xpostfactoid

Late pleadings for the ACA

2012-05-31T15:03:00.004-04:00

For those who, like a besotted lover whose beloved's day to wed another fast approacheth, can't stop piling up arguments in favor of the constitutionality and necessity of the Affordable Care Act, a few eloquent doomed love notes:

1. Healthy twentysomething Mormon missionary can't buy coverage:

I hit the quarter-century mark on the eve of two adventures -- an LDS mission and life without health insurance.

Although the LDS Church covers basic health care for its missionaries, I was hesitant to spend 18 months without health insurance.

As a health reporter, I'd seen the devastating effects of being uninsured. As the child of a man who won the insurance lottery (thank you, three years of cancer) I knew how important it was.

Fortunately, I had enough money in savings to pay the premiums for catastrophic health coverage. I should note that I'm a gold mine for health insurers -- I go to the doctor on average once a year. My biggest emergency, if you could call it that, was when I cut my leg open at age 12 and required stitches and a tetanus shot. Basically, I'm giving the insurance company my bank account and getting nothing more than an unused safety net.

Except they said no. Some years ago, I slightly strained a knee while hiking. At worst it was an annoyance; I didn't limp or have to stay off of it. I took a short break from running only because my doctor told me to.

As pre-existing conditions go, you can't get much tamer. But the sore knee existed, or at least it had sometime in the foggy past, and that was enough to give me a black eye in front of the insurance company.

The rest is a modest proposal to an arch-conservative community. Do read.

2. While many can't buy any kind of coverage in the individual market, those who do find a plan quite often are forced to buy subpar coverage. Employee Benefits News reports on a Commonwealth Fund study:

More than half of Americans with individual market health insurance coverage in 2010 were enrolled in so-called "tin" plans, which provide less coverage than the lowest "bronze"-level plans in the Affordable Care Act, and therefore would not be able to be offered in the health insurance exchanges that are being created under the law, according to a Commonwealth Fund. The analysis suggests that once the state-based exchanges — set up to make it easier for individuals and small businesses to shop for health insurance — go into effect in 2014, many of these Americans will be able to purchase plans that offer better coverage. In addition, many will be eligible for premium subsidies that will help offset the cost of the plans.

A pity that the conservative Supreme Court justices seemed more taken with the fanciful notion that the ACA would force hoards of healthy young adults to buy more coverage than they need than with the fact that those who can't get coverage from their employers generally are currently forced (to borrow the plaintiffs' favorite verb) to buy subpar coverage if they can find any plan at all. In the same vein, see the amicus brief in defense of the ACA by the Young Invincibles, a coalition of 20 youth groups, which documented the extent to which young Americans want, need and lack adequate health insurance [this item added as an update, 8:00 p.m.].

3. Legal scholar Andrew Koppelman traces the short happy life of constitutional objections to the mandate (hint: those objections are way younger than GOP advocacy for a mandate). Originally a virgin birth from Randy Barnett's fevered brain, it multiplied like rabbits once a notorious Fox got hold of it. Hat tip for this one to the estimable Ragbatz tumblr.

4.On Balkinization, Rob Weiner writes: "To a remarkable degree, the challenges to the Affordable Care Act reflect an effort to codify legal nostalgia as legal doctrine" -- that is, to resurrect restrictive views of Congress's power to regulate commerce that have been superseded for 75 years and more (scroll down to May 30 -- there don't seem to be URLs for individual posts).

5. Jill Horwitz and Helen Levy of U. Mich. explode the bogus economic arguments underpinning the case against the mandate -- e.g., that it would be analogous for Congress to compel purchase of broccoli, cars or burial insurance, and that the young are being conscripted to finance coverage for the older uninsured (xpostfactoid gilds the lily here).

6. Consider this a preemptive strike against nemesis. King Lear, Act V. iii. 259: Howl, howl, howl, howl.

7. But wait: This feather stirs; she lives.

More on catastrophic coverage in the ACA and misrepresentation of the mandate in the Supreme Court

Misrepresentation of the mandate in the Supreme Court: Why it still matters (5/10)

The bogus economic basis of the case against the mandate (5/29)

Ask whom the mandate tolls (5/23)

Don Taylor envisions a distant healthcare compromise; might Kennedy impose something like it next month? (5/16)

Attention, Justices Kennedy, Roberts et al: Read the young people's brief (5/5)

A pleas for one more pleading (4/29)

Another 'limiting principle' to individual mandate: states can opt out (4/23)
Jonathan Cohn tells the justices: the ACA has catastrophic coverage options (4/20)
Michael Carvin misrepresented the mandate in oral argument (4/12)
The ACA offers catastrophic coverage: the AP notices (4/10)
Marty Lederman concurs: the individual mandate could be trimmed, not killed (4/5)
Go tell the justices: the ACA has a catastrophic coverage option (3/31, updated 4/2)

On the mandate more broadly
The individual mandate is a piece of Cake (4/25)
Verrilli's limiting principles (4/24)
If only Verrilli had said (A, B, C) (3/31)
Verrilli, slapped silly, recovers willy-nilly (3/28)
External links
Patient cost-sharing under the Affordable Care Act (Kaiser Family Foundation. 4/27)
Will the justices make a catastrophic error? (Jonathan Cohn, 4/19)
Policy ignorance at the Supreme Court (Steve Benen, Maddow blog, 4/16)
Supreme Court misunderstanding on health overhaul? (AP's Ricardo Alonso-Salvidar, 4/10)
The bounded, minimalist way to uphold the ACA (Marty Lederman at Balkinization, 4/2)
Ragbatz on the catastrophic coverage options in the ACA - a healthcare attorney picks up the plaintiff's con in real time ( 3/28)

Away marriage

2012-05-31T08:58:00.000-04:00

Last night I read a sweet short story, The Proxy Marriage by Maile Meloy, about a pair of high school friends (one in love with the other) who over the course of many years perform a series of "double proxy marriages," standing in together for soldiers overseas and their fiances at home. Such marriages are legally binding and allow for death benefits to the soldier's children if the soldier is killed.

In the final scene, the marrying couple ask to be skyped in to the proxy ceremony, and both couples interact on-screen. This seems to me to raise an obvious nonliterary point: why not eliminate the middle-couple? That is, in an age ubiquitous webcams, why can't physically separated couples marry by videoconference, with officiator and witness? Proxy marriage seems a needless anachronism, great story premise though it is.

The bogus economic basis of the case against the individual mandate

2012-05-29T13:00:00.002-04:00

As I have noted before, the plaintiff's argument against the constitutionality of the individual mandate in the Affordable Care Act centered largely on a morality tale spun by the plaintiffs, in which the main characters were hoards of healthy young adults being forced to buy more coverage than they need in order to subsidize the coverage of older adults. The ACA is structured "to compel the uninsured into engaging in economic activity that is harmful for them" (Michael Carvin brief on the individual mandate, p. 1). "They're making young, healthy people subsidize insurance premiums for the cost that the nondiscrimination provisions have put on insurance premiums and insurance companies" (Carvin, oral argument, p. 100). In the 3/27 pleadings, Justices Alito, Roberts and Scalia appeared to buy this argument, voicing various aspects of it.

