The Balanced Budget Act of 1995: a Republican Congress united against the White House

20In 1995, the Balanced Budget Act (hereafter referred to as the BBA) was a priority for the 104^th Congress. It was examined in a political context that was marked by the Republican victory in 1994, a triumph which saw the Party regain command of the legislative branch for the first time in 50 years. The Republican Party, then led by its controversial Speaker of the House Newt Gingrich, who had been one of the architects of Republican unification around a shared conservative platform called Contract with America, at the time appeared to be very cohesive. It supported reducing government involvement, in particular in social policies which were perceived to be having a negative effect on employment and the economy. The BBA’s scope went well beyond health policies alone. It was an important budget reconciliation law which sought to implement the Republican fiscal plan. The BBA planned to lower taxes by 245 billion dollars over seven years, while reducing state spending by almost 895 billion dollars. Among other social policies, Medicare and Medicaid were subject to important budgetary cuts of 270 billion and 163 billion, respectively. These cuts would consequently entail massive restructuring measures, be they the creation of medical savings accounts designed to encourage retirees to contribute to their health insurance plans; the partial privatization of Medicare, delegated to private insurance companies; or even the transformation of Medicaid into a system of capped subsidies given to individual states. Although Democrats were not fundamentally opposed to budget cuts, the extent of the cuts planned provoked their outrage, as well as the transformation of these policies’ instruments. The White House was likewise opposed to such measures and from the very beginning of the debate threatened to use its veto.

21Despite opposition from the Democrats and President Bill Clinton, Republicans refused any bipartisan compromise and tried to force the bill through. The reform’s formulation was controlled by Republican leaders, both during the committee review process and the joint session; the whole of the reform process took place in a partisan climate. In the House of Representatives, a working group steered by the office of the Speaker replaced the committees during the drafting of the text. The Republican congressional campaign committee’s meetings were closed to the public and to Democrats. It was only once the first version of the bill was fully drafted that the two competent committees with regard to health policy measures (Ways and Means and Energy and Commerce) were mobilized for a rapid amendment process, preceded by a single day of hearings. [49] Consideration of the bill was reduced to three days, all of the amendments proposed by Democrats were dismissed, and the committees approved the bill after a vote that was split along party lines. In the joint session, the BBA was granted a closed rule and the only amendment authorized was a Democratic alternative. In the Senate, the process was less tightly controlled by the Hill committees and the versions of the bill voted on were more centrist, in part because the Republican leader in the Senate, Bob Dole, was more moderate and distanced himself somewhat from his fellow conservatives in the House. However, due to the budgetary nature of the text, which deprived the Senate of the institutional leverage provided by filibustering, the Senate’s voice was rather weak on the issue. The joint conference committee was marked by partisan logic and significant ideological clashes. The Speaker presided over the conference committee, [50] which included only Republicans and was held immediately after the Senate bill was passed. After two weeks of negotiations, the House version of the bill prevailed and was incorporated into the report. On 17 November, after vehement debate, the two Houses passed the final bill.

22Bill Clinton let it be known that he would use his veto on the bill, but Republican leaders in both Houses refused to make any concessions. On the contrary, they adopted a confrontational stance towards the White House, threatening to not vote through the budgetary appropriations for 1996 that were necessary to finance the federal government’s operations. Clinton did not back down, and the government shut down twice, first between 14 and 19 November and then between 16 December and 6 January. The showdown between Congress and the White House ultimately worked against the Republicans, however, and the press called the latter obstructionists. Faced with increasingly unfavourable polls, Republican leaders finally decided to concede and postpone the budget reform project. The failure of the 1995 reconciliation bill was a major blow for Republicans and illustrated the limits of the political power of the leading party in the context of a divided government, while Bill Clinton came to be seen as a major veto player. [51]

The Balanced Budget Act of 1997: a bipartisan law bought by exercising significant control over the Republican majority

23There was a second attempt to pass a budget reduction bill in 1997, which occurred in a different political context. Following the elections in November 1996, the configuration of the political majorities had stayed relatively the same: Clinton had been re-elected, defeating former Senate majority leader Bob Dole by a comfortable margin, and continued to enjoy a high approval rate. [52] Opposite him, Republicans had conserved the majority but were weakened by the loss of several seats in both Houses. Nevertheless, after a 104^th Congress characterized by high levels of conflict between Republicans and Democrats, both parties adopted a more negotiated strategy in order to put an end to legislative roadblocks that hurt them at the polls.

