The personal relationship between the two presidents had improved, but it still wasn’t good. When they played golf the previous September at Andrews Air Force Base, they didn’t talk much. Clinton, a more experienced golfer, was having what he later called a “really horrible” round. He had expected to win and was annoyed that Obama was beating him by a few strokes. As president, Obama decided on the rules and they didn’t include mulligans, a Clinton specialty. Afterward the Andrews clubhouse was booked for a wedding, which spared the two presidents from having to chat more.
Even Clinton aides thought the media narrative that Obama must consult the Clinton oracle to win was false. Hillary Clinton had been up in the polls by more than 30 points against Obama in 2008 and lost. Why should the president defer to her husband about politics? Bill Clinton was rusty politically, his instincts dulled not just by age but by his continued unwillingness to learn how to use a computer. (George H. W. Bush, by contrast, took to it in the 1990s.) Clinton liked to say that the big innovation of his 1992 campaign was the blast fax. Social networking was an abstraction to him, though he was a gifted synthesizer of the digital trends changing the world. His aides feared what would happen should he ever open an email account; God knows what trouble he could get himself into, they thought. But operating politically in 2012 entirely offline was like flying blind.
The result was that sometimes Clinton was out of step with the Obama message, like saying that Romney’s business career was “sterling” and that perhaps the tax cuts for the wealthy should be extended. He was upset with himself for these slips from the Democratic script, and when he came to Chicago in June for a conference sponsored by the Clinton Global Initiative, he met with Axelrod and Messina and was contrite.
Clinton liked to point out that in the fifty-one years since President Kennedy took the oath of office, Republicans have had twenty-eight years in the White House; Democrats have had twenty-three. In the same half-century, the economy has produced 66 million private sector jobs—42 million of them under the Democrats, 24 million under the Republicans. “No one states these facts,” he told audiences.
By this time the Obama campaign had long since decided that, for all his shortcomings, Clinton was not merely an asset but a central player and must be given his own night at the Democratic National Convention. Although his frequent advice was only rarely taken, his stature as President Prosperity in the 1990s was essential. In July Obama called Clinton to ask him to give the nominating speech for him in Charlotte and Clinton accepted.
CHICAGO’S STRATEGY HAD three stages: First, lay down a positive message in the battleground states in early 2012. Second, hit Romney hard on Bain in the spring and summer so that he could no longer run as an economic oracle. Third, lay out a vision for the future at the Convention in September that would take them into the fall on an uplifting note.
The rationale for the Bain bashing was obvious. His experience running Ba always said the same thing: em24in was what Axelrod described as Romney’s “calling card” for being a jobs-creating president, and the card didn’t look good on inspection. Poll respondents were presented with a straightforward description of the way Bain took over companies and asked if these were the normal things businesses have to do to keep afloat or simply wrong. The research came back strongly negative on the company. David Simas said the whole point of the anti-Bain campaign was to say, “Just because Romney’s successful doesn’t mean it’s going to help you.” Week after week he waited for three messages from the other side: positive spots on Bain, the Massachusetts record, and Romney as a human being. They never came.
Axelrod thought Stuart Stevens’s key strategic mistake was centering the whole campaign on Romney “not being Barack Obama.” They “spent not one dime fleshing out Mitt Romney—a huge mistake.” Candidates can’t win if they are no more than “cardboard cut-outs,” Axelrod thought. Voters are looking for three-dimensional characters, and it was naïve to think otherwise.
IN JUNE OBAMA laid out his argument for reelection in a speech at a community college in Cleveland. The White House had placed a lot of importance on the speech and was upset when even political analysts who usually supported the president found it too long and unmemorable. Benenson fretted that they needed to land a few more blows before the Convention.
