Why conservatives could regret opposing the health mandate

On Thursday (April 29), Georgetown law professor Randy Barnett took his campaign to get the health bill declared unconstitutional to the op-ed page of The Wall Street Journal – always friendly territory for that kind of right-wing thought experimentation. His piece makes very clear (perhaps more clear than I did) a point I tried to make a few weeks ago in this space: that the key to the claim that the bill is unconstitutional is that the mandate to buy health insurance regulates economic inactivity rather than activity (see April 1 post below). So I think it’s worth revisiting the reasons that distinction is specious and examining some of the reasons conservatives may come to regret their hostility to the individual health insurance mandate.

Barnett acknowledges that in-state activity that affects interstate commerce can be regulated under the Commerce Clause. Yet he insists the health bill is invalid because “the court has never upheld a requirement that an individual who is doing nothing must engage in economic activity by entering into a private contractual relationship with a private company.”  

Comparing not buying insurance to not buying a house or a Chevrolet, Barnett dismisses the perfectly clear statutory language that suggests that choosing not to buy health insurance is an economic decision with clear implications for interstate commerce as somehow specious and ridicules the idea “that a ‘decision’ not to act somehow affects interstate commerce.” Here’s the link to his piece.

Link to Barnett\’s essay on the health mandate

“Doing nothing”? “Doing nothing” or deciding “not to act” is simply not an option in the health care market. One can choose not to buy a car or a house but all of us must use health services at some point. And because, thankfully, most of us can’t abide just letting the indigent or uninsured die in the streets, the cost of their care must fall on someone and has, as is well-known, very significant effects on the bills other citizens pay and on the health care system itself. To suggest that choosing to pay for health care on a fee-for-service basis or to self-insure or to leave the bills to others is doing nothing is simply specious.

People forego health insurance for many reasons – mostly because they can’t afford it. But they are surely doing something rather than nothing when they make that choice, and that something has clear implications for interstate commerce and for other individuals.

Barnett goes on to argue that the eagerness of some health reform supporters to characterize the individual mandate as a kind of tax rather than a mandate justified by the Commerce Clause shows that they know that the commerce argument is untenable. Let me suggest instead that it shows is an eagerness on the part of reform advocates to put the debate on absolutely uncontroversial grounds (since there is no dispute about whether Congress can force people to pay taxes to fund health care) in the face of the uncertain behavior of a Supreme Court clearly given to outrageious acts of conservative judicial activism.

As I noted a few weeks ago, while the activity/inactivity distinction would be very weak ground for the court to overturn health reform, given the current court’s propensity for rather radical conservative judicial activism one simply can’t be certain how far it might go. This week’s decision upholding crosses on public park land only adds to that uncertainty.

But the larger point is that I don’t think it is adequately understood just how is deeply paradoxical it is for conservatives to suggest that a mandate that would impose a three-figure fine on those who don’t buy health insurance for themselves is beyond the scope of Congress’ power while it is clearly within Congress’ power to force people to pay large tax bills to support the health care of others – as it does under Medicare, Medicaid, S-CHIP and various other programs.

Famously the brainchild of the right-wing Heritage Foundation, the individual health mandate upholds the conservative principle of individual responsibility (not that you’d know that from listening to the fatuous conservative rhetoric in the health care debate) while the tax-and-transfer model of public health care upholds the social democratic model of collective responsibility for public goods.

I generally favor the collective responsibility model of course. That model can, and often does, do a much better job than the individual/market model of making public goods available and affordable to all and shares the burden more equitably by paying for it through a progressive system of taxation.  But I’m willing to accept a health system that employs aspects of both models as a pragmatic improvement over our current system – and as one that reflects worthwhile values of both personal and collective responsibility

Still it would be a bizarre result for a conservative court majority to treat the individual mandate as outside the scope of federal power while the much greater impositions on individuals the collective model might impose in the public interest remain free from legal challenge.

Conservatives really ought to think twice about whether that’s an outcome they would want to affirm.

Indeed, in the absence of an individual mandate, it’s hard to see how the country could begin to approach universal health coverage without establishing a larger and more intrusive public health care system paid for with more taxes – which would be fine with me but anathema to conservatives. And as health care costs continue to rise as our population ages, it will only become harder to overlook the fact that  moving toward universal coverage is critical to cost control — to say nothing of being critical to the human values of preventing unnecessary death and suffering.

So one day soon, perhaps conservatives will rue the day they reacted so angrily to the individual mandate. Perhaps 20 years from now we’ll see them demagogically defending the mandates they once hated — just as we watched them demagogically defend the Medicare system they hated not long ago during the recent health care debate against the alleged threats to it posed by comprehensive reform it – in the face of calls for more comprehensive reforms.

‘Tis a consummation devoutly to be wished, as Hamlet might say.

 

Time for an honest discussion of our modest tax burden

Before tax season fades from memory, I wanted to make some remarks about the weird disconnect between the great anger from the Tea Partiers and others over the income tax and the modest character of our actual tax burden. In fact, the national tax bite is at historically low levels – levels that are simply too low to fund the functions most of us want the federal government to perform. We ought to be having a rational debate about how to fix that problem but anti-government anger and anti-tax demagoguery very much stand in the way of that debate.

