The Repeal Question and National Healthcare Legislation: The Great Entitlement

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Written by Keith Hanson

Repeal and Replace? Maintain and Enhance? Or Repeal, Pause and Listen?

For seven years one of the often-heard phrases in American politics has been, “Repeal and Replace.” This week, the Senate considered yet another procedural step on the circuitous path that the repeal and replace caravan has taken since the 115th Congress opened in January of this year.

Democrat supporters of the Affordable Care Act (“ACA”) have promised to do anything they can to derail the repeal and replace effort, to keep the ACA in place; almost all Republican legislators have signed on to the “Repeal and Replace” mantra while campaigning over the course of the last three election cycles, promising to toss the ACA into the legislative dustbin.

Both sides, in this instance, may be misguided in their efforts. If history is any guide, the best approach for the American people would be, “Repeal, Pause and Listen.”

The United States came late to the government entitlement business compared to the industrialized nations of Western and Central Europe. Spurred by politically powerful labor movements, the occasional anarchist terrorist attack, and ultimately, the need to establish labor peace in order to support the production requirements of the First World War, Germany, France, Great Britain and other nations began offering substantial social entitlements to their citizens in the first and second decades of the 20th Century.

The United States came to the table with the Social Security Act in 1935, acting in no small part under the exigencies imposed by the Great Depression.

Social Security marked the first substantial effort to transform the pantheon of Constitutionally-guaranteed American rights from a collection of freedoms from oppressive government (think about the promises of the Bill of Rights and the post-Civil War amendments) to include a right to something, namely a guaranteed (if modest) retirement income. In the following 70 years, Social Security was joined by two other great entitlements, Medicare, signed into law by President Lyndon Johnson in 1965, and the Prescription Drug Benefit, proposed by and signed by President George W. Bush in 2003.

Finally, to complete the quartet, The Affordable Care Act was signed into law by President Barack Obama in 2009. All four of these statutes provide substantial guarantees of government-subsidized benefits to a broad range of the American people. All four represent watershed changes in the relationship between citizens, society and government. All four come with substantial price tags. But one of them has a pedigree that is at odds with the pedigrees of the other three, and that difference both explains the current turmoil in Congress (and the nation) and suggests a path toward resolving the challenge now facing the United States with regard to the Affordable Care Act.

Consider an abbreviated legislative history of the four statues that created these entitlements. In 1935 the Social Security Act was approved on a vote of 365 to 30 in the House of Representatives and a vote of 76 to 6 in the Senate. In the House, 95% of Democrats and 84% of Republicans backed the law.

In the Senate, 98% of Democrats and 76% of Republicans voted for the measure. Overall, 92% of voting Representatives and 93% of voting Senators voted to enact the law.

In 1965 the Medicare bill (technically the Social Security Amendments Act) was approved on a vote of 307 to 116 in the House and a vote of 70 to 24 in the Senate. In the House, 83% of Democrats and 51% of Republicans voted in favor. In the Senate, 89% of Democrats and 43% of Republicans voted “Aye.” All told, 73% of voting Representatives and 74% of voting Senators cast votes in support of the bill, America’s second great entitlement.

In 2004 the Medicare Modernization Act, a key campaign promise of candidate George Bush when he ran for President in 2000, was approved on a final vote of 216-215 in the House and a vote of 54-44 in the Senate. At first glance, those figures seem to imply that the 2004 entitlement legislation lacked the type of broad support enjoyed by its two predecessors. But a review of contemporary news reports and legislative testimony reveals that the opponents of the 2004 bill largely supported the notion of providing prescription drug benefits as part of Medicare; the difference of opinion that led to a razor-thin margin for approval was over the means of delivering that benefit. Most briefly stated, opponents of the bill largely supported the benefit but decried the role of the insurance and pharmaceutical industries in delivering the new entitlement. The disagreement focused not on the propriety of extending federal health care largess to include prescription drugs, but on the methodology and the risk (perceived by Democratic leaders) that the new plan would enhance the wealth and power of pharmaceutical companies.

