The House of Representatives just passed the health reform bill previously enacted by the Senate by a narrow 219-212 vote. They probably could not have done without the support of eight to nine Democratic pro-life congressmen led by Representative Bart Stupak, who agreed to support the bill just before the vote in exchange for an executive order issued by President Obama. The Stupakites claimed that the executive order gave them adequate assurances that the bill would not lead to federal funding of abortion, as they had previously feared. However, the order actually does nothing to prevent this eventuality beyond whatever safeguards may have been in the bill already. The order claims merely to enforce “existing law” (which now includes the new Senate bill). Indeed, Section 4 of the order disclaims any intention to restrict any abortion funding that might be required by the Senate bill or other law:
Section 4. General Provisions.
(a) Nothing in this Executive Order shall be construed to impair or otherwise affect: (i) authority granted by law or presidential directive to an agency, or the head thereof; or (ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This Executive Order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This Executive Order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity against the United States, its departments, agencies, entities, officers, employees or agents, or any other person.[emphasis added].
As co-blogger Jonathan Adler puts it, the order “does not appear to limit federal funding beyond those limits that already existed in the Senate bill, and it could be repealed by the president at any time.” Of course many supporters of the bill argued that it already forbade federal funding of abortions. But Stupak and his allies claimed they weren’t satisfied with such assurances. If so, they should have been equally unconvinced by the new executive order, which adds nothing to them.
Even if the executive order did try to restrict abortion funding otherwise required by the Senate bill, it would be unlikely to succeed. An executive order cannot override law enacted by Congress. And, obviously, an executive order can be repealed or modified by the president or his successors at any time.
Why then did the Stupakites change their minds at the last minute as a result of this essentially meaningless White House concession? One possibility is that they simply didn’t understand that the order will have no real effect. That’s certainly possible. But it seems unlikely. Even if they themselves lack legal expertise, they certainly have staffers who do. Thus, it seems unlikely that they were unaware of the points I made above.
Another possibility is that the Stupakites saw an opportunity to satisfy their pro-life constituents while at the same time mending fences with the Democratic Party leadership that had made this bill their top priority. Unlike members of Congress, most voters are rationally ignorant about the details of policy and are unlikely to have either the time or the expertise needed to study the order in detail and determine whether it is likely to have any effect. Thus, pro-life Democratic voters might well accept Stupak’s, Obama’s, and the media’s claims that this order represents a significant change.
If this conjecture is correct, the Stupak reversal may be another example of the political exploitation of voter ignorance. I hasten to add, however, that I don’t have any direct evidence that this was their motive. I can’t definitively rule out the possibility that Stupak and his allies were ignorant themselves. And there may also be other explanations for their last-minute conversion that don’t occur to me.
To avoid misunderstanding, I should emphasize that I am pro-choice myself, and my own opposition to the bill has little to do with the abortion-funding issue. I don’t want the federal government to fund abortions; but that’s only because I generally want to impose severe constraints on government spending, not because I think that expenditures on abortion are any worse than a wide range of other government spending programs. But the pro-life Democratic voters whom the Stupakites represent have very different views from mine. They share neither my libertarian skepticism about government nor my pro-choice instincts on abortion. And people like them, not people like me, were the relevant audience for the political maneuvers that culminated in the Obama-Stupak deal.
Ultimately, I tend to think that Stupak isn’t stupid. So the explanation for his reversal must lie elsewhere. As I have explained in the past, ignorance isn’t necessarily a sign of stupidity. In this case, however, a non-stupid Stupak who cared about abortion funding as much as he claimed and genuinely believed that the preexisting bill would lead to abortion funding probably wouldn’t have remained ignorant for long. He would have had every incentive and opportunity to consult experts who could have filled him on the likely impact or lack thereof of the executive order. On the other hand, there is the old saying that cautions us to “never attribute to malice what can be adequately ascribed to stupidity.”
