democrats can then sponsor legislation that would make corrections that House and Senate negotiators would agree on and then be submitted as a budget reconciliation measure to avoid a Republican filibuster.

Beyond making the legislative choice, however, the Obama administration needs a forceful media campaign to educate the public as to why the bill is good policy and will improve health care delivery. So far, the Democrats have done a woeful job of countering Republican criticisms. Nothing the Democrats achieve legislatively will mean much if they are unable to more effectively explain what the legislation actually will accomplish and why it should be widely supported.

As Tim argues, the Obama administration would need to use its regulatory authority to address some of the Senate bill’s deficiencies (especially the absence of a national health insurance exchange). Using that authority need not be limited to health insurance exchanges. The Obama administration can also use this opportunity to address a range of regulatory issues to improve health care delivery, such as the expansion of primary care physicians, continuing to support and incentives to conduct and implement comparative effectiveness research, and continuing to support the expansion of community-based clinics.

At this point, supporters of health reform have a series of less than optimal choices. Despite its flaws and despite the difficult political choices the Democrats face, I believe that enacting the Senate bill will improve the U.S. health care system over the longer term. I think we will regret not taking bold action to achieve the goals that have been the cornerstone of the Democratic party’s domestic agenda for decades. I can’t imagine that the Republicans would waver under similar circumstances. It’s time for the Democrats to use all of the levers available to the majority party to enact the Senate bill.

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The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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