I have also pointed out that the Michael Carvin misrepresented the mandate in oral argument when he stated. "Congress prohibits anyone over 30 from buying any kind of catastrophic health insurance" (p. 105). In fact, the ACA provides the catastrophic coverage option for others exempt from the mandate, e.g. on grounds of financial hardship. In the 3/27oral session, no one pointed noted explicitly that the ACA provides a catastrophic coverage option for those under 30, let alone that it extends that option to others exempt from the mandate on financial or other grounds -- or that the bronze plans offered in the exchanges, as the Kaiser Family Foundation recently detailed, might also reasonably be labeled "catastrophic" coverage.

Now, two economists from the University of Michigan, Jill Horwitz and Helen Levy, writing on the Health Affairs blog, demonstrate on several fronts that bogus economic premises underpin the plaintiff's argument that the mandate exploits the healthy young uninsured for the sake of the sick and old -- and that it grants Congress unlimited powers to impose purchase mandates. The main thrust of their argument is that the health insurance market is unique across several dimensions, while bogus analogies to mandated purchases of cars or broccoli or whatever are each analogous in only one dimension. Then, regarding the emotional core of the plaintiffs' case -- those imagined legions of healthy young people exploited by the mandate -- Horowitz and Levy write:

Contrary to assertion in the AAF brief (AAF Brief 8, 25), the Act does not impose pure community rating – which would indeed entail substantial transfers from young to old – but rather, it employs community rating with variation in premiums for age, geographic location, family size, and smoking status. In fact, it allows quite a bit of adjustment for age. Insurers may set premiums for older individuals as much as three times as high as those for younger individuals. There was no mention of this feature of the law in the AAF brief or during the oral arguments; no acknowledgement that the higher average spending of older people would be reflected in their higher premiums.

The three-to-one “age band” in premiums is the same as the ratio of average medical spending for 45 to 64 year olds to spending for 18 to 24 year olds, according to data from the 2009 Medical Expenditure Panel Survey. Moreover, the ACA also offers young adults up to age 30 the opportunity to purchase catastrophic policies that are not available to older adults.

Taking these two features of the law into account, it is not clear there will be much redistribution from young to old as a result of the ACA at all. There will, within each age group, be pooling of good and bad risks; by definition, this is how insurance works, and as noted above is a more efficient outcome than one in which markets do not exist because of adverse selection. But subsidies from young to old are a red herring.

Also bogus: the notion that the young and healthy do not need or want insurance. That argument was debunked, as I've noted before, in a brief filed by a coalition of 20 youth organizations calling itself, with pointed irony, the Young Invincibles. The Invincibles brief demonstrates that young people overwhelmingly want health insurance; that they are disproportionately uninsured and underinsured; that their lack of health insurance causes them bodily and and economic harm; and that the ACA makes insurance affordable, not unaffordable or unduly expensive, for them.

That the mandate is quite limited in scope, that it does not exploit any identifiable class of citizens, and that it makes coverage affordable for every identifiable group of citizens currently unable to afford it does not in itself prove the constitutionality of the mandate. But these facts do undercut the narrative on which the plaintiffs based their moral (and emotional) case. And it was their story line -- the image of legions of financially impressed healthy young people -- that appeared to register with the conservative justices.

More on catastrophic coverage in the ACA and misrepresentation of the mandate in the Supreme Court

Misrepresentation of the mandate in the Supreme Court: Why it still matters (5/10)

Ask whom the mandate tolls (5/23)

Don Taylor envisions a distant healthcare compromise; might Kennedy impose something like it next month? (5/16)

Attention, Justices Kennedy, Roberts et al: Read the young people's brief (5/5)

A pleas for one more pleading (4/29)

A false choice between hope and fear

2012-05-28T11:47:00.001-04:00

Media coverage of political strategy is often about framing false choices. Or rather, about framing either/or choices where a delicate balance is required.

For the Obama campaign, the either/or de jour is hope vs. fear. A couple of days ago, I put forward my own plea that the Obama campaign quite legitimately scare us by spelling out the consequences of the tax cuts and budget cuts Romney has promised. Seems I needn't have worried -- at least as regards the degree of aggression, if not its focus: I think it should be mainly economic, as Romney's polling lead as the candidate better able to manage the economy is the chief danger sign for the Obama campaign right now. But John Heilemann has taken a deep dive into the Obama campaign's thinking, and he reports on plans for a full-scale multi-front attack in the offing:

But if the Obama 2012 strategy in this regard is all about the amplification of 2008, in terms of message it will represent a striking deviation. Though the Obamans certainly hit John McCain hard four years ago—running more negative ads than any campaign in history—what they intend to do to Romney is more savage. They will pummel him for being a vulture-vampire capitalist at Bain Capital. They will pound him for being a miserable failure as the governor of Massachusetts. They will mash him for being a water-carrier for Paul Ryan’s Social Darwinist fiscal program. They will maul him for being a combination of Jerry Falwell, Joe Arpaio, and John Galt on a range of issues that strike deep chords with the Obama coalition. “We’re gonna say, ‘Let’s be clear what he would do as president,’ ” Plouffe explains. “Potentially abortion will be criminalized. Women will be denied contraceptive services. He’s far right on immigration. He supports efforts to amend the Constitution to ban gay marriage.”

This prospect leads, perhaps inevitably, to fretting about Obama losing his above-the-fray image:

Thus, to a very real degree, 2008’s candidate of hope stands poised to become 2012’s candidate of fear. For many Democrats, this is just fine and dandy, for they believe that in the Romney-Republican agenda there is plenty to be scared of. For others in the party in both politics and business, however, the new Obama posture is cause for concern. From the gay-marriage decision to the onslaught on Bain, they see the president and his team as coming across as too divisive, too conventional, and too nakedly political, putting at risk Obama’s greatest asset—his likability—with the voters in the middle of the electorate who will ultimately decide his fate.

Whichever side is right, one thing is undeniable. For anyone still starry-eyed about Obama, the months ahead will provide a bracing revelation about what he truly is: not a savior, not a saint, not a man above the fray, but a brass-knuckled, pipe-hitting, red-in-tooth-and-claw brawler determined to do what is necessary to stay in power—in other words, a politician.

While the danger outlined here is real, I still think the framing is a bit false. If you hope for one policy course, you will necessarily fear the opposite -- particularly when your opposition has swung to such an extreme that, as Obama quite accurately said about the current GOP, Ronald Reagan could not get nominated today. When it comes to arousing fear, though, it all depends on how you do it.

One way is to make up or tap into myths about your opponent: he does not believe in America maintaining world leadership, he believes in equality of outcome rather than equality of opportunity, he has enacted a government takeover of the economy, he has destroyed patient choice in healthcare, he has lit a prairie fire of debt. Then there's this way:

This new House Republican budget, however, breaks our bipartisan agreement and proposes massive new cuts in annual domestic spending. Exactly the area where we’ve already cut the most. And I want to actually go through what it would mean for our country if these cuts were to be spread out evenly. So bear with me. I want to go through this because I don’t think people fully appreciate the nature of this budget.

