The Stupak Conundrum: Why Did the Stupakites Change Their Positions on the Health Care Bill in Exchange for a Meaningless Executive Order?

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“does not appear to limit federal funding beyond those limits that already existed in the Senate bill, and it could be repealed by the president at any time.”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?