The low tax rate was dutifully reported in many quarters on Tax Day, and yet this is one of those cases where reporting the truth seems to have little impact on widely held misconceptions – in part because the right works so hard to promote those misconceptions. A fine example of such demagoguery was Karl (He Just Won’t Go Away) Rove’s essay in Thursday’s (April 15)  Wall Street Journal. Under the heading “Why Republicans are winning the tax issue,” Rove argues that the reason is that, “Under President Barack Obama taxes are going up – a lot.”

One doesn’t exactly expect Rove to be a stickler for truth. Still, it’s remarkable how false his central claim is – and indeed much of the evidence he cites for it is that opinion surveys suggest that many people think their taxes have gone up or will go up in the future. This is different, of course, from taxes actually rising (a difference Rove often ignores or obfuscates in the column). Here’s the link to Rove’s essay.

Rove in WSJ on rising taxes

In fact, the 2009 federal stimulus legisation included a series of tax cuts that mean almost everyone paid less in 2009 than in 2008. Citizens for Tax Justice estimates that 98 percent of working families paid less taxes this year than last and put the average savings in Maryland at $1,337. So under President Obama taxes have actually gone down — a lot.

Indeed, as has been widely reported, the Heritage Foundation estimates that this year federal tax  receipts will be just 14.8 percent of GDP, a historically low level that is well below the average for the last 30 years, which Heritage puts at 18.2 percent of GDP  (and I don’t need to remind anyone which side of the tax debate Heritage in on).

Our tax burden is quite low by international standards, too. For 2006, the Tax Policy Center estimates the total U.S. tax burden (state, local and federal) at about 27 percent of GDP (and that was before the recession caused revenues to crater). The average tax rate for the 30 member countries of the OECD that year was about 36 percent of GDP. Here’s the link to the Tax Policy Center’s table on international tax rates:

Tax Policy Center figures on total tax burden in wealthy nations

In recent days, the president has been out crowing about how low the tax burden is – as well he might given the demagogic opposition he faces on this score. But the low rates really aren’t such good news because they leave the federal government short of resources and the nation’s fiscal situation bleak. After years of Reaganism and supply-side economics, the Republicans have succeeded in decoupling taxes from revenues and public services in the mind of much of the public. In an ideal world, the president would be reminding the public that our low tax rates are a big part of the reason that a nation as wealthy as ours faces a trillion-dollar-plus deficit even in the context of all sorts of unmet infrastructural and public service needs.

In recent weeks, we’ve seen some discussion in Washington about using a federal value-added tax to raise revenue. But that’s not a good option because the VAT is regressive and because a federal VAT would step on the toes of the sales taxes states rely on for funding.

The president’s campaign pledge not to raise taxes on anyone but those at the very top of the income distribution (i.e. couples that make more than 250K) is also less than helpful in coming to terms with the problem. Any tax that has an incidental impact on those who are not wealthy can be stigmatized as violating that pledge (for instance, the federal tax on cigarettes has risen and some of the taxes in the health care plan would affect some middle-income people and any such incidental impact can be said to violate the president’s pledge). This ties the administration’s hands unduly – for reasons more of politics than of sound policy.

The good news is that the Bush-era tax cuts are slated to expire this year. That means that if Congress does nothing, we’ll get, in effect, an across-the-board tax hike for 2011 with the largest impact falling on the wealthy. Few politicians will be able to stomach that possibility, and it will certainly be anathema to Republicans. That should help give the administration the leverage it needs to pass its proposal to let the  tax cuts for top-earners expire, a plan that will generate about $1.1 trillion in additional revenue over the next decade.

That’s a step in the right direction. But, frankly, I think it would be much better public policy to let the cuts lapse for a larger slice of the prosperous classes; perhaps the top 20 percent of the income distribution instead of just the top 2 percent or so as the administration proposes – because the top quintile can certainly afford to pay more and because we badly need the revenue a more broadly based tax hike would generate. But that approach would clearly violate the president’s tax pledge, and the administration is now boxed in by the promises Obama made to placate the anti-tax demagogues during the campaign.

That’s unfortunate for reasons of principle as well as of revenue. I’m all for strongly progressive taxation and for using the tax code to ease the savage inequalities of wealth in this nation. But I think the progressive left has gotten too addicted to funding its wish lists through calls for increased taxes only on a small sliver of the population, one it is eager to stigmatize as an impossibly wealthy “Other.” That approach not only limits revenues but undermines the principle of shared responsibility for the nation’s fiscal affairs.

The right principles for expanding revenues, it seems to me, are shared responsibility and progressivity. The poor can’t afford a tax hike and the rich certainly should pay more. But I think it’s also fair to ask the prosperous (but not wealthy) middle- and upper-middle classes to do a little more to support the commonweal.  Given the modest tax burden these folks now face and the many benefits they enjoy, asking them for a little bit more is perfectly reasonable.

But that won’t be politically feasible until we begin to have a much less selfish and more honest discussion about taxes – one that characterizes tax-paying more as a civic responsibility than as an oppressive imposition by a state many view with ill-disguised scorn.

Today, on the 15^th anniversary of the Oklahoma City bombing, its worth remembering that our government is not some alien, oppressive force and that taxes are essential to support the services we need. In our current angry political culture, that’s more than  an empty bromide.

 

Is it unconstitutional to mandate health coverage?

I made some dismissive comments about the court challenges to the health care bill in this space last week. But I now think the question merits more serious consideration and I’ve been looking for some good arguments that the bill violates the Consitution.