UPDATE: I should mention that the exploitation of ignorance theory applies equally well if Stupak and his allies never really believed that the bill would lead to abortion funding, but simply raised a bogus issue in an effort to persuade their constituents that they were taking a strong position against abortion. In that scenario, they would have been exploiting voter ignorance of the absence of abortion funding in the original bill.
UPDATE #2: Timothy Noah argues that “a basically meaningless executive order was issued to help Stupak save face” after he no longer had enough leverage with the administration force real concessions. That seems to me unlikely. Given the closeness of the final vote and the fact that the Stupakites had eight or nine votes, I suspect that he still have substantial leverage. Shift nine votes from “yes” to “no” and the Senate bill would have lost by eleven votes instead of winning by seven.
UPDATE #3: This recently announced federal grant for Stupak’s district provides an alternative explanation for his reversal. But if that’s the real explanation, why did the other eight Stupakites (who didn’t get any similar largesse, so far as we know) follow his lead?
orca says:
Perhaps Stupak realized that a true pro-life position required him to provide decent health care to Americans who couldn’t afford it?
March 22, 2010, 12:58 amIlya Somin says:
Perhaps Stupak realized that a true pro-life position required him to provide decent health care to Americans who couldn’t afford it?
Then why didn’t he realize this supposed fact before Obama issued his order? I can understand claims that a true pro-lifer should have supported the Senate bill as is. But Stupak clearly wasn’t persuaded by them. Otherwise, he would never have opposed the bill in the first place.
March 22, 2010, 1:01 amWell, they did it… | And Still I Persist says:
[...] only because Stupak caved. And for what? A meaningless Presidential declaration and $726,409 in airport grants. Once again, I am reminded of “A Man for All Seasons”: [...]
March 22, 2010, 1:10 amMike McDougal says:
Political cover. If Obama backs off, it’s his fault.
March 22, 2010, 1:14 amJames N. Gibson says:
More importantly, the members of Congress who voted Yes on this bill for some favor, privilege, or Executive Order, now must obey Obama from this day forward.
People need to think more deviously. As noted the EO can be rescinded, but what about threatening to rescind it if Stupak doesn’t now go along with say Cap & Trade or some other important piece of legislation Obama wants. There was talk that Central Valley legislators were bought off with having the pumps turned back on and new water allocations made. But this too can be changed if those legislators don’t now toe the line on everything. In short, what good is a crass bride if you then can’t use it later as blackmail.
March 22, 2010, 1:30 amOperationCounterstrike says:
Let’s just state the obvious: Stupak was posturing all the time.
Right-to-lifers fall into two classes: loonies, like Senator Coburn and Rick “Man-on-Dog” Santorum, and posturing phonies, like everybody else.
March 22, 2010, 1:41 amyarrrrr says:
From OperationCounterstrike’s blog
March 22, 2010, 1:47 amDougInSanDiego says:
Watch the video cliip of Stupak from last summer
It’s all very clear
http://www.newsrealblog.com/2010/03/21/video-stupak-has-lied-about-healthcare-vote-all-along/
March 22, 2010, 1:49 amAllan says:
Stupak had to vote for the bill. He was hoping that enough Democrats would vote for it so he did not have to. But he had to ensure passage. If he did not, he would never have been re-elected as a Democrat.
He fought the good fight and came out with the best compromise he could. But vote for the bill he had to. And he did.
All politics is political.
March 22, 2010, 2:00 amWho IS Barack Obama??? says:
That video from DouginSanDiego shows Stupak in 2009 telling pro-life constituents that in the end he would vote for health care even without his amendment.
March 22, 2010, 3:10 amNunzio says:
Seemed to be a show on his part. He wasn’t going to scuttle health insurance reform and Obama gave him some political cover.
March 22, 2010, 3:38 amA. Zarkov says:
Yes. Gateway Pundit also linked to the video and they claim Stupak didn’t know he was recorded. Listen carefully and you will see that he never intended to vote against Obamacare. The whole “I’m undecided” has evidently been a ruse. Possible reasons for his behavior.
