"If a mandate was the solution, we could use it to solve homelessness by mandating that everyone buy a house."
-- Guess who?
It wasn't lawyer Paul Clement, arguing that the Supreme Court strike down the Affordable Care Act's mandate.
It wasn't Republican presidential candidate Rick Santorum, attacking his opponents on the stump.
It was Barack Obama, in 2008.
Much has been made about the flips and flops around the individual mandate. Republicans were for it before they were against it -- after the president went from against it to for it.
(It's as confusing to write as it is to read.)
Within the möbius strip of health policy, there's a strong, substantive argument for the mandate. Many economists suggest it's essential to get young, healthy Americans into the health insurance market and cross-subsidize older, sicker patients.
Just one problem: Americans have an overwhelmingly negative reaction to the mandate. And that didn't start this week, either.
Why did Obama pivot on the mandate? And why didn't the White House change course before the law reached the Supreme Court?
How Obama's Thinking Changed
As a presidential candidate, Obama was merciless in his criticism of rival Hillary Clinton's proposal for an individual mandate. His campaign's attack ads (photos here) led Neera Tanden -- a Clinton health aide who later advised Obama on the ACA -- to caution that the strategy was "politically dangerous."
But as president, Obama came around to Clinton's approach. An April 2009 White House memo obtained by The New Yorker's Ryan Lizza offers insight into this reversal.
(It also offers some intriguing trivia. Obama was so sick of health budget numbers that he instituted his own mandate: Staffers were barred from using the term "CBO" and instead were to call the agency "banana.")
Nancy-Ann DeParle, Obama's health reform adviser, argues in the memo that a mandate would most effectively expand coverage while lowering costs. Yes, this represented a change in the president's platform -- but DeParle warned that the dreaded CBO "will likely take the position that without an individual responsibility requirement, half of the uninsured will be left uncovered."
Within three months, Obama publicly endorsed a mandate.
His administration also used the mandate as a deal-making lever across 2009 and 2010. The carrot of an individual mandate -- coupled with the threat of a public plan -- was mostly successful at keeping the powerful health insurance lobby from attacking Obama's proposal. Hoping to remain a player in the debate, Wal-Mart broke with other major companies in July 2009 to endorse an employer mandate.
The president initially paid only a minor political price for his shift. As late as 2009, "the idea of an individual mandate ... was largely uncontroversial," Jonathan Cohn writes in the New Republic, "not only within the Democratic Party but within the Republican Party as well."
Communication: Blown Opportunity?
But as the mandate rapidly migrated from policy journals to national politics -- and was politicized along the way -- it quickly grew unpopular among the public, too.
In January 2010, 62% of respondents to a Kaiser Family Foundation Poll said that including the mandate in the ACA would make them less likely to support the law.
That's scarcely different than the 67% of respondents who were anti-mandate two years later.
Many pundits say the White House failed to communicate the need for the mandate. If Obama had only explained the law a little more, a little better, average Americans would have embraced its reforms, they say.
But that seems like a facile excuse.
"It's hard to know what the administration could have done differently that would have had a significant positive effect on support for health care reform," political scientist Brendan Nyhan told California Healthline.
"The evidence suggests that presidential salesmanship of domestic policy initiatives generally produces more negative coverage and polarization," Nyhan added, pointing to Ezra Klein's recent New Yorker piece.
Even the president's communications staff had problems selling the law. Reid Cherlin, who served as White House's spokesperson for health reform, reflects on the "horrible, tortured quotes" that he issued while trying to explain the ACA.
To be fair, Cherlin and the White House communications team faced an epic level of resistance. The ACA's critics have spent more than $200 million on attack ads since March 2010; its supporters have spent less than $60 million in the law's defense.
"Health care is both a sensitive topic and a complex policy issue, which means it's especially easy for opponents of new initiatives to scare people with false claims about unknown provisions or hyperbole about future policy outcomes," Nyhan said. "Those sorts of messages will tend to offset any positive effects that administration PR efforts might otherwise have."
Policy: Blown Opportunity?
But the White House may never have needed the mandate at all.
Previous Road to Reforms have explored possible alternatives to the measure.