The year after next, nearly 10 million college students would see their financial aid cut by an average of more than $1,000 each. There would be 1,600 fewer medical grants. Research grants for things likes Alzheimer’s and cancer and AIDS. There would be 4,000 fewer scientific research grants, eliminating support for 48,000 researchers, students and teachers.

Investments in clean energy technology that are helping us reduce our dependence on foreign oil would be cut by nearly a fifth. If this budget becomes law, and the cuts were applied evenly starting in 2014, over 200,000 children would lose their chance to get an early education in the Head Start program. Two million mothers and young children would be cut from a program that gives them access to healthy food... [much more in this vein] That’s just a partial sampling of the consequences of this budget. Now, you can anticipate, Republicans may say, well, we’ll avoid some of these cuts since they don’t specify exactly the cuts that they would make. But they can only avoid some of these cuts if they cut even deeper in other areas.

This is math. If they want to make smaller cuts to medical research, that means they’ve got to cut even deeper in funding for things like teaching and law enforcement. The converse is true as well. If they want to protect early childhood education, it will mean further reducing things like financial aid for young people trying to afford college. Perhaps they will never tell us where the knife will fall, but you can be sure that with cuts this deep, there is no secret plan or formula that will be able to protect the investments we need to help our economy grow.

This is not conjecture. I am not exaggerating. These are facts. And these are just the cuts that would happen the year after next. If this budget became law by the middle of the century, funding for the kinds of things I just mentioned would have to be cut by about 95 percent. Let me repeat that. Those categories I just mentioned, we would have to cut by 95 percent. As a practical matter, the federal budget would basically amount to whatever’s left of entitlements, defense spending and interest on the national debt, period.

That's Obama on the Ryan budget this past April. As Ezra Klein detailed recently, Romney has embraced Ryan's budget principals and particulars (and enormous omissions) as his own. To arouse fear about such proposals -- laying out explicitly how you fill in the blanks they refuse to specify -- is not just legitimate, and fair, and clean. It's a positive duty.

Also perfectly legitimate -- in fact, pitch-perfect -- is the kind of criticism of Romney's Bain tenure that Obama has delivered in his own voice:

I think it's important to recognize that this issue is not a, quote, "distraction." This is part of the debate that we're going to be having in this election campaign about how do we create an economy where everybody from top to bottom, folks on Wall Street and folks on Main Street, have a shot at success.

And if they're working hard and they're acting responsibly that they're able to live out the American dream. Now I think my view of private equity is that it is set up to maximize profits and that's a healthy part of the free market.

That's -- that's part of the role of a lot of business people. That's not unique to private equity and as I think my representatives have said repeatedly and I will say today, I think there are folks who do good work in that area.

And there are times where they identify the capacity for the economy to create new jobs or new industries. But understand that their priority is to maximize profits. And that's not always going to be good for communities or businesses or workers.

And the reason this is relevant to the campaign is because my opponent, Governor Romney, his main calling card for why he thinks he should be president is his business experience. He's not going out there touting his experience in Massachusetts.

He's saying, I'm a business guy and I know how to fix it, and this is his business. And when you're president, as opposed to the head of a private equity firm, then your job is not simply to maximize profits.

Your job is to figure out how everybody in the country has a fair shot. Your job is to think about those workers who get laid off and how are we paying for their retraining? Your job is to think about how those communities can start creating new clusters so that they can attract new businesses.

Your job as president is to think about how do we set up an equitable tax system so that everybody's paying their fair share and it allows us to invest in science and technology and infrastructure? All of which are going to help us grow. So if you're main argument for how to grow the economy is, I knew how to make a lot of money for investors then you're missing what this job is about. It doesn't -- it doesn't mean you weren't good at private equity, but that's not what my job is as president.

My job is to take into account everybody, not just some. My job is to make sure the company is growing not just now, but in 10 years from now and 20 years from now. So to repeat, this is not a distraction. This is what this campaign is going to be about.

It's what is a strategy for us to move this country forward in a way where everybody can succeed and that means I've got to think about those workers in that video just as much as I'm thinking about folks who have been much more successful. What I would say is that Mr. Romney is responsible for the proposals he's putting forward for how he says he's going to fix the economy.

And if the main basis for him suggesting he can do a better job, is his track record as the head of a private equity firm, and both the upsides and the downsides are worth examining.

This is vintage Obama -- defining the precise parameters of legitimate attack, bringing everything back to policy. It is not new. The Obama-orchestrated speeches at the Democratic convention in 2008 were all about killing McCain with kindness -- paying tribute to his service as soldier and senator, slamming the assumptions that led him to put forward trickle-down policies Here's Obama:

Now, I don't believe that Senator McCain doesn't care what's going on in the lives of Americans. I just think he doesn't know. Why else would he define middle-class as someone making under five million dollars a year? How else could he propose hundreds of billions in tax breaks for big corporations and oil companies but not one penny of tax relief to more than one hundred million Americans? How else could he offer a health care plan that would actually tax people's benefits, or an education plan that would do nothing to help families pay for college, or a plan that would privatize Social Security and gamble your retirement?

It's not because John McCain doesn't care. It's because John McCain doesn't get it.

For over two decades, he's subscribed to that old, discredited Republican philosophy - give more and more to those with the most and hope that prosperity trickles down to everyone else. In Washington, they call this the Ownership Society, but what it really means is - you're on your own. Out of work? Tough luck. No health care? The market will fix it. Born into poverty? Pull yourself up by your own bootstraps - even if you don't have boots. You're on your own.

Well it's time for them to own their failure. It's time for us to change America.

This is not to say that there are not dangers in tipping the campaign's tone too much into the negative. For one thing, the Republican Super Pacs are going to heap such an unprecedented weight of misinformation on Obama's head that he will need intense attacks just to maintain parity. That's why the Democrats need Super Pac firepower -- so that when laid-off workers call Romney a bloodsucker, Obama's hands are off. Then too, all we outsiders can fret ad infinitum about focus. I've got a couple of problems with this framing, relayed by Heilemann:

The Obama effort at disqualifying Romney will go beyond painting him as excessively conservative, however. It will aim to cast him as an avatar of revanchism. “He’s the fifties, he is retro, he is backward, and we are forward—that’s the basic construct,” says a top Obama strategist. “If you’re a woman, you’re Hispanic, you’re young, or you’ve gotten left out, you look at Romney and say, ‘This fucking guy is gonna take us back to the way it always was, and guess what? I’ve never been part of that.’ ”

As cast, that really is divisive. Obama's got to make the case, as he always has, that his economic policies are a formula for broad shared prosperity -- that it's in the interests of the prosperous as well as the precarious to invest in infrastructure, and education, and health insurance for all, and effective regulations that protect the environment and the consumer and the financial system. At the same time, the fear factor needs to be higher. Romney is promising not to take us back to "the way it always was," but to gut the social safety net and regulatory regime and turbo charge income equality to degrees that take us back to before the Eisenhower era, when core New Deal protections became a matter of bipartisan consensus.

So again: scare us, Obama. But do it in your own inimitable, fact-based way. And tell us what we're voting for, too.

