Never cooperate with a sitting president

How the disastrous fight over 'Obamacare' is grounded in the US Constitution

November 30, 2013 6:15AM ET
US President George W. Bush talks with Senator Ted Kennedy (D-MA) after speaking about the No Child Left Behind Act to educators, lawmakers, and state officials at Constitution Hall Jan. 9 , 2002, in Washington, DC.
Tim Sloan/AFP/Getty Images

The knives are out once more for President Barack Obama and the Affordable Care Act. There can be no doubt that the "rollout" of health care reform has been seriously botched, furthering the already toxic loss of faith by many Americans in the basic competence of their government. Conservatives are, yet again, calling for the repeal of the program.

Among the more bizarre criticisms of 'Obamacare' is Fouad Ajami's in the Wall Street Journal, which suggests that the law was fatally flawed from the start because of the President’s purported unwillingness to "compromise" with Republicans during the long run-up to the actual passage of the legislation on March 23, 2010. The fact is that Republicans were no more willing seriously to cooperate with the Obama Administration's quest for health care reform than they were back in 1993 when the Clinton administration came to grief over its plan.

In fact, one of the important lessons of this whole episode is how the American political system of "divided government" and presidential re-elections, as established by the Constitution, encourages the opposition party to sabotage legislation favored by the sitting president. From the standpoint of naked political calculus, bipartisan cooperation between the two sides rarely makes sense.

Kristol's memo

In 1993 during the last major push for health care reform, Republican strategist William Kristol wrote a fateful memorandum saying that Republicans should do whatever they could to make sure that President Bill Clinton not make any progress on his signature legislation, which he had made a high priority of his administration (fatefully putting his wife Hillary in control of the process). The explanation for Kristol's advice was simple: Presidents get the lion's share of the credit for any legislation that passes. Kristol realized quite rightly that Clinton would be applauded far and wide if he actually delivered on his promise to address the inadequacies of American medical care. What that would mean, Kristol argued, is not only that Clinton would waltz to re-election in 1996, but also, and more importantly, that he would set in place the long-term success of the new Democratic coalition that elected Clinton in 1992 (with, recall, only 43 percent of the vote). Republicans had every incentive to make sure that did not happen, and the best way was to torpedo his reform program.

Clinton did wind up being easily re-elected in 1996, despite the failure of his health care reform plan. Ironically, his victory was almost certainly aided by his effectively calling Republican Speaker of the House Newt Gingrich's bluff and signing the so-called "welfare reform" act that allowed Clinton to campaign on having "ended welfare as we knew it," for which many "independent" voters rewarded him even as traditional Democrats were dismayed (though they had no real choice but to vote for him anyway).

After Clinton came the ascendancy of George W. Bush (though, recall, he came in second in the popular vote to Al Gore, scarcely a stunning victory). Bush had run as a “compassionate conservative” and a “uniter, not a divider.” For some Americans he vindicated his promise by passing in his first term two genuinely important pieces of legislation, No Child Left Behind — which established new standards for primary and secondary education evaluated by standardized tests — and the Medicare expansion for prescription drugs. The first triggered the largest intervention by the national government in state educational practices in our history; the latter was the biggest extension of the federal welfare state since Medicare in 1965.

Passage of these two signature Bush initiatives was aided by the late Massachusetts Senator Edward M. Kennedy, who worked closely with the president in crafting the legislation and then rounded up Democratic votes for it. The latter bill passed by a very close vote in the House of Representatives, even though it had a Republican majority. Democratic votes were essential. 

The prospects for sensible 'second-looks' and beneficial modifications for Obamacare are exceedingly low.

So what was the result? Bush was re-elected in 2004 by a significant popular-vote majority against Kennedy's Massachusetts Democratic colleague John Kerry.  Though he certainly had no desire to do so, Kennedy contributed directly to Bush's ability to proclaim his ability to "work well with others" in crafting legislative compromises.