1. He was holding out for a bribe from Obama, and has been negotiating for this all along in secret.
2. He pretended to be on the fence so as to mute anger from his constituents.
3. He changed his mind and really became undecided until the end. Unlikely.
Stupak would have to be a complete fool to think he got any deal. Obama gave him the sleeves off his vest. Obama is the most pro-abortion president– ever. He has filled his whole administration with pro-abortion types. Does Stupid think a leopard can change his spots? In my opinion, Stupak is simply an unprincipled phony.
There is really no such thing as a truly pro-life Democrat. If they were really pro-life they would be in the party of libertines and sodomites.
March 22, 2010, 4:03 amRich Rostrom says:
In 1933, the German Zentrum (Center) Party agreed to vote for the Enabling Act that granted Hitler dictatorial powers, in return for Hitler’s promise to issue a letter pledging respect for civil liberties. Once the Act was passed, Hitler did as he pleased, of course. The Zentrum caved in because it seemed likely that the Nazis would pass the Act without them, and the promise of the letter was the best they could get; plus of course thousands of SA Brownshirts marching around the Reichstag threatening revolutionary violence.
In this case, it may well be that Stupak and Co. were told by Obama and Pelosi that they had the votes to pass the bill without the Stupakites, but that they wanted the Stupakites on board and would give them the EO if they flipped. Surrender and get something or fight and get nothing. The analogy is of course imperfect; for one thing, unlike the Zentrum, the Stupakites were not opposed in principle to the bill. On the other hand, their votes, unlike the Zentrum, were actually required.
March 22, 2010, 4:08 amA. Zarkov says:
Whoops. Make that “not be in the party of libertines and sodomites.”
March 22, 2010, 4:37 amleo marvin says:
Right. That’s why the analogy is imperfect. Sheesh.
March 22, 2010, 6:00 amBrett Bellmore says:
Here’s a riddle: How is a political payoff like an iceberg?
Answer: 7/8th of it is below the waterline. Watch to see what ELSE Stupak gets in the next few months.
Oh, by the way, rational ignorance works a bit differently in the case of members of interest groups: They might not work hard to remedy their ignorance, but they tend to contract the work out to the leadership of the interest group. If the right to life movement doesn’t feel like protecting Stupak, he’s not going to benefit much from rational ignorance on the part of voters who actually care about this issue.
March 22, 2010, 6:34 amLay Riotta says:
Stupak didn’t have nine votes at the end; he had up to seven. At the press conference with him were Carney, Kaptur, Mollohan, Rahall, Driehaus, and Dahlkemper. But Carney and Kaptur were already announced yes votes before the deal, which leaves five new yeses. Then there was Donnelly who wasn’t at the presser but apparently part of the deal, and maybe Costello who voted yes without making any announcement as far as I know.
Seven votes is still a lot, but there are two other factors. Not all seven may have been willing to follow Stupak to the bitter end, just like Kaptur and Carney split off early. And Pelosi may have had other votes she could have twisted arms for in case of emergency. For example Tanner, who is retiring, didn’t announce his no vote until Sunday. So Pelosi only needed four votes from a combination of the Stupak bloc and other no votes. It wouldn’t have been easy, but it might have been doable without a deal.
Stupak defnitely had some leverage but not as much as it seems. I think the bigger factor is that it’s now pretty clear that Stupak himself really wanted to vote for the bill all along, so he took what was being offered.
March 22, 2010, 7:40 amthirdeblue says:
I think it’s pretty obvious that the whole charade was posturing on Bart Stupak’s part the entire time. The only thing that seems bizarre to me is why would you level such a serious charge that the bill helps fund abortions, if you (a) honestly don’t feel it did and (b) planned on voting for the bill anyway? As one commenter pointed out, Bart Stupak got Barack Obama to promise the sleeves from his vest. The EO will do nothing that already isn’t enshrined in existing law. For all his trouble, Bart Stupak was greeted with calls of baby-killer last night. Am I the only one who finds it ironic that due to Stupak’s self-important grandstanding, he is now seeing as a Quisling in regards to the right to life movement?