Self-lacerating Sunday

2012-05-27T09:55:00.001-04:00

Well, it's the middle of Memorial Day weekend, and here I am sucking in campaign news -- or rather, campaign speculation -- that leaves me beating myself for spite. So fool that I am, I'll look into my heart and write for a moment -- that is, vent, or lament, without troubling too much to develop the thoughts, or spleen. A couple of points:

1) Jonathan Chait, responding to Romney's flash of his inner Keynesian in an interview with Mark Halperin, rolls up various commentary to argue that we're likely to get more short-term stimulus if Romney wins than if Obama does:

Meanwhile, Romney has no stimulus plan. But he may well propose one if he wins, and it would pass, because plenty of Republicans would flip back to being Keynesians like they were under President Bush. What’s more, Democrats wouldn’t stop it, because Democrats don’t have any history of opportunistically abandoning Keynesian economics when the other party’s neck is on the economic line. So, yes, a President Romney would be more likely to sign strong stimulative legislation than Obama — not because he believes in it more strongly, but because, as David Frum says, we’re all Keynesians during Republican administrations.

This perverse and compelling logic makes me deeply weary. It's always easy to lament, "Republicans, crazy; Democrats, stupid," as Rick Perlstein boils down our political predicament -- or, just as often, "Republicans, crazy; Democrats, cowards." But I often feel that the Democrats' task is just impossible. How can you govern when one side reflexively demonizes measures that were always a matter of bipartisan consensus? Would we want Democrats to block stimulus proposed by a Romney administration, sabotaging the economy as the Republicans have done since they got control of the House, and to a lesser extent via filibuster since Obama took office? Democrats are in any case incapable of it -- and should Republicans win they White House and both chambers of Congress, they will in any case pass whatever they will on the economic front via reconciliation -- and/or by killing the filibuster faster than you can say 'tax cut.' In which case they will reap the benefits of the economic recovery that must eventually come whatever the government does, even as they're empowered to further cut taxes and eviscerate the federal government.

2) For a full year now, liberal bloggers have driven themselves insane chronicling and countering Romney's daily lying about Obama's record (not to say his own). You know the drill: Obama went on an apology tour, he made the economy worse, he instituted government-controlled healthcare, he believes in equality of outcomes rather than equality of opportunity, his economic policies disproportionately hurt women, he ignited a prairie fire of debt. For debunks, see Steve Benen's weekly tally of Mitt's Mendacity, now 19 volumes long; Paul Krugman, The Post-Truth Campaign; or xpostfactoid, "He made it worse"...

On Thursday in Iowa, Obama took on Mitt's mendacity directly, dismissing the alleged "prairie fire of debt" as a "cowpie of distortion":

"I know Gov. Romney came to Des Moines last week. Warned about a prairie fire of debt. That's what he said, prairie fire. But he left out some facts. His speech was like a cowpie of distortion. I don't know whose record he twisted the most, mine or his.

"Now listen, it is true the debt and deficit are serious problems and the depth of the recession added to the debt. A lot more folks were looking for unemployment insurance. A lot fewer folks were paying taxes because they weren't making money. So that added to the debt. Our efforts to prevent it from becoming a Depression, helping the auto industry, making sure that not as many teachers were laid off, all those things added to the debt.

"But what my opponent didn't tell you is that federal spending since I took office, has risen at the slowest pace of any president in almost 60 years. By the way, that generally happens. What happens is the Republicans run up the tab and then, we're sitting there, and they've left the restaurant, then they point and say 'Why'd you order all those steaks and martinis? ' "

To which I would imagine most Obama supporters would respond: fantastic, way to call him out, now could you please get a bit more specific about Romney's proposed $5 trillion in new tax cuts and concomitant gutting of virtually every domestic federal government function?

And most probably do. But somehow someone, somewhere, is casting this attack as evidence of a deep-seated Obama "mean streak":

But there was something darker and sharper lurking just below the surface, in Obama’s facial expressions, body language, and mocking tone of voice: Not to put too fine a point on it, but the president has a mean streak. ..

Let’s return to the “prairie fire” moment, around 28 minutes into the videotape of Obama’s speech. The president’s tone drips with sarcasm, especially when he shouts the phrase “prairie fire!,” raising his left arm in mock-alarm, and punctuates the gesture with a suppressed giggle.

This is backed with psychobabble from the author of Obama on the Couch about the President's capacity for "narcissistic fighting." Which I would not waste even free blog space on were it not for Sullivan's response:

I worry that the president risks losing some of his favorability and likability with the sneering. He has the better arguments. He should simply make them.

To this, in a season (or seizure) of anxiety, I can append my own fretting. As an economy frays and an opponent attacks, any president can look desperate (though I can't see meanness as the medium of Obama's undoing). I recall Bush Sr., hoarse and forlorn late in the 92 campaign, imploring voters to believe that Clinton was "coming after your wallet." The Democratic equivalent is "destroy Medicare, shred the safety net, shower largesse on the wealthy." Never mind that it's all manifestly true. After three years of anemic growth, Americans are primed to believe that Romney is better equipped to manage the economy. And that is the true and source of my Memorial weekend dyspepsia.

That, and several hundred million dollars of Super Pac money.

The Paul Ryan presidency

2012-05-26T09:52:00.000-04:00

My prior post argues that Obama's attacks on Romney's perceived economic competence should focus on what Romney has promised to do as president. As a model, I cited Obama's critique of the Ryan budget last month, which detailed the effects of Ryan's proposed spending cuts if they are spread evenly across all programs.

Today, Ezra Klein details the extent to which a Romney presidency would hew to the Ryan blueprint:

We don’t have to pore over every decision Romney made in Massachusetts to discern what he would do in Washington if elected. Romney and the Republicans in Congress have explained exactly what they intend to accomplish -- and their plans are remarkably in sync.

The budget prepared by Paul Ryan, the House Budget Committee chairman, and the Romney campaign’s general-election platform look quite similar. Both would cut taxes while flattening the tax code. Their Medicare-reform plans look similar; Ryan even modified his original draft to make it look more like Romney’s, which allows seniors to choose between traditional fee-for-service Medicare and private options.

Their plans to increase defense spending are alike, as are their plans to cut domestic spending and to turn Medicaid, food stamps and other safety-net programs over to the states.

Because it’s difficult to imagine a scenario in which Romney is elected and Republicans don’t hold the House and win control of the Senate, Republicans wouldn’t be stymied by Democratic opposition. They would have the votes to pass their agenda. True, they won’t get a filibuster-proof majority of 60 in the upper chamber, but Ryan’s budget is, well, a budget, which means it could be passed through the budget reconciliation process -- and couldn’t be filibustered. To enact a radical change of direction, Republicans need only a simple majority of votes.

Given that stark reality, perhaps I should rephrase my initial question: Why are we spending so much time discussing what Romney did at Bain ... instead of what he will do as president?

That's it! Bring on the bulleted lists of the effects of spending cuts in the Ryan-Romney budgets.

"In Mitt Romney's America..." -- Scare us, Obama

2012-05-25T18:05:00.005-04:00

As I've said before, these recent Gallup numbers frighten me: voters give Romney the edge in handling deficit and debt, 54-39, and economic growth, 52-42. Together they suggest that people are buying Romney's core pitch: an able businessman is well equipped to run the economy. The perception could well be decisive.

