ObamaCare and Perceived Legitimacy

If House Republicans’ 37th vote to repeal ObamaCare is irrelevant, why does it upset ObamaCare supporters so much?  “Because they’re wasting time!”  Yes, but why really?  (And if Obama and Senate Democrats are worried about the House wasting time with repeal votes, they can approve the repeal and put an end to it just as easily as the House can stop voting to repeal.)

ObamaCare came into law and survived as law in unusual circumstances that stretched the concept of legitimacy at least to its breaking point, in both the “consent of the governed” sense and the Constitutional sense- the only sources of legitimacy that matter in America.  Because Democrats had complete control of government, they could pass even an intensely unpopular law as long as they were sufficiently united.  They went ahead and did so based on the lesson of 1994: the public was likely to be equally angry with them if they did not pass anything.  After all, people badly wanted to fix a broken health care system, had given Democrats power and assigned them to do so, and Democrats had devoted all their energy to crafting and promoting a bill.  What if, after all that, they failed?  Would that be any better for them then forcing on the people an unpopular law? 

As Hector said,

No man will hurl me down to Death, against my fate.
And fate? No one alive has ever escaped it,
neither brave man nor coward, I tell you–
it’s born with us the day that we are born

So one might as well go ahead and be brave.  You can lose and pass the law, or lose and not pass the law.  Of course, our system was designed to rely on politicians’ self-interest, understood in somewhat different terms from such Homeric heroism (and ordinarily this works). 

Yes, Democrats had the power to pass a bill they believed in over the objections of the governed, and the people were going to punish them regardless of what they did.* But in disregarding self-interest, the Democrats also cast aside a deeper kind of prudence.  The theory behind government-driven cost cutting, and thus behind ObamaCare, was that people would accept denial of care from a democratically legitimate government when they would not accept it from greedy, profit-driven HMOs.  Public buy-in, consent of the governed and all that are key to the whole theory. 

At a deeper level, Democrats’ idealistic voting was in tension with the whole moral basis for our government, or at least for progressive government.  “Consent of the governed” can only ever be expressed imperfectly, and ultimately only by some of the governed, so it’s really best if we contain this problem by confining government to a limited role.  Progressives tend to go beyond saying government is a thing to which we send representatives, or even a thing that represents us.  They take representation quite literally and suggest that the government actually IS us, embodying something they call “the Will of the People.”  Yet obviously, the people in no important sense consented to ObamaCare.

If I go to an engineer and ask him to present plans for a structure, and he comes back a year later with something that wasn’t at all what I had in mind, obviously I am going to fire him.  Similarly, the public would have fired Congressional Democrats had they presented their plan and simply accepted the public’s verdict on it.  The difference is that the engineer doesn’t get to build his building anyway, on the theory that we don’t know what’s best for us.**

Some Democrats seemed to sense all this.  Recall Anthony Weiner’s “pigs fly out my ass” analysis after Scott Brown’s victory: “when you have large numbers of citizens, in the United States of America, who believe this is going in the wrong direction, there’s a limit to what you can keep saying that, Okay, they just don’t get it.  That if we just pass the bill, then they’ll get it.  I don’t know.  I think that we should maybe internalize that we’re not doing things entirely correctly.”  But Nancy Pelosi locked her caucus in a room and read them Homer, or Ezra Klein, or something, until they promised to pass the bill.

As for perceived Constitutional legitimacy, the bill took a long trip through the Court system, winning some and losing some, but more important was the process of its being called into Constitutional question throughout.  This culminated at the Supreme Court, where the bill took a brutal beat down during oral arguments to the point where Obama had to hint at a war on the Court’s own legitimacy should it overturn the law.  It squeaked by, 5-4, on rather tortured reasoning, and only because the mandate fine was small enough that it could allegedly be construed as a tax, not a fine.  The assumption behind the bill was that the post-1936 unwritten Constitution meant that the government could claim any power under the Commerce Clause, and neither the Court nor almost anyone else would raise serious questions.  The outcome was ultimately what they thought, but the process was not; they stretched their interpretation of the post-1936 settlement beyond the point at which it was settled, at least in today’s world.

In short, what Democrats did just wasn’t in line with unwritten norms surrounding what is and isn’t done.  Yet the bill, in some ways, counted on these norms to continue operating.  It left a lot of implementation to the states, under the assumption that the states would cooperate.  It imposed a minimal fine in its mandate, on the assumption that people would treat the mandate as legitimate and morally binding, not as a tax subject to their amoral cost-benefit analysis. 

Most importantly, ObamaCare was passed on the assumption that passage would settle the issue.  Our usual political process is brief but intense debate, followed by an issue’s being settled one way or the other and everyone becoming calm, going about life as if nothing had ever happened.  But that’s only because passage of legislation, and legislation’s survival of legal challenges, tends to be a process that produces strong perceptual legitimacy, even broad consensus.  In this case, again, it wasn’t.  Hence the 37 votes to repeal, which go against what we ordinarily expect.

At the Daily Beast, one Michelle Cottle raises the typical objection to ObamaCare repeal efforts: they are futile political gestures, given that BHO would never sign them into law.  Yet a norm against political gestures and in favor of passing only bills that are likely to become law insures that all real debate takes place inside the Beltway.  Such a norm rejects politicians’ appeals to the people and forcing each other into tough votes, and favors collusion between politicians to deny people real choice.  If everything substantive is settled behind the scenes, the only source of political competition will come from genuinely empty gestures. 

