CAIRN-INT.INFO : International Edition

1Is Congress part of the American “state”? Most studies of the state focus on executive agencies, not parliaments, but a comparison of the US federal state to those found in other wealthy democracies reveals that Congress performs many of the functions dominated by bureaucracies in other nations. In many European countries, ministries play an important role not only in executing laws but, through the cabinet ministers serving in government, in drafting laws as well. In the US, Congress dominates the writing of legislation and, through its active oversight of executive agencies, can be an important player in its implementation as well. The bureaucratic power of Congress is exemplified by the large staffs that surround each member and assist the many committees and subcommittees. There is also an array of independent agencies that assist Congress by providing technical analyses essential to the development and execution of laws. In most of the wealthy democracies, much of this expertise is lodged within the executive branch.

2Given the significance, power, and independence of the legislative branch in the United States, if scholars wish to understand the contours and workings of the American state they must also wrestle with the contours and workings of Congress. This article does so by examining congressional decision making around health policy since the 1980s. The political stakes around health care are tremendous, making it a sensitive and complex area of public policy. For decades, one of the main domestic policy questions has been how to assure universal access to health insurance coverage. And one of the largest programs in the federal budget, Medicare, has been under pressure owing to budget deficits and rising health care costs. Yet, any health policy reform effort must confront a large array of powerful interest groups – insurance companies, pharmaceutical firms, doctors, hospitals, and beneficiaries themselves, to name a few. Health care entitlement reform thus offers an opportunity to explore how well Congress has coped with an area notable for its technical complexity, vested interests, and political resonance. How has Congress performed in the face of these pressures? And what implications do its actions have for our understanding of the American state?

3Most analysts assume that Congress is a source of political weakness, given its permeability and the overall fragmentation of the policy making process in the United States. This has led many to predict stasis on federal entitlements, including health care reform. However, Congress has played a vital role in shifting the politics around federal entitlements, and has enacted important reforms. Institutional changes have strengthened and centralized congressional decision making, particularly in the House, and enabled a more coherent approach towards federal budgeting. This has stiffened the backbone of Congress against health care interests and enabled cuts in Medicare reimbursements. More significantly, political polarization has led to a strengthening of the congressional party leadership in agenda-setting and legislative development. One consequence has been increasing activism on federal entitlements, as both parties have developed sharply differing views on whether and how to reform these programs, and party leaders have become more capable of enacting some of these visions. This has made bipartisan collaboration on entitlement policy more difficult, but partisan initiatives – such as a major expansion of Medicare in 2003 and the enactment of the Affordable Care Act in 2010 – more likely to succeed.

4The evolving congressional politics of federal entitlements thus reveal how formal political institutions bend and sway with the changing social and political environment in which they are embedded. This is particularly the case with Congress – a representative body whose politics have shifted as the constituencies for the two political parties have changed. This has implications for how scholars think about the American state – a fragmented matrix of institutions that are not autonomous from American society but instead deeply intertwined with it. As this article will show, recent social and political changes have fostered greater coherence and disciplined action by the most fragmented institution of the American state, Congress.

Congress and the American state

5Scholars of the American state have long noted the many ways in which it differs from the Weberian ideal-type found in other advanced industrialized nations. [1] Given longstanding resistance to bureaucratization and the concentration of authority at the federal level, the federal state in the US has long been an “uneasy” one [2] that delegates responsibility to local governments or private actors where possible. [3] Yet, there is a growing body of scholarship that has sought to counteract the view that fragmented governing arrangements have rendered the American state weak. [4] For some, there have always been “islands” of bureaucratic autonomy enabling coherent and effective decision making. [5] Others have pointed to the power of American legal institutions in effecting major social reforms. [6]