On the campaign trail, Obama is contrasting his core economic vision with Romney's, and that's good. He's tying Romney's Bain tenure to his trickle-down economics, and that's fair and potentially helpful -- though I think he desperately needs a bulked-up Super Pac to keep his hands clean while the team offsets all the scurrilous shit that Crossroads & co. will heap on his own head.

But what seems to my amateur political sensibility the most effective way to tear down the perception of Romney's economic competence is also the most truthful way: hammer home in detail the ruinous spending cuts and tax cuts that Romney has proposed for the country. Scare people. Because these proposals are scary -- and most Americans oppose them when they're spelled out in ways that Romney dare not do.

I think Obama was on the right track when he hammered the Ryan budget in detail, extrapolating the specific cuts that would be called for if the broad category cuts were distributed evenly, filling in the details that Ryan decorously left blank. He needs to do the same with Romney's proposals, which are in sync with Ryan's. I want to see the economic equivalent of Ted Kennedy's vision of Robert Bork's America. Romney's America would suffer

Nearly $10 trillion in spending cuts and/or cuts to the broadest-based tax deductions over 10 years to offset a) $5 trillion in new tax cuts that will deliver an average of $150,000 per year to the top 1%, and b) permanent extension of all the Bush tax cuts.
A 59% reduction by 2022 in Medicare and all other federal spending excluding defense and social security (cuts reduced to whatever extent Romney offsets his tax rate cuts with the tax loophole closures he has failed to specify). Fill in blanks as Obama did on Ryan Budget (key passage below).
The end of the Medicare guarantee as Medicare is voucherized and the rump "government plan" devalued by adverse selection.
14-27 million fewer Americans on Medicaid than under current law; 45-58 million more uninsured in 10 years than under implementation of the Affordable Care Act.
A bloated military budget absorbing nearly all federal discretionary spending (run the numbers on Romney's recommended increases as they would play out under a BBA and 20%-of-GDP spending cap).
Continued war in Afghanistan; new war all but promised in Iran.
Trade war with China; renewed Cold War with Russia

My list needs some work, along the lines of Obama's sampling of domestic spending cuts under the Ryan budget. There Obama spelled out his assumptions, filling in Ryan's blanks by running the numbers if the cuts were applied evenly across all programs. With Romney you'd have to go deeper into hypotheticals: do you credit him with imposing any tax loophole closures to offset an unspecified portion of his new tax cuts, as he says he wants to do but fails to say how? The 59% general domestic spending cut by 2022 cited above is a Center for Budget and Policy Priorities calculation that assumes no offsetting reduction in tax expenditures -- fair enough, since Romney has not officially proposed any, and in private gatherings has only floated a nibble or two.

In any case, unlike Romney, Obama does spell out his assumptions when projecting the effects of his opponent's proposals. He should maintain that advantage in honesty and credibility. The Romney reality is horrific enough without embellishment. How can a man putting forward that extremist sham enjoy a presumption of economic competence?

Update, 5/26: Ezra Klein is on the same page:

We don’t have to pore over every decision Romney made in Massachusetts to discern what he would do in Washington if elected. Romney and the Republicans in Congress have explained exactly what they intend to accomplish -- and their plans are remarkably in sync.

The budget prepared by Paul Ryan, the House Budget Committee chairman, and the Romney campaign’s general-election platform look quite similar. Both would cut taxes while flattening the tax code. Their Medicare-reform plans look similar; Ryan even modified his original draft to make it look more like Romney’s, which allows seniors to choose between traditional fee-for-service Medicare and private options.

Their plans to increase defense spending are alike, as are their plans to cut domestic spending and to turn Medicaid, food stamps and other safety-net programs over to the states.

Because it’s difficult to imagine a scenario in which Romney is elected and Republicans don’t hold the House and win control of the Senate, Republicans wouldn’t be stymied by Democratic opposition. They would have the votes to pass their agenda. True, they won’t get a filibuster-proof majority of 60 in the upper chamber, but Ryan’s budget is, well, a budget, which means it could be passed through the budget reconciliation process -- and couldn’t be filibustered. To enact a radical change of direction, Republicans need only a simple majority of votes.

Given that stark reality, perhaps I should rephrase my initial question: Why are we spending so much time discussing what Romney did at Bain ... instead of what he will do as president?

Update 5/31: To suggest that the Obama campaign has to choose between a message of hope and one of fear is to frame a false choice.
----
Here's Obama on the Ryan budget :

This new House Republican budget, however, breaks our bipartisan agreement and proposes massive new cuts in annual domestic spending. Exactly the area where we’ve already cut the most. And I want to actually go through what it would mean for our country if these cuts were to be spread out evenly. So bear with me. I want to go through this because I don’t think people fully appreciate the nature of this budget.

The year after next, nearly 10 million college students would see their financial aid cut by an average of more than $1,000 each. There would be 1,600 fewer medical grants. Research grants for things likes Alzheimer’s and cancer and AIDS. There would be 4,000 fewer scientific research grants, eliminating support for 48,000 researchers, students and teachers.

Investments in clean energy technology that are helping us reduce our dependence on foreign oil would be cut by nearly a fifth. If this budget becomes law, and the cuts were applied evenly starting in 2014, over 200,000 children would lose their chance to get an early education in the Head Start program. Two million mothers and young children would be cut from a program that gives them access to healthy food.

There would be 4,500 fewer federal grants at the Department of Justice and the FBI to combat violent crime, financial crime and help secure our borders. Hundreds of national parks would be forced to close for part or all of the year. We wouldn’t have the capacity to enforce the laws that protect the air we breathe, the water we drink, or the food that we eat.

Cuts to the FAA would likely result in more flight cancellations, delays and the complete elimination of air traffic control services in parts of the country. Over time, our weather forecasts would become less accurate because we wouldn’t be able to afford to launch new satellites and that means governors and mayors would have to wait longer to order evacuations in the event of a hurricane.

That’s just a partial sampling of the consequences of this budget. Now, you can anticipate, Republicans may say, well, we’ll avoid some of these cuts since they don’t specify exactly the cuts that they would make. But they can only avoid some of these cuts if they cut even deeper in other areas.

This is math. If they want to make smaller cuts to medical research, that means they’ve got to cut even deeper in funding for things like teaching and law enforcement. The converse is true as well. If they want to protect early childhood education, it will mean further reducing things like financial aid for young people trying to afford college. Perhaps they will never tell us where the knife will fall, but you can be sure that with cuts this deep, there is no secret plan or formula that will be able to protect the investments we need to help our economy grow.

This is not conjecture. I am not exaggerating. These are facts. And these are just the cuts that would happen the year after next. If this budget became law by the middle of the century, funding for the kinds of things I just mentioned would have to be cut by about 95 percent. Let me repeat that. Those categories I just mentioned, we would have to cut by 95 percent. As a practical matter, the federal budget would basically amount to whatever’s left of entitlements, defense spending and interest on the national debt, period.

Money for these investments that have traditionally been supported on a bipartisan basis would be practically eliminated. And the same is true for other priorities like transportation, homeland security and veteran programs for the men and women who have risked their lives for this country. This is not an exaggeration. Check it out yourself.