The lynchpin of the few interesting arguments arguments I have found is that not buying health insurance is inactivity rather than activity, and that it’s decisively different for Congress to try to regulate inactivity related to interstate commerce than to regulate activity. That’s an interesting, if ultimately somewhat specious, claim but it would be a very thin reed even for the conservatives on this Supreme Court to throw out the most comprehensive piece of public regulation passed in two generations. Still, given recent history, I can’t utterly dismiss the idea that it might do so.

Of course for many decades conservatives have wanted to rein in the expansive reading of Congress’ power to regulate commerce the courts adopted after the Supreme Court’s disastrous confrontation with the New Deal. And it’s perfectly clear that many conservatives see the health care lawsuits not only as a way to vitiate health reform but restrict Congress’ power to regulate commerce. That would, of course, also undermine the government’s power to regulate the economy in the public interest – which is exactly why conservatives have long wanted to limit Commerce Clause powers.

But it is a long-settled legal principle that Congress can regulate activities, including intrastate and not directly commercial activities, under the Commerce Clase if those activities are clearly related to interstate commerce. In a couple rulings in 1995 and 2000, the high court acted to limit that power – but only on the grounds that the matters in question were only incidentally related to interstate commerce. Since no one can deny with a straight face that health care and health insurance are strongly related to interstate commerce, those precedents don’t apply here.

So the wrinkle now is for conservatives to suggest that the mandate that individuals buy insurance falls outside Congress’ power because it regulates inactivity (the decision not to buy insurance) rather than activity related to commerce (which Congress clearly has the power to regulate). To let Congress compel activity under the Commerce Clause, some of them suggest, would give it an endless and improper degree of authority to require us to do anything Congress might think relevant to interstate commerce.  The clearest version of this argument I’ve seen comes from Georgetown professor Randy Barnett from the Washington Post (March 21). Here’s the link to Barnett’s piece.

Link to Randy Barnett\’s essay on the health mandate

This is an interesting argument and one that I think is worth taking seriously. Could Congress, for instance, as some conservatives have suggested, under the same principle used to mandate health insurance mandate that we all buy a new car – since the sad state of the auto industry is surely an interstate commerce issue? And why is the health mandate different?

Of course, Congress can punish forms of economic inactivity. Under the Civil Rights Act of 1964, for instance, not renting a motel room to a black person can be sanctioned. But that’s a somewhat different case because the motel owner has chosen to enter a regulated industry while the guy in Virginia who doesn’t want to buy health insurance is just a guy living his life.

But what is new is often somehat novel, and the fact that a form of regulation is in some sense novel does not make it impermissible. And regulating the choice not to buy health insurance is very much like many things Congress routinely does under the Commerce Clause – more like them than unlike them really — even if it is distinguishable in some sense. Moreover, not participating in the health insurance market has well-known and very significant effects on the health system and imposes all kinds of costs on others. It seems capricious to suggest that there’s a bright-line distinction between regulating buying insurance and regulating not-buying it that makes the latter categorically outside the power of Congress when both buying and not-buying both have substantial effects on the market.

Indeed the fact that we all will all need health services at some point further undermines the distinction. As Simon Lazarus pointed out in his brief on the subject for the American Constitution Society, given that we all need such services not-buying health insurance is really a choice to pay for health services on a fee-for-service or self-insured basis (or just not pay the bills) rather than through insurance. To call the one choice an activity and the other a form of inactivity is more a rhetorical trick than a genuine argument. Here’s the link to the ACS brief, which is the best general discussion of these issues I’ve seen.

Link to ACS brief on health care mandate

And this consideration clearly distinguishes the health care case from the mandate-to-buy-a-car hypothetical case cited above: a citizen can indeed choose not to buy a car and participate in the auto market but can’t really choose not to participate in the health market. That’s part of the reason all other health care systems in the developed world are in some important sense compulsory.

For these and other reasons (including the fact that the mandate doesn’t kick in until 2014 and applies to individuals rather than states, making it unclear why the state AGs should even have standing to sue), the constitutional argument against the mandate is weak. It would be an act of radical conservative judicial activism (which isn’t an oxymoron, even though many conservatives would like you to believe that it is) to vitiate the health reform on the basis of the activity/inactivity distinction.

But this court is clearly open to such radical steps.  It departed sharply from tradition in declaring an individual right to gun ownership in 2008 (District of Columbia vs. Heller). It departed sharply from traditional jurisprudence on abortion rights in upholding the partial-birth abortion ban in 2007. And then there’s this year’s quite radical Citizen’s United decision, in which the court departed from a long tradition of allowing stronger regulation of corporate speech to vitiate a popular law limiting campaign spending by corporations.

Indeed, I honestly think that striking down health reform on the basis of the activity/inactivity distinction would be a better argument (which is not to say that I think it’s a good one) than the court majority had for the Citizens United decision. In that ruling the court, the court’s majority basically just  pretended that regulating some classes of speakers differently from others was impermissible despite the long tradition of Congress and the courts doing just that (see my March 9 posting below).

Still it does seem unlikely that the court would reopen the destructive judicial Commerce Clause debate in such a radical way on such a thin basis. But recent history suggests that one’s confidence in that assumption can only go so far.

Conservatives like to argue that the high court’s reticence about checking Commerce Clause powers leaves those powers dangerously unlimited. Apparently they didn’t follow the recent health care debate.