6In all of these analyses, state effectiveness lies well outside of the US Congress. Few analysts include Congress as part of the state, focusing instead on the executive branch. [7] Those who do examine the place of Congress in the American state tend to view it as a source of state weakness, being permeable to the influence of organized interests and dominated by electoral concerns. [8] The House should be especially sensitive to the electoral consequences of congressional decisions given that all House seats are up for re-election every two years. Moreover, the congressional decision making process is full of veto points at which opponents of policy change can be heard, including the very large number of interest groups now in operation. [9] As a result, Congress is assumed to lack a crucial state quality – autonomy – and should not be capable of acting in the service of interests other than those dictated by powerful groups or electoral constituencies. As White and Wildavsky wrote in 1989, “The idea that this fragmented institution might be the state seems so ludicrous that it has never, to our knowledge, been taken seriously”. [10]

7Yet, there are a number of reasons why analysts should view Congress as a vital part of the US state. First, many scholars of the state have a European model of political institutions in mind – a model that assumes a parliamentary system or, in the case of Fifth Republic France, a semi-presidential one with a fairly weak parliament. In such systems, administrative power is lodged in cabinet ministries, as is much of the power to draft laws, and thus one can easily locate the state in those bureaucratic organs. In the US, by contrast, the separation of powers and constitutionally protected role of Congress ensures that it has many of these powers – control over the drafting of laws, certainly, but also oversight of the execution of policies, programs, and agencies as well. Of foremost importance is its power over the purse – specifically, the requirement that all revenue-related legislation originate in the House of Representatives. This budgetary prerogative sets the US Congress apart from parliaments across the industrialized world, and it vests one of the most important functions of states – taxation – in a legislative body.

8In addition, recurrent power struggles between the executive and legislative branches in the US have spurred the expansion of bureaucratic capacity in Congress, [11] further enhancing its state-like qualities. Since World War II, for instance, there has been tremendous growth in congressional staff, which increased four-fold for personal staff, and five-fold for committee staff between 1947 and 1975. [12] The number of staff members then further expanded by over 11% in the House between 1977 and 2009, and 80% in the Senate. [13] Legislators also created an array of research institutions, including the Congressional Research Service, Office of Technology Assessment, Congressional Budget Office, and General Accounting Office, for independent sources of expertise and information. And given the longevity of many members of Congress, and their continuous management of powerful committees, Congress has within it many individuals with the specialized knowledge and policy making expertise that one normally associates with seasoned bureaucrats. Together, these personnel and institutional resources have created what White and Wildavsky call “the Congressional state”. [14]

9Thinking of Congress as a central component of the US state has several implications. First, because of tensions between the branches of government, members of Congress have an interest in preserving the independence of the institution and proving its ability to perform its constitutionally sanctioned roles. With responsibility for budgeting and policy oversight, members are often concerned to show that that they can manage programs and govern effectively. This perceived imperative has driven the build-up of institutional capabilities in the twentieth century, providing legislators with independent budgetary and other technical expertise. One implication is that, especially when it comes to budgetary matters, Congress and its members should be less “captured” by private interests than the conventional scholarly and journalistic wisdom often holds. [15]

10Second, because Congress is deeply immersed in electoral politics, its functioning changes with shifts in the larger political context. One reason why Congress operates differently from other forms of bureaucratic authority is because it has both electoral and policy functions. Although many members of Congress are policy makers with strong programmatic objectives, they are also politicians whose dominant goal is re-election. [16] To use the language of state theorists, the US state is particularly embedded in the larger political and social context. This implies that political changes should reverberate through the institution, producing changes in the nature of congressional decision making and greater coherence and institutional autonomy in some periods over others. [17]

11This very embeddedness in the electoral process has, in recent decades, shaped a build-up of institutional resources that have enabled Congress to be more than simply a veto point, but at times an agent of reform. As the era of Democratic domination of the House and Senate came to an end in the 1980s, legislators started to think not only about their individual electoral fortunes, but to worry about the ability of their party to seize or maintain a majority in the House or Senate. [18] Moreover, in a complex institutional environment – one made more difficult given declining bipartisanship – the goal of being re-elected cannot be met simply by the individual actions of legislators, but instead requires more coordinated collective action to pass laws. [19] Such changes create stronger incentives for individual members of Congress to delegate responsibility to party leadership officials who can harness political energies and spearhead policy change.