At least the people inside the White House were beginning to reach out more. Jon Carson was getting high marks for coordinating well with Democratic constituency groups at the Tuesday “Big Table” meetings. The day after the Cleveland speech, David Plouffe, Jon Favreau, and Dan Pfeiffer and his deputy, Jen Palmieri, hosted a group of a dozen Democratic Party insiders who had a lot of contacts in the press and often appeared as surrogates on TV. Most of the insiders entered the meeting skeptical. “I know these White House guys. They don’t listen well. They never have,” said one. But he and the other surrogates felt a change at the meeting, a sense that these insular White House aides were genuinely extending themselves. Plouffe told the group that they should read the Cleveland speech carefully because it was the campaign narrative going forward.
This sounded fine, but Obama’s whole approach to winning the election still felt fuzzy. Jim Manley, a former top aide to Harry Reid, attended the meeting. He was asked immediately afterward if he knew yet what the president’s message was. Manley paused to think for several seconds before saying, “Nope.”
19
Obamacare’s Close Shave
In late 1934 Franklin Roosevelt decided to move forward on what would become his greatest domestic achievement: Social Security. He assigned his secretary of labor, Frances Perkins, the first woman ever to serve in the Cabinet, to lead the way on designing the program. But Perkins was worried. The Supreme Court was moving toward a narrow interpretation of the Commerce Clause of the U.S. Constitution that would invalidate many of the great achievements of the New Deal. Soon that would include the National Recovery Act, the capstone of FDR’s famous First Hundred Days in 1933.
Perkins went to a party and bumped into Justice Harlan Fiske Stone. When she expressed concern about whether an old-age and survivors insurance program (later called Social Security) would pass constitutional muster, Stone, a Republican appointee to the Court and future chief justice, replied, “The taxing power of the federal government, my dear; the taxing power is sufficient for everything you want and need.”
FROM THE EARLY DAYS of 2009, Obama’s enemies fastened on his health care reform as the symbol of everything they detested about his presidency. After Republicans, still in the minority, failed to block passage of the Affordable Care Act, they continued their assault on the new law by other means.
At first, the attacks seemed to come from the fringe. When Obama signed the bill in March 2010, almost no one took the legal challenges to the new law seriously. The notion that penalties for not buying health insurance wouldn’t pass constitutional muster seemed to be the concoctions of a Georgetown law professor, Randy Barnett, and the attorney general of Virginia, Ken Cuccinelli, without much legal firepower behind them. The consensus in the legal profession was that health insurance was obviously an interstate business and thus its regulation was constitutional under the Commerce Clause.
But a few conservative appellate judges disagreed, and they began ruling against the individual mandate in Obamacare, even as other courts upheld it. The idea that requiring Americans to buy a product was unprecedented and thus unconstitutional began to gather strength in the court of public opinion and was accepted for review by the Supreme Court. By the time oral arguments before the justices began on March 25, 2012. supporters of the law were nervous.
Obama’s legal team had long known that it could have trouble convincing the Supreme Court of its Commerce Clause argument. The congressional drafters of the bill, working with the White House, had anticipated that the mandate might need backing as a tax and quietly put language into the statute defining it as such. But because every politician and talking head in Washington was too busy posturing on
the bill to actually read it (and who can read 2,700 pages, anyway?), almost no one noticed.
In April 2010, as the new law faced its first legal challenges, Donald Verrilli Jr., then in the White House Counsel’s Office, wrote a memo to the president warning him that he might be criticized for telling George Stephanopoulos on ABC News days earlier that the Affordable Care Act included no taxes. The legal team needed his approval for what it called “a powerful hedge”—a backup plan arguing that the individual mandate was in fact a tax and therefore constitutional. Despite concerns expressed by political advisers, Obama agreed to take the heat for flip-flopping on the tax question if it came to that. In the meantime, he was deeply involved in the risky legal strategy on the case, which called for not appealing to the Eleventh Circuit Court of Appeals in favor of going more directly to the Supreme Court. The president wanted the issue resolved before the 2012 election in order to give the Department of Health and Human Services the clarity it needed to move forward with implementing the new law.