24With regard to its content, this second version of the bill preserved some of the measures that had been at the core of the 1995 bill: the partial privatization of Medicare and the creation of medical savings accounts, the cornerstone of the Republican health programme. Budget cuts were also included in the bill, although they were much more limited than those planned in 1995: Medicare would lose 115 billion dollars over five years and Medicaid would only lose 7 billion. The most controversial measures, concerning the transformation of Medicaid into a block grant state-funded programme, were abandoned. Medical savings accounts were likewise reduced to an experimental measure. [53] The 1997 version of the bill also included measures backed by Democrats and the White House, such as measures strengthening patient protection and coverage for preventative care, as well as one of the Clinton administration’s priorities: the creation of a new healthcare programme designed to covered uninsured children in families with incomes that were modest but too high to qualify for Medicaid. This programme was called the State Children’s Health Insurance Program (hereafter referred to as SCHIP). A former Clinton advisor explains:

25

In 1997, when Clinton was re-elected, he was in a position to push his own agenda and he did so very aggressively. Republicans simply could not say no. If they wanted to pass a Balanced Budget Act, they had to accept the compromise. Bill Clinton was very invested in SCHIP. He declared that he would veto the reform if it didn’t include this programme. The Republicans didn’t want the programme but they made the compromise in the reconciliation bill. There were negotiations on the exact shape that SCHIP would take: would this new policy be integrated into Medicaid? There were different models, too, and different issues were negotiated, such as the amount of flexibility states would have, and the capping of federal spending. [54]

26The shape that SCHIP ultimately took attests to these negotiations: the new policy took the form of a global donation of 20 billion dollars to the states limited to seven years (a block grant), at the end of which, contrary to Medicare and Medicaid which are permanent federal commitments, SCHIP would need to be voted on again by Congress. The federal government’s minimal commitment was one of the conditions behind incorporating this new policy into the reconciliation bill. A former advisor to Newt Gingrich recalls the negotiations that took place between the White House and leaders in Congress:

27

In 1997, we absolutely had to pass the law. Republicans could no longer allow the government to shut down and the White House knew it. These were very difficult negotiations, especially with regard to health policies. But ultimately, we reached an agreement, primarily because we ended up spending a lot more than we had intended to. SCHIP is one example. A fair number of Republicans said that the terms of this agreement were not very good, because we ended up spending more money than we wanted to, and by extending a federal policy rather than curtailing it. [55]

28In Congress, the more conservative elements protested the terms of the agreement reached with the White House, and preserving their support became a challenge for Republican leaders. As in 1995, the legislative process was centralized by the legislative parties. The drafting of the first version of the bill took place in the Speaker’s office [56] and it was only later that other committees were involved, primarily to ratify the agreement reached with the White House. Republican leaders filed the bill in June. With regard to health policy measures, the Ways and Means Committee approved the bill unanimously and almost immediately. [57] Discussions were longer in the Energy and Commerce Committee, where the bill was met with more opposition, but the Committee ultimately voted for the bill 29 against 17, with only two Democrats voting for it. In the Senate, the Committee on Finance voted for the bill unanimously. Although the Committee examined over 200 amendments, the original version of the bill as drafted by the House of Representatives prevailed and the terms of the agreement reached between Clinton and Republican leaders were preserved. During the meetings of the joint conference committee, negotiations were limited to Republicans from both Houses and the White House. The final vote took place a month after the plan had been made public. The House voted for the conference committee’s report 346 against 85; 32 conservative Republicans went against their own party and 53 Democrats voted against the bill. The Senate passed the bill 85 to 15.

