Tag Archives: Health Care

Mythbuster 101

By tmess2 | Published June 5, 2022

The Republican Party likes its myths.  Tell a nice anecdotal story (which doesn’t even have to be true), pretend that it expresses a universal truth, and watch it take root in the base so that there is no pressure to fix what is really broken.

Myth #1 — Gun control rules in Democratic cities have not prevented those cities from having high homicide rates.  This one is less myth than simple distortion.  First, most larger cities have Democratic mayors.  So it’s hard to find Republican-controlled cities for comparison.  Second, it’s universally true (not just an American fact) that increased population (and increased population density) means more crime.  When you look at crime rates and violent crime rates, the cities with gun control actually fare relatively well.  Third, in the U,S, legal system, it is very easy to evade city restrictions.  You just need to travel to the suburbs  to get your gun.  And the open borders mean that there is no check at the city line to prevent the importation of guns into the  city.  Lastly, the penalties for violating a city ordinance are relatively minor.  In short, local gun control ordinances appear to have some effect, but such ordinances are no substitute for federal legislation.

Of course, passing anything through Congress is hard.  One proposal that I have seen that might bear some fruit is the concept of breaking down the current proposals into separate bills.  When you have a complex bill, it is easy for the Members from the Party of GnOP to say they are voting no based on one provision.  If you make them vote on each proposal separately, they will have to take a stand on each proposal rather than relying on the most controversial provision to justify killing the bill.  While the Democrats probably have the votes in the House to pass the full program, they don’t have the votes in the Senate.  Making forty-one Republicans have to vote against each of twenty or thirty proposals that have the support of 70% of the American voters might just move the needle in some swing states and districts. Continue Reading...

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The Confirmation Hearings

By tmess2 | Published October 10, 2020

In the past five years, we have seen the Turtle (Senator Mitch McConnell) go from the unprecedented blocking consideration of a Supreme Court nomination made eight months before an election change into the Hare trying to force an unprecedented vote on a Supreme Court nomination made after Labor Day prior to the election.  While the Senate did not have to approve the nomination of Merrick Garland in 2016, the very rules that the Republicans are relying on now to justify their consideration of Amy Coney Barrett mandated giving Judge Garland a hearing and a vote (at least a procedural vote).   And given the modern procedures, giving Judge Barrett a vote before the election requires cutting the process short.  The simple fact is that conservative Republicans are trying to pack the court.  While, barring some type of miracle, Democrats will not be able to prevent a vote from taking place before the election, there are some issues that should be front and center at the confirmation hearings that will take place this week.

At the top of the list is health care.  While the nominee will probably try to evade the question, it is important to make crystal clear that — if confirmed on the current schedule — Judge Barrett may be the one vote that removes the current protection for people with preexisting conditions.  In the November argument session, the Supreme Court will consider the constitutionality of the Affordable Care Act.  This case arises from the 2012 decision upholding the Affordable Care Act.  In that decision, after rewriting the law to avoid finding that the Affordable Care Act was authorized by the impact on interstate commerce, the 5-4 majority found that the individual mandate was authorized as a tax.  When the Republican Congress failed to repeal the entire act but did repeal the tax, Texas and other red states filed the current suit alleging that the repeal of the tax also repealed the individual mandate and the rest of the Affordable Care Act.

While Judge Barrett will probably try to avoid talking about the merits of the case (as she will be sitting on the Supreme Court when this case is heard), she should be at least forced to explain her approach to one of the key issues in the case.   That issue is “severability.”  Stripped of legal jargon, severability is about whether one invalid clause in a bill or statute requires the courts to reject the entire bill.  Under most of the recent decisions, there is no plausible basis for the Supreme Court to strike the entire Affordable Care Act because Congress expressly decided to repeal one part and leave the rest intact. Continue Reading...

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A Long December

By tmess2 | Published December 16, 2018

As we come to the end of another year, there are a lot of things happening. 