By March of 2012, Verrilli was solicitor general, arguing the case of a lifetime before the Supreme Court. The early reviews were harsh. When Verrilli choked briefly after a drink of water, many Democrats took it as a metaphor for his performance. It wasn’t entirely his fault, of course. He was cut off 180 times by the justices and allowed to speak for ten seconds or less nearly half of the time. But Verrilli was especially weak in responding to Justice Antonin Scalia’s frivolous argument (later endorsed by Chief Justice John Roberts in his opinion) that there was no difference between forcing people to buy health insurance and forcing them to buy broccoli. Why couldn’t Verrilli have simply said that, unlike the uninsured free riders in health care who get expensive treatment in emergency rooms paid for by taxpayers, those who refuse to buy broccoli hurt no one else? When Justice Samuel Alito, hardly sympathetic to the government’s position, asked him for a statement of his principle on the Commerce Clause, Verrilli should have been ready with a cogent answer he had honed for months. Instead he offered up opaque and almost incomprehensible legalistic mush, the product of overlawyering by the bureaucracy.
The president called White House Counsel Kathryn Ruemmler from Air Force One after the first day to ask for transcripts of the oral arguments. While Ruemmler told him that Verrilli was making a persuasive case, most Court observers didn’t agree. Larry Tribe, the influential Harvard law professor who had had both Roberts and Obama in his classroom, noticed that during the first of two days of oral argument, Roberts briefly signaled that he was open to the idea of tinkering with federal taxing power. It was obvious from the start that the Commerce Clause argument was unconvincing to Justice Anthony Kennedy (the swing vote) and thus to the Court, but Tribe believed Verrilli hadn’t taken the cue to adjust his case and start talking taxes. Verrilli thought the professor and others who made that point weren’t paying close enough attention; he had spent the whole first day laying the groundwork for his backup plan, which relied on a complex legal argument that for the purposes of the statute the individual mandate was not a tax, but for the purposes of the Constitution it was. (The first day’s arguments on the Anti-Injunction Act, mostly involved implementation of the law by the states.) While Verrilli didn’t get to the constitutional tax argument until forty-five minutes into his hour-long presentation on day two, he did eventually make it, when he could get a word in edgewise.
Obama called Verrilli to buck him up both before and after oral arguments, and to congratulate him after the decision was announced. The onetime constitutional law professor was knowledgeable about the case but by this point mostly kept his hands off it, even though his signature achievement in office was riding on the results. The collapse of the Commerce Clause argument left him in just the political pickle Verrilli had predicted in 2010. Obama had repeatedly said that his health care reform included no new taxes. When the bill was being debated in Congress, supporters defined the consequences of not buying health insurance as “penalties,” not “taxes,” for the obvious reason that the latter were more unpopular. Now he was exposed as talking out of both sides of his mouth. It was no wonder the solicitor general downplayed the tax argument before the justices.
Verrilli would be Obama’s human shield. Later, it looked to the world as if the law—and arguably the Obama presidency—were saved because Chief Justice Roberts made an argument that should have been offered more forthrightly by the government’s lawyers. But Larry Tribe was mistaken. Don Verrilli wasn’t missing anything; he was simply being strategic in his approach, though hardly eloquent. And as all lawyers with Supreme Court experience know, the briefs are far more influential with the justices than the oral arguments anyway.
IN THE THREE months between oral arguments and the issuance of the opinion, no one covering the Supreme Court had any good intelligence on what would happen. Most suspected the individual mandate would be invalidated, which would be like pulling a thread on the whole fabric of the law. The result would be the ruin of Obama’s legacy even if pieces of it survived.
Two days before the decision was announced, the president was serenely confident. “Kathy [Ruemmler] and I are the only ones around here who think we’re gonna win this thing,” he said. Obama, certain the law was constitutional, thought it would be too activist, provocative, and divisive for the chief justice to write a majority opinion striking down eighty years of traditional deference to_">24 Congress on major social legislation. The institutional strength and reputation of the Supreme Court, he said, would carry the day.