29The 1997 BBA was a process requiring more negotiation than its 1995 counterpart, primarily between the Hill committees and the White House, but similarities appear between the two legislative processes. The standing committees were relatively marginalized in both cases. What was remarkable about the 1997 reform is that both parties managed to maintain enough partisan discipline to pass the bill. From this point of view, this reform, despite its bipartisan nature, reveals the important framing undertaken by the congressional campaign committees. The 1997 Balanced Budget Act illustrates a case where their impact is shown by the fact that Republican leaders managed to convince enough conservatives to vote for a bill that contained a significant increase in public spending. The 1997 BBA nonetheless tarnished the unified front presented by the Republican majority. Fiscal conservatives publicly criticized the concessions made to the Democrats. These criticisms were focused on Speaker Gingrich and constituted one of the reasons behind his resignation in 1998.

The 2003 Medicare Modernization Act: Republicans in charge

30The 2003 Medicare reform was characterized by several observers as one of the most important changes to Medicare since its creation in 1965. [58] It was also the first change that occurred under a Republican government and was an occasion for the Republican Party to propose structural changes in an area traditionally seen as Democratic turf. With regard to its substance, the reform sought to extend the partial privatization of Medicare by contracting health insurance companies (Medicare Advantage). A second modification, which was the one that received the most media coverage at the time, was the introduction of voluntary enrolment in an entitlement benefit for prescription drugs, likewise run by private insurance companies. The political context surrounding the reform was one of unified government, where both the Congress and the White House were Republican. And yet despite this configuration, the narrow Republican margin in Congress required bipartisan negotiations, in particular because the reform could not be passed as a budget reconciliation bill, unlike the BBA. This meant that negotiations with Senate Democrats, where the Republican majority was 51 out of 100, were necessary to prevent a filibuster. There again, a major issue for the group was maintaining enough cohesion among its different factions, not alienating fiscal conservatives while still preserving the support of a handful of Democrats.

31During the legislative process, standing committees were more autonomous than when reforms were passed in the 1990s. In the House of Representatives, this autonomy was embodied in the leadership of the Ways and Means Committee’s president, Bill Thomas. The committee ensured a more traditional role of general control over the reform process. The autonomy that Bill Thomas enjoyed was not total, however: it was based on the guarantee that he would provide the kind of reform that the Republican campaign committee expected:

32

I guaranteed the legislative party that I would provide them with a reform that would involve the market more, that would create a new entitlement benefit for prescription drugs, and that would not cost more than 395 billion dollars, because the president had said that we only had 400 billion dollars to spend. The party had no real interest in the details and concrete mechanisms, what was important to them was that the reform would be based on market logic. So they left me free to do what I wanted. They were involved in some parts of the reform. Speaker Hastert for example was very attached to the idea of health savings accounts. He was also invested in the fact that the market would determine the price of medications, rather than some administrative structure. But he had neither the time nor the energy to control the whole process. [59]

33The priority of House leaders was imposing a conservative reform bill, which would set the tone for negotiations with regard to the Senate’s version. It was to be consistent with the individual approach to health insurance, strengthening the health savings accounts measure that had been introduced in the 1990s. Once the bill was elaborated, the committees amended and voted on it following party lines and according to majority logic. In the joint session, a closed rule was applied, only Democratic alternatives were authorized and debate was limited to three hours. Despite not obtaining any kind of agreement from the Democratic side, the text managed to squeak by, 217 votes to 216. A former advisor to the Ways and Means Committee recalls the difficulties experienced by Republican leaders at the time:

34

Some members of the committee supported the reform, about a hundred or so, but we also had something like 50 members who were difficult, problematic. Some of them supported certain options on principle, for example Paul Ryan supported the competition measures linked to Medicare, and others wanted health savings accounts to be strengthened. That, we did. Other members on the other hand didn’t care about the content at all, they just cared about the hospitals in their district… For example, we had a very specific question about Iowa hospitals. But once we got the hospital associations with us, that sort of greased the wheels… And then, there were also a few elected members who opposed what we were doing on principle, regardless of the shape it would take, they just did not want to increase public spending no matter what. They opposed the bill, in whatever form it took. There was no way to convince them. [60]