Let’s start with North Carolina and the Ninth District, the last of the House seats still up in the air.  It is unclear how much of the vote count has been impacted by the shenanigans.  There is substantial evidence showing that political operatives broke North Carolina law by getting involved in the collection of absentee ballots from non-relatives.  There is also evidence suggesting that these individuals may suggests that these operaves were selective in turning in the ballots that they received and may have altered other ballots (e.g., by casting votes in races that the voter left blank).  Since some states do allow non-relatives to collect absentee ballots, what is happening in North Carolina shows the need to have some anti-fraud measures in such voting.  Making it easy to vote is a good thing.  However, historically, we have known that most voter fraud is connected with mail-in or absentee voting and not with in-person voter-impersonation.    Of course, Republicans have been more concerned with stopping in-person fraud in ways that make it difficult to vote in person.  Meanwhile, they have uniformly been willing to relax the rules designed to assure that ballots received in the mail actually reflect the intent of the person who supposedly have cast them.  Going forward, Democrats — wanting to make it easy for people to vote — need to be sure that the rules include adequate protection to prevent con-artists from stealing and altering ballots before they get to the election office.

We have also seen the start of Democrats announcing that they are considering running for President.  Over the next three to six months, we will see more Democrats announce their campaigns; some of these candidates will decide to halt their campaigns before we reach July, but many of them will make the late Summer when we begin to have debates.  While the DNC does not need to finalize its debate plans yet, it does need to consider what the Republicans did wrong in 2016 (as well as what the Democrats did wrong in 2016).  The Republicans big problem was having too many candidates for a single debate.  The simple reality is that more candidates on the stage translates into less substance and more personal attacks and everyone agreeing with what they perceive as party orthodoxy.  On the other hand, there is no rational method for choosing which candidates make the debate.  The Republican tentative solution was what many called the JV or kiddie-table debate in which polls were used to separate the top candidates from the others.  However, after the first four or five candidates, the gap between the remaining candidates will often be less than the standard margin of error in most polls.  (In other words, the difference is close enough that the real standing of the candidates is unclear.)  Offering my humble suggestions, the following makes sense to me:  1) No more than six or seven candidates on the stage at a time (even that is probably too many, but it allows each candidate to have a semi-substantive response to each question); 2) all parts of the debate need to be in prime time (see next suggestion below) even if that means short breaks between the parts in which candidates are rushed on and off the stage with no opportunity to schmooze with the audience for those in the earlier parts; and 3) the candidates in part one or part two (or part three if there are even more candidates) should be randomly suggested and there should be a limit on the number of consecutive times that a candidate can be in any part (in other words, no part is clearly the “Not Ready for Prime Time” debate and no candidate is consistently going in the early debate or the late debate).  Continue Reading...

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A Long December

By tmess2 | Published December 17, 2017

The year comes to a close with its usual mix of good news and bad news.

On the 2020 presidential election, the Unity Reform Commission has completed its work.  Josh Putnam over at Frontloading Headquarters has posting summaries of the Commission’s decisions.   From the first two summaries, the recommendations seem to be moving toward more open primaries (a reversal of the party’s traditional support for closed primaries) and to make caucuses more like primaries with a preference toward using the primary if there is a state-run primary.  These recommendations will go to the Rules & By-laws Committee (which folks may remember from 2008).  The Rules & By-laws Committee will take these recommendations into account in drafting the 2020 Call and Delegate Selection Plan.  When the draft is concluded, the RBC’s draft goes to the full Democratic National Committee for approval.  If the Unity Reform Commission believes that the RBC is not fully implementing their recommendations in the draft, they can ask for the full DNC to intervene.  Presumably, the party will also begin its site selection process early in 2018.

As the site selection and the rule drafting process continues, there will probably be a lot of discussion here.  For now, it is important to be cautious about changes driven by the problems of the last cycle.  There is always a temptation to “fight the last war.”  But the problems in one cycle do not necessarily recur in the next cycle, and it is important not to do things that will probably make more problems than they fix.

The good news of December is, of  course, the results in Alabama.  Regaining control of the Senate will still be an uphill battle in 2018 due to the large number of marginal seats that Democrats won in 2012.  But, after Alabama, we only need to gain two seats (rather than three) to gain the majority.  It looks like there will be at least three (and maybe more) potential gains in 2018.  If we can keep all of our current seats, there is a fighting chance at gaining a majority.  The swings reflected in Alabama, the various House races, and the various state legislative races in 2017 would be enough to regain the House if those numbers can be repeated across the board.

