A good day for the ACA

While there will doubtless be many shifts and turns in the battle over the ACA, the road to repeal has seemingly got steeper for Republicans in the last couple of days. Some good developments:

1) Trump blew in with his promises to cover everyone, with low deductibles, and to enact his magic replacement at the same time as ACA repeal. That would seem to make it harder for Republicans in Congress to proceed with repeal-and-delay.

2) The Congressional Budget Office, traditionally the arbiter of the fiscal viability of proposed legislation, did the Urban Institute one better and estimated that the repeal-and-delay bill Republicans passed in late 2015 (vetoed by Obama) would un-insure 32 million people in a decade.

3) Media coverage pretty universally noted that the Jan. 15 rallies reflected deep support for the ACA and stiff resistance to repeal from its proponents. The NYT's Robert Pear, generally caustic about the ACA, put it this way:

Why I'm glad that Democrats didn't change the Senate rules

Almost since Obama took office, almost every writer on politics whom I enjoy reading most, driven mad by GOP obstruction in the Senate, has urged filibuster reform.  Let Harry Reid's latest complaint stand in for a long statistical litany of GOP obstruction: he has had to deal with over 400 Republican filibusters, compared to Lyndon Johnson's one. 

Without doubt, Senate rules could use some rational tweaking. But I have argued since 2009 that the problem is not so much with the Senate rules as with the GOP destruction of governing norms. Instead of a loyal opposition we have had a nihilist one, unwilling to let the majority govern (with a rational level of resistance and negotiation to shape laws more to the minority's liking) and abide the electoral consequences of the laws they pass, unwilling to let the executive branch be staffed so it can perform its constitutional functions, unwilling to allow the lengthy enactment process to work for laws already passed and signed.

The problem is not so much the rules as the GOP; such nihilist opposition is dangerous, and bespeaks graver danger should the extremist party gain control of the presidency and both houses of Congress. Against that very real possibility the filibuster stands as a bulwark: I would rather let the GOP inhibit the Democrats' ability to pass legislation and fill vacancies than enable the GOP to wreak legislative havoc unrestrained if it has not moderated before the next time it gains power.

"They deserve a vote," cont.

Five long days ago, when the Senate broke a filibuster to allow debate on the Manchin-Toomey bill extending background checks on gun sales to gun shows and the internet, I wondered whether public shaming was not a better response to filibuster-everything obstructionism in the Senate than rule changes ending or sharply curtailing the filibuster.

Naive hope, at least in the short term. But Obama shares it. Last night, responding to the successful filibuster of the actual bill, he turned the spotlight not only on the moral cowardice of senators who voted to block the bill, but on Senate dysfunction:

"They deserve a vote"

The lede to this Hill article dredged up a thought that had flitted half-noticed through the ol' necktop a day or two ago:

The White House has tilted the gun control debate in its favor by centering its public relations effort around one pivotal message: the legislation deserves a vote.

The thought: maybe the best response to the Senate's galloping filibusteritis is not new rulemaking, but public shaming.

We all fail if health care reform fails

Reading first Jonathan's Cohn's account of the uphill struggle to muster enough House Democrats to pass the Senate health care bill with a reconciliation fix, and then Amy Sullivan analysis of how the fragile majoirty that passed the House bill may founder over abortion, I heard myself mouthing former Counterterroism chief Richard Clark's words at the 9/11 Commission hearings: "your government failed you...I failed you."

If Congress does not pass a comprehensive health care reform bill this year, that will constitute a massive collective failure in which we all share.

Republicans will have failed in their callous disregard for the plight of tens of millions of uninsured and tens more millions underinsured Americans,and in their willingness to place political gain ahead of the welfare of the people they are elected to serve. They will have failed in their success at scuttling  the country's best hope of bending the health care cost curve and thus laying the basis for a sustainable fiscal future.

Progressive activists will have failed in their refusal to recognize that for all its concessions to industry and to the spending inhibitions of the most conservative senators in the Democratic caucus, the bill that passed the Senate maintains the capacity to transform our health care system vastly for the better. They will have failed to recognize that the bill's limitations were imposed by the constraints of the Constitution and the filibuster and the U.S. electorate, that it could not be more sweeping than the most conservative Democrats would allow.

