Politics is always a mixture of partisanship and principle. Politicians need to organize in parties and get more votes than the opposition to realize their principles. Given this reality, it is hardly surprising that parties will use whatever legal tactics work in order to gain electoral advantage. But sometimes the best way of realizing their principles is to foreswear the usual political game. The debate over passing Obamacare is the time to elevate long term principle over short term partisan tactics.
The Democrats need to get the House of Representatives to pass the health bill the Senate has already passed, because the election of Scott Brown now permits Republicans to filibuster any comprehensive health care legislation sent to the Senate. As a result, the House leadership needs to hold the support of all or almost all of those who helped gain narrow passage for the House bill last November even at time when the Obamacare has become much more unpopular. Their principal political argument is to tell representatives who previously voted for the House bill that they might as well vote for the Senate bill because they will be attacked anyway as supporters of Obamacare. Doubling down costs the members nothing electorally and delivers a long-time Democratic priority.
The Republicans can defeat this argument by simply stating that they will not use the earlier affirmative vote for the House plan against any House member who subsequently votes against the Senate bill. To make that commitment clear and powerful, the Chairman of the Republican National Committee and the Minority Leader of the House should release a video making this declaration in no uncertain terms. They can tell the American people that Obamacare’s threat to medical innovation and the long term financial soundness of the nation are so dangerous as to justify a political armistice on the issue for those who give up their part in this wrong-headed crusade.
House Democrats who vote against the Senate bill can then use that video in the fall should their opponents bring up their previous vote. To be sure, no one can prevent outside groups from pointing out their earlier mistake, but the formal Republican declaration on the issue would provide insulation against challengers.
It will not take much to hold representatives harmless for a change of heart, because the the political argument for persisting in an unpopular position is not very strong. Democratic representatives can explain that they are changing their minds because they are taking into account the views of their constituents—an argument hardly likely to be unpopular with those same constituents. They can point out that it has become much clearer now that America is in huge financial hole and that it cannot afford a new entitlement. As John Maynard Keynes once replied, when he was upbraided for changing his mind: “When the facts change, I change my opinion. Pray, what do you do, sir?”
In this case, giving up a possible campaign issue is likely to be good politics as well. Americans say in poll after poll that they are sick of partisanship in Washington. What better way for a party so show it has listened to this message than to publicly declare that the future health care of Americans is more important than current political advantage?
John O. McGinnis is a Professor of Law at Northwestern University and Michael B. Rappaport is a Professor of Law at the University of San Diego.