35While Republicans in the House of Representatives had pushed for a more conservative version of the bill, the Senate produced a more moderate, bipartisan law. The legislative process was marked by negotiations within the Committee on Finance between Republicans and moderate Democrats, whose votes were necessary to garner the support of 60 senators. In a joint declaration, Chuck Grassley, the President of the Committee on Finance, and the Democratic leader in the Senate, Max Baucus, announced that they had reached a compromise. The committee voted the same day, in very large proportion for the bill (16-5). The same bipartisan climate existed when the bill was voted on in the joint session; the reform was passed in the upper House by 76 to 21 votes.

36The joint conference committee met between July and November 2003 to negotiate an agreement on a bipartisan version of the bill. The negotiations that unfolded this time quickly regained their partisan nature and excluded House Democrats entirely. Only a handful of conservative Democrats from the Senate were allowed to participate. During these negotiations, the most conservative measures in the bill were removed from the final text in order to preserve the support of the Senate Blue Dog Democrats. The former president of the Ways and Means Committee describes the process:

37

We pushed it as far as we could and we spent as much as we could to keep the conference unified. Once we reached an agreement, we reported it to Congress. In the Senate, the joint conference committee’s report was passed through relatively easily. In the House of Representatives, this was much more difficult because there were very few Democrats who supported the reform. They would have suffered reprisals from their party leaders if they had let another prescription drug benefit plan pass with a Republican majority. [61]

38The vote in the House of Representatives took place during the night of 22 to 23 November; 220 representatives voted for the bill and 215 voted against it. Twenty-five conservative Republicans defected from their party and sixteen Democrats voted for the bill. During the vote, the leaders of the committee put pressure on several Republicans to change their vote and kept the session open beyond the regulatory 15-minute limit, for a period of three hours in total. [62] This was described by a journalist from the Washington Post:

39

Meantime, Health and Human Services Secretary Tommy G. Thompson, who had been working the Capitol all day, defied custom and moved onto the House floor. He and Hastert avoided the back rows where many of the conservatives were clustered, and targeted “no” voters such as Reps. John Shadegg (R-Ariz.) and Nick Smith (R-Mich.), who were standing or sitting alone. The broadshouldered speaker, moving through the crowded aisles like a fullback, plumped down next to Smith, who is retiring next year after 40 years in a succession of public offices. Hastert threw an arm around Smith’s shoulder and leaned in as Thompson moved into the seat on the other side. Aides recounted that Hastert said Smith’s help was vital to the party and the president – a fitting gift at the end of a long career – and suggested it would also help Smith’s son, who plans to run for the seat. [63]

40In the Senate, the bill passed on 25 November, 54 to 44; nine Republican senators broke with party lines, including former majority leader Trent Lott, who had ceded his place to Bill Frist in 2002. Those lost votes were made up by eleven Blue Dog Democrats who voted for the bill. All in all, the Medicare Modernization Act reveals the important partisan framework furnished by the more conservative factions, which were opposed to the expansion of Medicare through the creation of a prescription drug benefit. Much like the BBA in 1997, one of the main difficulties that the committee leaders experienced was preserving the unity of the group with regard to measures that deviated from the Republican agenda.

A partisan legislative process

43The size of the Democratic majority in Congress, and especially in the Senate where Democrats held the 60 seats necessary to prevent filibustering, had a significant impact on the reform process. It meant that the Democrats did not have to negotiate with Republicans and that the main challenge involved in the legislative process was maintaining cohesion within a relatively diverse majority. [70] The 2010 process was organized by the congressional campaign committees and was highly polarized, while Republicans violently attacked a bill that they found to be an unacceptable expansion of involvement by the federal government. The 111^th Congress was described as one of the most polarized in the history of the United States, and the ACA crystallized the clashes between the two parties.