March 22, 2010, 8:04 amRep. Bart Stupak: Double-Reverse Ethics Dunce « Ethics Alarms says:
[...] To summarize, Rep. Stupak took a stupid, ineffectual and cowardly stand supposedly on principle. Then he did not have the integrity to stick with it, choosing instead the pragmatic course of trading his irresponsible, ineffectual and cowardly stand for a meaningless and misleading, not to mention unnecessary, concession. [...]
March 22, 2010, 9:02 amTamerlane says:
We’ll have to wait until November (I’m not sure but I’m guessing it’s November 2011 in Stupak’s case.) to see how this all plays out. My personal sense is that the Democrats have done almost as much immediate damage to their party as they have done long-term damage to the country. Many Democrats seem to have been mesmerized into throwing themselves under the bus to support a bill that most, when in their right minds, would admit is crapulent excess at best. This appears to be an example of what Konrad Lorenz once characterized as a distinctly human form of instinctive aggressive behavior: “militant enthusiasm”.
March 22, 2010, 9:04 amrpt says:
I was wondering about that misstatement, but then I thought of Speaker Gingrich, Sens. Ensign and Vitter, Gov. Sampson, adultery facilitator Sen. Coburn, and so on, and realized that you were right all along.
March 22, 2010, 9:18 amyankee says:
I agree. A large negative amount of damage.
March 22, 2010, 10:35 amGuy says:
One could also argue that Obama isn’t seizing power through threat of violence, or that universal health care isn’t the Holocaust, though I suppose that those are minor nitpicks.
March 22, 2010, 10:56 amDave N. says:
Michael Barone had the best explanation I have seen (but then again, Barone is probably the best analyst of Congressional politics out there).
According to Barone’s theory, Bart Stupak is a protoge of fellow Michigan Congressman John Dingell, who has, since his election to Congress in 1955, introduced a bill calling for a single-payer health care system (John Dingell’s father, his predecessor, had introduced similar legislation for the preceding 20 years).
Barone argues that as a Dingell protoge, Stupak didn’t actually want to stop health care reform but did want to maintain his pro-life bonafides. Thus he was happy to accept a meaningless Executive Order.
My personal guess is that Stupak would have voted “no” if there were 216 votes without his and his fellow Stupaknik’s votes.
March 22, 2010, 11:22 amDave N. says:
Michael Barone had the best explanation I have seen (but then again, Barone is probably the best analyst of Congressional politics out there).
According to Barone’s theory, Bart Stupak is a protoge of fellow Michigan Congressman John Dingell, who has, since his election to Congress in 1955, introduced a bill calling for a single-payer health care system (John Dingell’s father, his predecessor, had introduced similar legislation for the preceding 20 years).
Barone argues that as a Dingell protoge, Stupak didn’t actually want to stop health care reform but did want to maintain his pro-life bonafides. Thus he was happy to accept a meaningless Executive Order.
My personal guess is that Stupak would have voted “no” if there were 216 votes without his and his fellow Stupaknik’s votes.
March 22, 2010, 11:22 amDave N. says:
Michael Barone had the best explanation I have seen (but then again, Barone is probably the best analyst of Congressional politics out there).
According to Barone’s theory, Bart Stupak is a protoge of fellow Michigan Congressman John Dingell, who has, since his election to Congress in 1955, introduced a bill calling for a single-payer health care system (John Dingell’s father, his predecessor, had introduced similar legislation for the preceding 20 years).
Barone argues that as a Dingell protoge, Stupak didn’t actually want to stop health care reform but did want to maintain his pro-life bonafides. Thus he was happy to accept a meaningless Executive Order.
My personal guess is that Stupak would have voted “no” if there were 216 votes without his and his fellow Stupaknik’s votes.
March 22, 2010, 11:22 amOrenWithAnE says:
I concur. He’s going to get all the credit here and none of the blame.
March 22, 2010, 11:55 amyankee says:
First they came for young healthy people who refused to buy health insurance, and I did not speak up …
March 22, 2010, 11:56 amPeteP says:
Two words :
Political Cover.