 That debate should have reminded us all that (even with a big Democratic majority and a charismatic, popular Democratic president) the political checks on Congress’ power to regulate commerce remain very strong indeed. It took a gigantic, heroic effort to pass what is objectively a modest set of reforms that reinforce rather than radically revise our existing hybrid private-public health system as they add better regulation to protect the public interest. It’s not as if there’s reason to believe Congress is about to start running around willy-nilly radically undermining private power over economic activity (even if some of us would like to see some of that activity).

Given these strong political checks and the disastrous history of the court’s meddling with Commerce Clause issues, the court should leave the checks on Congress’ power here to the political process.

 

The end of the cynical laissez-faire era

Perhaps the president heeds my musings – OK, perhaps not. Still, I was gratified by Obama’s emphasis at the health care bill-signing ceremony on Tuesday on a theme I stressed here last week (March 20 and March 15): That passing the health legislation can be a powerful antidote to cynicism that renews our resolve that we can still do great things, solve big problems.

Obama closed his address with a ringing peroration on that theme. After passing the health care bill, we still face many challenges, the president said. But we face them “with a new wind at our backs. Because we know it’s still possible to do big things in America. Because we know it’s still possible to rise above the skepticism, to rise above the cynicism, to rise above fear…”

To rising applause, the president went on: “There will be difficult days ahead. But let us all remember the lesson of this day and the lesson of history: that we as a people do not shrink from a challenge; we overcome it. We don’t shrink fron our responsibilities; we embrace them. We don’t fear the future; we shape the future…. That’s who we are.”

And now that David Broder has cited that peroration and Obama’s “steadfastness” in the health care battle in today’s column, the president’s renewed call to idealistic action will take its rightful place as part of the conventional wisdom, just as everything that appears in Broder’s column does (see link to Broder column below).

Link to Broder\’s column on health reform

Still, like many fine pieces of rhetoric, the president’s words were more poetic than realistic, more about who we’d like to be than how we’ve actually behaved. The sad truth is that in recent decades we have evaded the large challenges posed by issues such as energy, carbon control, immigration, health care and the nation’s fiscal future much more often than we’ve confronted them as initiatives to address such issues have collapsed amid bickering and political gridlock.

That makes it easy to be cynical about the capacity of our institutions. More than that, the incompetence of such misadventures as the Bush administration’s disastrous invasion of Iraq and utter failure to perform basic tasks of bank and financial regulation over the last decade makes it easy to assume that our institutions aren’t up to any serious challenge. Sadly, such failures have, in the eyes of much of the public, undermined the legitimacy of strong state action even as the collapse of the bubble economy of the deregulation era and the gathering crisis of global warming and declining energy supplies cry out for a strong public response.

But as I’ve argued before, that kind of cynicism about public action wasn’t always the order of the day. Throughout the last century, the nation regularly mounted very successful large-scale, public programs to address far-reaching public problems. Yet over the last 30 years or so that aspect of our national experience has been relentlessly elided or derided by powerful free-market fundamentalists who emphasize the coercive character and possible failings of state action but often seem utterly blind to the frequent failings and coercions inherent in what Ronald Reagan liked to call “the magic of the marketplace.”

The laissez-faire bias of the extended Reagan era helped suppress the capacity of our institutions to act. And, as David Leonhardt reminded us in his wonderful Wednesday column “In Health Bill, Obama Attacks Wealth Inequality,” that bias also did much to add to income inequality and the concentration of wealth in this country. The Clinton admininistration extended the earned income credit for working families substantially but the health bill is a much more powerful progressive vehicle.  Since much of its funding comes from a payroll tax hike for those making more than $250,000 per year while most of its benefits will go to the working poor, the health law represents a long-overdue, large-scale step toward distributional equity (see link below to Leonhardt column).

Link to Leonhardt\’s column on health reform and inequality

 The health bill is so momentous because it represents a chance to turn the page from the cynical laissez-faire attitude of the Reagan era and recapture our ability to shape the future in far-reaching ways.

That’s what makes the bill so historic; it also suggests that the stakes involved in implementing the bill effectively are very high.

If the legislation miscarries, the political fallout will damage much more than our health care system. But if it succeeds, the health reform precedent promises to open new paths for change.

 

Health care victory lap boosts change agenda

I’ve been pleased to see the predictable progressive turn in the health care debate as the administration gets the plaudits and hortatory reporting that always accrue to the winner of a big legislative fight.

That sort of adulation won’t last long. Next month the conventional wisdom will see some other faction as ascendant. But the legislative achievement will endure, even if the large legislative majority that made it possible does not, as will the ability of the president and the Democratic Party to take credit for realizing their rhetoric by finally making real change happen.

On the other hand, the Republican threats to repeal the law ring hollow. The legal challenges to it appear even more empty: Now that we all know that health care represents one-sixth of our economy, can anyone with a straight face deny that health insurance seriously impacts what the courts call “the stream of interstate commerce” and therefore can be regulated by Congress under the Commerce Clause?

And now the Republicans, trapped by their own extreme rhetoric about the reform bill, will have to explain why the sky isn’t falling as the bill takes effect. It will be particularly amusing to watch the clumsy Mitt Romney, mired in permanent presidential campaign mode, trying to explain why Obama’s health bill is an atrocity while the very similar one he enacted as governor of Massachusetts is good policy.

