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How (and Why) Ted Kennedy Might Have 'Compromised' on Healthcare Reform

10/20/2009 05:12 am ET | Updated May 25, 2011

Sen. Ted Kennedy was known to lament his decision not to accept Richard Nixon's 'offer' on health care reform to impose an employer mandate to get the country close to universal coverage. He need not have wasted his remorse. Nixon's transcripts expressing shameful indifference bordering on a near-wish that Kennedy might be shot suggest that "Tricky Dickie" would have not lived up to his side of the bargain anyhow.

The eulogies at Ted Kennedy's funeral shared common themes that added up to this: that this was a man of great principle, dedication and hard work; possessed of a sky-high emotional intelligence; who was able to fashion compromise without surrendering his principles by employing that emotional IQ to determine what his opponents really needed, as opposed to what they might be saying, in order to achieve results. As a consequence, the "Lion of the Senate" played major roles in the National Cancer Act (1971), the COBRA Act (1985), the Americans with Disabilities Act (1990), the Ryan White AIDS Care Act (1990), the Health Insurance Portability and Accountability Act (aka, HIPAA; 1996), the Mental Health Parity Acts (1996 and 2008), and the State Children's Health Insurance Program (aka, S-CHIP; 1997), among others

As detrimental as the noise and shouting and misrepresentations and outright lying has been to the health care reform 'debate,' they would have provided Senator Kennedy the key insight that would have shaped the compromise and enabled the bill to pass. That insight was that the oppositions' emotional power springs from the (unfounded) fear of a "takeover", of "messing with one's life", of "federal power" of "elites" telling the common man what to do. Whether it was the [non-existent] death panels, the [non-existent] bureaucrat with his hands on the surgeon's scalpel, the [non-existent] campaign to kill grandma, the phony analysis of 112 million people transferring to the public plan and thereby gutting private insurance and thus choice -- all the fear was generated by raising the specter of centralized and unaccountable power (with the added element, of course, of a black man wielding it) of the federal government.

Those who genuinely 'fear' any of this are certainly a small minority. But, there are many many more who, while they do not actually fear, have enough doubt that they cannot completely exorcise their uneasiness, and thus tend to join the truly misguided in opposition. This is, remember, opposition to their own cheaper, more comprehensive, more secure health care. It is akin to Tom Franks description in What's the Matter with Kansas? of the image of unemployed and low-wage workers, storming through the gates of an executive's mansion carrying signs, "we want to lower your taxes!"

As Senator Kennedy knew from his brothers' tragic deaths, logic and facts and even measured discourse are of no value to calm those fears. Controversy over the facts behind John F. Kennedy's assassination have obscured the venomous hatred toward the President that existed that very day in Dallas and other cities primarily across the South. Back then, they were the Birchers; today, the Birthers. Back then, putting fluoride in the drinking water to prevent tooth decay was a Communist plot; today, it is government death panels to pull the plug on granny. Members of Congress, among whom courage is such a rare commodity that John F. Kennedy's book documenting the occasional instances won a Pulitzer prize, and ever mindful of their own re-elections, have bowed before the onslaught.

To win passage of health care reform, then, requires eliminating the emotional basis for opposition: the perception of federal 'control.' To do so, I think Senator Kennedy would have sought a way to minimize the federal role, while creating a force-field that achieved the same goal: writing a public plan into the bill, but allowing each state the power to decide whether it wants to include it as part of the mix of insurance plans allowed in that state.

He would have made this compromise because it would have preserved his principles, but yielded the same ultimate result -- lower insurance costs -- as a federal mandate, but would have provided the political space for colleagues at least to vote for cloture. Republicans, with the possible exception of Olympia Snowe, will not come on board, but what is needed is the entire Democratic caucus to vote for cloture. States that adopted the public plan would have lower costs because of the public option. States that decided not to offer the public plan would find that insurance companies would modulate their fees so as not to "invite" in the public plan and, if they did not, politicians would run for office pledging to do so citing not experts but rather actual experience of neighboring "adopter" states. States that allowed the public plan, and thus faced lower health care costs, would become more attractive to businesses.

Although this compromise arose as a political strategy, it also makes excellent policy sense. No one really knows exactly how reform will affect premiums, choice and health outcomes so that comparing the adopter and non-adopter states will provide a laboratory to determine what works best.

This is far superior to the alternative compromise being bandied about that the public plan only exist when triggered by private insurance companies' failure to meet certain standards. That idea does not permit us to take advantage of federalism and have real experience with it in the adopter states, and is an open invitation for years of insurance company diatribe and lobbying to remove the trigger. Senator Kennedy would have seen through that ploy in a nanosecond. By contrast, in the compromise proposed in this article, some states will have adopted the public plan and actual experience will trump theoretical fears.

The 'trigger' idea also does not remove, but just delays, the imposition of a federal mandate, and thus does not eliminate the emotional foundation for fear and loathing that has been stirred by the right wing.

Although one bristles at the thought of compromise because of lies, hatred and stupidity, this President faces unique challenges. Barack Obama is not just the first black man to be President of the United States, he is the first person of color, ever, to govern any nation with a white majority. For some, voting for a black man was one thing -- having him exercise the authority of the Presidency rankles on quite a different level. Couple that with the mess he inherited from the disastrous Bush Presidency that compelled federal intervention on a massive scale -- and many now actually believe that the federal bailouts were started by President Obama -- and there is fertile soil for the lies and innuendo planted by right wing zealots to take root.

Promote the states as the final arbiters of whether to adopt the public plan, and instantly, it is not Barack Obama but 50 state governors and legislatures who wield the power. This is not to suggest that the scurrilous accusations will not continue -- but rather that there is a very simple retort, that "it's up to your State," that provides emotional relief. Indeed, positively promoting federalism as an excellent policy choice increases the President's political capital.

The mess the disastrous Bush Presidency left Barack Obama has limited his policy choices in many areas. For example, President Obama would like to dedicate himself to balancing the federal budget and eliminating debt. He was prepared to make difficult choices, and to raise taxes on the top bracket to help achieve it. Bush, however, left Obama an enormous deficit, rising national debt and the need to boost spending to prevent a monumental economic collapse that would make the debt even worse, and hobble the country for a decade or more. Thus, this man, who temperamentally is more at home with caution, has been forced to champion deficits as the least bad of several unpalatable alternatives.

Most of the policy areas requiring transformation require federal action; indeed, energy independence/climate change requires international action and coordination. Everything the President tries will be attacked as federal overreach by the vested interests. He cannot even urge school children to work hard and remain in school without being attacked for indoctrination.

Thus, when he has an opportunity to promote federalism, when state choice is actually a good policy as well as good politics, the President ought to take it. He will need that political capital for other fights.

Health care reform is such an opportunity. He can reign in costs and achieve universal coverage by providing a public plan, but also foster federalism by allowing each state to determine if it wants to include that plan in the mix of insurance plans offered in that state. The force field created will achieve the desired result without a federal mandate to accept the public plan.

I believe Ted Kennedy would have seized that opportunity. Let us hope his political heir, to whom he passed the torch, will do so too.