Two options :
Either they are so ignorant of how laws are made in this country that they didn’t realize the EO is legally meaningless, that the President is in effect attempting to effect a line item veto over a policy issue, which he can not legally do, or :
They are so duplicitous as to be willing to hide behind a lie, in order to try to weasel out.
One conclusion – they are unfit to serve in Congress, and must be removed in November.
March 22, 2010, 12:17 pmswimsaturn says:
This is exactly right. 30 pieces of silver, etc. etc. The executive order is meaningless, and – by ostensibly fighting for the pro-life cause – Stupak comes off as an idiot or an imbecile or both. Especially by arguing against his own amendment during the reconciliation vote. Of course, voting ‘no’ on the Stupack-Pitts amendment was obviously part of the deal with Obama.
March 22, 2010, 12:29 pmbadger says:
I agree with the theories that it would make a lot of sense if this was all kabuki from the start. Let a Democrat be the standard-bearer for the abortion issues supposedly raised by this legislation and then let him admit at the end that the bill really has no effect on U.S. law, effectively conceding the debate. Seemed to work out pretty well, in hindsight.
I think you shouldn’t underestimate the primary challenge Stupak drew due to his actions. I think that for politicians of both parties nowadays, most major policy shifts can be attributed to the presence of a primary challenger. (See McCain, Specter, Graham, Grassley).
March 22, 2010, 12:43 pmbadger says:
That should have been “no effect on U.S. abortion law”.
March 22, 2010, 12:52 pmThe Obamacare Abomination: Reactions « The Republican Heretic says:
[...] Ilya Somin at the Volokh Conspiracy questions why Stupak sold out for an Executive Order that means nothing: Why then did the Stupakites change their minds at the last minute as a result of this essentially meaningless White House concession? One possibility is that they simply didn’t understand that the order will have no real effect. That’s certainly possible. But it seems unlikely. Even if they themselves lack legal expertise, they certainly have staffers who do. Thus, it seems unlikely that they were unaware of the points I made above. [...]
March 22, 2010, 1:05 pmBen says:
“I should mention that the exploitation of ignorance theory applies equally well if Stupak and his allies never really believed that the bill would lead to abortion funding, but simply raised a bogus issue in an effort to persuade their constituents that they were taking a strong position against abortion. In that scenario, they would have been exploiting voter ignorance of the absence of abortion funding in the original bill.”
This possibility seems overwhelmingly likely. Stupak got his name in the paper A LOT, and it was generally associated with “pro-life Democrat”. Stupak is aware the bill doesn’t fund abortion but saw an opportunity to make some noise. After he got a primary challenger from the left, he bailed out before he got into seat-losing territory. The end result for him was very good. Voted for bill that was popular with the left, now permanently associated with pro-life views, the end.
Political knowledge is strongly correlated with ideological partisanship, the sort of person who is aware that the EO and the bill are equivalent was also never going to change any of their opinions.
March 22, 2010, 1:09 pmKenton A. Hoover says:
Stupak’s group wasn’t going to hold together. He didn’t think he could hold Pelosi’s feet to the fire with the few votes he might hold, and Pelosi wanted insurance in case there were some defections. So she arranged a fig-leaf and he kept campaign cash, got some goodies for his district, and kept the impression that he was important to the process. That’s where I’d put my bet.
March 22, 2010, 1:43 pmfirst history says:
Timothy Noah argues that “a basically meaningless executive order was issued to help Stupak save face” after he no longer had enough leverage with the administration force real concessions. That seems to me unlikely.
I think it is likely; no doubt the Democratic leadership gave some of its more vulnerable Blue Dogs a pass on the vote when they secured their majority. A win is a win, no matter what the margin of victory.
March 22, 2010, 1:53 pmDougInSanDiego says:
I popose there never WAS a “Stupak contingent”. This was all fun and games; a play for public consumption.
It’s clear Stupak got nothing.