Progressives will also benefit from a number of remarkable images from last weekend’s debates that will become part of our common memory. The image of the Tea Party protesters screaming obscenities and racist abuse at Rep. John Lewis and others and anti-gay slurs at Rep. Barney Frank will be hard for many people to forget. The pictures of Pelosi, Lewis and others striding arm-in-arm (white and black, male and female) through the angry, hateful protesters to make reform happen are priceless; all the media buys in the world couldn’t purchase images that good for the Democrats.

The Tea Party people won’t go away. But they have succeeded in further marginalizing themselves.

Similarly, the sharp contrast between the president and the House Speaker rolling up their sleeves and calmly, diligently working for reform while Republican legislators were screaming things like “babykiller” and Minority Leader John Boehner was screaming about whether legislators had read the full text of the bills can only help progressive causes. (I wonder if Boehner thinks each member of Congress read the bill that created Social Security, Medicare, the Interstate Highway System, etc.)  This time the Democrats looked like the responsible adults.

But perhaps the most enduring boost for progressive causes lies in the way the president managed in the final weeks of the debate to re-energize the Democratic activists and party base that had been oddly somnolent in Obama’s first year in office. As John Judis and others have noted, Obama’s strong stand for reform and sharper, more partisan rhetoric in recent weeks finally helped get key Democratic consitutencies fully engaged (see link below to Judis’ article).

Link to \”Democrats Discover Their Base\”

In a post some weeks ago (March 5), I noted that such protests had been conspicuously absent in the health care debate. That changed quite a bit in the last few weeks.

The impact of that change could go well beyond health care. For the last 30 years or so, the Democratic-liberal political base in this country has been relatively small and weak as the decline in the private sector labor movement and in the Civil Rights Movement eroded core activist constituencies. Meanwhile what we used to call the “New Right” built a huge and energetic base – albeit one that sometimes split between its Main St.-social conservative and Wall St.- economic conservative constituencies — that could easily be mobillized by political bosses like Lee Atwater and Karl Rove  Republicans have benefitted enormously from that advantage.

One of the reasons the movement Obama’s campaign helped build seemed so promising was that it developed a grassroots organizing operation that mobilized millions of volunteers and donors and looked poised to provide a new base for progressive change. But a not very funny thing happened in the first year of the Obama administration: The energy and personnel of the Obama for America movement were largely sidelined as the organization was folded into the DNC. Tim Dickinson explained the process in a February piece for Rolling Stone that carried the cheesy title “No We Can’t”

Link to \”No We Can\’t\”

So in year one of Obama’s presidency the Republican base, whipped into a frenzy by Fox News and the rest of the right-wing noise machine, displayed great fervor in opposing Obama’s agenda while the progressive base that should have been the bedrock of the groundswell for change was largely demobilized. It wasn’t a fair fight, and the change agenda suffered as the administration largely ceded populist outrage to the right.

Now it seems the Democratic activists are back in the game, and that’s especially important with mid-term elections just seven months away. Lower-turnout mid-term elections are largely about energizing and turning out the base, and the Democrats suffered their disastrous 1994  losses largely because an energized, angry Republican base showed up at the polls while many demoralized Democrats stayed home.

Now that Obama has given the party’s base and activists much more reason to rally to the cause, the November elections and the larger struggle for change should be a fairer fight.

 

Health reform can be cure for cynicism

This may seem hard to believe after the long and often ugly debate over health care that has dominated our politics for so many months but I think the health bill is about to become something an antidote to our national cynicism about Washington politics and the capacity of our national institutions.

In the wake of the CBO’s conclusion that the Senate health bill would cut $138 billion from the federal deficit over the next 10 years as it extends insurance coverage to 32 million more Americans, the substantive case for the bill has never looked stronger. With a series of progressives and other uncertain voters announcing support for the bill in recent days, the Democrats finally seem poised to push the bill across the finish line. If they let a small dispute over the language of abortion coverage in the insurance exchanges block such a far-reaching reform at this point in the process, well, that would amount to political malpractice.

In politics as in sports, nothing succeeds like success. Once the bill is passed, the tone of the coverage will change sharply. For months and months we’ve all heard more than we ever wanted to about reconciliation and “deem and pass” and a whole series of legislative deals. But the fixation on the seedy details of the sausage-making process will fade fast.

 The tone of the process and inside politics stories that have focused on an embattled president bogged down by his allegedly unpopular health care push will change, too. They will likely be replaced next week by a series of stories about an idealistic young president defying Washington’s cynical conventional wisdom by actually working hard to do what he promised to do — to push for meaningful reform — even in the face of uncertain poll numbers and skepticism from many within his own party. Those stories will boost the popularity of the president and of the health legislation.

That trend has already begun, and not just from the predictable liberal/progressive pundits. Friday’s (March 19) column by the Washington Post’s smart but centrist business columnist, Steven Pearlstein, offers a good example. 

Link to Pearlstein\’s column on health reform 

As the squabbles over the process fade, the renewed focus on substance will put the legislation on winning terrain. According to the best estimates, the legislation will cut the deficit, bring coverage to millions, block insurance discrimination and fill the Medicare prescription doughnut hole as it restrains the growth in health costs. And the only major tax it imposes right away on individuals is an added Medicare payroll tax for couples making more than $250,000 (and a 3.8  percent tax on unearned income for the same couples). That’s almost too good to be true.

