As Hillary Clinton’s attacks on Bernie Sander’s health care proposals continue, one of his defenses is that he “helped write” the Affordable Care Act. It’s a claim he made during a Democratic debate earlier this month, and one he has reiterated on the campaign trail.
“Now, I am a member of the Senate Health, Education, Labor and Pension Committee, and in that capacity spent an enormous amount of time working on the Affordable Care Act,” Sanders said at a campaign stop in New Hampshire last week.
But interviews with various congressional staff involved with the reform effort as well as outside experts reveal that Sanders’ role in the creation of 2010’s Affordable Care Act is a complicated one.
On one hand, he sat on the Senate Health, Education, Labor and Pensions (or HELP) Committee — one of the two committees charged with pulling together the legislation. And he championed not-insignificant provisions like expanded funding for community health centers and providing an option for states to experiment with their own systems.
On the other hand, his relentless push for the single-payer model made passing the bill more complicated, some staffers working on the legislation at the time told TPM, and to say he was behind the core elements — the exchanges, mandates, and the Medicaid expansion — would be an exaggeration.
At the end of the day, vetting his claim depends on your definition of “write.”
“Was he involved in the creation? He was deeply involved in a variety of ways. He got some important things in there,” said John McDonough, a Harvard public health professor who wrote the 2011 book “Inside National Health Reform.”
“If you take it more narrowly, were his staff people in the room writing what the exchange provisions looked like and so forth? The answer to that is, in a stricter sense, no. So it’s subject to interpretation and not worth contesting, because he was highly involved in it and was part of the creation process,” McDonough told TPM.
If there was an inner circle of the senators and staff writing the core pieces of the legislation, Sanders was in the next level out.
“For somebody who is not in the inner, inner circle involved in the structuring or the minute drafting, he was about as active and engaged as any member of the Senate,” McDonough said.
Obtaining a clear-eyed view today of Sanders’ role back then has its challenges. Some of the participants then are now involved in the Clinton or Sanders campaigns and are deeply invested in how the history is written. The Senate’s own role in shaping the legislation was at times secondary to the White House’s, where some of the key deals were struck with industry groups. Especially vexing are the old tensions between Democrats on the Senate HELP and Finance committees, which linger still today, nearly six years after the bruising battle to pass the ACA.
HELP, where Sanders served then and remains now, was chaired by Sen. Ted Kennedy (D-MA) until his death in August 2009. (Hillary Clinton was also on the committee and was primed to help lead the health care reform efforts until she departed the Senate to serve as secretary of state.) Finance was chaired by Sen. Max Baucus (D-MT), who is now the U.S. ambassador to China. The two committees had very different approaches as they hammered out their portions of their legislation. Baucus, through his so-called “Gang of Six” — three committee Democrats and three committee Republicans — was intent on winning Republican votes in support of the ACA, a protracted effort that dragged out the legislative process and ultimately proved futile.
In part because of their different vantage points, staffers who worked on the Finance side are more dismissive of Sanders’ role today. Those who worked on HELP painted a picture of all the Democratic members, including Sanders, being immersed in the legislative process.
Former Sen. Jeff Bingaman (NM) was the one Democrat who sat on both committees working on the ACA at the time. He was also a member of Baucus’ Gang of Six.
“As a regular member of the [HELP] committee on the Democratic side — we were the ones who were writing the bill because Republicans were opposing everything,” Bingaman told TPM last week. “So [Sanders] was very much involved like the rest of us.”
Bingaman remembered specifically Sanders’ community health center provision, but said that “he was a strong advocate for other parts of it, too.”
Legislative staffers on the HELP Committee from that time contend that Sanders’ various contributions were meaningful ones.
“I think it is an absolutely fair claim for him to make,” said one former Democratic aide. “I would say, unequivocally, he was very involved in putting his mark on the bill.”
Sanders’ advocacy of the community health centers is well-documented. The $11 billion the centers ultimately received were among his conditions for his vote on the final bill, which hinged on every Democratic senator’s support to pass since Republicans had eventually all come out against the legislation.
“In some ways [a community health center] is a little provider-based-prototype for ‘Medicare For All,’ where there is a place that you can go to get all the care that you need,” McDonough said. “Medicare For All” is the single-payer plan on which Sanders is currently running.