Stupak admitted last summer he would support the Mother-Of-All-Bills even if he got nothing:
http://www.newsrealblog.com/2010/03/21/video-stupak-has-lied-about-healthcare-vote-all-along/
That’s exactly what happened.
March 22, 2010, 2:53 pmRobert Stevenson says:
Above there was a blogger named Allan who made the lackluster statement, in a rather offhanded manner, that “All Politics is Political”! That’s quite astute of him! In this particular case we learn that government is no longer about representing the people, or what is in their best interests, or even those of our country, but rather it all revolves around the agenda of one party. It’s about job security and longevity in office, and about endearing yourself to the party in power and their agenda. It obviously is not about standing for the people, or about standing for the honor and integrity of your office. In I guess what is a naive manner I always wanted to believe that those would be traits indigenous to anyone holding “political office”.
Stupak is just a classic representative of what is now wrong with our system of government. Cronyism, special favors, bribery, extortion, back room negotiations, disingenuous rhetoric, all serve to show the afflictions inherent in politics today. Yesterday, with Stupak’s help, we took one monstrous step away from a democratic Republic, and personal freedoms, and one big step towards a more socialistic form of government. The contemporary philosophy seems to be big government knows best what we need, subsequently we see the loss of even more of our personal freedoms and liberties. So now government can tell us what we need, and if we don’t “buy” their philosophy we will be fined. Truly an American approach we should aspire to, right?
Stupak gives the idea of “representative” a whole new meaning. In fact the term representative has become “a contradiction in terms”. He is not, as was first thought, representative of a strongly held personal conviction, or even the convictions held by his constituents, but rather he is an exemplar of the philosophy of self-aggrandizement. We won’t even discuss the nearly $800,000 in funding to airports in his district, surely he is not so ethically challenged and lacking in character, as to allow such a thing to influence his decision. Nor, I’m sure, is the fact that the Speaker, the President, and the party would not have back his re-election efforts a consideration in his capitulation. Do men of character exist in their party any longer? At least the far Left, right or wrong, stood for what they believed in. Stupak in the end only stood for what benefited him personally.
March 22, 2010, 3:14 pmDavid Schwartz says:
Stupak got three huge things in this deal: He got to appear relevant, he got to appear to be sticking to principle, and he gets to vote for the health care bill. That’s the best resolution he could possibly hope for.
March 22, 2010, 5:06 pmswimsaturn says:
I agree with your comments, except for the latter half of this statement. To the pro-life movement, I think he will be permanently considered a sellout and a traitor.
As some have noted here, he may have seen this as an opportunity to make noise. If that is the case, perhaps he was too successful last fall in raising pro-life objections to the healthcare bill
March 22, 2010, 5:16 pmBill Harshaw says:
A commenter (James Lockridge) offers an explanation of the EO’s real effect over on the Adler post. Makes sense to me, particularly if the clinic provision was added by amendment in the Senate after the abortion language was written.
March 22, 2010, 5:29 pmDesiderius says:
“why did the other eight Stupakites (who didn’t get any similar largesse, so far as we know) follow his lead?”
Culture (now devolved to the tribal) trumped principle. Liberals of every stripe would do well to note the limits of our power to persuade illustrated here.
March 22, 2010, 8:51 pmHealth Care Reform says:
[...] Een tweede wapen is het indienen van een oneindig aantal amendementen. Dit rekt niet alleen het debat, maar dwingt de democraten telkens om tegen de meest sympathiek geformuleerde amendementen (deregulering voor kleine bedrijven of zo) te stemmen, in de aanloop naar de tussentijdse Congress-verkiezingen. Lukt het de Republikeinen om tenminste één amendement aangenomen te krijgen, dan moet de Reconciliation Bill weer terug naar het Huis, terwijl de Republikeinen dan niet meer hoeven te doen dan een paar Democraten in het midden los te weken uit de progressieve meerderheid. Bijvoorbeeld door de betekenis van de abortus-toezegging te relativeren. [...]
March 23, 2010, 5:48 am