Public option, ‘opting out’ are mutually exclusive

W ASHINGTON — There is an air of desperate improvisation to Sen. Harry Reid’s scheme to pass a “public option” as part of health care reform, but at the same time provide an easy exemption for any state that objects to it. The warning flags ought to be flying for anyone who can count to three — let alone 60.

The Democratic majority leader embraced this odd idea in hopes of satisfying two conflicting imperatives. On one hand, he is under relentless pressure to satisfy the labor-left of his party in Washington, where a government-sponsored insurance plan has become the symbolic prize in the game, and back home in Nevada, where he needs union support to survive a scary election next year. On the other, he needs 60 votes to pass any kind of health-care legislation, so he must provide some comfort for moderate Democrats and possibly one or two Republicans.

Rather than bring a bill without the public option to the Senate floor and then hope to merge it in conference with a House bill almost certain to include such a provision, Reid bent to the political pressure and put his own needs first.

Even if he could make the tactic work, there is every reason for liberals, of all people, to reject it.

Consider the precedent that would be set if a major piece of social legislation were to be passed with a states’ rights provision. Imagine, for example, FDR had signed the first Social Security law with the proviso that any states with Republican governors and legislatures could exempt themselves from its coverage.

This might have seemed a minimal concession to conservative opinion.

But what would have followed? How long before some states would have demanded an exemption from the wage and hour law that established a minimum wage? And what about the clamor in a broad swath of the country when the first civil rights law was passed?

The principle behind almost all liberal legislation is that there are certain values fundamental enough that they should be enforceable at the national level, even if a significant minority of voters or a certain number of states disagree.

That issue was settled in the realm of economic policy during FDR’s second term, after the Supreme Court seated enough new justices to uphold the New Deal measures an earlier conservative majority had struck down. In the area of civil rights, Lyndon Johnson and a Democratic Congress put an end to the doctrine of states’ rights. Are we now to reopen those issues in order to make it easier for this generation of Democrats to short-circuit the legislative process?

These hypotheticals may seem abstract. But in the real world, the consequences would likely be all too obvious.

To take but one example: If a health-care reform with an opt-out provision were to become law this year or next, one of the first states you might expect to exempt itself would be Texas. Republicans now control the governorship and both houses of the Legislature, and the state had no trouble rejecting candidate Barack Obama.

But Texas is also a state with glaring differences among its residents. There are literally millions of the poor, of Hispanics and African-Americans who give their votes to Democrats. Are the Democrats running Washington prepared to say to them (and residents of who knows how many other states): Sorry about this, but you don’t get what the rest of us get?

I’m not entirely convinced that the public option is as essential as liberals seem to think it is. But if they are right, I don’t see how they can justify abandoning it for an uncertain number of people who have the bad luck to live in states with conservative governors and legislatures.

If a compromise is needed to get the bill to the Senate floor, far better to try Sen. Olympia Snowe’s suggestion of a trigger mechanism that would activate a public option if private insurance policies at affordable rates were not broadly available.

No one should be denied coverage options by virtue of their residence or place of birth.

David Broder’s e-mail address is davidbroder@washpost.com.