Frank-ly disgusting

There's probably no point in continuing to howl at the moon as assorted Democrats rush for the exits on HCR. But I can't help myself. Barney Frank is the latest to cut off all chance of following through:

I have two reactions to the election in Massachusetts. One, I am disappointed. Two, I feel strongly that the Democratic majority in congress must respect the process and make no effort to bypass the electoral results. If Martha Coakley had won, I believe we could have worked out a reasonable compromise between the House and Senate health care bills. But since Scott Brown has won and the Republicans now have 41 votes in the senate, that approach is no longer appropriate. I am hopeful that some Republican senators will be willing to discuss a revised version of health care reform. Because I do not think that the country would be well served by the health care status quo. But our respect for democratic procedures must rule out any effort to pass a health care bill as if the Massachusetts election had not happened. Going forward, I hope there will be a serious effort to change the senate rule which means that 59 are not enough to pass major legislation, but those are the rules by which the health care bill was considered, and it would be wrong to change them in the middle of this process.

Respect for democratic procedures? It would be "wrong" to change "the rules by which the health care bill was considered"?  "Procedure" is the cross on which the Democrats have hung themselves. It's the procedure -- dragged out for the better part of a year by Republican bad faith and Democratic accommodation and infighting -- that has disgusted voters, not the substance of the two quite well-constructed bills now pending.
Whom does Frank think he's dealing with? Respect for "procedure" means acceding to concerted Republican malpractice - in the bad faith negotiations that Baucus allowed to drag on for months, giving the Republicans in the 'gang of six' most of what they wanted; in the relentless demagoguery of the summer; in Republican rejection of a bill that is as "Republican" as any Republican with any integrity (that is, today, none) could wish, in its privatization of near-universal care and deficit discipline; in the Republicans' successful obstruction of every step of the process until they breached the Democrats' filibuster-proof majority. And of course, there is absolutely no violation of proper Congressional procedure in the House passing a bill that the Senate has already passed.

Who's thwarting 'the will of the people'?

Democrats need to start heading off this "argument" immediately:

And any Democratic move to slow-walk seating Brown in order to pass reform, [Republican strategist Phil] Blando said, is "just naked, pure power politics where, at that point, you're just thwarting the will of the people."

To state the obvious: a Senate in which sixty votes is required to pass any legislation does not reflect "the will of the people."  Republican lying, stonewalling, bad-faith negotiation and procedural manipulation of a Senate whose norms have grown dysfunctional have been thwarting "the will of the people" since the day Obama was inaugurated.  No legal Democratic maneuver to obtain a vote on the reconciled House and Senate bills should raise the slightest ethical or political qualms.

UPDATE: TPM reports that Democrats will have a minimum of 15 days after the election before Scott is seated:

Question for Fallows: Can the U.S. "muddle through" to structural change?

As someone who's mused at length over whether the United States retains its capacity for self-correction, I lapped up James Fallows' panoramic and even-handed exploration of "How American Can Rise Again" (or not). Fallows' broad points:

• Worries about American decline are a constant in our culture and a sign of societal health.
  
  
• Current problems, e.g., the structural deficits and infrastructure decay, are serious but manageable.
  
  
• More endemic and threatening than the problems that require policy solutions is our current political paralysis -- bequeathed to us by a Constitution that has not proved sufficiently amenable to amendment and that has stuck us with steadily less representative government:
  

Fallows sees no clear path to fixing the paralysis caused by the nonrepresentative nature of the Senate (where Wyoming has the same clout as California with 1/69 the population), the fiercely Gerrymandered Congressional districts, the multiple layers and local government, etc.   His conclusion is really a non-conclusion: our only hope for bringing about sufficient constructive change is to "muddle through." That is, we need leaders like Theodore Roosevelt and Dwight Eisenhower who "worked within [the system's] flaws and limits...that is the bravest and best choice for us now."