44The legislative process began in the spring of 2009. In the House of Representatives, the three competent committees – Energy and Commerce, Ways and Means, and Education and Labor – worked together within a platform controlled by the Democratic leadership, from which Republicans were excluded. It was only later that the other standing committees of jurisdiction were mobilized. [71] During the drafting of what was later called the Tri-Committee Bill, the teams behind speaker Nancy Pelosi controlled negotiations regarding the more controversial aspects of the reform bill. Just as when the Republicans had been in power, the group strategically managed the work conducted, and centralized negotiations with the sector’s special interest groups.

45The Tri-Committee Bill was made public in June 2009 and reported to each of the relevant committees for examination and amendment. The bill was liberal in orientation and bore witness to the influence of the Democratic leadership, whose strategy had been to propose the most liberal version possible, to balance the more moderate version that the Senate would have to pass on account of the Blue Dogs’ political clout. The Tri-Committee Bill included one of the most controversial elements of the debate that raged at the time: the public option, supported by the liberal representatives in the House. This was a public programme that was supposed to compete with private agents on the health insurance marketplace. The idea was that this kind of programme, having the administration’s backing, would be able to offer less expensive insurance policies and would consequently force private companies to lower their premiums in the hopes of remaining competitive. The bill also included provisions controlling the prices that could be charged by health professionals and the pharmaceutical industry, while moreover expanding Medicaid to cover individuals whose income was below 150 per cent of the federal poverty line. [72] However, the House’s Blue Dogs, who were sufficiently numerous to force the reform to fail if they massively opposed it, obtained several concessions. The public option was weakened and the new regulations were stripped of any kind of price control mechanism. The Blue Dogs also obtained a reduction in federal subsidies and measures limiting the rights of undocumented foreigners. The bill was debated on 7 November under a closed rule. No amendment was authorized, except for a Republican alternative. At the close of a heated debate, where Republicans employed extreme rhetorical tactics to attack the bill, the House version passed, 220 votes to 215. Thirty-nine moderate Democrats voted against their party and all of the Republicans voted against the bill.

46In the Senate, the role of Democratic leaders was less visible, and seemed more transactional at first. [73] As in the House of Representatives, work began in the spring of 2009. But contrary to what happened in the House, where Republican opposition emerged immediately, the committees started with bipartisan negotiations. These primarily took place within the Committee on Finance, whose president Max Baucus had supported the 2003 Medicare reform. However, these negotiations failed. The search for a compromise in order to gain the support of a few moderate Republicans caused delays in the bill’s development and Baucus gradually lost his backing by moderate Republicans: only one senator voted for the measure in the Committee, but she ultimately revised her opinion in the full session after being pressured by the Republican party. According to a staffer working for the Republican committee in the Senate, negotiations between Baucus and moderate Republicans were closely monitored. The Republican party’s position was clear: it was opposed to any Democratic reform.

47

The senators who negotiated with Baucus very regularly met up with the committee’s leaders. From the beginning, we asked them to not reach any agreement with the Democrats without telling us about it. They promised to not take any decisions without first discussing it with us. Moreover, it was immediately apparent that if they agreed to the compromise offered by the White House and Baucus, they would be alienated: they would not be able to convince any other Republican senators to follow them. There was no one in the committee who would have supported this deal. Under these conditions, they knew that it was not worth it to pass a compromise, they would have put themselves in danger if they alone voted alongside the Democrats. [74]