Ask whom the mandate tolls

2012-05-23T15:47:00.001-04:00

Einer Elhauge, the legal scholar who dug up the health insurance mandates imposed on ship-owners, sailors and militiamen by U.S. Congresses and presidents in the 1790s, and economist Kevin Caves have placed the "individual mandate" in the Affordable Care Act in an arresting new frame:

Ronald Coase won the Nobel Prize in Economics for showing that social costs are symmetrical. In The Problem of Social Cost, Coase invoked the example of a farmer whose crops are trampled by the neighboring rancher's cattle. Before Coase, it would have been common to view the rancher as the culprit responsible for imposing costs on the blameless farmer. Coase pointed out that no matter which way the legal rights were allocated, one was imposing costs on the other. If the law forces the rancher to keep his cattle fenced in, the farming imposes fence-building costs on the rancher. If the law gives the rancher the right to let his cattle roam free, then the farmer bears the social cost....

the issue is not whether to have a mandate, but rather on whom the mandate should be imposed. If the Supreme Court strikes down Obamacare, we will simply return to the old mandate, which was imposed on the insured rather than on the uninsured. It is not clear why that mandate would be constitutionally preferable to a mandate that everyone pay his or her own way. It surely does not involve any less of an infringement on liberty.

The economic analysis of the law, Elhauge illustrates, recasts many legal disputes as a question of who pays an inevitable cost, in place of a one-sided view of whether a given cost can be imposed on one party. Substantively, the argument is often made on an intuitive basis, e.g., by Mitt Romney -- not only in 2005 but in this winter's debates:

"If you don't want to buy insurance, then you have to help pay for the cost of the state picking up your bill, because under federal law if someone doesn't have insurance, then we have to care for them in the hospitals, give them free care," said Romney. "So we said, no more, no more free riders. We are insisting on personal responsibility. Either get the insurance or help pay for your care."

Elhauge supplements this case -- that the mandate simply reallocates inevitable costs -- with an argument that I've been advancing since March 31 -- that the mandate is tailored not to impose costs exceeding what's necessary to create a viable health insurance market:

Opponents asserted in oral argument that the Obamacare mandate went beyond this problem, by requiring more than catastrophic coverage, but this assertion seems to be mistaken. According to the Kaiser Family Foundation, the standard minimum "bronze" plans required under Obamacare would have an "estimated deductible of $4,375 for a single individual and double that for a family... a level of coverage that most would consider catastrophic."

Obamacare also explicitly allows anyone who is either under 30 or can show financial hardship to buy even skimpier plans that are undisputedly catastrophic. In short, the Obamacare mandate targets expensive treatments that would likely be unaffordable without insurance. The real debate is (or should be) over whether the mandate to pay for these treatments should be shifted from society at large to those who receive them.

And that's true too.

More on catastrophic coverage in the ACA and misrepresentation of the mandate in the Supreme Court

Misrepresentation of the mandate in the Supreme Court: Why it still matters (5/10)

Don Taylor envisions a distant healthcare compromise; might Kennedy impose something like it next month? (5/16)

Attention, Justices Kennedy, Roberts et al: Read the young people's brief (5/5)

A pleas for one more pleading (4/29)

Iran wants sanctions relief; Israel ain't gettin' no total enrichment ban

2012-05-22T09:51:00.000-04:00

On Friday I noted the symmetric spin on the part of Iran and the major powers negotiating over Iran's nuclear program. While Dennis Ross claims that Iran's "leaders are preparing their domestic audience for concessions," the careful language in which the Times' Mark Landler described U.S. goals suggested that the U.S. and allies had moved off the maximalist "no enrichment" position loudly and repeatedly demanded by the Israelis.

Today, as the head of the IAEA, Yukiya Amano, announces an imminent deal with Iran on an inspection regime, the terms in which Times reporters describe a prospective general agreement on the how Iran's nuclear program may proceed suggests more firmly that a total ban on enrichment is off the table:

At those talks, negotiators will try to agree on the framework of the beginning of a compromise in which Iran would stop enriching uranium to 20 percent purity — a level considered a short technical step away from weapons grade. In exchange, world powers would allow the Islamic republic to produce its own fuel at a much lower rate of purity not usable for nuclear weapons.

Perhaps underpinning that gravitational pull, as the Times relays, is the upshot of a Haaretz scoop to the effect that Israel Defense Minister Ehud Barak has signaled privately that Israel is prepared to accept a deal in which Iran enriches fuel to 3.5 percent. The Israeli government denies this, but Haaretz claims that Barak has stated as much in writing.

Meanwhile, on the other side of the table, it looks like Iran is pretty intensely seeking some sanctions relief:

In Iran’s Parliament on Tuesday, the speaker, Ali Larijani, urged the global powers “to change their behavior and stop the ‘shell game’ they have played on Iran,” according to state-controlled Press TV. He also said it would be “improper” for the powers to adopt a cooperative stance during the Baghdad talks while imposing ever tighter sanctions.

An agreement with Iran over its nuclear program has seemed a pipe dream for so long. Now, it seems fair at least to officially hold one's breath.

Quote of the day

2012-05-21T21:06:00.001-04:00

If your main argument for how to grow the economy is "I knew how to make a lot of money for investors," then you're missing what this job is about.

- President Obama, explaining why Romney's tenure at Bain is a legitimate campaign subject.

Gallup's scary polling on economic issues

2012-05-21T15:43:00.002-04:00

As the economy goes, so goes the electorate's assessment of the President's ability to run the economy. That's the way it's always been, in all electorates. It's no good railing or making excuses. It's an electoral law of nature.

Nonetheless, two numbers in Gallup's current polling of American's economic assessment of the two candidates frighten and anger me. Voters give Romney the edge in handling deficit and debt, 54-39, and economic growth, 52-42. They give Obama the edge on other economic issue rated of high importance, including healthcare and college costs, and the candidates are virtually tied on jobs. But the two on which Romney leads are the broadest economic fundamentals.

Those numbers are a function, directly and indirectly, of the continued slow growth in the economy and still-sky-high unemployment. Directly, in that no president under current conditions would get high marks for stimulating growth -- no matter how manifest it is to the economically literate that conditions would be far worse under policies Republicans today claim to advocate (which they never would have implemented had McCain won in '08 -- see McCain and Romney's own proposals in the fall of that year). Indirectly, in that the GOP has been screaming about "out of control spending" and deficits that will 'turn us into Greece" for three years -- never mind that they have cut off the sine qua non of credible deficit reduction, combining revenue increases with long-term spending cuts. In addition, I suspect that on the deficit question that Obama is suffering as much for failing to get the GOP to yield on what he argued was essential - -tax increases on the wealthy -- as from any perception that he doesn't know how to do deficit reduction.

