Political polarization leads to bad legislation

The Supreme Court's decision in King v. Burwell, permitting 6.4 million Americans to continue receiving subsidies to buy health insurance on the federal insurance exchange, elated liberals and enraged the right. Conservatives have already begun decrying the "traitors" who, though appointed by Republican presidents, charitably interpreted a key provision of the hated Affordable Care Act (ACA).

Sadly, no one will focus on what truly deserves attention: King v. Burwell should never have existed. Only a deeply flawed legislative process brought the case to the Supreme Court. The result has damaged the court's legitimacy and further divided the country.

And that's ironic because four decades of political polarization generated this situation in the first place. Unlike the mid-to-late 20th century, when the parties often came together to draft legislation, today's policymaking is most often characterized by one party manipulating procedure to force its ideas into law while the other party obstructs. This almost guarantees drafting errors, which is precisely what produced King v. Burwell (Chief Justice Roberts' opinion lamented the ACA's sloppy draftsmanship).

Lawmakers mistakenly failed to remove from the ACA the four word provision at issue in King v. Burwell as the legislation evolved to include a federal exchange. Someone might have caught this error if, as intended, the Senate and the House had held a conference where lawmakers and staffers would have scrutinized and fine-tuned the text and concepts in the bill to resolve the differences between the chambers on health care reform. (Even Republicans knowledgeable about the ACA's drafting admit that Congress intended for Americans buying insurance through the federal exchange to receive subsidies.)

However, the January 2010 special election victory of Scott Brown, the Massachusetts Republican, deprived Senate Democrats of the filibuster proof majority (60 senators) that they needed to approve the final product from a conference committee. This necessitated the House accepting the Senate bill (no one had anticipated the Senate bill becoming law without changes) with a few modifications made as part of the budget reconciliation process, which prohibited filibusters.

This predicament reflected the consequences of the Republican Party's four decade journey to the right. While it is fashionable among some to blame both sides equally for today's elite polarization, the scholarly DW Nominate data, which measures lawmakers' voting records, makes it quite clear that polarization has been asymmetric; Republicans have moved further to the right than Democrats have moved to the left.

The debate over the ACA offered prime evidence of this trend. Senate Finance Committee Chairman Max Baucus, a Montana Democrat, assiduously courted Republicans on his committee, provoking fury among some on the left. Yet, no Republicans supported the bill on the Senate floor in spite of its many commonalities with Senate Republicans' 1993 universal health care proposal (which had 19 Republican cosponsors, including Minority Leader Robert Dole, a Kansas Republican). Indeed, by 2009, the Republican Party's rightward drift rendered almost any universal health care proposal from Democrats unlikely to garner Republican support.

The ACA's circuitous path into the statute book emblematized the tortured legislative process that resulted from this asymmetric polarization. Data compiled by Political Scientist Sarah Binder demonstrates that the number of conference committees has dropped dramatically over the last 40 years (from 159 in the 95th Congress to three last Congress). Polarization explained many of the factors behind this reduction — the increasing willingness of the Senate minority to impede the appointment of conferees; the more partisan, leadership driven legislative process; and so on.

Polarization also precluded passage of a technical corrections bill to fix drafting errors and correct flaws that became evident once implementation of the ACA began. For decades, Congress routinely passed this sort of non-controversial legislation after major reforms; bills ranging from the Social Security Act to Medicare to 1986's landmark tax reform and immigration legislation all required corrections and updates in subsequent years.

The inability to pass a technical corrections bill foreclosed a second opportunity for Congress to fix the error in the ACA long before it reached the Supreme Court.

Many decry polarization because it precludes Congress from addressing critical national priorities. But we also ought to reject polarization because, as the ACA (and King v. Burwell) demonstrate, it damages the country by shifting power from the elected Congress to unelected (though well meaning) bureaucrats and the federal courts.

The result is a less democratically accountable government and the Supreme Court unnecessarily entering the political thicket, which reduces its legitimacy and further fractures the country.

Brian Rosenwald is an alumni research and service fellow in the University of Pennsylvania Robert A Fox Leadership Program; his email is brianros@sas.upenn.edu.