The bill does also contain taxes on very high value health plans and modest tax penalties (2.5 percent of income) for uncovered individuals who don’t buy health insurance. But those taxes kick in years from now and are designed not to be paid but to serve instead, on the one hand, as an incentive to move employers toward more efficient plans and, on the other, to push individuals to choose relatively low cost forms of insurance instead of going bare. If the plan works at all, the number of people who pay those taxes will be modest

The bill is also carefully arranged so that it will, in the near-term, have little effect on the health arrangements of most of the 85 percent or so of Americans who have health insurance. Republicans have been telling everyone for many months that the sky would fall if the Democratic plan passes. Once it passes and most people find that little changes about their health care, how will the GOP explain the giant gap between its rhetoric and reality?

The enormous hope that Obama’ promises of real change prompted in 2008-20009 has been sadly muted over the last year. Angry tea-baggers, Fox News partisans and increasingly intransigent rank-and-file Republicans have regularly blocked calls for far-reaching change on health care and other pressing issues with overheated cries that large-scale reforms are un-American, socialist, doomed to be a fiasco or all of the above.

Such arguments ignore important aspects of our national experience. In fact, although deep suspicion of state action in America is older than our republic itself, the nation also has a long and very successful bipartisan tradition of launching innovative, large-scale public programs to address far-reaching problems.

Think of Social Security, Medicaid, Medicare, the Interstate Highway System, the National Parks, the Voting Rights Act and the Clean Water Act. These and other reforms created programs that marshalled vast resources to address great public problems. They often imposed burdensome mandates and constraints on individuals. They also succeeded overwhelmingly in improving our quality of life. Our national life and most of our individual lives would be vastly poorer and meaner without them.

Obama’s presidential campaign unleashed reservoirs of long-untapped idealism from young adults and from many others who once felt excluded from our politics. Yet our public life continues to suffer from unwarranted cynicism about the capacity of our public institutions to address public problems.

Successful health reform can curb that cynicism.  And reviving our tradition of molding large-scale reforms to solve far-reaching problems will open new paths to change.

 

President’s progressive turn won’t be permanent

Like many progressives, I have been very pleased by the president’s determination to stick with comprehensive health reform and reclaim some populist ground since the State of the Union speech. Obama has shown real leadership in rallying most of his party behind reform when, after the Scott Brown fiasco, many Democrats looked eager to abandon health reform and other elements of a progressive agenda. It would have been easier and safer for Obama to flee to the familiar ground of poll-driven Clintonian centrism (just as Clinton did in 1994). Win or lose on health care, the president deserves credit for this effort (more credit if he wins of course) and its encouraging to see the depth of his commitment to real change.

Still I’m afraid  that health care push has prompted an overheated response from liberal commentators such as John Judis, Jonathan Chait and Peter Beinart who appear eager to see it as proof that Obama is now fully committed to a progressive agenda.

Beinart, for instance, published this week in The Daily Beast a long piece on Obama’s shift to the left called “Democrats Forever Changed.” It gives a good history of the splits between Democratic Party factions in recent decades and argues that Obama’s decision to double down on his commitment to health reform shows that he has permanently thrown his lot in with the progressive, netroots wing (he calls them “Superjumbo Democrats”) rather than the centrist DLC wing (see link below.

 Link to \”Democrats, Forever Changed\”

Such claims go much too far. I do think Obama’s recent stances mark a positive change of direction from his stress on bipartisanship during his first year in office (a theme that now seems rather naïve). I’m also confident he’ll continue to weave back and forth between positions supported by the party’s various wings – for reasons of both principle and politics.

Such maneuvering is basic to his appeal. Obama has always skillfully interweaved the rhetoric (and substance) of bold, idealistic progressive politics with the rhetoric (and substance) of bipartisanship and centrism. He wouldn’t be anywhere near the Oval Office if he wasn’t very good at deploying both those themes.

Even as the president has pushed for health reform, for instance, Obama’s people are also talking about doubling U.S. exports over the next five years. If the president is at all serious about that goal, he’ll have to take positions on trade the netroots folks will deeply dislike. We can also expect him to continue to take DLC-style positions on cutting the deficit (at least rhetorically), faith-based initiatives, education and other matters.

We can also fully expect soon to see some of those who’ve decided that Obama has now become a fully committed progressive express shock and betrayal when the president announces his next centrist initiative. But that kind of shock is simply unrealistic.

Pundits always want to discover where a politician’s heart really lies. Just as they overinterpret every election result – no matter how small or idiosyncratic — in pursuit of some general lesson to pontificate to the public, they over-interpret each political decision a president makes as a new revelation of what his real commitments are.

In the Clinton years, it was almost funny to watch the pundits debate for years and years whether Clinton was really, at heart, a Big Government Liberal or a DLC centrist. It took years before the obvious seemed to dawn on the Washington press corps: that Clinton’s basic commitment was to nimbly navigating various, often contradictory center-right (on welfare, the budget deficit, etc.) and center-left positions and interest group demands to garner as much approval as possible.

Obama has given us good reason to believe he’s much more principled than Clinton was, and that’s admirable. But political leaders just don’t have the luxury of political or ideological purity.

