The Broken Senate Is the Last Bulwark Against Obamacare Repeal

The Tea Party infected the House in 2010, but the Senate is the political institution that has declined the longest and failed the worst.

The House Republicans and the Trump administration gave new meaning to the words “catastrophic health care,” when the House voted 217-213 last week to unwind major parts of the Affordable Care Act (ACA). Even recognizing that Washington has become increasingly dysfunctional over time, this is a shocking piece of political malpractice. Empowered by President Trump’s election, the House Republicans went beyond their seven years of irresponsible demagoguery about the ACA to reckless action. The extreme nature of their legislation produced what the New York Times called “a rare unifying moment” as doctors, hospitals, insurers and consumer groups all expressed immediate, vehement opposition. “It raises the specter that the sickest and neediest among us will be disproportionately hit in losing access,” said Paul Markovich, the CEO of Blue Shield of California. “This is not a reform,” said Michael J. Dowling, chief executive of Northwell Health, a large health system in New York.  “This is just a debacle.”

Responsibility for the well-being of millions of American families and the stability of our health care system now shifts to the Senate. Gratifyingly, a number of senators, led by Lamar Alexander (R-TN), chairman of the aptly-named HELP committee (Health, Education, Labor and Pensions), quickly expressed the view that the Senate would write its own legislation, and would take the time needed to do it well. “This bill is going nowhere fast,” said Democratic Minority Leader Sen. Chuck Schumer (D-NY), calling on his Republican colleagues to “reject repeal and work with Democrats to improve our health care system in a bipartisan way.” Senators always enjoy being ‘the responsible adults” in the room, compared to the rambunctious lower House, and certainly, Speaker Paul Ryan and his colleagues make that conceit easy enough to maintain in this case. In truth, this is the Senate’s moment, to come through for the American people and begin rebuilding its own diminished standing.

Former Vice President Walter Mondale once described the Senate in which he served as “the nation’s mediator.”  His phrase captured the Senate at its best—the place where Democrats, Republicans and an occasional Independent, from all over the country, with diverse views, came together to find common ground and principled compromises in the national interest.

Of course, America has not seen that Senate for decades. Despite the madness that has infected the House since the rise of the Tea Party in 2010, the Senate is the political institution that has declined the longest and failed the worst. In 1996, more than twenty years ago, at a time of peace and prosperity, fourteen senators, including some of the most respected dealmakers in both parties—Bill Bradley, Sam Nunn, William Cohen, Nancy Kassebaum, Alan Simpson –chose to leave the Senate. Their retirement speeches conveyed an overwhelming sense of frustration with the loss of civility, comity and bipartisanship in our political system and its crippling effect on the Senate.

Nebraska’s Jim Exon spoke for many when he said: “Our political process must be ‘re-civilized’…The ever-increasing vicious polarization of the electorate, the us-against-them mentality, has all but swept aside the former preponderance of reasonable discussion of many legitimate issues. Unfortunately, the traditional art of workable compromise for the ultimate good of the nation, heretofore the essence of democracy, is demonstrably eroded.”

The trajectory of the Senate’s decline has only gotten steeper since then. By 2015, CNN reporter Stephen Collinson would find little disagreement when he described Harry Reid and Mitch McConnell as “the terrible twins of dysfunction in a gridlocked Senate, both using arcane procedures to slow and throttle the promise of the other’s rule.”

Despite this bleak history, the Senate can fix our nation’s health care crisis, and the senators are the only ones that can. We could not have four more experienced and knowledgeable legislators than Senators Alexander, Patty Murray (D-WA), Orrin Hatch (R-UT), and Ron Wyden (D-OR), who lead the two committees with jurisdiction over health care legislation. Each of them has decades of accomplishments, including major bipartisan legislation–such as the 21st Century Cures Act passed last year. Many other senators, responding to the serious challenges of our health care system, have already offered their constructive ideas. This is no time for inaction or destructive action. Most of the senators understand that the task is strengthening the Affordable Care Act: maintaining and building on its successes and the provisions that people rely on, and identifying and repairing its weaknesses.

But they need to check their party affiliations at the door, which is not their initial instinct. Already, Senate Republicans have formed a thirteen-man working group to discuss what their bill might look like. Senate Republican whip John Cornyn (R-Tex.) said last week: “When we get 51 senators, we’ll vote.” With all due respect, that is exactly the wrong approach. We just saw the House go down that road, and we know what it looks like. One party cannot solve this problem; nor should it. That is not actually the way our system is supposed to work. The Senate should be looking for a bipartisan solution that attracts 71 votes, or 81 votes: legislation that can be debated in broad daylight, amended as needed, passed and celebrated, rather than slapped together and rushed through in the dead of night.

To be sure, some Republicans will always contend that “Obamacare” was passed on a totally partisan basis. But in Senator McConnell’s candid and fascinating memoir, The Long Game, he acknowledges that the Obama White House reached out early to the leading Republican senators with responsibility for health care. He also acknowledges, and takes pride in, how effectively he worked to ensure that the Senate Republicans would be united in opposition, even while bipartisan “Gang of Six” negotiations were going on. Of course, no bipartisan solution will ever be possible if one party simply decides that it is not interested in finding one. What the health care problem demands, and what the country needs now, is legislation that produces one of the old-style pictures of the Congressional leaders from both parties—and the president—celebrating a real accomplishment for the American people.

The Framers of the Constitution, in their wisdom, created the Senate and intended it to be the strongest Upper House in the world. They feared the political passions of the day that would rip through the House of Representatives, and having just thrown off the rule of a monarch, they wanted to establish a strong check against an overreaching president. When we look at the radical and irresponsible House, and the insurgent president with no relevant experience or background, we can appreciate anew the vision of James Madison, Alexander Hamilton, Benjamin Franklin and the other Founders. But their construct works only if the Senate steps up to perform its role as the balance wheel in the system—the considered, moderating force; putting “country first.”

Time to do it.

Ira Shapiro

Ira Shapiro, the author of The Last Great Senate, is an international trade lawyer and consultant who served as General Counsel and Ambassador in the Office of the U.S. Trade Representative under President Bill Clinton. He has also served in a variety of senior positions in the U.S. Senate, including as Chief of Staff to Sen. Jay Rockefeller (D-WV) and as counsel to former Majority Leader Sen. Robert Byrd (D-WV).