When Good Things Happen to Mediocre Legislation

The very word "progressive" implies a linear view of social progress. We try to move forward, the bad guys try to take us backward. So it's not surprising that progressives have an equally straight-line assumption about what happens in legislative negotiations. We try to set the most ambitious goal possible, assuming that in the congressional process, things are likely to get steadily worse. Like labor negotiators, we try to go in with the strongest starting position, and at the end, decide whether the final result has gotten so bad that we'd rather have nothing.

But often negotiations don't take such a straight-line path.. Last week's late-night developments on the health care reform bill were a reminder that sometimes, instead of getting steadily worse, legislation can take a strange hop in a much better direction. Senate negotiations on health reform were grinding in a predictable downward direction -- as wavering Democrats met, the public option had already been trimmed to a vestige of the original vision, and that was even before the next round of negotiations with actual Republicans or whatever Joe Lieberman is. But suddenly late at night, a new set of ideas appeared on the table, including allowing older workers the option of buying into Medicare (not a new idea, but one that had earlier been shelved), and a plan explicitly based on the Federal Employee Health Benefit Plan (FEHBP).

What eventually passes the Senate or becomes law may be very different, and this deal has not won over Lieberman or any Republicans yet, but in its bare outlines, the new deal is vastly preferable to the direction that the bill seemed to be going, and even to the bill first put forward by Majority Leader Harry Reid. Medicare buy-in would provide a solid, reliable plan to those working adults most in need of insurance, while at the same time, lifting older adults out of the system of exchanges will likely make insurance more affordable to younger adults. These provisions more than make up for the absence of something explicitly called "a public option." How is it that legislation sometimes takes a sudden turn for the better? Is there a formula to make it happen? Probably not, but it's happened before. Sometimes, just as legislation seems to be dissolving in a swirl of horse-trading and special deals, a legislative leader can suddenly intervene, start from scratch, and point the process in the original direction. .

Once such moment of clarity came in the process of passing the 1986 Tax Reform Act, which started with the goal of simplifying the tax code. As recounted by Jeffrey Birnbaum and Alan Murray in Showdown at Gucci Gulch, after a few weeks of negotiation, the Senate Finance Committee had produced a bill with even more loopholes, complexity, and advantages for wealthy corporations than the existing tax code.

The committee chairman, moderate Republican Bob Packwood of Oregon, went to lunch with a top aide and, while downing a pitcher of beer (Packwood was simultaneously a functioning alcoholic, a chronic sexual harasser, and a legislative mastermind), made an impulsive decision to throw out the almost-completed bill and start from scratch, with a clean version limited to the original goals. The final bill was not without compromises, but only because of the restart did it actually achieve the main goals, and stands as one of the great bipartisan, progressive achievements of the last several decades.

It's possible that Obama's visit to the Senate last Sunday, in which he restated for his former colleagues the core goals of health reform and then left without taking questions, had a similarly galvanizing effect as Packwood's boozy lunch. Or it may that Reid, or some unknown senator, pulled the caucus back to the original vision and swept away the distractions that had built up over the previous weeks. But something of the kind seems to have happened.

While clarity about the end goal is sometimes enough to turns legislation in the right direction, the opposite -- ignorance and confusion -- can play a part as well, and it would be astonishing if that weren't part of the story on health care. Many senators of both parties are not only ill-informed about the details of health policy, they also operate behind a veil of ignorance when it comes to the politics. Will the bill be perceived as a success if it passes, or generate a backlash? Is the public option popular or not? Their guess, even if they are reading every poll and all their mail from constituents, is as good as yours or mine.

Given those uncertainties, when a group of senators get into a room, with staff sitting mute along the sides, anything can happen. The public option took on a symbolic importance, above and beyond its actual effect as policy for both supporters and detractors. Thus senators who had staked themselves out as skeptics or opponents of the progressive talisman called public option might easily be persuaded to embrace a policy that achieved the same goals, or went further, so long as it didn't carry the same label.

Knowing that legislation can take these strange turns for the better, should progressives approach their strategy differently? Probably not -- setting a clear and ambitious goal, and accepting that we might fall short, is usually a good approach -- not just to legislative bargaining, but to much of life. But the reemergence of a long-neglected idea like the Medicare buy-in (a centerpiece of Al Gore's 2000 campaign platform) is a reminder that it's worth keeping a healthy pantry of ideas available for those moments when the system is ready to hear them.

Often alternative ideas are rejected as distractions: Consider, for example, the endless battle between advocates of a cap-and-trade approach to climate change and advocates of a carbon tax. The debate hinges in part on the policy merits, but also on the insistence that cap-and-trade is the only viable legislative vehicle, and any alternative will slow that momentum. Without weighing in on the policy merits of that argument, let's note that the latest twist in health reform demonstrates that sometimes an alternative idea is not a distraction, but a tool that helps solve a problem. Because legislation almost never moves in a straight line, either forward or backwards, it's essential to be ready when it takes an unpredicted turn. Happily, those turns are also what makes the process interesting.

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