12Reflecting these changing incentives, a series of institutional reforms since the 1970s has enhanced the capacity of House and Senate party leaders to devise and push through legislation. Many of these reforms took power away from the previously-dominant Committee chairmen, such as their ability to determine committee seats, control subcommittees, and more generally to set the legislative agenda, and transferred it to the party leadership. [20] The earliest and most significant changes took place in the House, but the Senate has followed the trend in more recent years. The process of reform is also iterative, as each party watches and learns from each other, and defeats spark more organizational reforms to try to seize control of the chamber during the next election. [21] Although many observers expected that these reforms would fragment congressional decision making and thus further weaken its capacity for independent action, the reverse has occurred as party leaders in first the House and then the Senate gained greater powers over the legislative process. [22] This has enabled the leadership not only to broker agreements between committees and within the party caucuses and committees on legislation, but also to set the party’s overall policy agenda. [23]

13The congressional reforms both reflected and were amplified by a larger trend in American politics: the increased ideological homogeneity within the two parties and growing distance between them. Since the 1970s, the shift of southern Democratic voters to the Republican Party, and the decline of liberal Republicans in the Northeast and Midwest, have created more uniformity within the two parties on many policy issues. [24] While there is debate as to the root cause of the phenomenon of political polarization, a number of scholars trace it to the fact that each party’s constituency is increasingly uniform in its socio-economic background and ideological tendencies. [25] This has affected the kinds of people getting elected and the agendas they bring with them to Washington. As party members have become more similar in their policy goals, they are more willing to delegate policy making powers to the leadership in the hope that they can muster the votes around legislation that meets both electoral and programmatic objectives. [26] This not only influenced reforms to the working of Congress and the parties in the 1970s and 1980s, but also led members to grant increasing latitude to the party leadership.

14We might expect these institutional and political changes to have made redistributive policy making even more difficult than it was in the past. Not only has the gap between the two parties grown, but party leadership in Congress is increasingly capable of holding its members together around opposing stances. This should diminish the likelihood of bipartisan collaboration, and indeed, bipartisanship in congressional voting has long been on the wane. In times of divided government, gridlock should be likely given the difficulty of peeling off enough legislators from the other party to build a large enough majority around a particular proposal. [27] The consequence for public policy could therefore be policy drift, in which new problems are unaddressed and old ones are left to fester. [28]

15Yet, the greater technical capacities of Congress and growing strength of the party leadership have increased the ability of Congress to pass major social policy reforms. Congressional majorities could now be better equipped to withstand the pressures of organized interests. And party leaders may be better able to craft legislation and maneuver it through the many veto points present in the legislative process. In times of divided government, then, it should be increasingly difficult to enact reforms to Social Security and Medicare, but in times of uniform party control – even with relatively slender majorities – such reforms have become more likely than in the past.

16To sum up, in evaluating the implications of Congress for the functioning of the American state, many scholars have focused on its role as a veto player in a fragmented and permeable political system. Yet, both institutional changes to augment the power and independence of Congress, and the strengthening of the congressional party leadership, have potentially increased the ability of Congress to be an agent of reform. These changes have shaped the politics of health care entitlements. The remainder of this article will explore two different dimensions of this increased capacity: first, the growing bureaucratic capabilities of Congress in managing an existing program, Medicare; and second, the increasing capacity for reform as evidenced by the 2003 Medicare Modernization Act and the 2010 Patient Protection and Affordable Care Act.

The growth of bureaucratic authority over Medicare

17We can view these effects first through the build-up of institutional capacity within Congress to manage one of the largest entitlement programs in the federal budget: Medicare. Medicare is the federal health insurance program for senior citizens and the permanently disabled. The program is politically sensitive not only because it covers health care costs for nearly 50 million seniors and disabled people, but because it is a major source of income for politically influential groups such as hospitals, doctors, medical equipment suppliers, and the pharmaceutical industry. [29] As every state and congressional district is full of people and industries that benefit from Medicare, legislators are likely to tread cautiously around this program.