The need for such large swings brings us back to the issue of gerrymandering.  Last week, the United States Supreme Court put a second partisan gerrymandering case (from Maryland) on its schedule for this term.  While the Supreme Court has to do something in election appeals, it does not have to hear arguments in every one of those appeals.  In fact, it has another partisan gerrymandering case in which the appeal was filed before the Maryland case that it is holding.  The Maryland case has some differences from the Wisconsin case that was argued in October, most significant of which is that, in Maryland, the Democrats controlled the redistricting process.  Because one of the issues in all of the pending appeals is whether the Supreme Court should even get involved in partisan gerrymandering,  the decision to take a second case suggests that the majority is inclined to find that this type of claim can be brought in federal court.  Taking the second case implies that the Supreme Court is looking at the rules that would govern this type of claim and wants another case to see how those rules would work in action.  Additionally, issuing published opinions setting aside both a Republican plan and a Democratic plan would give the appearance of being non-partisan.  If the Supreme Court issues one opinion for both cases, it is unlikely that it will issue before June.  As such, the 2018 elections will probably be under the current plans.  While it is possible that the decisions will lead to new lines for 2020 elections, the real impact of the decisions will be in 2021 when redistricting begins again.

Then, there is the tax bill.  Even Republican voters appear to have doubts about the tax bill and with good reason.  It would be nice to have Donald Trump’s tax returns to see how much he will benefit from this bill, but it seems to be written to benefit the wealthy and certain types of businesses (including real estate development).  For middle class voters, it takes a tax accountant to determine if the immediate impact of the bill would help or hurt a particular family.  One of the many changes in the tax bill, however, is to change from using the “regular” Consumer Price Index to using the Chained Consumer Price Index.  The Chained-CPI tends to show a lower rate of inflation than the regular CPI.  In the long run, that means that the standard deduction will not keep pace with inflation.  Additionally, tax brackets will not be adjusted as much as they should be.  Assuming that salaries do keep pace with inflation, a larger percent of income will be subject to taxation and at higher levels.

Putting aside the tax part of the tax bill, there is also the individual mandate part of the tax bill.  Nominally, the tax bill does not repeal the individual mandate, but it does set the penalties at zero.  When added to the shortened enrollment period, this change poses a lethal threat to the insurance industry.  I would not be surprised if some companies file bankruptcy to get out of their current 2018 rates.  At the very least, prepare for an astronomically large rate hike next fall.  The health insurance industry was not in a death spiral when President Trump took office, but it could very well be by the time that the next president takes office in 2021.

Lastly, there is the decision to put the U.S. Embassy to Israel in Jerusalem.  Normally, we do place an embassy in a country’s capital.  Israel, however, is the only country that has opted to place its capital in disputed territory.  The U.S. has, in the past, tried to finesse its position on Jerusalem in order to be the logical mediator between Israel and its neighbors (including the Palestinians living on the West Bank).  If this move was part of a negotiating strategy (i.e. getting Israel to make certain concessions in exchange for the move), it might be justifiable.  But there is no apparent benefit to the U.S.  from making this move (and there will be the expense of building a new embassy), and it will clearly have a negative impact on our relationship with other nations in the Middle East.  (How much remains to be seen.)  At the very least, we are no longer neutral on Jerusalem, eliminating our position as the most obvious mediator.

In short, the end of 2017 reflects a Trump Administration dedicated to making things worse for most of America at home and weakening the U.S. abroad.  The 2018 elections and possible revisions to the rules for drawing congressional and legislative districts, however, are a light at the end of the tunnel.

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The Path Forward

By tmess2 | Published July 29, 2017

Looking at the Republican debacle over Health Care, I was constantly reminded of two things.

First, I keep on thinking of a classic Saturday Night Live skit from their third season portraying Richard Nixon as a vampire-like figure who keeps coming back.  Like Nixon in that skit, just when we think that the Republican efforts at gutting health care are done, they find a way to resurrect the bill.  Since the Senate never actually voted on the final bill (which was put back on the calendar after the substitute amendment failed), it could be brought back to the floor at any time.

Second, I am reminded of Representative Pelosi’s comments while the Affordable Care Act was pending that we would not know what was in the bill until it finally passed.  While Republicans made a lot of hay out of this comment, she was expressing the reality of the legislative process.  Until the vote on the final version of the bill, it is possible that legislators will add new provisions and delete others.  Normally, however, under ordinary process, there is a core of the bill that stays relatively the same.  With this bill, the Republicans have treated the bill as a placeholder.  The message in the House and the Senate has been just pass this bill whatever its flaws and we can decide on the real terms of the bill later.  The concept that the conference committee would write an entire bill from scratch as opposed to merely reconciling the disagreements between the two houses is mindboggling.