But the community centers were also a vital part of the larger law, as they provide care particularly for those in lower income, minority, rural or otherwise under-served communities.
“If we are going to expand the Medicaid population, we have to have doctors and nurses and other health care professionals who can see them. That was the foundation for his push for the massive expansion of community health centers,” said Michael Behan, Sanders’ chief counsel from 2009 to 2012, and his point person on the HELP Committee at the time.
More than 1,300 health centers treated 23 million patients — many of them minorities, children or without health insurance — in 2014, and it’s unlikely the centers would have received the funds necessary to offer those services had Sanders not held out his vote for them.
Sanders has received less credit for his role advocating for the Sen. Ron Wyden (D-OR) measure now known as “1332 waivers,” which allow states — come 2017 — to implement alternative systems to Obamacare, provided they offer the same breadth of coverage and get the federal government’s approval. Like the community health centers, his support for the waivers were connected to his commitment to the single-payer model and particularly his desire that the system be enacted in Vermont.
“We worked with Sen. Wyden’s office to craft the state innovation waiver provision that would allow those states who wanted to do single-payer to do so, subject to certain standards,” Behan said.
Behan also argued Sanders was very engaged in the HELP Committee debates about setting the income brackets at which people using the ACA marketplace would receive federal subsidies.
“He fought to make sure those levels were as good as possible for people who were going to be in the exchanges,” Behan told TPM.
Still, some former staffers involved in crafting the ACA dismissed the credit Sanders is trying to take now.
“He played a very, very small part in the Affordable Care Act,” said another former Democratic aide. “He was mostly a gadfly in negotiations. He was very difficult to deal with.”
Including a public option in the bill, as Sanders very vocally supported, was a flashpoint of the debate surrounding the legislation. Progressive supporters of a public option — which would have provided users of the exchange the option of a government-run insurance plan — argued that it would have been cheaper than private insurance. But the idea was vehemently opposed by many in Congress and ultimately didn’t go anywhere.
Likewise, Sanders’ push that there be a vote on a single-payer plan — a symbolic vote on an amendment to the ACA that would have replaced the entire legislation with a single-payer model — also threatened to put some Democrats in a tricky position.
“There were people who felt like, here was one of their colleagues spotting them on a politically difficult vote,” McDonough said. “It wasn’t a difficult vote for any Republicans, but it was a vote that would have been tough for a lot of [Sanders’] Democratic colleagues.”
The aide critical of Sanders called the move to get a vote on the single-payer model “deeply irresponsible,” arguing it made Democrats vulnerable to attacks from their left. But a former aide to another Democratic lawmaker defended it.
“The Democratic base, in a million ways, was pushing hard for single-payer, and Sen. Sanders was not creating a political problem that didn’t already exist,” the aide said. “He was doing what he thought was right for the country and it was absolutely welcomed as part of the discussion.”
Sanders ultimately withdrew the single-payer amendment from the floor, once Sen. Tom Coburn (OK) — a Republican who opposed the health care overhaul effort — insisted the 700-plus page measure be read aloud.
Having lost the battles on the public option and single-payer, Sanders put his full weight behind the community health centers provision.
“He said to Harry Reid, ‘I’m not going to vote for this bill unless I get a gargantuan sum of money for community health centers,’” McDonough told TPM.
Now the senator is pushing the single-payer model yet again, and facing criticisms from Clinton that it’s too risky of a move to reopen that debate.
In some ways, Sanders’ involvement in the ACA mirrors the larger debate evolving in the Democratic primary: He was reaching for the impossible, in this case, in the form of the single-payer plan. But when he was forced to give up on that front, he settled for the influence he could pragmatically wield.
“If you take it in a broad sense, then absolutely he was part of the creation process. That doesn’t necessarily mean he was putting pen to paper and writing stuff up,” McDonough said.
Correction: This post originally described the public option under consideration in 2009-10 as a “government-funded” health plan. It is more accurately described as “government-run” because premiums were supposed to cover the costs of the plan, not taxpayers. This story has also been corrected to reflect that Sen. Bingaman represented New Mexico.