48The summer of 2009 brought an additional stage in the politicization of the legislative process. Republicans and other conservative political forces attacked the bill and denounced it as an attempt to “socialize the health care system”. This rhetoric had a certain impact on public opinion, whose support for the reform dropped. [75] Faced with a serious risk of stalling, the month of September marked the end of the autonomy that the Senate’s committees had enjoyed and the Democratic leadership regained control of the proceedings. The strategic centre of negotiations shifted from the Committee on Finance to the teams behind Senate majority leader Harry Reid. The version that the Committee on Finance finally proposed was more moderate than the one voted through in the House of Representatives: it preserved the marketplace concept but weakened federal regulations and the expansion of Medicare, and eliminated any mechanism for price control and monitoring. Finally, it replaced the public option with private insurance co-ops managed by their insured members, much like a European mutual company [mutuelle]. The Committee voted in favour of the bill on 13 October. The Democratic leadership then assumed the management of the legislative process once more. Several substantial measures were added to the bill at this point. The public option was reinstated, mitigated however by granting states the option not to participate in this system. The voluntary expansion of Medicare for those aged 55 or above (the Medicare buy-in option) was also present in the reform. However, this more liberal version of the bill provoked the opposition of the Blue Dog Democrats and Reid ultimately had to backpedal: the public option was once again removed from the bill, as were the Medicaid expansion measures. Finally, on 17 December, at the end of a strictly partisan vote of 60-40, in which no Democrat opposed the bill, Reid obtained cloture of the debate. The bill was voted on 24 December, 60 senators for and 39 against the bill.

49The joint conference committee was likewise characterized by partisan logic. The presidents of the standing committees and the leaders of the Democratic group were called to the White House to work on drafting a joint version of the bill. An advisor for the Energy and Commerce Committee recounts the experience:

50

We didn’t follow the regular procedures at all. If we had done that, the reform would have probably not passed: in the Senate, the problem was that the list of provisions had to be voted on by the qualified majority of sixty senators. In the House, there were also some procedural problems: even if the House operates under simple majority rule, the minority is allowed to present “motions to instruct”. This means that those provisions would have to be explained with regard to measures contained in the report. The Republicans would have asked questions to make the Democrats uncomfortable. This would have risked splitting the group apart. So in order to avoid this situation, the Democratic leaders simply decided that there would be no formal conference. In its place, we had an informal process, which was not transparent and not public. [76]

51No Republicans were allowed to participate in the negotiations, which took place behind closed doors between the end of December and the beginning of March. Meanwhile, however, a Senate by-election in Massachusetts caused the Democrats to lose their sixtieth seat. [77] In order to avoid any filibustering when Congress moved to vote on the report produced by the joint conference committee, both Pelosi and Reid tried to avoid a new Senate vote and chose to pass the version already voted on by the Senate to the House of Representatives, thus in fact repealing the version that the House had itself passed in November. It was decided that the House’s amendments would be passed under a budget reconciliation bill. These changes were relatively minor and the main sources of conflict within the majority (the public option and price control mechanisms) were left aside.

52The joint session debates were as contentious as they had been when the bill was first drafted, despite the fact that it was now a centrist version that was being put to the vote. The bill was examined under a closed rule and only authorized a Republican alternative that would act as a substitute. In the House, the vote was 219 against 212. No Republican voted in favour of the bill and 34 conservative Democrats voted against it. The reconciliation bill was voted on immediately following and passed 220 to 207. Two Republicans and one Democrat abstained, no Republican voted for the bill and 32 Democrats voted against it. Despite the defection of a number of Blue Dogs, the Democrats managed to gather enough votes to adopt the reform.

53* * *

54Since the reform was passed in 2010, the ACA has continued to crystallize the clashes between the two parties. The morning after its adoption, Republicans introduced a bill seeking to repeal Obamacare, and attempts at repeal have been ongoing since then. In March 2014, 54 attempts at partial or total repeal of the ACA were voted on favourably in the House of Representatives, which has held a Republican majority since November 2010. To this day, these measures have all been blocked by the Senate, which remains under Democratic control. A recent attempt was proposed in January 2014 [78] by senators Hatch, Burr and Coburn which sought to present a Republican alternative to Obamacare for the mid-term elections in November 2014. This proposal repealed the individual mandate and the majority of regulations for insurance providers; federal subsidies were likewise reduced, as was the expansion of Medicaid. Such attempts at repealing Obamacare have been supported by a constant campaign of opposition to the reform, primarily financed by funds from conservative movements. The amount spent on television campaigns, both in favour or against the bill, has reached 500 million dollars, and projections estimate that by 2015, this sum will reach one billion dollars. [79]

