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Today in Green Lanternism

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Robert Wright is wondering why the Affordable Care Act wasn’t just a straightforward use of the tax power, and his analysis is of course focused on the median votes of the Senate and the leverage these conservatives had over the legislative process.

Hahaha, just kidding! When discussing the ACA, as Drew Westen has taught us, we have to consider a fantasy of politics “in which the president in the not only the most important figure, but his most powerful weapon is rhetoric” rather than actual American politics:

If the Supreme Court rules against President Obama on the constitutionality of the Affordable Care Act, there’s a sense in which he’ll deserve it. After all, there was an easy way for him to make the act impervious to this fate, and it wouldn’t have entailed a single change in how the program works.

[…]

I’ve long thought President Obama wasn’t using the bully pulpit creatively enough–particularly on the issue of taxes. As establishment Democrats said the “political climate” didn’t permit him to let the Bush tax cuts for the rich expire, he made no attempt to change the climate by using his considerable oratorical skills. (It seems to have taken Occupy Wall Street to clue him in to the fact that there’s some class resentment out there to be harnessed.)

Granted, it might have taken a bit of extra rhetorical work to sell a health care bill with the word “tax” in it. But the tax wouldn’t have applied to most voters, and, anyway, the upside would have been that the bill would seem less like coercion and more like an incentive. A bit of courage and creativity a few years ago might have prevented what could be a major policy disaster come June

Um, no.

  • There is no evidence that the bully pulpit can shift public opinion, and voluminous evidence that it cannot. Conveniently, Ezra Klein has laid this out in extensive detail in the New Yorker. Whatever Aaron Sorkin or Aaron Sorkin-influenced shows and movies have told you, politics is not a debating society.    It’s nice to think that we’d have public policy outcomes like Denmark had Michael Dukakis just thought up that clever rebuttal you wrote for him after the fact, but this isn’t actually how politics works.
  • But let’s leave that aside, and assume that Barack Obama could change public opinion on the issue.   Perhaps we may want to consider how the American legislative process actually works, and why the architects of the ACA may not have wanted to use straightforward taxing and spending.   It’s not 2 or 3 extra percent of the public you have to worry about.  It’s, you know, Evan Bayh and Ben Nelson and Blanche Lincoln and Joe Lieberman and every other conservative Democrat in the Senate who would love to use the excuse that you’re proposing the Biggest Tax Increase In Recorded Human History to vote against a bill they don’t care about and their corporate paymasters don’t want.    And using public opinion as leverage — even leaving aside the fact that the president can’t move public opinion — doesn’t work against senators who 1)aren’t running for anything again but are planning on cashing big paychecks from the kind of entrenched interests who don’t want the ACA, or 2)are running in states where the president is extremely unpopular.   I agree that this was dumb, but take it up with James Madison.
  • Let’s assume that Barack Obama could have engaged in a Game-Changing Use of the Political Capital of the Mandate and Bully Pulpit on Steroids to Throw Oily Conservative Democrats Who Are Really Secret Socialists Under the Bus to get the funding for the ACA structured as a “tax” rather than a “penalty” and still get 60 votes for it.    Why on earth would you think that this would make the bill impervious to legal challenge?    What’s to stop the Court from discovering that this particular tax is an invalid use of the federal taxing power, or that the use of the federal spending power that would inevitably be involved is too “coercive” to be constitutional?   Yes, nobody would have thought while the plan was first being formed that these arguments would be taken seriously, but then at the time nobody could have thought that the mandate would be considered unconstitutional either.
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