Cottle also raises the usual excuses for ObamaCare’s unpopularity: people like some particular provisions (true and unimportant for questions of legitimacy.)  They don’t know the details of the bill.  I’ll deal with this in depth below, but in the course of noting this ignorance she mentions that 40% of people don’t even think the bill is still law.  This is very revealing of the perceptual legitimacy problem of which I speak.  People apparently have the general impression that the Court struck the law down, or that Congress succeeded in repealing it.  They haven’t internalized it as law.  Republicans’ continued repeals both reflect and perpetuate its lack of perceptual legitimacy.  This, I suspect, is really what ObamaCare supporters don’t like.  But I say all’s fair in love and war.


But as to the objection that people don’t know the details of the law- well, who could possibly learn the details of legislation?  A norm holding people should only object to laws whose details they know would give politicians every incentive to create as much legislation as possible and make it as complex as possible, and take advantage of the resulting information asymmetry.  This is already a danger inherent in representative government; why should we do away with the means we have of mitigating it?

The health care debate in fact illustrated the way our system mitigates information asymmetry between voters and politicians.  Neither party could of course explain the bill’s provisions in detail to the public.  Democrats made promises in general terms (we’ll deliver universal health care and cut costs) during election season.  Obama promised he would not impose a health insurance mandate, which he suggested was un-American, and excoriated John McCain’s plan to tax highly generous health plans.  Democrats came up with a bill imposing a health insurance mandate and a tax on highly generous health plans. 

Besides highlighting these specific unpopular provisions, Republicans highlighted specific consequences of the legislation, such as the likelihood that people would lose their private insurance.  This would not have been obvious to John Q. Public as he answered pollsters’ questions about whether he liked this or that specific provision of the bill.  Yet Republicans presented the argument in summarized form and it stuck, partly because neutral media called out Obama’s claim that people wouldn’t lose private insurance if they liked it. 

So John Q. Public came to associate “ObamaCare” with “loss of private insurance,” and more generally with risky disruption to the status quo- even if he did not much care for the status quo.  This didn’t mean he could remember the arguments in detail, or indeed remember anything about the bill in detail.  But it did mean he was better informed than the John Q. Public asked by pollsters about specific provisions in ObamaCare.

Republicans also raised general objections of their own, to counter Democratic generalities about universal health insurance and cost-cutting goals.  They called the bill a government takeover of health care.  This didn’t involve line-by-line analysis of the bill, but it went deeper than just listing selective provisions and asking if people liked them.  The charge stuck enough to hurt, despite Democrats’ furious denials.  The fact that they felt compelled to deny the charge so vehemently should have raised doubt about whether people trusted government enough to make them accept top-down cost controls.  Republicans even raised the bill’s complexity itself as a general objection, which is a tidy, straightforward way of solving information asymmetry.

Aside from the above arguments, the glaringly obvious objection to progressives’ citing the favorable polling on specific ObamaCare provisions is that they only count the popular provisions.  The clueless counter-argument (usually treated as if it were completely dispositive) is invariably that the unpopular provisions are necessary to make the popular ones work, and that people answering poll questions just don’t get this; for instance, the mandate is necessary to make the pre-existing conditions provision work.  But I need to spend $100,000 to make “owning a Rolls Royce” work, and the costs may not be worth the benefits, yet if a pollster asked me “would you like to own a Rolls Royce,” I would nevertheless say “yes.”  Moreover, who’s to say ObamaCare will work even with the mandate?  If we just assume workability questions are beyond the public, we’re really just asking them “do you want good stuff to happen,” and how meaningful is that?

ObamaCare purported to be a comprehensive solution.  What’s needed, therefore, is not just a look at individual provisions in isolation, but an overarching argument for the bill as a whole.  Why, for instance, do cuts in insurance costs make the individual mandate worth it?  Do we want a health care industry dominated by insurance companies and the government?  Progressives turn to thematic arguments to justify individually unpopular provisions.  Yet Republicans basically won the thematic argument, and they don’t think this is legitimate because people don’t know the details of the law and like some of the provisions.  They’ve got you coming and going.

* Besides, the economy they’d spent $800 billion trying to fix had gone nowhere, while deficits started with the new and scary letter “T.”  Obviously, Democrats were going to be perceived as failures no matter what they did with health care, so, again, why not plunge ahead heroically?  Their very failure in other respects thus became a license to impose as ambitious an agenda as they wanted.  This wasn’t quite how pundits making the argument usually put it.  They would say something like, “the unpopularity of Obama and the Democratic Congress is explicable in terms of economic models, therefore we don’t have to turn to health care to explain it.”  But it amounts to the same thing.

** And yet, representatives do sometimes have to do things that are unpopular.  The bank bailouts, for instance, were a policy that was bound to be intensely unpopular, but which a majority of elected officials believed was completely necessary, and so they were willing to accept possible electoral defeat, and the strain on legitimacy in a number of senses, in order to prevent what they saw as imminent total collapse.  A government that routinely strains legitimacy in this way is obviously inviting trouble.  Yet the relevant political actors, in the wake of this bank bailout, AND the largest economic stimulus in decades (a reasonably popular action at the time, but still overloaded the system a bit), decided this would be a good time to pass a bill designed to permanently transform health care without the public’s consent.  In fact, to the extent the growing anger was going to sweep away Democrats anyway, that was all the more reason to do more while they could.  Note that for all this, the progressive response to recent years has been that American institutions constrained them to an unhealthy extent.


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