What rankles, though -- and defines a major part of Obama's messaging challenge -- is that Romney's policy proposals would plainly, if implemented as advertised, increase the deficit and choke off growth. With regard to the deficit, he has proposed tax cuts that would reduce revenue by about $5 trillion over ten years and disproportionately benefit the wealthy. He claims that the cuts would be revenue neutral but has not specified the tax loophole closures he would implement to offset the rate cuts. They would have to be enormous and hit the middle class hard. Even were he by some miracle to incorporate those rate cuts in a revenue neutral plan, balancing the budget with no new revenue would require savage cuts to domestic spending -- and like Paul Ryan, he refuses to specify what he would cut or even acknowledge that services and basic government functions would be severely impaired. In other words, he's offering a route to "deficit reduction" even more unbalanced (and in fact impossible) than the Republicans held out for in the summer of 2011. And at that time, polls showed that Americans broadly supported Obama's "balanced" approach.

With regard to growth, Romney's prescriptions boil down to cutting (actually gutting) regulations and cutting (actually gutting) spending. Here public perception could be dicier, since people do broadly seem to think (contrary to all evidence) that cutting government spending stimulates growth. But Romney himself, as Jonathan Chait has neatly demonstrated this very day, knows that's not true, in that a) he himself publicly recommended large stimulus in December 2008 and expressed general support for the size of the emerging Democratic stimulus in January 2009; and b) he argues that Obama choked off growth by focusing on healthcare reform instead -- but the net effect of that focus on growth efforts, if any, was to make further major stimulus impossible. Further, Americans broadly supported the main planks of Obama's fall 2011 jobs package: further infrastructure spending and further federal aid to states to preserve public sector jobs, which state governments have been cutting left and right.

So we're where we were in fall of last year: Americans broadly approve of Obama's plans for the economy but give him low marks in managing it. That's partly an ineradicable result of current economic conditions and partly punishment for getting rolled in the negotiations that resulted in the all-cuts-no-revenues Budget Control Act.

But Romney's stated plans to radically reduce taxes for the wealthy, deeply cut domestic spending while increasing defense spending, and put Medicare on a voucher system -- all unpopular policies -- should count for something in this campaign. Those plans, more than his Bain past, should be the focus of Obama's attacks, methinks.

About that NRO correction

2012-05-20T09:22:00.000-04:00

On Friday, NRO's Katrina Trinko posted a correction retracting an inflammatory accusation against Elizabeth Warren:

I took down my earlier post on Elizabeth Warren plagiarizing from the book Getting On the Money Track. On Amazon.com, the Warren book All Your Worth is listed as having been published January 9, 2006. As it turns out, that is the paperback publication date; the hardback book was published in March 2005. As such, it appears that Getting on the Money Track (published in October 2005) plagiarized from All Your Worth, not the other way around.

I apologize for the error.

"Listed as having been published," eh? I posted a comment on Trinko's correction on Friday evening which is either "awaiting moderation" or was moderated out (four or five other comments have since been published). Here it is:

This correction implies that Amazon misleads re publication date. In fact if you google All Your Worth, the first search result links to the hardcover on Amazon, with the earlier publication date. The paperback listing is clearly marked as such, and paperbacks are almost always published later. It would be accurate to say, "On Amazon.com, [the paperback version] of the Warren book All Your Worth is listed as having been published January 9, 2006."

Implicitly blaming Amazon for her own error makes Trinko's 'correction' come off a bit grudging, no?

I don't want to jump to conclusions about NRO not publishing my comment. Maybe their 'moderation' goes slowly on weekends (though "moderation" and "NRO" do seem to sit oddly in the same sentence). We'll see.

An upright man who lies nonstop

2012-05-19T22:07:00.002-04:00

The Times' Jodi Kantor is out with a long article about the centrality of faith in Mitt Romney's life and his commitment to living a life of service and rectitude and devotion to God's will as God gives him to see it.

Having read the The Real Romney, a well-documented biography y Boston Globe reporters Michael Kranish and Scott Helman, I don't doubt the truth of this narrative as far as it goes. What is unfathomable to me is the level of doublethink that will allows an extremely able, intelligent, in many ways generous man who believes that God is watching over him to go out and lie every day, in general concept and in detail -- about his opponent's record and beliefs, about his own past positions, about the inevitable effects of his own purported policies. Steve Benen documents 10-20 verifiable lies per week in his now 18-part series, Mitt's Mendacity (Vol. 17 here). Paul Krugman has ably captured the full arc of Romney's false narrative about Obama in his op-ed The Post-Truth Campaign. To review Romney's most fundamental and oft-repeated untruths:

With regard to his opponent's values, Romney lies in asserting that Obama has apologized more than his predecessors for U.S. actions; that Obama does not believe in sustaining U.S. global leadership; and that he believes in equality of outcomes rather than equality of opportunity. With regard to outcomes, he lies in asserting that Obama made the economy worse; that Obamacare constitutes a 'government takeover' of the healthcare system; that it will radically increase the federal government's share of the economy; that Obama has radically increased government spending or the federal deficit; and most recently, that Obama is more of an old-line liberal than Bill Clinton in his tax policy or healthcare policy. He egregiously manipulates statistics to suggest that Obama's policies have resulted in a net loss of jobs (the economy has added over 4 million since the recession Obama inherited bottomed out) or have disproportionately hurt women (who have suffered the bulk of job losses since the economy returned to growth because of massive state and local government job cuts).

With regard to his own past policies and pronouncements, he lies in asserting that he did not present himself as a defender of a woman's right to choose an abortion or as a gay rights champion; that he regards the individual mandate in the Affordable Care Act as unconstitutional (he recommended that the legislation incorporate one in a July 2009 op-ed); that he did not rule as governor that Catholic institutions must provide access to the morning after pill to rape victims; and most recently, that he recommended the sequence of bridge loans and federally financed bankruptcy proceedings that rescued GM and Chrysler (he opposed the federal financing that made successful restructuring possible).

Kantor briefly alludes to Romney's willingness to engage in harsh statements and attacks in his election battles and quotes Tony Kimball, his onetime executive secretary in the Mormon Church, reflecting, “I have absolutely no idea how he rationalizes it...It almost seems to be the ends justifying the means.” But never mind the aggression. There is no doubt that Romney has set a new standard for mendacity in presidential campaigning. How does he square away the daily lying in his daily prayers?

Spinning in the mirror with Iran

2012-05-18T21:58:00.000-04:00

There's a fearful symmetry to the diplomatic posturing on display in this Mark Landler article about the pending talks with Iran:

...Mr. Ross said, Iran’s recent statements signal that its leaders are preparing their domestic audience for concessions. Iranian officials have declared that the West has effectively endorsed Iran’s right to enrich uranium, a step they portrayed as a major strategic coup. American officials insist the United States has not done that and has been deliberately ambiguous about whether it would ever grant Iran the right to enrichment.

Still, as Mr. Ross said, “if you’re looking for a way to present a compromise, you want to present it as a victory.”

The Israelis, meanwhile, are loudly demanding that any deal should not allow the Iranians to enrich uranium at all. So if the U.S. and other negotiating powers are seeking only "to obtain a verifiable agreement to suspend its efforts to enrich uranium closer to weapons grade," as Landler phrases it, that can indeed be spun as a 'concession.' Each side is boasting that the other side is in conciliatory mode.

A Rory Stewart Afghan strategy -- on timed release?

