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It Is Never Easy…

lbjWhen Congress created the Medicare health insurance program in 1965 and President Lyndon Johnson signed the landmark legislation – that’s LBJ handing one of his pens to Harry Truman who had long advocated for the program – the law gave the Johnson Administration less than a year to implement the vast new groundbreaking program. More than 19 million elderly Americans were immediately eligible for Medicare coverage in the summer of 1966 when the law went into effect, but there was widespread concern that the program wouldn’t work.

As Sarah Kliff wrote recently in the Washington Post “nobody knew whether the new program would provide benefits to millions or fail completely.”

“What will happen then, on that summer day when the federally insured system of paying hospital bills becomes reality?” Nona Brown, a New York Times reporter, wondered in a story published in April 1966. “Will there be lines of old folks at hospital doors, with no rooms to put them in, too few doctors and nurses and technicians to care for them?”

Many of the same questions are being asked now about the Obama Administration’s Affordable Care Act (ACA), particularly in light of the news dump in the middle of the July 4 holiday period that one of the most controversial portions of the law, the employer mandate, will be postponed for a year. Obama and those charged with implementing the ACA should hope they fare as well as those uncertain bureaucrats did back in 1966. By the time Medicare took effect 47 summers ago more than 93% of eligible seniors had enrolled, but it required an extraordinary effort to properly launch the program that was once labeled by the American Medical Association as the “beginning of socialized medicine.” Today, of course, politicians mess with Medicare at their peril – ask Paul Ryan – doctors most often now complain about reimbursement levels and the program that many once thought couldn’t be made to work is one of the most popular government programs ever.

How did LBJ and his administration pull it off? And are there lessons in that history of almost 50 years ago for those struggling to implement Obamacare amid predictions that a “train wreck” in coming?

One fundamental difference between 1966 and 2014 (when the ACA goes into effect) is the personality and style of the men occupying the Oval Office. Lyndon Johnson possessed an almost obsessive love of pulling the levers of presidential power. With his White House micro-managing almost everything the U.S. Forest Service actually sent its personnel out into the woods to find “hermits” and sign them up for Medicare. The government hired thousands of temporary workers, opened hundreds of new offices and literally sent people door-to-door campaign style to find eligible elderly folks. It helped that no one sued the Johnson Administration over the implementation of Medicare and that both the government and the country were smaller in 1966. It also didn’t hurt Medicare implementation that the White House and both houses of Congress were controlled by the party that had for a generation or more pushed for its passage. LBJ had no John Boehner to contend with.

Still with many doctors and hospitals skeptical of Medicare the Johnson Administration faced major hurdles in the implementation effort, including the obvious need to get providers suited up for the launch. Government workers enlisted the American Hospital Association to educate hospital administrators and, believe it or not, the television networks donated time to promote the program. Private insurers were contracted to serve as intermediaries with program participants. When Social Security Administrator Robert Ball briefed the Johnson Cabinet in May of 1966 he confidently predicted that there would be some rough spots, but that the implementation would come off on time and it did.

One issue Johnson’s bureaucrats had to contend with that thankfully doesn’t exist today was a provision in the Medicare act that required hospitals to be certified in advance as being in full compliance with the Civil Rights Act of 1964. In other words hospitals could not participate in the new program unless they supplied services equally to whites and blacks. Some southern hospitals held out for a time, but eventually came around when it became apparent that elderly whites as well as African-Americans were being denied coverage.

On July 25, 1966 the New York Times reported that “M-Day” had come and gone with civil rights compliance the only major problem. The fears of vast overcrowding of hospitals or that elderly would resist signing up and paying a $3 per month fee simply didn’t materialize.

Obama has his own sticky issues, including Senate Minority Leader Mitch McConnell threatening the heads of major professional sports leagues if they even think about helping spread the word on the ACA and the House of Representatives still voting regularly to repeal the law.  Once Medicare passed LBJ had little overt opposition to contend with. In truth the Republican Party of the 1960’s was sharply split over Medicare. High profile conservative leaders like Barry Goldwater and Ronald Reagan warned against the evils of socialism, with Goldwater asking what was next after free health care for the elderly, a ration of cigarettes for those who smoke and of beer for those who drink.”

