In a nonelection year like this one, the narrative arc of American politics is set by the State of the Union address. The president lays out his policy proposals, and for the rest of the year Washington reporters follow the drama of how those proposals are faring in Congress. The story tends to unfold like one of those bloody adventure movies where most of the characters die along the way and only a handful of plucky, wounded ones survive. This year’s version promises to be especially gory.
In February, Barack Obama confidently put forth an ambitious agenda: a long-term budget grand bargain that would change entitlements and overhaul the tax code; major reforms of immigration and higher education; sweeping new gun safety measures; a national preschool program; a network of advanced manufacturing hubs; and two continent-spanning free trade deals. But a radicalized and dysfunctional Republican Party shows only the most hesitant willingness to cooperate, and the media has already concluded, probably rightly, that little of Obama’s agenda is likely to become law. Expectations will be more than met if, in twelve or eighteen months, we have an immigration compromise that provides a path to citizenship for the eleven million undocumented, a modest budget agreement that stabilizes the medium-term debt-to-GDP ratio, and universal background checks that might bring down a murder rate that is already falling.
While these are worthy and important fights to have, the most consequential drama of 2013 will not be the battle over Obama’s second-term agenda. It will be the struggle to implement his first-term achievements—which, truth be told, dwarf anything he is likely to get out of Congress going forward. Obamacare, the Rooseveltian capstone of his presidency, will, if it can be made to work, deliver health care to twenty-seven million uninsured Americans and begin the task of reining in health care cost growth. Dodd-Frank, for all its many flaws, is a massive, complex rewriting of regulation for the entire financial sector, the success or failure of which could determine whether or not we go through another financial meltdown.
Most Americans, even those who are politically plugged in, tend to think that once a law is signed, it’s done. But a law animates real change only after agency bureaucrats turn its words, often written vaguely to bridge disagreements among lawmakers, into specific actionable rules and regulations. Two-thirds of the regulations that are needed for Dodd-Frank have not been finalized. Vast chunks of the Affordable Care Act are still being similarly litigated, and its biggest provisions don’t even go into effect until 2014.
It is in this shadowy period of rule making and early implementation that a law’s weaknesses become apparent and its strengths get weakened by appeals from high-priced industry lobbyists. And the lobbyists tend to succeed precisely because few people are paying attention. The pity is that this period is not only hugely consequential, it’s also damned interesting once you understand it. Indeed, it features the same venal interests, dirty-pool tactics, and ideological flimflam that make the passage of legislation so grotesque and absorbing.
With Dodd-Frank, as Haley Sweetland Edwards reports in this issue, armies of industry lawyers are bombarding agencies with briefs and precooked studies aimed at winning tweaks to the fine print that advantage their clients. A key weapon in their arsenal is “cost-benefit analysis.” Industry groups are suing the agencies for failing to fully factor in every conceivable cost of compliance, and with assists from a cabal of conservative judges on the D.C. Circuit Court they have gotten one regulation after another thrown out.
With the Affordable Care Act, as Phil Longman explains, conservatives have argued the opposite: that cost-benefit analysis has no place in making health care policy. GOP lawmakers managed to get language inserted into the ACA that prohibits government research into the cost-effectiveness of different medications and procedures, bans considerations of costs and benefits in deciding how to allocate health care dollars, and puts representatives of the drug and medical device industries in charge of the government’s limited efforts to explore the comparative benefits of different treatments. As a result, “bending the curve” on costs by improving the value and quality of health care will be extraordinarily difficult.
Of course, Obamacare could be amended, and Dodd-Frank’s rule making defended. But the White House seems to have moved on, most health care experts don’t yet grasp how the prohibition on cost research will cripple Obamacare, and the media doesn’t much cover the rule-making process—certainly not as a political story, which it most certainly is. Lobbyists and ideologues couldn’t get away with gutting our laws like this if we all gave half as much attention to what’s actually happening in Washington as we do to the things that probably won’t happen.
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