That doesn’t make them hypocrites; they’re just doing their job. Since no single faction or clear ideology represents a clear majority in our large, contentious and diverse polity (and it’s worth remember that this is just the way Madison wanted pluralism to work — just re-read Federalist #10), maintaining a governing coalition requires any leader to do different and contradictory things to please different factions and interest groups. Even our least competent and most ideologically-driven contemporary president, George W. Bush, regularly reached beyond his conservative base to appeal to the center on immigration, education, prescription drugs benefits in Medicare and other matters.

It’s an obvious point, really. It’s only worth stressing because so many pundits regularly overlook it when they affect shock or confusion that a politician seems to be sending conflicting signals.

Performing that kind of bobbing and weaving is part of the price of admission to public life.

 

Recapturing our capacity for large-scale reform

With the health care debate finally reaching what should be its endgame, the debate has oddly turned into something of a scrum among Democratic pollsters over the poltical implications of passing the bill. The president’s pollster (Joel Berenson) argues that the polls are moving the president’s way and passing the health bill will ultimately boost the party’s prospects while pollsters for Carter and Clinton (Patrick Caddell and Douglas Schoen) insist that the public has rejected the plan and that passing it would be a political disaster for the party (see link below).

Link to Berenson\’s response to Cadell and Schoen on health care polling

It’s rather a silly debate. The poll numbers are far from conclusive. They show that narrow pluralities oppose what people take to be the president’s plan. They also show that many people don’t understand what’s in the bill and that strong majorities support major reforms that are basic to the plan (establishing insurance exchanges, forbidding discrimination based on pre-existing conditions). Some who oppose the bill do so because they think it isn’t progressive enough; they’re likely in the end to prefer the president’s plan to no reform. In any event, polls offer only a snapshot of where we are today; they tell us little about how people would react if the plan is enacted.

I support the bill strongly. Still I share some of the concerns Caddell and Schoen raise. I’m troubled by the anger the bill has prompted and the implications of that anger. The plan’s mandate that uncovered individuals buy health coverage is of deep concern both as a matter of policy and politics. Millions will resent the mandates. If the subsidies to help the uninsured of modest means pay for coverage aren’t adequate, the mandates could become an awful burden for lower-middle income people, young adults and others. If this happens, or the plan miscarries in other ways, public resentment will be enormous and the Democratic Party and progressive causes that rely on any kind of strong state action will pay a heavy political price.

But the issue of maintaining adequate subsidies for premiums is the stuff of ordinary political life and the kind of manageable problem any public initiative must surmount. To assume that we won’t be able to make those subsidies work is, in effect, to assume that we’re not capable of carrying out basic tasks of governance.

Its simply defeatist and unfair to assume the plan will fail. Its package of interlocked reforms is far from ideal but makes considerable sense. Given the expensive mess that our current health insurance system is, the new and more rational system is very likely to be a vast improvement. And, ultimately, good policy will be good politics – perhaps not by November 2010 but in the medium-term and the longer-term. Expanded access to Medicaid, limits on the ability of insurers to discriminate, subsidies that make insurance more affordable both for individuals and small businesses and will aid many other health programs will be powerful incentives to like the new arrangements.

If the plan succeeds at all, it could also have a profound effect as a much-needed reminder that it really is possible for large-scale public action to improve our lives. We haven’t really had that kind of reminder in decades and our politics suffers for it.

If it weren’t such a commonplace in our public life, it would seem very weird that so many who see themselves as superpatriots also assume as an article of faith that our public institutions are so grossly incompetent that any large-scale reform effort they might undertake is doomed to be a fiasco. So much of the anger Obama’s agenda has sparked over the last year is rooted in this cynical, knee-jerk assumption – one rooted, I think, in Ronald Reagan’s simplistic old mantra that government is the problem not the solution.

What’s so weird about this assumption is that it flies in the face of so much shared experience. Although public policies sometimes are a fiasco, most of us also rely on big government program that work well every day – Social Security, Medicare, public schools, student loans, etc. No one really wants the FDIC to stop insuring his bank accounts or the FDA to stop reviewing his drugs or the PBGC to stop insuring his pensions. These programs are part of the accepted background of our lives. Their routine, day-to-day success gets little attention and puts little dent in the angry anti-statism so many people assert as a point of pride.

Successful health reform could change the equation by reminding us strongly that sometimes large-scale government regulation and action really can help solve large-scale problems. That would provide be a profound boost for progressive politics.

 

Can a corporation run for office?

Here’s another wonderful example of practical political theater: In the spirit of the Supreme Court’s recent ruling giving corporations the right to make unrestricted purchases of direct advocacy ads, a man named Murray Hill has filed to run his public relations firm, Murray Hill Inc., for Congress in Maryland 8^th District.

Link to Washington Post article on Murray Hill Inc. candidacy

The company is running as a Republican, a spokesman said, because “we feel the Republican Party is more receptive to our basic message that corporations are people, too.” 

This parody ought to throw more light on the Supreme Court’s ruling in the Citizens United case in January, a ruling astonishing not only for its political implications but for the scope of its judicial activism (from conservatives who claim judicial modesty) and, perhaps more troublingly, for the poor quality of its reasoning. 

I needn’t focus here on the mischief and political intimidation that could be wrought by, say, ExxonMobil purchasing millions in advocacy ads denouncing those candidates who favor carbon regulation at election time. That’s only too obvious.