Of course, health care was not the only example of the dysfunction of the Republican Party and the never-ending drama that is the Trump Administration.  We have tweets announcing a reprehensible policy directive requiring the military to discharge well-qualified soldiers merely because of their gender identify with no apparent work having been done on how to implement that policy.   We have a communications director whose only skill is to coarsen the national conversation triumphing over an experienced political operative who has a clue of how to get things done in D.C.

Of course, the utter failure of the Republican Party as a governing party merely provides an opening for Democratic ideas.  One of the hard things about any democracy is that activists can get easily frustrated during the period between elections.  Our actions, while important to keep the debate going, do not bear immediate positive results.  At this point in time, the summer of the first year, the campaigns for the mid-term election are just starting to come together (and some potential winning candidates are still considering whether they will run).

During the first year of an Administration, the main campaigns are special elections and New Jersey and Virginia.  Special elections can be frustrating.  Barring deaths, special elections tend to be to replace members who have moved on to higher-ranking positions and tend to be in somewhat safe districts.  (For those interested in helping in these elections, the Democratic Legislative Campaign Committee is a good source for the state legislative races. )  Obviously for the races in New Jersey and Virginia, the state parties are a good source of information.

Looking at 2018, the Green Papers is a good source of information for who has already set up a campaign committee for 2018.  However, as noted above, many potential candidates have yet to make a final decision about whether they will run in 2018.  Until these races firm up, it is a little early to make projections about 2018.  Obviously, the Democratic incumbent senators running in states that Trump won could use support now.   The reality of politics is that people tend to run when they think they can win.  If Democratic incumbents look difficult to beat, some top Republican contenders may choose to run for re-election to their current seats rather than challenging for a Senate seat.  The ugly reality is that Democrats did very well in 2012, meaning that we will have to defend a large number of seats and that we have very few good Senate targets.  We have at least one strong candidate in Nevada and Texas.  Democrats are still looking for candidates in Arizona.  (In Texas, we might be better off if the rumors of Ted Cruz replacing Jeff Sessions are true.  The rules for the special election would potentially allow for a Democrat vs. Democrat run-off.)

And, of course, the 2020 process has already started.  Right now the big activity is the Unity Reform Commission which will make recommendations to the Rules and By-laws committee by January 2018.  Obviously, they have a difficult task ahead but they have a survey on the DNC website for those members of the public who want input.  There are a lot of issues for them to decide including how open primaries and caucuses should be and the role of the superdelegates.  There are a lot of pros and cons on both issues.  I would note that Donald Trump is the President of the United States because of the differences between the Republican rules and the Democratic rules.  Under the Democratic rules, Donald Trump would have faced a contested convention and the superdelegates would have been in a position to play a significant role in stopping him from getting the nomination.  Under the Republican rules, many of their superdelegates were legally required to vote for Trump.  My own personal preference is to keep the superdelegates as unpledged delegates but to give them a fraction of a vote to reduce their influence.  (In the Republican Party, superdelegates represent about 5% of the floor vote.  In the Democratic Party, superdelegates represent about 15% of the floor vote.)

Right now, we know what we have to fight for.  We know that the 2018 elections will be key (both for policy reasons and for redistricting in 2021).  But it is the early days of the 2018 campaign.  The important thing is to keep the eyes on the prize and do the little things to help build up local parties so that the grassroots infrastructure is in place twelve months from now when the 2018 campaigns begin to ramp up.  Voter registration and petition drives over local issues are not always glamorous, but they are where those resources are developed.

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A June to Remember/Fear?

By tmess2 | Published June 4, 2017

There are times when, through the normal cycle, and discretionary decisions, events start to come in rapid procession.  June is shaping up to be one of those month between elections (both in the U.S. and abroad), the end of the Supreme Court term, and the matters currently on the plate of Congress.  We have already had the first major event of June — the decision by the Trump Administration to make America weaker by playing to his misinformed base on climate change and withdrawing from the Paris Accords.  It’s almost impossible to count the reasons why this decision is wrong,  here are a few:  1) the agreement was non-binding; 2) being a signator gave us a seat at the table in future discussions; 3) withdrawing makes China and the European Union more powerful; 4) state laws requiring an increasing percent of energy to come from renewal sources are still in effect and will contribute to the U.S. meeting its pledge anyway; 5) the federal courts have held that greenhouse gases are a pollutant requiring federal action under the Clean Air Act (even though the precise terms of the regulations to reduce greenhouse gases are not yet final) which means that we may have to meet or exceed the pledge anyway.