Despite their misgivings, 23% of the minority Democrats in the Senate joined with 82% of Republicans in the upper chamber to approve the measure. In the already much more divisive House of Representatives, 92% of Republicans voted in favor while just 4% of the Nancy Pelosi-led Democrats voted in favor of the new benefit.

In 2009 this tradition of enacting substantial entitlement reform on the basis of a national consensus broke down in spectacular fashion. The Affordable Care Act was approved on a vote of 219 to 212 in the House and a vote of 60 to 39 in the Senate. In the House, 87% of Democrats and 0% of Republicans voted for the measure. In the Senate, 100% of Democrats (including two independents who caucused with the Democrats) voted “Aye”, while 0% of the Republican Senators cast a vote for the bill. All of which brings us to the present time and the current spectacle in Washington as the highest legislative bodies in the nation try to reshape, defend or destroy the Affordable Care Act.

It is beyond the scope of this modest effort to diagnose the existing and looming shortcomings in the Affordable Care Act. Suffice it to say that both sides of the aisle in Congress seem to agree that in its current form the law is on a collision course with a fiscal iceberg. Many on the right argue that its mandates and taxes are unfair or inappropriate; many on the left fear that if the Act is repealed, the entitlement it delivers will disappear forever. Strong feelings on both sides seem to have driven legislators into opposing camps, dug in and fortified against their opposition. And both sides may feel hemmed in by their campaign promises over the course of the last several election cycles: Republicans who promised to use their last ounce of legislative strength to repeal the Act, Democrats who promised to do their utmost to defend it.

Is the solution to this situation a partisan Democratic victory that garners no Republican support and which leaves the Affordable Care Act in place, sinking ever more quickly into a sea of red ink? Is it an equally partisan Republican revision of the Act, gutting the expanded Medicaid program that is popular in many states, again, without virtually any Democratic support?

Perhaps neither approach constitutes a solution. Social Security, Medicare and the Prescription Drug benefit today enjoy almost universal support among American voters. One might surmise that this happy fact is due in no small part to the broad and bi-partisan support those provisions (or at least their goals and core concepts, in the case of the prescription drug benefit) had from their inception. Unlike the Affordable Care Act, its three predecessors were borne out of a broad national consensus, not partisan gamesmanship such as that employed by Congresswoman Nancy Pelosi and Senator Harry Reid in 2009.

Could this be an opportunity for our national legislators to act as stateswomen and statesmen rather than go-for-the-throat partisan politicians? Earlier this week Senator John McCain, freshly returned to Washington after brain surgery in Phoenix last weekend, suggested this on the floor of the United States Senate, calling on his colleagues there to return to historic norms of seeking compromise and broad buy- in on issues of broad and long-lasting impact, such as the creation of a new healthcare entitlement.

[Link to McCain’s full remarks]

Looking at the history of federal entitlement programs in the United States, one might conclude that the Affordable Care Act was doomed from its inception, not just because of its convoluted structure and secretive drafting history, but because it was passed with virtually no effort made by its supporters to build any sort of bi-partisan consensus of support for the underlying concept, let alone its mechanics.

Any replacement that suffers from the same flaws seems likely to ultimately suffer the same fate. Thus, even if a purely partisan victory proves available to either the Republicans or Democrats in Congress, any such victory may prove a hollow and temporary one, awaiting the next shift in power on Capitol Hill to be once-again reversed. When it comes to a topic as important and longitudinal as federally- subsidized healthcare, the only durable solution will be one that cuts across partisan lines, the result of difficult, messy, exhausting discussions and compromise—the type of work Americans have a right to expect of their legislators.

If our Senators and Members of Congress can somehow find a miracle moment of bipartisanship to create a healthcare program which attracts noticeable levels of support from both sides of the aisle, I hope they consider one small gesture as part of their package: name the bill “The John McCain American Care Act.” We could do a lot worse.

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