Still four of the eight Republicans on the Senate Finance Committee supported the bill in committee in 1965. In the House 68 Republicans opposed the bill on final passage – including Representatives Bob Dole of Kansas and George H.W. Bush of Texas – but 70 House Republicans voted in favor. A sizable number of conservative Democrats, many from the south – the parties in those days actually had liberal and conservative wings – also opposed Medicare.

So will implementation of the Affordable Care Act crumble under the weight of the complexity of the law and the still fierce Republican opposition? Barack Obama certainly faces obstacles to implementing his signature accomplishment that Johnson didn’t, including a hectoring House Speaker and at least a minority of the country that remains deeply skeptical of the new law. And, as he has before, Obama may find that he has to step up, become more visible and employ his considerable oratorical skills to save the day and define what success and failure would look like.

After ceding almost all of the decision making about crafting the ACA to Congress the president has done a consistently awful job of communicating about the finished product leaving many Americans to ponder, or more likely not, the “eyes glazes over” complexity of the legislation. The naysayers have largely won the battle to define the ACA, just as LBJ refused to allow Goldwater and others to define Medicare as a “communist plot,” and they now seem ready to try to win the battle over its implementation. But wishing Obama were more like Johnson in his willingness to use the power of his position is a little like damning the cat for not being a dog. Yet, it is unmistakably true that forceful, engaged executive leadership is most needed when policy and politics get the most difficult. That is a lesson for the ages.

Let’s give the last word to former federal Budget Director Alice Rivlin who could give the communicator-in-chief a few lessons in discussing complexity and politics. Rivlin wrote at the Brookings Center’s website: “In the polarized politics of our time, the opponents of the ACA have attacked it both as a federal government power grab—described as “socialism” by people who have forgotten what socialism is—and as overly complicated. But if it really were a federal power grab it wouldn’t be so complicated. The complexity is created by our two traditions of relying on private markets whenever possible and preserving diversity at the state level. These traditions are part of our political DNA, and if we value them—and most of us do–we should not complain that they make governance complicated.”

A Democratic administration once implemented a groundbreaking new law amid much skepticism and against considerable opposition. Times have changed, but it should be possible again. We’ll see.


A Tipping Point

Law Firms, Gay Marriage and Civil Rights

I once heard Sherman Alexie, a gifted writer who also happens to be Native American, have some fun at the expense of those who maintain that there is something inherently evil about homosexuality. To drive home his point that homosexuality is as old as humankind, that gays live and work with us everywhere and that the creative class – writers, composers, actors, etc. – are disproportionately represented in the gay community, Alexie challenged his audience to go home and look at the titles in their bookcase.

Chances are you’ll  find on that book shelf, Alexie good naturedly said, writers who are “gay, gay, gay, Hemingway, gay, gay…”

I thought about Alexie’s humor recently as I read accounts about the big, white shoe law firm of King and Spalding dropping out as legal counsel for the U.S. House of Representatives, which intends to defend, now that the Obama Administration won’t, the so called Defense of Marriage Act (DOMA).

King and Spalding’s then-partner Paul Clement, a former Solicitor General in the Bush Administration, had signed on to handle the DOMA case for the House of Representatives for a fee of $500,000. But apparently Clement either hadn’t vetted the representation carefully enough or the leaders of the big firm decided the high-profile gay rights case represented too much controversy. For whatever reason, the firm backed out. Gay rights groups immediately claimed creditfor getting the firm to abandon the controvesial case, editorials and politicians blasted the firm for caving in to such pressure and the firm has refused to say much beyond a terse statement from the managing partner to the effect that the representation hadn’t been adequately reviewed by the firm. Meanwhile, Clement resigned in protest and took the DOMA case with him to another firm.

At least two things are going on here. One potentially involves a fundamental principle of legal representation, the other may signal a tipping point in the long-running public debate over same sex marriage. First, the legal issue.

If King and Spalding, a 125-year old, international law firm with 800 lawyers, that represents, according to its website, clients as diverse as Coca Cola and Goldman Sachs, withdrew from the DOMA case under pressure then it deserves all the flack it’s taking. If, as seems more likely for a firm that has had partners like Sam Nunn and Griffin Bell, the firm had a breakdown in assessing a potential client (and assessing how, for example, the law firm’s commitment to diversity might be impacted by taking the case) then they get a black eye for process and public relations rather than for displaying questionable legal ethics. It’s worth noting, just to make this a bit more complicated, that two of King and Spalding’s partners are representing Guantanamo detaineeson a pro bono basis.