The president was watching TV near the Oval Office on June 28 when CNN reported erroneously that the individual mandate had been ruled unconstitutional. He was staring with a furrowed brow at the screen, trying to absorb the early reports, when Ruemmler rushed in with thumbs up and a big smile on her face. Obama and Biden quietly celebrated the survival of what Biden, on the day the bill was signed in early 2010, famously called “a big fucking deal” over an open microphone.
Like CNN, Fox News blew the story, airing a banner reading, “Supreme Court Find Health Care Mandate Unconstitutional.” Within minutes, the network caught up to the Court’s upholding the law and assumed a more sober tone. Karl Rove’s on-air affect was funereal, while anchor Megyn Kelly turned steely, vowing, “The Supreme Court just woke up a sleeping giant.”
It took only moments for Obama Derangement Syndrome to become Roberts Derangement Syndrome, as conservative bloggers who had revered the chief justice turned on him with a vengeance, some even suggesting that he suffered from epilepsy and brain damage. (Roberts did suffer a nonepileptic seizure in 2007, which might have sensitized him to the plight of those with preexisting conditions.) On July 1, Jan Crawford, a CBS News reporter with good contacts among conservatives, reported that two sources “with specific knowledge of the deliberations” said that Roberts had changed his mind in May on the constitutionality of the statute under the taxing power. If true, such a switch was not uncommon inside the Court, even on important cases. The difference this time was that the deliberations leaked, which was unprecedented in modern memory. It was a sign of the times when even the most venerable traditions were discarded for ideological purposes.
Some politicians lost control. In a closed-door meeting of Republicans in the House, Representative Mike Pence, soon to be governor of Indiana, compared the Court’s decision to the September 11 terrorist attacks. (He later apologized.) Senator Rand Paul issued a statement saying, “Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so,” and Glenn Beck starting hawking T-shirts depicting Roberts as a coward.
“I am literally sick over what happened,” Rush Limbaugh said. “A giant total fraud was perpetrated on this country. The Supreme Court as an institution is foreves, less conve
20
The Machine Hums
On the day after the Supreme Court ruling on Obamacare, the president flew to Colorado to inspect wildfire damage there. On the way back, he was ti
red but agreed to a conference call with big donors who had maxed out in 2008 but hadn’t this time. He warned them that if “a couple billionaires wrote $20 million checks [for Romney] and have bought all the TV time, we will find ourselves flat-footed in September and October.”
May had been a bad month. The economy created only sixty-nine thousand jobs and unemployment ticked up to 8.2 percent. A week after the jobs report came out, Obama, explaining the weak numbers as a reflection of curtailed stimulus spending on government jobs, said the private sector was “doing fine.” Even as he walked back the gaffe, Chicago went wobbly under other news. The monthly fundraising totals shocked the campaign high command. Romney outraised Obama $76 million to $60 million, and that didn’t include super PACs. Even accounting for the history of these things—that the front-runner consolidates lots of party money when he wraps up the nomination—the news was alarming. Going back to the first-quarter reporting period of 2007, when a rookie only two years out of the Illinois State Senate rocked the political world by outraising Hillary Clinton, Obama had never been bested in fundraising.
For a time it seemed as if Organizing for America was going bankrupt. By mid-2012 the Obama campaign had burned through about $400 million, more than McCain spent altogether in 2008. Chicago employed 786 paid campaign workers, nearly three times as many as Boston. Television advertising represented less than one-fourth of its total expenditures; the usual percentage is closer to two-thirds. Much of the rest was going toward building a hu partner, Russ Schriefer, aw seemed ge digital machine that might not work. The campaign was spending so much more than it was taking in that Messina informed department heads they would have to cut $90 million from their planning budgets. If implemented, this would require layoffs and other painful choices over the summer. Only one department saw its budget grow in this period: Analytics. The Cave dwellers would have what they needed.
The Center Holds: Obama and His Enemies Page 29
