Lawmaking is Not Binary

The current outcry over the barely-functioning Obamacare website is a carnival sideshow, and like any carnival, will pass.  But once the online experience is improved, and the actuarial realities of how citizens make their health insurance choices are assessed, we will be left with a law on the books that Republicans and Democrats alike will undoubtedly want to amend.  That process, and not repeal or obstruction, is what is owed the American people.

The Affordable Care Act is intended to accomplish the enormously difficult task of reforming the existing system of health insurance in ways that address both its demographic and geographic inequities: distortions in the allocation of health care risks and costs arising from the fact that some are insured while others are not, and distortions in the availability of coverage under a crazy quilt of state-level regulation and corporate profit-seeking.   This is, as they say in Washington, a “heavy lift,” and it is not particularly surprising that these earliest days of its implementation have been rough going.

So far, what we are getting from Republicans is barely-concealed delight in what they dearly wish the American people to perceive as an abject failure.  What we are getting from Democrats is defensive downplaying of what is, at minimum, a disastrous product roll-out that may mask deeper flaws.  Lost in this orgy of schadenfreude and breast-beating is the harder task for Republicans: shouldering some share of the burden of lawmaking, which means proposing legislative fixes to what they claim is broken.  Democrats likewise need to acknowledge that it would be almost impossible for this immense slug of legislation to be fair and functional in all respects, and that it will undoubtedly need to be amended, perhaps repeatedly, before it works well enough.

At the fringe, of course, are those who think that the very idea of a law administering the availability of health care is another step on the slippery slope to Fabian socialism.  For them, nothing short of the repeal of Obamacare (and for some, secession from the Union) will suffice.  But for the rest of our elected representatives, who surely must still be in the majority, a more rational and humane health care system is a legitimate object of federal legislation, just as is a strong military or a safe food supply.  For them, the Affordable Care Act should represent, if not an apotheosis of legislative wisdom, at least a first step toward an end that their constituents deserve.

Complex and arguably coercive though Obamacare may be, it is far less so than another piece of unpopular legislation that we have nonetheless lived with for about a hundred years, and that has undergone countless fixes over its lifetime in an effort to address another unfortunate necessity: taxation.  I refer, of course, to the Internal Revenue Code.  Originally codified in 1926, reviled as in need of “reform” for most of its existence, the Code (as its aficionados fondly call it) has been amended countless times, and has famously ballooned from a relatively modest few provisions into almost ten thousand “sections,” each dealing with a separate detail of the taxation of our lives, our ways of making money, and our deaths. As a young tax lawyer in the 1970s, I and my mentors knew it as the Internal Revenue Code of 1954, in reference to its then-last major overhaul.  Since then Congress has passed an average of at least one tax bill each year, including another major overhaul in 1986.  For better or worse, the Code is a living piece of legislation, and it is safe to say it will never truly be finished.

To be sure, much of this continuous change is the result of the seamier side of lawmaking: lobbyists and ideologues have had their way with the Code since its inception, and much of its complexity is owed to the range of special interests – often contradictory – being served in its arcane provisions.  But the evolution of the Code is also a function of periodic collaborative efforts by both parties to get the unfortunate necessity of taxation right – to make it more in tune with what is really going on in the world, more efficient, more understandable, more fair.

Contrast this long analog history of legislative work with the starkly binary approach of today’s Tea Party Republicans to the unfortunate necessity of health care: Obamacare is flawed; therefore it must be repealed or, when that fails, “de-funded” (as the latter can be achieved by sheer gridlock).  But responsible lawmaking is not binary, not a world of simple yes or no; it is iterative, the product of reciprocity, repeated tries and – dare we use the word? – compromise.  A statute is not a unitary object that must be enacted or repealed in toto; it is a weave of provisions of inevitably varying sense and effectiveness, always subject to further refinement through amendment.

Republicans would like to paint Obamacare as an executive fiat issued by the man whose name it bears, when of course it is nothing of the sort.  It is a piece of undoubtedly flawed legislation, duly passed by a duly-elected Congress.  It’s not just the privilege, but the duty of our lawmakers – Republicans and Democrats alike – to get about the hard work of improving it until it best serves the people who elected them.

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