55In the current situation, however, these attempts at repeal are unlikely to pass, for reasons that are both political and economic. Politically speaking, the chances of a repeal bill succeeding are extremely slim for the next two years. The same partisan polarization that helped to pass the 2010 reform is currently working against Republicans and is protecting the bill, at least in the short term, thanks to the institutional barriers presented by the American political system. Support for the repeal of Obamacare among special interest groups in the sector is also far from being a given, despite Republican lobbying attempts. This is an essential difference and a historical break with the political configurations that were observed during previous reform attempts. Republican attacks lack the support of interest groups and rely primarily on conservative activist groups. Health insurance companies are already heavily committed to implementation, including in the health insurance marketplaces, and backtracking would be costly for them. Doctors are likewise actively involved, especially at the state level. Employers are not opposed to the reform either, although many do seek to negotiate more favourable measures. [80] Moreover, the costs – both political and economic – associated with returning to the previous situation are increasing every month, as a growing number of Americans benefit from the new services and regulations. In such a landscape, Republican actions are primarily directed towards the 2014 mid-term elections. Even though it is unlikely, the repeal argument will be a major campaign theme for them.

56In addition to providing a commentary on a current political event, in terms of public policy, the level of politicization that surrounded the ACA made its passing into law more uncertain in one sense, and more surprising as well, to the extent that it contradicts the established certainties of American policy-making – in particular the essential role played by the “centre” in the success or failure of a given reform. The system of checks and balances that characterizes the American political system is supposed to encourage a bipartisan political process and move all legislation towards the centre or the position of the “median legislator”. [81] These mechanisms continue to play a major role, forcing the parties to negotiate, as was the case for the health reforms conducted in 1997 and 2003. However, in the case of the ACA, what we observe is not an institutional impasse caused by a lack of bipartisan consensus, but on the contrary the pushing through by force of a purely Democratic bill, from which Republicans were excluded. As Hacker and Pierson have observed, [82] partisan polarization is less likely to produce an institutional impasse than a growing number of “off-centre” reforms; that is to say, those which move increasingly further away from the centre or any sort of median legislative ideal, to move closer to the centre of the ruling party. These off-centre policies – one example of which, according to Hacker and Pierson, were the budget cuts passed during George W. Bush’s first term – rely on stronger partisan identities, on the centralisation of the decision-making process by partisan leaders and the White House, and on a total refusal to co-operate with the other party.

57The ACA is an almost perfect embodiment of this type of off-centre policy, not so much in terms of its content but rather its process. The reform was the fruit of internal compromises within the Democratic Party, much more than it was the result of bipartisan negotiations, as attests the vigour with which Republicans continue to attack the law. It was able to be voted through because the Democratic majority in Congress remained cohesive, and because the whole of the reform process was closely structured and monitored by Democratic leaders from both Houses. Most of the time, Republicans were excluded from the legislative process, while attempts at negotiation led by Max Baucus to gather the support of moderate Senate Republicans threatened to topple the entire legislative process. It follows that, in a unified government, political majorities seem to be more capable of imposing controversial bills today. Consequently, one of the main observations of this article relates to the fact that a reform that was controversial for decades became possible, in part due to transformations in the processes of formulating and reforming policies.

58From this stems the hypothesis that there now exists a greater level of awareness of majority logic in the policy-making process, which can lead to more frequent and more structurally different policies in the case of a unified government, but also to increased impasses in a divided government, when the two Houses of Congress and the White House are not occupied by the same party and adopt a confrontational stance. [83] The 2013 federal government shutdown is a perfect illustration of this risk. These changes are not necessarily permanent, but as Hacker and Skocpol have shown, [84] the reinforced weight of ideology, increased specialization in campaign funds, in particular through party machines, and the trend towards radicalization among federally elected representatives remain pressing issues today, and all suggest that the logics observed in the context of recent health policy reforms will continue to play a crucial role in the future. [85]