Moving to the Supreme Court, June is looking like immigration month.  May ended with a decision in the first of four immigration cases heard this term.  The case involved what types of sexual offenses against a child trigger deportation hearings for authorized immigrants (e.g., permanent residents).  The Supreme Court narrowly interpreted the statute, meaning that — for some sexual offenses (those that can be committed against a 16 or 17-year old — the first offense will not trigger deportation.  Two of the other three also directly or indirectly concern deportation.  In addition, with the lower courts having barred enforcement of the travel ban, the Trump Administration is asking the Supreme Court to stay those injunctions.  (The real issue is the enforcement of the restrictions on visas and entry.  It is likely that the Supreme Court will grant relief to some overbroad language in those bars that could be read as suggesting that the Trump Administration can’t begin work on revisions to the vetting process.)  There are 22 other cases to be decided this month, so immigration will not be the only big news this month.  And, even aside from the decisions in cases already argued, the Supreme Court will be deciding what cases to take next term and there are some potentially major issues that could be on the agenda for 2017-18.

Moving to U.S. elections, there are still three special elections — all of which will occur this month.  Two — in Georgia and South Carolina — involve vacancies created by the Trump cabinet appointment.  The other — California — arose from a vacancy created by filling the vacancy in the California Attorney General position created when the former AG won the U.S. Senate election last fall.  Because California uses a “jungle primary” (i.e.  one in which all candidates from all parties run in one primary with the top two advancing to the general election), we already know that the Democrats will keep this seat and the only question on Tuesday is which Democrat will be elected.  For the most part, both parties in choosing members of Congress to fill vacancies have followed the rule of only choosing people from “safe” seats.  As such, while the Democrats have so far — in the first round in California and in Montana and Kansas — run around 10% ahead of 2018, this success has not changed the winner of any seat.

The run-off in Georgia is the best chance for Democrats to actually win a Republican seat.  This district went solidly for the Republicans in 2012 with Romney winning by 13 percent.  On the other hand, Trump won by 2 percent (while the Republican member of Congress by 23 percent).  That leaves this seat as roughly an R+8 seat (meaning that Democrats would expect to win this seat if the Democrat’s national vote is around 58 percent).  This seat is the 165th most Republican seat — based on the 2012 and the 2016 results — so it is not necessarily one that the Democrats would expect to win, but if Trump is shuffling the deck on traditional party divisions, this suburban seat is the type of seat that a youth + white collar + minorities Democratic Party could win.   The race in South Carolina involves a district that is only slightly more Republican, but it is a mostly rural district which was even more Republican in 2016 than it was in 2012.  The bottom line is that — if predicting in advance — the fact that Republicans have had to fight hard in all four seats is a good sign for the Democrats, but it would be nice to get a pick up.  Both of these special elections are scheduled for June 20.

Besides these special elections,  New Jersey and Virginia will hold primary elections.  In New Jersey, the big question is which Democrat will be replacing Chris Christie after the November election.  There are six Democrats and five Republicans running.  (The primary is this Tuesday.)  Virginia (holding its primary on June 13) will be  closer general election.  The Virginia Democratic Primary looks like a close race between the state government Democratic establishment (supporting the current lieutenant governor) and the Washington D.C. Democratic establishing (supporting a former Congressman).  This fight represents the unique geographic position of Virginia, with northern Virginia dominated by the federal government and central Virginia dominated by the state government.  In November, regardless of which candidate wins, the Democratic nominee will need to do well in both the D.C. suburbs and in the Richmond area in order to carry the state.