How Democrats in 2010, sensing the political winds, could have used the last gasps of their supermajority to craft a replacement. How Obama could have gone for a full-blown "Medicare for All" plan.
These alternatives are particularly notable given two developments:
- There's increasing evidence that the law could survive without the mandate. A new report from the Urban Institute projects that the coverage requirement will affect just 2% of Americans; and
- Court-watchers are increasingly pessimistic that the ACA will survive its legal challenges, partly because the mandate represents a major liability and the law lacks a severability clause.
And if the Supreme Court strikes down the mandate -- but allows the rest of the law to stand -- Obama may be left with a health law that greatly resembles his original campaign proposal.
If the mandate falls, Obama shouldn't bear all the responsibility for its legal challenges.
But he certainly bears some.
As a candidate, he helped stoke the public fire that ultimately led to anti-mandate resistance -- public resistance that helped spark a change of legal thinking around the mandate's viability.
As president, he missed opportunities for a course correction.
And just by getting the case to the Supreme Court, Obama's conservative critics have "already won something," the New Republic's Cohn concludes.
With all eyes on the Supreme Court -- and the mandate's future -- here's a very quick look at what else is happening around the nation.
- Last week, HHS asked two insurers -- John Alden Life Insurance Company and Time Insurance Company -- to "immediately rescind" proposed health insurance premium rate increases for consumers that the department deemed "excessive" (Daly, Modern Healthcare, 3/22). A rate review provision in the federal health reform law authorized HHS to review any proposed rate increases exceeding 10% (Pecquet, "Healthwatch," The Hill, 3/22). HHS is not authorized to deny such proposals, but it can require the insurer to provide a public justification. The two insurers' rate increase proposals ranged from 12% to 24% (Bunis, CQ HealthBeat, 3/22).
- Several key Obama administration members and administration officials -- including HHS Secretary Kathleen Sebelius -- made local appearances in Florida and Missouri across the week to promote the health reform law's most popular provisions on its second anniversary (Gardner/Wilson, Washington Post, 3/21). However, President Obama did not participate in any public events to mark the day (Allen/Nocera, Politico, 3/21). Republicans said that Obama chose not to mark the anniversary to avoid stirring up controversy ahead of the November election (Pecquet, "Healthwatch," The Hill, 3/21).
In the States
Every state but Arizona has taken regulatory steps to implement at least one of the 10 consumer protections in the federal health reform law's " Patient's Bill of Rights ," according to a report from the Commonwealth Fund. According to the report, 12 states have passed legislation to implement all 10 provisions (Pecquet, "Healthwatch," The Hill, 3/22). Under the overhaul, states had a choice to implement the new insurance industry reforms or allow the federal government to enforce the regulations. The report said the states "are responding to the federal law in pragmatic ways that suit their political culture and regulatory needs" (Sanger-Katz, National Journal, 3/22).
- Last week, the Maryland Senate Finance Committee passed legislation that would establish the Maryland Health Benefit Exchange, one day after the House Health and Government Operations Committee approved the plan. If the bill is enacted, the exchange would launch on Jan. 1, 2014 (Gantz, Baltimore Business Journal, 3/21). The Maryland Health Insurance Plan also launched a new advertising campaign to increase enrollment in the federal and state insurance program created under the federal health reform law (Gantz, Baltimore Business Journal, 3/19).
- Last week, the Missouri Senate rejected a measure that would establish the state's health insurance exchange. In addition, an amendment -- by Sen. Joe Keaveny (D) -- to a life insurance bill that would have facilitated the creation of the exchange failed (St. Louis Business Journal, 3/21).
Rolling Out Reform
- Last week, the Center for American Progress announced that former CMS Administrator Don Berwick will continue his public policy work as a senior fellow at the Washington, D.C.-based, liberal-leaning think tank (Zigmond, Modern Healthcare, 3/23). According to CAP, Berwick will focus on defending the federal health reform law, ensuring its implementation, and developing new ways to improve care quality and reduce costs. He joins other prominent health policy experts at CAP, including Ezekiel Emanuel, who served as a senior health adviser in the Obama administration, and former Sen. Tom Daschle (D-S.D.), Obama's first nominee for HHS secretary (Fox, National Journal, 3/23).