18It is precisely because of resistance from powerful medical interest groups that Medicare was never allowed a large executive branch agency to manage it. One of the biggest obstacles to a program of national health insurance in the US was the fear of excessive governmental interference in the organization and reimbursement of medical care. Health care interests thus lobbied hard to prevent such a program, and they opposed Medicare too, fearing that it would be the start of a slippery slope toward socialized medicine. [30] When Congress finally overcame these objections and created Medicare in 1965, it sought to appease concerns about governmental intervention in health care by creating only a small agency to oversee a huge and complex program. [31] Medical providers were also granted favorable terms of reimbursement and only limited scrutiny of the medical bills they submitted.

19By the 1970s, as these lax administrative arrangements helped fuel medical inflation and Medicare cost over-runs, legislators began looking for ways to exert greater control over the program. Their concerns reflected a larger set of changes within Congress and in its relationship to the executive branch. Mounting budget deficits in the 1970s and 1980s called into question the ability of the legislative branch to manage the nation’s fiscal affairs. Members of Congress also worried about growing executive branch power. This was hardly a new phenomenon – executive branch influence over budgets had been growing since the 1920s. [32] Congress was left in a reactive role – taking whatever budgets the administration offered, and lacking the independent expertise to devise its own fiscal agenda. During the 1950s and 1960s, a time of generally expanding revenues, disagreements between the executive and legislative branches could be managed, but with the drying up of budgetary surpluses in the 1970s, starker choices had to be made and inter-branch conflicts intensified. [33]

20In response, Congress adopted a series of reforms that gave it greater power over the federal budget. The 1974 Budget and Impoundment Control Act created budget committees and the Congressional Budget Office (CBO) – the latter providing nonpartisan analysis of the budgetary costs of legislation and long-term economic and budget forecasts. The CBO was particularly important in liberating Congress from reliance on the Treasury Department’s Office of Management and Budget and offered vital technical expertise. The new House and Senate budget committees were charged with drafting an overall budget at the start of each year and then, through a process called “reconciliation”, making sure that the authorizations and appropriations determined by various committees were brought in line with the original budget resolutions drafted by the committees. In the 1980s, reconciliation was moved to the beginning of the process, and Congress began to pass large reconciliation bills under rules that suspended some of the normal veto points that affect legislation, such as floor amendments or Senate filibusters. [34]

21With these enhanced technical and budgetary capabilities, Congress began working to rein in Medicare costs by the 1980s. The critical change came in 1983 with the creation of a prospective payment system that establishes in advance what hospitals will be paid for providing care. The immediate spark for the law was the Social Security trust fund crisis, which required immediate measures to cut spending on entitlements. The new prospective payment system was tacked onto a must-pass bill dealing with the crisis. [35] In so doing, Congress created a system of administered prices: henceforth, medical providers could no longer send in their bills and expect them to be paid. In 1989, a similar measure was adopted to contain spending on physician services, and a 1997 reconciliation bill extended a prospective payment system to the remaining facilities not yet covered by such a system of reimbursement. With these tools in place, Congress has been better able to stand firm against medical interests in battles over payments. [36]

22These reforms represented a major change in the relationship of the federal government to the health care system, empowering government officials in a way not unlike that found in many advanced industrialized democracies. [37] Congress was the crucial actor in the creation and implementation of the new system. Certainly, in the early 1980s, advocates of the reform in Congress had an important ally in the Reagan administration official in charge of the Department of Health and Human Services, who helped bring a Republican administration around to what would in essence be government-set prices for health care. But it was Congress, and not the agency charged with administering Medicare (HCFA), that took the initiative in creating the new payment system. [38] To help it better manage Medicare policy, it created its own entity – ProPAC (now MedPAC), which provides independent analyses of payment policy and other issues regarding the programs. These types of changes have expanded the bureaucratic capacities of Congress – reforms that have been particularly important given the declining influence of executive agencies, such as the Social Security Administration, [39] and the truncated nature of others, such as the Centers for Medicare and Medicaid Administration. [40]