In foreign elections, first up is the British elections this Thursday.  The continuing fallout from last year’s narrow decision to leave the European Union led to these early elections.  At the time that the Conservative government called these elections, polls suggested that they would win comfortably and substantially increase their current narrow majority.  Since then, the polls have tightened.   As with the U.S. election, the final national vote count is not what will determine the winner.  What will determine the winner will be the results in each of the 650 constituencies.  In theory, it takes 326 seats to win.  However, one of the parties running (Sinn Fein — the political wing of the Irish Republican Army) refuses to sit in Parliament (members of Parliament most take an oath of loyalty to the Queen before taking office and Sinn Fein members will not take this oath).   As such, depending on how many seats Sinn Fein wins (four in the last election), it actually takes around 323 or 324 to have a majority of the sitting members.   There are two additional complicating factors:  1) each of the four “nations” of the United Kingdom (England, Scotland, Wales, and Northern Ireland) have very distinct politics; and 2) third parties will win a significant share of seats.  In Scotland, the Scottish National Party is the leading party in Scotland and the “unionist” parties are simply hoping to win back some seats.  In Wales, Plaid Cymru will win some seats (but they are not anywhere near as strong as the SNP).  In Northern Ireland,  the parties likely to win seats are only loosely affiliated at best with the British parties.  In England, the Liberal Democrats have pockets of strength — particular in the South — where they will win some seats and the United Kingdom Independence Party may win a seat or two in “Trumpian” parts of England.  Polls in England close around 10 p.m. their time and — depending on the seat — can take between 1-4 hours to count; so we should have some idea of the results during prime time in the U.S.

After the British vote, France will have two rounds of voting in its parliamentary election.  The first round will take place next Sunday (June 11) with a second round on June 18.   If any candidate gets an absolute majority of those voting and more than 25% of those registered to vote, they can win the seat on June 11.  If no candidate meets that threshold, the top two candidates and any candidate who gets more than 12.5% of the registered vote will advance to the run-off.  In 2012, approximately 58% of registered voters participated in the first round.  Assuming the “average district,” any candidate who got an absolute majority would also meet the 25% of registered vote requirement.  It would take 22% of the vote in such a district to qualify for the run-off.  Thus most districts with run-offs would involve 2-3 candidates with a very tiny number having a fourth candidate.  (A candidate who advances to the run-off does have the option to withdraw which can avoid a district in which two candidates from the same side of the political spectrum “split” the vote and allow a candidate from the other side to win the run-off with 40% of the vote.)  In France, there are four major left-wing parties/alliances, the centrist party of the new President (running for the first time), a center-right (Gaullist) party/alliance, and two extreme right parties.  Current polling suggests that the presidential party will get about one-third of the vote in the first round and will probably end up with a slim, but working, majority after the second round of the vote.

Besides election and court cases,  June will also feature the continued business of government.  The two big issues here will be continued Congressional hearings related to Russia and the Trump Administration (including whatever pressure the President may have put on James Comey to stop the investigation).  Meanwhile Senate Republicans will continue to try to negotiate behind closed doors on a health care bill.  And at the same time, House and Senate Republicans will be looking at tax reform and infrastructure spending.  On all of these bills, there are three main problems:  1) passing any bill requires both moderates and conservatives to agree unless the Republicans want to negotiate with Democrats; 2) passing any bill requires both the Senate and the House to agree (and may require some Democrats in the Senate); and 3) the clock is ticking.  Recent years have shown that the Freedom Caucus/Koch Brothers/Tea Party is willing to primary Republicans who do follow their version of Republican purity.  That means that House and Senate Republicans will soon need to start worry about a potential primary opponent and switch from governing mode to election mode sometime this fall.  After about mid-July, the focus will shift from substantive legislation to passing a debt ceiling bill (which needs to be done before the end of July).  After that, the House will be in recess for most of August, and September will be focused on trying to finish appropriations (or at least passing some continuing appropriation to buy more time).  If we are going to see any movement on any of the big three issues on the Trump/Republican agenda, it has to come soon.

In short, there are four things to look for in June:  1) Will the Supreme Court be as hostile as the lower courts were to Trump’s immigration agenda; 2) what special elections and primaries say about the 2018 cycle; 3) do foreign elections have any impact on the U.S. agenda abroad; and 4) is there any sign that the Republicans can actually do anything legislatively with their control of both houses and the presidency.

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The Week in Review

By tmess2 | Published March 25, 2017

There is an old saying that a week is a lifetime in politics.  In most weeks, there is a lot happening either behind the scenes or at lower levels (e.g., committee hearings and markups on bills that nobody is watching).  It is the rare week, however, that so much is taking place front and center competing for the attention of the American public.