But I think it is worth looking at the criticisms of the majority’s reasoning offered in Justice Stevens’ long and careful dissent  (I’ll hit the highlights here of course but its worth a read for concerned citizens… just google the case…) – one which rather demolishes the majority’s holding in a way that ought to be deeply embarrassing to the court and to conservative advocates of the ruling.

Stevens shows, at great length, that the broad scope of the ruling was completely unwarranted. What’s more telling but has been less noted, I think, is his criticism of the lynchpin of the majority’s argument: its claim that it is unconstitutional and wrong for Congress to impose identity-based restrictions on corporate speech — i.e. restrictions on the speech of corporations that don’t apply to other actors – and thus to single out the speech of corporations for special regulation. But as Stevens shows the court has regularly approved restrictions on the political speech of certain classes of actors – when compelling public interests justified those restrictions. Stevens list students, foreigners, prisoners, members of the armed forces and civil servants (slip opinion, Stevens dissent, p. 29) as among those whose speech has thus been restricted. He goes on to show that, since 1907, Congress has regularly chosen to regulate corporate speech more stringently than individual speech – for the good reason that corporate speech has enormous power to corrupt the political process. And that the courts have routinely and consistently approved of such restrictions.

It was a breathtaking act of judicial activism for the court’s conservative majority to throw out all that history and to do so on such obviously unconvincing grounds. As Ronald Dworkin has suggested, in this case, like the court’s Bush v. Gore ruling that settled the 2000 election, the reasoning is so poor that it’s hard to resist the idea that the ruling was simply made for direct reasons of political preference on the part of the conservative judges (see link below to Dworkin’s piece).

Link to Dworkin\’s mini-essay on the Citizens United case

I also have to wonder: Do those who applaud the ruling believe that full political rights ought to be restored to civil servants too?  And let’s remember that they are, after all, actual people who in principle ought to have full political rights, unlike corporations, which are merely economic entitities chartered by the state to perform economic functions and share risks and profits in legally-sanctioned ways.

It strikes me as deeply ironic that Justice Sotomayor was pushed so hard by conservatives to assert, against all sense, that her politics and life history and ethnic experience have nothing to do with her judging.  Can you imagine anyone asking Justice Thurgood Marshall to make such absurd and self-abnegating claims? Yet the kind of brazenly political judging by conservatives we see in Citizens United passes with so little comment and seems to have stirred only modest outrage among a political class preoccupied by issues such as whether Rahm Emmanuel leaked criticism of the president’s other aides or Eric Massa’s weird habit of tickling his aides.

At a minimum, those who defend the Citizens United ruling ought no longer to be able to fob themselves off as devotees of judicial restraint or advocates for the little guy. But I’m not holding my breath waiting for that to happen.

Sometimes, parody like the Murray Hill Inc. candidacy is the best response to political nonsense.

 

Changing the agenda: 2010 vs. 2005

 Ezra Klein’s Monday piece “Health care reform is progressive” (March 8) represents a clear voice of sense among all the nonsense out there on health care (as his writings on the subject so often do).

Klein notes that progressive ideas suffered many defeats in the health care debate and that the bill we’re left with is much less progressive than it ought to be. But he reminds us that the very fact that such that a comprehensive health reform bill that would bring coverage to about 30 million of those who lack coverage, spend $200 billion a year on subsidies for care for people of modest income, better regulate the insuance industry and establish a path to near-universal coverage  remains near passing is a huge progressive victory. Such a bill would have been unthinkable five years ago and its existence marks a remarkable leftward shift in our politics (see link below to Klein’s piece).

Health reform is progressive 

In the same vein, I think it’s worth remembering where we were and what Washington’s domestic agenda looked like five years ago. The difference between where we are now and where we were then is immense.

In 2005, Karl Rove was widely lionized as the architect of a semi-permanent GOP majority.  Newly re-elected President W. was pushing to privatize large portions of the Social Security system. The Republicans were talking confidently about making the Bush tax cuts permanent and eliminating the “death tax” (i.e. the tax on inherited wealth). More than that, the victorious  GOP was eager to move toward a vision of an “ownership society” that would eliminate much of our social safety net to make way for a vision of each of us as a little, competing entrepreneur —  with the devil left, of course, to take the hindmost (the best line in Obama’s marvelous speech accepting the Democratic nomination was his riff on the ownerhsip society meaning simply, “you’re on your own”). The only vaguely progressive idea on the agenda was adding a prescription drug benefit to Medicare. Concerns such as comprehensive health reform and carbon control were very far from Washington’s agenda.

Today no one talks about privatizing Social Security or says much about the “ownership society.” The Bush tax cuts for those with high incomes will likely soon be allowed to lapse and the inheritance tax will come back, with the debate now over what the exemption level and the tax rate will be, not whether to abolish the estate tax itself. Deregulation is, finally, off the table, and the question under debate instead  is how much more aggressive new financial regulation ought to be.. Comprehensive health care reform is close to reality and concerns like carbon regulation are, at least, under discussion.

That’s not exactly the change we believed in but it is a substantial and serious change.

Like so many others, I’m disappointed that the administration hasn’t made more progress on health care and other issues in the last year and so often seems to be losing debates about stimulus spending, the budget, financial regulation, carbon control and health care that it ought to be winning.

But governing is about more than just passing laws. Pushing the agenda in a progressive direction is an important piece of the puzzle; it’s also an achievement we need to defend in the face of the renewed energy of the angry right.