Already, the talking points for a war on the high court are being put in place by organizations such as the Center for American Progress. The story line is simple and potentially effective: From Bush v. Gore in 2000 to the Citizens United decision in 2010 to the possible Obamacare ruling, the Supreme Court puts politics above the people in the name of the Constitution.
This argument could play among an electorate predisposed to suspect the worst. A Bloomberg News survey taken shortly before the oral arguments found that 75 percent of Americans believe that politics will influence the justices’ decision on the health-care law. If the court kills the act, then Washington is reduced to a triple play of gridlock — between the president, Congress and the Supreme Court, nothing gets done.
The Obama campaign could paint the court as out of step with the modern world, in which the state needs to help redress the inadequacies of global and national markets. After all, the mandate is about everyone paying their fair share toward health care; it eliminates free-riders from the system.
Obama, like President Franklin Roosevelt in 1936, could bring enormous pressure to bear on the court and use a decision against the health-care law as a rallying cry for change. He could suggest that Supreme Court justices’ terms be limited to 10 years and staggered across presidencies, a popular idea I tested with voters two years ago. He could even propose a constitutional amendment to overturn the health-care decision — and why not throw in the Citizens United ruling as well?
Campaign operatives might conclude that Obama finally has an issue that could rally the base around him and bring back the enthusiasm and turnout of 2008. Even better, a Supreme Court ruling against the Affordable Care Act might boomerang against the Republicans, who will be gulping champagne and looking like they would rather do nothing to help people who need vital health insurance.
It’s tempting, but this approach plays mainly to the base that Obama already has. I’m not sure I buy it, and I’m not sure the president would choose such a course. In the 2008 presidential campaign, during which I served as Hillary Rodham Clinton’s chief strategist, Obama actually campaigned against the mandate in Clinton’s health-care plan, sending out millions of mailers to try to scare people about the unexpected bills they might have to bear. (You may recall that this led to one of the few times Clinton went after Obama at a news conference, holding a stack of the mailers, exasperated at his under-the-radar negative campaigning.)
While Obama became convinced as president that the mandate was a good policy idea, politically he viewed it as a loser. He knows that Republicans have more than just mailers ready to go. So the second option begins to look like the smarter one.
Even if Americans think the Supreme Court has become too politically polarized, they still oppose the Affordable Care Act — despite liking some of its elements, such as barring the denial of insurance for preexisting conditions and allowing young people to be on their parents’ health plans until age 26. A recent ABC News-Washington Post poll found that 67 percent of Americans think the court should ditch the entire law or at least throw out the mandate.
If they rule against health-care reform, the justices might be doing Obama a favor. He never really won the public battle on the issue. So he could take the high ground — disagreeing with the decision but showing respect for the court and for the American people, and vowing to continue the fight for health care for more Americans.
Mitt Romney would also be in a bit of a pickle. As governor of Massachusetts, he was Mr. Mandate; his health-care overhaulthere requires everyone to buy insurance. Would he turn against his own program if the court ruled against such a mandate? Or would that plan stand because a single state enacted it, while the federal government lacked the power to create a national plan? If the Supreme Court overturns Obama’s individual mandate, the Massachusetts mandate could undercut Romney’s credibility on the issue.
In his reelection campaign, Obama could propose that states be incentivized to sign on to a plan like the one in Massachusetts, where most voters favor the plan. He could deal with the issue in the same way states are incentivized to require seat belts. Such a strategy would preserve some state choice and leave much of the financing to them as well. Effectively, Obama could still be for universal health care and yet neutralize the issue for the election.
Part of the problem with the health-care law is that controlling costs and improving quality took a back seat to broadening coverage. A redo would allow Obama to produce a new plan that covers these bases, costs less and has broader support. He should treat an adverse ruling as a political gift, an opportunity to move to the center on health care, more like where he was in 2008.
Universal health care hurt President Bill Clinton and the Democrats in 1994 in part because of the way Republicans and industry interests attacked his plan. Their clever ads capitalized on how government intervention in health care — despite how beloved Medicare and Medicaid are — stirs fear in many Americans. They worry that bureaucrats, not doctors, will make life-and-death decisions. In the 1996 campaign, after his grander ambitions failed, Clinton vowed to protect those federal programs and called for an expansion of health care on a “step by step” basis, only as the country could afford it — and he won back the issue.
Two years ago, Obama faced equally devastating midterm elections, and the health-care law hurt him; 48 percent of voters thought Congress should repeal it, according to CNN exit polls. Going into this election season, Obama had won some converts, but the plan was still a negative with the electorate overall.
Within his campaign, the debate is already underway. If the Supreme Court upholds the individual mandate, Obama’s victory speech will be easy to write. But a different speech will be ready to go if the court strikes down the mandate. And the tone it takes could decide the November election.
If Obama plays it right, a defeat for his health-care reform effort could actually move him closer to reelection — giving him another four years to make major advances in health-care coverage, quality and cost.
served as a pollster and adviser to President Bill Clinton from 1995 to 2000 and as chief strategist to Hillary Rodham Clinton’s 2008 presidential campaign. He is the worldwide chief executive of Burson-Marsteller and Penn Schoen Berland. Follow him on Twitter: @Mark_Penn.
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