23What is notable here is the willingness and ability of Congress to stand up against long-feared medical interest groups. [41] Certainly, Congress has not won every battle. For instance, although the prospective payment systems have worked to limit prices, they have been less effective in preventing volume increases, as providers have turned to billing more services as a way to make up for the clamp-down on prices. [42] The system has also worked less well in containing physician payments, with cuts repeatedly delayed in the face of providers’ threatened wrath. [43] Yet, as Oberlander has noted, there has been sufficient agreement among legislators around the need to contain Medicare spending that has helped members of Congress to hold firm against vocal and often influential interest groups. [44] Their resolve has been particularly strong at times of large budget deficits, when Medicare reimbursement rates become a convenient source of budgetary savings. [45]

24In addition, the budget reconciliation process has been a crucial tool for mobilizing the will to make cuts in entitlement programs such as Medicare. [46] As reconciliation bills are considered under expedited procedures in both the House and Senate, they can also help enforce the overall priorities established in annual budget resolutions. In the mid-1990s, House Republicans under the leadership of Speaker Newt Gingrich used the budget resolution and reconciliation to push for tight limits on Medicare spending. Although the 1995 measure was vetoed by President Clinton and generated much political fallout for the Republicans, they used the same procedures in 1997 to push through a more tempered but still significant package of Medicare cuts. [47]

Congressional leadership in health care reform

25Health policy making has also been affected by larger transformations taking place in American politics. With growing polarization between the two parties, and greater ideological homogeneity within them, power has shifted from the chairs of congressional committees toward the congressional leadership particularly in the House. More assertive and ideologically-driven leaders have then tried to use their power to pass laws serving the programmatic and electoral interests of their fellow partisans. Their ability to do so was revealed by two major episodes of health policy reform in the 2000s: the 2003 Medicare Modernization Act, adding a prescription drug benefit to Medicare, and the 2010 Affordable Care Act that substantially reformed the US health care system.

26The shift in power to the party leadership and its growing role on entitlement policy first started to become apparent in the 1980s, when Democratic House Speaker Jim Wright got involved early on in the process of developing the Medicare Catastrophic Coverage Act (MCCA) that expanded Medicare to cover high health care costs. Wright was critical in working out differences between the versions developed in the two committees with jurisdiction over Medicare, thereby enabling the House to put forth a unified stance vis-à-vis the Reagan administration. He also pushed for the inclusion of a measure he valued – coverage for prescription drugs, which Medicare previously did not cover. [48] Ultimately, this intervention did not work to the advantage of the MCCA, as the prescription drug benefit significantly augmented the cost of the legislation. Legislators decided to make seniors pay the full cost of the new benefits rather than increasing payroll taxes on existing workers, which in turn prompted a fierce backlash against the MCCA when the full costs became apparent. Within a year of its passage, Congress revoked the MCCA. [49] Even so, the episode was revealing of the growing role played by the party leadership in the development of social policy.

27Newt Gingrich brought an even more activist, and combative, style to the position of House Speaker in the 1990s, and he used this position to develop and push through a legislative agenda that included significant changes to Medicare. The Republican leadership came into office convinced that the 1994 election represented a repudiation of the Clinton administration’s health care reform effort and determined to show that they could enact an alternative vision of social policy. To enable this, the party agreed to changes in congressional procedures that centralized power in the hands of the leadership while diminishing that of committee chairs. [50] Gingrich was then heavily involved in the crafting of the 1995 Balanced Budget Act, which included major cuts to both Medicare and Medicaid. The measure failed to get past a presidential veto, and the 1997 package of cuts that did finally pass was devised through more conventional committee channels. [51] Nonetheless, Gingrich showed how the strengthened leadership in the House was capable of devising an overall agenda for the party and then pushing that agenda through the legislative process.

28The increasing role of the party leadership in the crafting and passage of legislation reached new levels in the 2000s with the successful passage of the 2003 Medicare Modernization Act (MMA) and the 2010 Patient Protection and Affordable Care Act (ACA). Both were complex and politically controversial expansions of federal responsibility for health care. The MMA added a prescription drug benefit to Medicare and increased the role of private plans in providing Medicare benefits, and at the time it represented the largest expansion of a federal entitlement program since the creation of Medicare itself in 1965. The ACA moved the US a step closer toward universal health insurance through a mandate on individuals to buy insurance, reform of private insurance, and greater subsidies to help assure coverage for lower-income people. Although space limits preclude a full examination of the politics of either reform, the two initiatives bear notable similarities in the role played by Congress in their passage and particularly that of the congressional leadership in enacting these two major changes to the American health care system.