Everyone, it is said, from the suspected murderer to the white collar criminal, deserves legal representation. However – since I’m not a lawyer I can say this – not every lawyer has an obligation to every potential client. In fact, I’ve heard lawyer friends say it, and I’ve said it in the public affairs business, “everyone is entitled to good representation, but not everyone is entitled to my representation.”

In a New York Times op-ed piece last Friday, a Minnesota law professor made a compelling case that law firms have led society’s way in creating equal opportunities for gays and minorities. Dale Carpenter wrote, “Gay-rights supporters have transformed the law and the legal profession, opening the doors of law firms, law schools and courts to people who were once casually and cruelly shut out because of their sexual orientation.” This process has been slow, but steady not unlike the larger civil rights movement that since the 1960’s has transformed the attitudes in the professions – the law particularly – regarding opportunity and equality.

This controversy also may represent a larger societial tipping point. As Supreme Court reporter Adam Liptak writes in the Times, we may be near a point where the nation’s thought-leading “elites” – including big-time law firms, the corporate community and the media – are “racing ahead of popular opinion and shutting down” what many still believe to be a worthwhile debate.” When firms like King and Spalding spend real time, money and effort on diversity in hiring and promoting, its hard not to conclude that broad public opinion is going to follow – and pretty quickly. And that is exactly what seems to be happening.

The Pew Center for the People and Press recently reported that its surveys indicate that public support for same sex marriage continues to grow with virtually the same percentage of Americans now supporting as opposing. This trend of growing support has been evident for some time, Pew notes, while the partisan divide over the issue remains deep.

“As has been the case since 1996, there is a wide partisan division on the question of same-sex marriage. Currently 57% of Democrats favor making it legal, while only 23% of Republicans agree. Independents (at 51% in favor) are more similar to Democrats than to Republicans, in part because 46% of Republican-leaning independents are supportive of same-sex marriage, along with 58% of independents who lean Democratic.”

Ten countries, including Canada and Argentina, now recognize same sex marriage and 15 other countries, including many nations that form our military coalitions in the Middle East, recognize civil unions. It’s hard not to conclude that the course on this issue is set and, whether intended or not, that King and Spalding’s decision not to represent the Congress in the Defense of Marriage Act case could further move the debate in the direction it is already clearly heading.

There seems to be a certain historical pattern to such issues. Opponents of same sex marriage, politicians and religious leaders, invoke spiritual teachings and cultural norms as the basis of their opposition. You often hear that same sex marriage will “weaken the institution of marriage.”

In a fascinating piece in the Times Magazine recently, the author of a new book on Ann Durham, President Obama’s Kansas-born white mother, notes that when Ann married Obama’s Kenyan father she did so at a time when “nearly two dozen states still had laws against interracial marriage.” It wasn’t all that long ago – 1967  in the case Loving v. Virginia – that the U.S. Supreme Court outlawed state prohibitions against interracial marriage. Incidentally, many of the same arguments advanced today against same sex marriage were used then to oppose interracial marriage.

Not surprisingly, Obama – like more and more Americans – admits that his views on same sex marriage “are evolving.” If you talk to younger Americans you’ll find little toleration for discrimination based on race or gender. They’re way beyond such things and generally can’t understand what all the controversy is about.

In his unanimous opinion in the 1967 Loving case, Chief Justice Earl Warren, the former Republican governor of California and 1948 running mate of Thomas Dewey, concluded with these words: “Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.”

Warren repeatedly referred in his short opinion to “basic civil rights,” guaranteed under the Constitution. The Court, Warren said, has “consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”

It is undoubtedly some distance in the future, but it’s not difficult to imagine a Supreme Court justice writing the same sentence Earl Warren wrote in 1967  substituting the word “sex” for “race” and “gender” for “racial.” 

The simplest of all explanations – the logical principle of Occam’s Razor– is almost always correct. Perhaps the big, prestigious law firm of King and Spalding simply didn’t want to be on the wrong side of history.

But let’s give Sherman Alexie the last word on this subject. To those who say that gay marriage is a threat to the heterosexual, one-man, one-woman institution of marriage, Alexie says, not true. “Gay marriage does not threaten my marriage.  Beautiful, easy women with no boundaries threaten my marriage.  I don’t need anyone else’s help.”