Donald Trump won the presidency, Republicans captured the House and Senate, and Republican appointees dominate the courts. But no one seems to be predicting that the Affordable Care Act—a law Republicans in Congress have repeatedly vowed to repeal—will actually be repealed. This is understandable: Health policy has proven stubbornly hard for presidents to change. This is in large part because of powerful interest groups that dominate lawmaking in the health policy space (and make up four of the top ten lobbying groups in the nation) including the American Medical Association (AMA), the Pharmaceutical Manufacturers’ Association (PhRMA), the American Hospital Association (AHA), and Blue Cross/Blue Shield.
When it comes to setting health care policy, history has repeatedly shown that these super-groups can be more powerful, individually and collectively, than the presidency. They helped stop President Trump’s earnest endeavor to repeal the ACA during his first term (when Republicans also controlled the Senate and House), blocked President Obama’s effort to include a “public option” in the ACA, obstructed President Clinton’s attempted health reform, shaped the design of Medicare, and barred President Truman’s efforts toward universal health care.
Many have asked whether the power these groups wield is ultimately good or bad. The answer is not so simple. For decades, scholars have asked whether “good” interest groups can be distinguished from “bad” interest groups in any principled way that doesn’t boil down to political preferences for an interest group’s actions. Was the power of the Anti-Saloon League—which played a huge role in pushing through alcohol prohibition in 1917—good or bad? Many attempts to answer that question inevitably reflect one’s stance on prohibition.
I argue a more illuminating and activating question for understanding the role of interest groups in our democracy is what power, if any, the law grants a particular group. For example, the AMA, PhRMA, the AHA, and Blue-Cross/Blue-Shield are not ordinary interest groups like Girl Scout Troop 102 or even the Anti-Saloon League. As I explain in my forthcoming article, Super-Groups: Legal Empowerment and “Public Law,” none of these interest groups arose organically. Rather, they are largely creatures of law—legal privileges granted to their members played determinative roles in their formation, enrichment, and continued durability and coherence. As political scientist E.E. Schattschneider famously put it—“new policies create new politics.” Drawing principled distinctions between ordinary interest groups and legally-empowered super-groups can open new fronts for advocacy and reform.
I define a super-group as: (1) an identifiable group that (2) has been legally-empowered as a group in an identifiable way and (3) durably wields political power in lawmaking processes. Take the AMA as a quick example. Paul Starr’s classic book, The Social Transformation of American Medicine, traces the AMA’s legal empowerment and recounts several notable examples of its influence in lawmaking processes. After the Civil War, medicine cohered from separate, competing sects into the powerful, organized entity it is today through a series of incremental legislative victories that created and advanced the modern “physician.” These included limits on scope of practice restrictions, medical school accreditation, tort law’s malpractice standard of care, public and private reimbursement, and prescribing (including controlled substance dispensing). Eventually, the AMA was built into health law; lawmakers and insurers adopted its reimbursement (CPT) codes and look to the AMA’s Relative Value Update Committee in setting the reimbursement rates that drive physicians into and among specialties. These and other legal privileges wielded by the AMA empower, cohere, and entrench the organization as a force in U.S. politics.
Super-groups’ legal empowerment means they are themselves constructive and legitimate targets for democratic contestation. No matter who holds the presidency, reformers might look to democratize existing super-groups from within. In “Super-Groups,” for example, I note that internal mobilization and advocacy by residents or physician members of the AMA may now be the best place to fight for reproductive justice, and to combat racial and sex-based disparities in health care more generally. Indeed, student organizing within the AMA has recently played a role in forcing the agency to soften its stance against Medicare-for-All. Student leader Rohan Khazanchi referred to the students’ work as the “conscience of the AMA.”
Across fields, naming super-groups and focusing on their legal empowerment also provides a principled basis on which to assess whether and when their influence is normatively justified or problematic. Scholars routinely make normative arguments about the legal entrenchment of particular policies against democratic change in a constitutional register. For example, scholars might defend entrenchment of a policy like freedom of speech or Medicare entitlements against majority change—even though anti-democratic—as justified if it is ultimately essential to liberty, security, anti-subordination, opportunity, or other preconditions to a functional democracy. Arguments from constitutional values can also be employed in assessing whether the legal empowerment of a super-group is desirable or problematic. A reader who believes the constitution ought to secure a right to health care, for example, might readily defend the legal empowerment of the AMA using the same kinds of arguments they believe justify such a right, at least insofar as the AMA uses its durable influence to promote the provision of quality medical care. Assessing desirability or undesirability of a particular super-group’s legal empowerment involves examining the legal privileges granted to the group—and the policies it is likely to defend or oppose as a result—in the light of the constitutional values one believes can justify legal entrenchment of policies against majority change.
Naming and targeting super-groups presents an opportunity for meaningful reform no matter who holds the presidency or controls Congress. Those hoping for change in the years to come might look to influence existing super-groups from within or to create new super-groups through state law, litigation, or federal policy. This may be the most effective means to change national politics in salutary ways, to disempower persistently problematic super-groups, or to steer super-groups’ influence. In Operationalizing Power in Health Law: The Hospital Abolition Hypothesis, for example, I map prison abolition arguments onto the health care ecosystem and argue for state and federal health reforms that shift power away from hospitals and towards patients and providers.
These points are not at all limited to health law. Indeed, I see Zoe Robinson and Stephen Rushin’s effort to understand and contest the power of the law enforcement lobby as an appreciation of the quasi-constitutional position of super-groups in the area of criminal law. Likewise, Vicki Jackson’s efforts to understand and defend the power of the press highlights this dynamic in the field of knowledge generation.
Most broadly, naming and differentiating super-groups provides a useful lens through which to study the growing inequality of the “new gilded age” and, with it, a new category of solutions. A chorus of legal academics, political scientists, bipartisan politicians, and authors in the popular press describe widening inequality as a constitutional problem, pointing to studies indicating that the wealthy dominate political outcomes. Such concerns are central to law and political economy and feed the mounting populism that is itself an existential threat to democracy. But while it is common to speak broadly of the power of “the wealthy,” “the corporations,” “the elites,” and “the few,” leveling the playing field in our constitutional democracy may require disrupting or democratizing specific, identifiable, legally-empowered groups. Jamila Michener calls this “power breaking,” and to do it well we need to name the groups whose power we want to break.
Carl Sandburg wrote: “The strong win against the weak. The strong lose against the stronger.” The presidency is strong, but super-groups can be stronger. Naming them and appreciating their legally-constructed position within our constitutional framework is a first step toward combatting their influence or shaping it toward constructive ends, no matter who sits in the Oval Office.