That conclusion is a bit circular, since Fallows' core question is whether the United States retains the capacity to muddle through, given the dysfunctions of the political system.  Perhaps the missing link is a discussion of whether the U.S. can "muddle through" to incremental systemic change, i.e., change in the political system.

Save the filibuster, cont.

The Times' Reed Abelson today recalls the debacle of the Medicare Catastrophic Coverage Act, passed in 1988 and repealed in 1990 after an uproar from Medicare beneficiaries who saw their premiums rise to pay for coverage they had already bought for themselves.

The analogy with pending health care reform legislation is obvious: taxes begin right away while the signature benefits, subsidized health insurance offered on the exchanges, won't kick in until 2013 or 2014.

"The specter of repeal is going to be around for awhile," says one scholar of the Catastrophic Coverage Act, UCLA's Thomas Rice.

May I humbly refer HCR supporters to my warning of a few days ago: save the filibuster, protector of the Patient Protection Act?

Save the filibuster, guardian of health care reform

Andrew Sullivan trusts that health care reform will remake the country's political landscape:

I don't think this is about a short term five point bump. Here's what has happened: a liberal Democratic president has just passed universal health insurance. No Democratic president has done something like that since Johnson. It is designed to show that government can do something real and tangible for the working poor. And in that respect, its impact on the political culture will be deep and lasting, unless the opposition can stop it, demonize it, or jump up and down enough to make it seem as if Obama is out of step with the times rather than them.

My suspicion is that they will fail in the end to achieve this; and that this new landmark for liberalism will reorient American politics the way Reagan's first year did - profoundly.

I agree with this read in principle and in fervent hope. But it worries me that the health care exchanges won't power up until 2014 (if HCR passes) -- while cuts to Medicare Advantage start right away.  Couple this with Democrats' flirtation with weakening the filibuster, and that leaves me chewing a few cuticles about a worst-case scenario: Democrats lose lots of seats and maybe a chamber of Congress in 2010, and the Obama administration goes into a Clintonian holding pattern. The asset bubble bursts in China, or there's some other second wave economic tsunami, or a successful terrorist attack, and the Republicans win the presidency in 2012.  With the filibuster weakened -- and the precedent set for weakening it further -- Republicans repeal health care reform before the exchanges ever get started.

It's always easy to spin out worst-case scenarios.  But I still think that the Democrats, having (almost) squeezed health care reform through the eye of the needle, should regard the filibuster as the bulwark against rollback.

The best cure for the legislative sclerosis blamed on the filibuster is a change in political culture, effected once the Republicans reap the long-term whirlwind for their obstructionism.  Meanwhile, guarded by the filibuster, health care reform will probably have the long-term effect that Andrew envisions.

Attention, filibuster-busters: remember 2002-2006?

"I just look at this institution as really the last bastion of protecting the rights of the minority, and we should be very careful before we try and make any changes."

         - Senator John Warner (R-VA), April 19, 2005

Warner was one of a majority of 55 Republican senators when he made the statement above. He was also a member of the so-called Gang of 14 who forged a compromise over Democrats' hold on some of Bush's judicial nominees, averting a Republican move to end the filibuster specifically for judicial nominees (perhaps because they still remembered that during Clinton's presidency, they blocked far more judicial nominees than the Democrats did under Bush).

Upholding Dodd-ering Civil Liberties

Chris Dodd has pledged to filibuster any FISA bill that grants retroactive immunity to telecom companies that have colluded in the Bush Administration's illegal and unchecked spying on Americans' phone traffic. Here is one response to Dodd's call for statements of support:

While America sleeps, our core Constitutional liberties are being stripped away as the Executive claims power to do whatever it wants to whomever it wants. Astonishingly, the Democrats continue to roll over and ratify the President's right to spy at will on Americans, hold suspects indefinitely without trial, and torture those deemed rightly or wrongly to have information about future terrorist attacks. Chris Dodd has been the only Presidential candidate with the courage not only to speak out in general terms against these outrages, but to take time out from campaigning to arrest the capitulation of the party he wants to lead. Anyone who acts effectively to check the steamrolling of the spineless Democratic leadership on this front deserves the support of all Americans who value the rule of law and the separation of powers.