29A first similarity is the surprising fact that these laws were passed at all. Congress had long been a graveyard for health care reform, with the most recent victim being the Clinton health care reform initiative that failed in 1994. Many had chalked up these failures to the multiple veto points within Congress [52] and/or the power of organized interests in blocking change. [53] Yet, within a short span of time Congress passed two major changes to the health care system. Neither passed easily; in fact, both laws were passed on an almost entirely partisan basis and required considerable maneuvering to eke out enough supportive votes. But the mere fact of their passage is telling of a changed political environment making major reform more possible than it had been in the past.

30This is particularly surprising given that Congress, and not the executive branch, played the pivotal role in the development of both pieces of legislation. In the MMA, the Bush administration played a fairly marginal role in the development of the measure. Certainly, Bush was in favor of a Medicare prescription drug benefit, but he only came to the issue during the 2000 presidential race, well after House Republicans had already developed and introduced prescription drug legislation of their own. In fact, during consideration of the Medicare bill between 2001 and 2003, the House disregarded White House proposals for the benefit on several occasions. [54] The main role the administration played was as an agenda-setter and supporter of the effort that House and Senate Republicans were making to enact this reform. [55]

31The administration played a greater role in the ACA, with President Obama’s large margin of victory in the 2008 presidential campaign and his strong commitment to health care reform setting the agenda. Yet, because of the widely held view in the administration that the Clinton reform foundered in part because he had tried to micro-manage the reform process, the Obama administration largely turned responsibility over to Congress for drafting and reconciling competing versions of the law. [56] Obama officials were important at various points in the process – most notably in negotiating deals with medical interest groups that helped bring those organizations on board or at least muffle some of their criticisms of the laws under consideration. [57] This was essential to de-fang groups that had long stood in the way of major health care reform in the past. But in general, as Brown has remarked, [58] the 2010 reform defied the longstanding view of scholars that “on a matter as complex and contentious as universal health coverage [Congress] is ill-prepared to lead”.

32The party leadership in Congress played the dominant role in the passage of both the MMA and the ACA, and their empowerment reflected the growing ideological homogeneity within their parties and raised electoral stakes around entitlements. In the case of the MMA, the push to expand Medicare resulted from the fiercely competitive partisan environment of the late 1990s, in which Republicans had seized control of the House and Senate but could not feel assured of holding onto their majorities. Although skeptical, if not outright hostile, to federal entitlements, Republicans felt pressure to respond to growing public clamor for prescription drug coverage in Medicare – pressure that only intensified as Democrats assailed them in every election for failing to act on this demand. [59]

33With these electoral considerations in mind, Speaker of the House Dennis Hastert made the prescription drug benefit a priority and oversaw the development of House legislation in 2000 that established the template for the bill that would ultimately pass. In 2003, once mid-term electoral victories in the House and Senate opened up a legislative window of opportunity for the Medicare bill, Hastert and Senate Majority Leader Bill Frist shepherded the legislation to passage. In addition to overseeing the drafting of the laws in both chambers, the House and Senate Republican leaders opened up secret negotiations with AARP – a major defender of social programs for senior citizens – on the outlines of an acceptable drug benefit. These negotiations would later pay off when AARP decided to endorse the legislation, much to the ire of their traditional Democratic allies. [60]

34Key members of Congress also worked out a system for administering the new drug benefit that would appease the main source of opposition to such a benefit in the past – the pharmaceutical industry. The drug companies worried that a Medicare drug benefit would give the federal government too much control over reimbursements, thereby driving down their profits. With these concerns in mind, the House Chairman of the Ways and Means Committee, Bill Thomas, proposed having subsidized private insurers provide the coverage, thereby dispersing payer power. This convinced some, but not all, pharmaceutical companies to come on board. Many insurers were not in favor of such a system, and a set of negotiations ensued in which some insurer groups balked at the idea of providing such a benefit. Tied up with these discussions were technical questions about whether and how such a publicly-subsidized yet privately-administered benefit would work. Thomas, the House leadership, and their staffs negotiated with interest groups and worked out the technical details. In the end, they succeeded in bringing key medical interest groups on board and devising a wholly new way of delivering a public health insurance benefit. [61]