So, in effect, Kennedy vindicated Kristol's analysis: It is a big mistake to help a president of the opposite party, especially, one might add, if he in his first term and preparing to run for re-election. Such help is the equivalent of a billion-dollar contribution, so to speak. Why should any political party be so altruistic with regard to its opponents? Thus Kentucky Senator Mitch McConnell, the Senate minority leader, had absorbed the lesson taught both by Kristol's memorandum and the concrete realities of Bush's re-election (and Kerry's defeat). And that lesson was "no compromise" and the engagement in political trench warfare to do "whatever it took" to prevent first the passage and then the successful implementation of a program that, if successful, would redound almost exclusively to the Democrats' benefit. And recall that McConnell had announced that his primary goal, which presumably explained everything he did, was to make Barack Obama a one-term President. 

Futile calls for compromise

Many people were dismayed by McConnell and condemned him. But why? Surely we would be unsurprised if Edward Milliband, the leader of the British Labour Party, announced that his principal goal was to make David Cameron a short-term prime minister. That is just what it means to be an opposition party, after all. But the point is that in a parliamentary system like Great Britain's, all the opposition party can do is oppose; save in extremely rare circumstances (involving significant defections from the majority party or coalition), it can never block major legislation desired by the prime minister.

The United States obviously does not have a parliamentary system. Instead Americans valorize "checks and balances" and the frequently "divided government" that has existed for roughly half of the 21st century and most of the last half of the 20th. Such government often leads to the "gridlock" that is the focus of much contemporary analysis. This has undoubtedly contributed to the fact that less than 10 percent of the American public currently "approves" of Congress, and President Obama’s approval rating has now fallen below 40 percent. In polls concluded on November 11, 71 percent of Americans believed that the country was going in the "wrong direction." As suggested earlier, some of this can be explained by reference to the increased polarization of the principal parties. Bush and Kennedy, in some ways, are creatures from a different political era insofar as they were willing proudly to work with each other on education and prescription drugs. But one should not ignore the contribution made by our antiquated Constitution, which allows even one house of our bicameral Congress to torpedo any and all legislation supported by a president and, therefore, to deprive presidents of the credit they might otherwise get from grateful Americans.

To be sure, this strategy would not be successful if a president’s programs were supported by wide majorities of the general public, as was the case by the passage almost 50 years ago of the great Civil Rights Act of 1964 and the Voting Rights Act of 1965, which garnered significant (and essential) Republican support. But medical care reform is far more complicated, in many ways, and it has always been more controversial. Kristol in effect read the tea leaves correctly when he suggested that the Republican Party would pay a far greater price from supporting Clinton than by relentlessly opposing him. And McConnell, some sixteen years later, presumably agreed.  

Although Obama will never again run for public office, “Obamacare” is inextricably identified as a “Democratic program,” and the botched rollout has undoubtedly given Republicans new hope for the 2014 congressional elections. What do they gain, as a political party, from joining with Obama (and the majority of Democrats) in trying to tweak the existing program to make it better? The answer is, less than nothing, since they would not only help the opposition party but also risk alienating their rabidly anti-Obamacare base.

Thus the prospects for sensible “second-looks” and beneficial modifications for various aspects of Obamacare are exceedingly low. The Constitution is certainly not the only explanation for this sad reality, but it certainly bears part of the blame. It was designed by James Madison and his colleagues to minimize, if not completely to negate, the baleful influence of political parties and to assure that Congress would be inhabited by virtuous elites whose only concern would be the "public good." There would be strong differences of opinion, of course, but they would all be in good faith and never the result of crass partisan considerations.  We have not lived in such a world since no later than 1800, but the Constitution has never been modified to take into account the reality of parties and partisanship.

Rather than issue what may well be futile calls for politicians to relearn the arts of "compromise," as desirable as that might be, we might instead consider the structural factors in our government that reward obstruction. It is time for Americans to talk about what a sensible political system for the 21st century might look like and consider the possibility that it would be far different from the one designed by the country’s founders in 1787.    


Sanford V. Levinson is the W. St. John Garwood and W. St. John Garwood Jr. centennial chair in law and a professor of government at the University of Texas at Austin.

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera America's editorial policy.

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