The big story of the week was the non-vote on and the collapse of the Republican effort at major health care reform — the so-called Affordable Health Care Act (a name that in itself was an attack on the bill that it was trying to “repeal and replace,” the Affordable Care Act.   There are several significant aspects to this non-event.

First, despite their efforts, Donald Trump and Paul Ryan could not get the sizable Republican majority in the House to pass a bill (forget the exact details of the last version of the bill, they could not get a majority behind any version) on one of the top Republican priorities of the past seven years.  While Trump may have been a great negotiator, it is very easy to reach a two-sided deal.  (Of course, it’s possible that Trump’s belief in his negotiating skill may be one of his great delusions.  He may have just been offering the right deal at the right time and actually have been taken to the cleaners in his business negotiations.)When you have three or more sides to a deal, however, it becomes very difficult to keep everybody on board.  This problem is particularly true in politics — when one faction thinks that a bill is too conservative and the other faction thinks that the bill is too liberal, there really isn’t any change that could make both sides happy.  At that point, it’s not really about negotiating but selling.

It’s pretty clear why the vote was cancelled.  Ryan was facing a humiliating defeat that would have been the American equivalent of a vote of no-confidence.  Some whip counts had the bill likely to get only 170-190 votes.  In other words, if the Democrats had put up a substitute, the Democratic alternative might have gotten more votes than the Trump-Ryan bill.   As has been discussed many times in the past, it is debatable whether the Republican Party exists as anything other than a line on the ballot.  The various factions of the Republican Party are unified only by their agreement that they are not Democrats.  While the Democratic Party has its own problems, most Democrats agree on the general shape of a policy.  Our disagreement tends to be on the details (e.g., should the minimum wage be raised to $12 or $15, should it be automatically indexed for inflation, should it be indexed to the local cost of living) and what can be passed.  It is debatable how much longer Ryan can serve as Speaker of the House if he can’t get significant legislation passed.  The next big challenge will be tax reform — something else that only unifies the Republican Party as a slogan and not as a real policy.

Second, the failure of the attempt to legislatively destroy the Affordable Care Act is not the end of the process.  As discussed in other posts, most statutes give significant discretion to regulatory agencies.  The Trump Administration has the responsibility for the implementation of the Affordable Care Act and the people responsible for the regulations are hostile to the basic goals of the Affordable Care Act.  There will be significant court fights over the next three to four years as the Department of Health and Human Services attempts to repeal or undermine the Affordable Care Act through regulations.

Third, any attempt to fix the Affordable Care Act is probably dead through the 2018 elections (just as it has been dead since 2010).  It is all but impossible to pass a perfect bill.  Some provisions that would work in practice generate too much controversy during the legislative process and get dropped.  The process of assembling enough votes to pass legislation typically requires some changes that eliminate or weaken significant elements of the program.  Even if a bill were passed intact, the exact policy mix is based on a projection of how the public will respond to the mix of incentives and penalties contained in the bill.  Because the way people act in the real world does not correspond to any model of how “reasonable economic person” should act, that first mix of incentives will almost always be wrong — sometimes getting too much of the desired response, sometimes getting not enough.  In short, every program will need some changes to fix what the initial version got wrong.  The Republican Party unfortunately appears to have decided to wait and see if the cumulative effects of the minor flaws in the Affordable Care Act will lead to disaster in the health care market.  (I think that this is the dumbest idea ever.  While there are some problems developing, I don’t think that we are anywhere near market collapse. More importantly, if the market does collapse, it is unclear that the Republican could rebuild their preferred version of the market out of the wreckage.)

Fourth, there remains the issue of whether the procedure that the Republicans used for this bill will be the model for future legislation.  The AHCA was not just fast-tracked; it was absurdly fast-tracked.  For most bills, there are hearings on the bill, followed by committee-markup, followed by floor debate (including amendments) in both houses.  This process takes time.  (For the original Affordable Care Act, the Republicans claimed that Democrats were moving too fast by having a final vote after over eight months of hearings, markup, and debate.)  There were no hearings for the AHCA.  Mark-up took place less than a week after the filing of the bill, and the floor vote would have taken place in less than three weeks after filing (with a similar fast track planned for the Senate).  Of course, such a fast track makes it hard for people to begin to focus and discuss particular problems with the legislation, hindering the ability of the opposition to develop.   When it works, such a fast track makes strategic sense.  Thus, could this be the new normal.