35In the path to passage, the House and Senate leadership was essential to overcome a number of obstacles, including the Republicans’ lack of a filibuster-proof majority in the Senate. Republicans therefore needed a bill that was moderate enough to pull in sufficient Democratic and moderate Republican support, but conservative enough to be acceptable to House Republicans. The issue came to a head during the conference committee reconciling the House and Senate bills, with conflicts over increasing the role of private plans in providing Medicare benefits. Conservatives wanted Medicare to compete with private plans for the business of beneficiaries, whereas moderate Democrats signaled that including this provision would mean it would never pass the Senate. The issue threatened to destroy the bill and was only resolved when the Republican leadership took control of the conference committee from its leaders and worked out a compromise agreement with moderate Senate Democrats.

36Once the compromise had been reached, the leadership muscled the bill through a contentious House where only a handful of Democrats would vote for the bill. At one point, Republican leaders almost literally had to twist arms to get enough Republicans to support the bill, [62] but they ultimately prevailed. The situation in the Senate was less precarious: the MMA passed 55 to 44 with only a handful of Democratic backers, but the support of the AARP made Democrats reluctant to try filibustering the bill. In the end, the MMA was a major victory for the Republican party leadership, and a sign that Congress could propose, develop, and pass significant reforms to one of the most expensive and important programs of the American welfare state.

37Democrats in the House and Senate learned from watching their Republican counterparts on this and other legislative initiatives, and employed similar sets of tactics to pass the ACA in 2010. [63] Crucial to the passage of the law was the fact that Democrats, like Republicans, had delegated considerable authority to the party leadership. Although not as unified as Republicans, the continuing realignment of partisan constituencies affected Democrats too, producing a more ideologically uniform party that was increasingly willing to delegate power to the party leaders in order to achieve their programmatic objectives. [64] In the House, for instance, Speaker Nancy Pelosi had adopted many of the tactics employed under Hastert and Gingrich, such as bypassing committees, employing informal negotiations to reconcile competing bills, and using special rules and parliamentary tactics to assure passage of legislation. [65] One of the main goals of this increasingly cohesive party was to reform the health care system. As the Democratic presidential candidates had emphasized health care reform during the campaign, many Democratic voters, party activists, and legislators came to view health care reform as a vital programmatic priority. [66]

38In the ensuing reform process, the Democratic House and Senate leaders were critical to getting the laws through the complex legislative environment. In the House, Democratic Speaker Nancy Pelosi oversaw the drafting of the legislation, ensuring that the three committees charged with writing the bills would work in a coordinated way, thereby minimizing distance between them. [67] As sharp divisions emerged over the public option – a publicly-provided health plan that could be an alternative to those offered by private insurers – Pelosi acceded to the demands of more conservative democrats that the public option be watered down, and then convinced most liberal Democrats to stay on board. [68] Throughout the fall of 2009, the Speaker’s office took over much of the responsibility for ironing out differences, working out policy details, striking deals, and twisting arms. [69]

39In the Senate, the party leadership has less influence, and Majority Leader Harry Reid’s task was made all the more difficult by sharp divisions among Democrats on the reform. Reid thus played a less active role than Pelosi had during the drafting of bills in two separate committees during much of 2009, and the resulting legislation from each committee had some major differences. Reid and his staff took a more active role by the fall as they sought to merge the bills and forge a filibuster-proof majority through constant negotiations and promises of side payments to those still opposed. [70] The passage of the Senate bill in December 2009 was a triumph for Reid and his low-key leadership style, which proved effective in bringing enough Senators to the table. [71]

40The House and Senate leadership were then vital in achieving final passage of the ACA in March 2010. Initially, prospects looked bleak for the reform as Republican Scott Brown was elected to the seat previously held by Democrat Ted Kennedy. As a result, the Democrats lost their filibuster-proof majority. Yet Pelosi and Reid worked out a series of parliamentary maneuvers by which the House approved the Senate bill and the Senate then approved legislation through reconciliation – a procedure requiring only a simple majority vote – that would amend the original Senate bill to bring it in line with the House measure. [72] They also skipped the conventional way in which House and Senate bills are reconciled – a conference committee – and instead centralized control over the negotiations, excluding Republicans from the deliberations. [73] In the end, the deep investment of the leadership in the House and Senate paid off, as the Affordable Care Act passed in March 2010.


41In the past decade, Congress has enacted two large and complex pieces of health care reform legislation. In the case of the MMA, Congress initiated the reform, continued it under a supportive president, and resolved a host of complex technical and political questions around the legislation. The executive branch played a greater role in the ACA, with the Obama administration setting the agenda for the reform and engaging in negotiations with key interest groups, yet Congress then took responsibility for drafting and passing a law that was complex and controversial. Even before these two reforms, throughout the 1980s and 1990s Congress was growing increasingly assertive on health care entitlements, with a build-up of independent technical capabilities for managing programs such as Medicare, and increasingly assertive party leaders willing to tread upon this political minefield.

42Changes in the workings of Congress reflect, at root, growing polarization of the American electorate and of the two major political parties. With increasing ideological homogeneity within them, the Democratic and Republican parties express a growing unity of purpose, moving closer to the disciplined political parties often found in parliamentary systems. [74] The point should not be exaggerated – clearly, political parties in the US are more dispersed and fractious than the parties found in much of western Europe. But the demand by members for policy results has led to a greater centralization of power in the hands of party leaders. Party leaders have used this power to pursue programmatic and electoral aims, jettisoning a long tradition of bipartisan policy making in favor of more highly charged partisan initiatives.

43These developments should alter how we think about the place of Congress within the complex institutional arrangements that can be labeled the American state. Clearly, the American institutional setup is one designed to frustrate rapid or major policy changes. This was how the founders of the American polity intended it to be, and their plans worked so well that, for some years, scholars held that the US was relatively stateless, or was at least blessed (or cursed, depending on one’s point of view) with a weak governmental apparatus. [75] In more recent years, analysts have challenged this account, but few have investigated Congress as an agent of coherent policy making action. As this article has shown, the way in which governmental institutions have operated in the US has changed with larger social and political shifts that have altered the workings of Congress. Only in analyzing these larger changes can we understand not just the political fragmentation that results from a system of checks and balances, but also the at times surprising capacity of this system for producing significant policy reform.


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Congress presents an array of hurdles to potential legislation. This article reconsiders that view in light of some important changes made to health policy in the past three decades. The passage of these reforms reflects changes in the functioning of Congress, including the construction of greater bureaucratic capacity and centralization of power in the hands of party leaders. The findings of the paper have implications for scholars of the American state, who tend either to ignore Congress or to view it as a source of political fragmentation. Congress should be thought of as an important component of the overall state apparatus and it is not only a veto player, but also at times an agent of reform.

Kimberly J. Morgan
Kimberly J. Morgan is Associate Professor of Political Science and International Affairs at the Elliott School of International Affairs, George Washington University, Washington, DC. Her research focuses on the politics of social policy in the United States and western Europe, with particular interests in family policies, health care, and taxation. Her publications include Working Mothers and the Welfare State: Religion and the Politics of Work-Family Policy in Western Europe and the United States (Stanford, CA: Stanford University Press 2006), and her articles have appeared in journals such as American Journal of Sociology, Comparative Politics, Comparative Political Studies, Politics & History, Social Politics, and World Politics. With Andrea Louise Campbell (Massachusetts Institute of Technology), Dr. Morgan received an Investigators’ Award from the Robert Wood Johnson Foundation to study Medicare reform, and they subsequently published The Delegated Welfare State: Medicare, Markets, and the Governance of American Social Policy (New York: Oxford University Press, 2011). In 2006, she was elected to the National Academy of Social Insurance, and she serves as an associate editor of the journal Social Politics.
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