Of course, health care was not the only thing happening this week.  There was also the hearings of the House Intelligence Committee on Russia’s role in the campaign.  Both the hearing and its aftermath were big.  The hearings made clear to anyone with a brain that Trump’s allegations that there was any type of surveillance directed at the Trump campaign or the transition are delusional.  They also made clear that several people associated with the Trump campaign or the transition did engage in some forms of misconduct and that the FBI is investigating such misconduct.  (Whether those investigations lead to any big fish currently in the Trump Administration is unclear.)   Lastly, it is clear that the current chair of the House Intelligence Committee is too closely associated with the Trump Administration to fairly head any congressional investigation into this issue.

And if that was not enough, the Senate had its own hearings this week on the nomination of Neal Gorsuch to the Supreme Court.  As always, the nominee was frustrating in not answering questions about what agenda he will be bringing to the Supreme Court.  And there are rumors floating out there that are concerning regarding comments that Judge Gorsuch may have made about maternity leave.  It is unclear, however, that there is the type of smoking gun that could lead Republican Senators to vote against Judge Gorsuch.

Lastly, in what may have been buried in the news in light of everything else, the Supreme Court issued a significant ruling on presidential appointment powers.  In an opinion addressing the validity of the appointment of an acting general counsel to the National Labor Relations Board, the Supreme Court broadly interpreted a federal statute limiting who can serve in an “acting” capacity for a vacant position that requires Senate confirmation.  The short version of the opinion is that, a person nominated to fill a vacant position may not serve in that position in an “acting” capacity unless that person had served as first assistant to that position for at least three of the last twelve months.  In short, this opinion makes it much harder for an Administration to temporarily fill a vacant position with a person of its choosing, even if the Administration intends to promote from within an agency.  In particular, it is highly unlikely that any nominee for a position will be eligible to run an agency as the acting head of the agency.

Given the problem that this Administration is having with finding nominees for such positions, anything that hinders the ability of this Administration to put its own people in charge while the Senate considers nominees has to be frustrating.  (Another example of how the partisan separation of powers litigation that Republicans filed over the past eight years is coming back to bite them.)  Of course, this Administration has its own unique solution.  Unlike past administrations which used “czars” in the White House to run policy, the Trump Administration appears to have settled on a different aspect of Russian history — the commissar.  According to report, the White House staff is sending liasons to office at various departments and agencies to assure that the departments and agencies are complying with the White House goals, policies, and directives.  The practice of having political officers to assure loyalty worked so well (not) for the Soviet Union’s military.  So of course, the Russophile-in-Chief decided to adopt the same idea for the U.S. government.

At the end of the day, some very big stones were thrown into the pond this week.  Undoubtedly, we will be talking a lot more about the ripples over the next several months (and maybe even into the next year when they become issues in the 2018 elections).

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Easier Said than Done

By tmess2 | Published January 8, 2017

While November was disappointing, the Democrats did gain seats in the Senate.  As a result, the Republicans only hold a 52-48 majority.  If three Republican Senators vote no on any confirmation or bill, it fails.  We are already seeing signs that the next two years could get very interesting — even if the Democrats are more responsible in using the filibuster than Republicans were.

Right now, the Republicans want to repeal the Affordable Care Act.  The Republicans have never been able to exactly what they don’t like about the Affordable Care Act other than that it was passed by a Democratic President and a Democratic Congress.   For seven years, the Republicans have been asserting the need to repeal and replace the Affordable Care Act.  While the Republicans have been relatively unified on their desire to repeal the Affordable Care Act, they have never been able to reach a consensus on how to replace it.

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Pro-business Conservatives and the Affordable Care Act

By tmess2 | Published June 25, 2015

For the third time in four years, the fate of the Affordable Care Act rested with the United States Supreme Court.  Early this morning, by a 6-3 vote, the United States Supreme Court kept the Affordable Care Act (and the health insurance industry) alive.  If you look at all three case over the past four years, the key votes on the Supreme Court have belonged to the two pro-business conservatives (Justice Kennedy and Chief Justice Roberts).  The remaining justices have been predictable — the liberals supporting the Affordable Care Act and the three ultra-conservatives opposing.  If the past is any predictor for the future, any remaining challenges to the Affordable Care Act may rise or fall on what’s good for business.

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