2012-05-18T16:53:00.002-04:00

In August 2009, as the Obama administration mulled an escalation of its war against the Taliban in Afghanistan, Rory Stewart, the Brit who walked across Afghanistan in mid-winter, mused about his consultations with U.S. officials to the Financial Times' Emily Stokes :

Since arriving at Harvard in June last year, he has been consultant to several members of Barack Obama’s administration, including Hillary Clinton, and is a member of Richard Holbrooke’s special committee for Afghanistan and Pakistan policy. “I do a lot of work with policymakers, but how much effect am I having?” he asks, pronging a mussel out of its shell.

“It’s like they’re coming in and saying to you, ‘I’m going to drive my car off a cliff. Should I or should I not wear a seatbelt?’ And you say, ‘I don’t think you should drive your car off the cliff.’ And they say, ‘No, no, that bit’s already been decided – the question is whether to wear a seatbelt.’ And you say, ‘Well, you might as well wear a seatbelt.’ And then they say, ‘We’ve consulted with policy expert Rory Stewart and he says ...’”

Stewart's own recommendation, voiced in Senate testimony in September 2009, was for a scaled-down and therefore sustainable -- and long-term -- commitment:

The best Afghan policy would be to reduce the number of foreign troops from the current level of 90,000 to far fewer – perhaps 20,000. In that case, two distinct objectives would remain for the international community: development and counter-terrorism. Neither would amount to the building of an Afghan state or winning a counter-insurgency campaign. A reduction in troop numbers and a turn away from state-building should not mean total withdrawal: good projects could continue to be undertaken in electricity, water, irrigation, health, education, agriculture, rural development and in other areas favoured by development agencies. Even a light US presence could continue to allow for aggressive operations against Al Qaeda terrorists, in Afghanistan, who plan to attack the United States. The US has successfully prevent Al Qaeda from re-establishing itself since 2001 (though the result has only been to move bin Laden across the border.). The US military could also (with other forms of assistance) support the Afghan military to prevent the Taliban from seizing a city or taking over the country...

The international community should aim to provide a patient, tolerant long-term relationship with a country as poor and traumatized as Afghanistan. Judging by comparable countries in the developing world (and Afghanistan is very near the bottom of the UN Human Development index), making Afghanistan more stable, prosperous and humane is a project which will take decades. It is a worthwhile project in the long-term for us and for Afghans but we will only be able to sustain our presence if we massively reduce our investment and our ambitions and begin to approach Afghanistan more as we do other poor countries in the developing world .

More than two and a half years later, on the eve of a Nato summit on Afghanistan, compare what U.S. officials and analysts are saying about Afghan policy and goals going forward, as reported by Helene Cooper and Thom Shanker in the Times. Here's National Security adviser Thomas Donilon:

“The goal is to have an Afghanistan again that has a degree of stability such that forces like Al Qaeda and associated groups cannot have safe haven unimpeded, which could threaten the region and threaten U.S. and other interests in the world,” Mr. Donilon said.
With Afghan forces assuming the lead role in 2013 for protecting the country and its government, Mr. Donilon said the NATO allies hoped to leave behind “a set of security assets that allow it to provide for that modicum of stability” that will allow Afghanistan to protect itself against Al Qaeda and ensure that the United States’ core goal — making sure that Al Qaeda cannot again use Afghanistan as a base from which to target the West — is met.

Analyst Anthony Cordesman, in a paper titled “Time to Focus on ‘Afghan Good Enough”(cited in the Times article), paints a grim picture of "Afghan good enough" that boils down to salvaging and sustaining areas already under relatively firm government control, joined loosely to other areas controlled by warlords not in league with the Taliban. For the long haul, that requires focusing on a downsized and sustainable Afghan army:

This means a force that can credibly be funded with the money that could actually come rather than relying on promises. It means focusing on the army, knowing that much of the police will remain ineffective or corrupt. It means securing the Afghan government where it is now effective, rather than trying to expand it into vulnerable ink spots than can easily be overrun once U.S. and ISAF forces leave. It also means creating plans for the size of Afghan forces that trainers and partners can credibly sustain, providing more than mere pledges and hopes.

Cordesman also calls for decentralizing aid efforts, channeling aid "only to those who actually use it effectively," inside and out of central government. His bottom line:

Even if the United States, its allies, donors, and the Afghan government do face up to these realities, success will be uncertain and limited. This kind of Afghan “good enough” falls far short of the goals the United States and its allies once set, or claim to be pursuing now. The reality, however, is that it is this Afghanistan that offers at least some hope of holding together and protecting large numbers of Afghans. Pursuing today’s “strategy” and illusions offers almost no hope at all.

That sense of disappointment and failure, of goals radically scaled back, pervades the Times article too, and much commentary. Yet the current strategy is not far from what Stewart recommended in September 2009. The projecting number of troops to remain post 2014 is about what Stewart recommended too -- in the neighborhood of 15,000.

The scaled-down goals may seem cynical. But, as Stewart urged in his Senate testimony, they are the opposite:

The best way of avoiding the mistakes of the 1980s and 1990s – the familiar cycle of investment and abandonment which most Afghan expect and fear and which have contributed so much to instability and danger - is to husband and conserve our resources, limit our objectives to counter-terrorism and humanitarian assistance and work out how to work with fewer troops and less money over a longer period. In Afghanistan in the long-term, less will be more.

Obama's strategy has in fact been Stewart's -- on timed release. This is not 20/20 hindsight. Stewart himself saw it, in the immediate wake of Obama's December 2009 speech announcing the end-stopped troop surge. One might have thought Stewart's reaction would be titled "over the cliff." Quite the opposite. In a December 17, 2009 article in The New York Review of Books*, he read the surge, and Obama's definition of the mission at that point, as a necessary precondition for something like his own recommended policy:

Obama could not refuse the bulk of the general's requests without being personally blamed for the future of Afghanistan.

Little wonder that some called (in the President's words) "for a more dramatic and open-ended escalation of our war effort—one that would commit us to a nation-building project of up to a decade." How could they ask for any other course when they argued from within a conceptual prison, founded on fears, boxed in by domestic political calculations, restricted by misleading definitions, buttressed by syllogisms, endorsed by generals, and crowned with historical analogies? Yet this is what the President said about full-scale escalation:
I reject this course because it sets goals that are beyond what can be achieved at a reasonable cost, and what we need to achieve to secure our interests. As President, I refuse to set goals that go beyond our responsibility, our means, or our interests. And I must weigh all of the challenges that our nation faces. I don't have the luxury of committing to just one. Indeed, I'm mindful of the words of President Eisenhower, who—in discussing our national security—said, "Each proposal must be weighed in the light of a broader consideration: the need to maintain balance in and among national programs."
I felt as though I had come to hear a fifteenth-century scholastic and found myself suddenly encountering Erasmus: someone not quite free of the peculiarities of the old way, and therefore haunted by its elisions, omissions, and contradictions; but already anticipating a reformation. Obama's central—and revolutionary—claim is that our responsibility, our means, and our interests are finite in Afghanistan. As he says, "we can't simply afford to ignore the price of these wars." Instead of pursuing an Afghan policy for existential reasons—doing "whatever it takes" and "whatever it costs"—we should accept that there is a limit on what we can do. And we don't have a moral obligation to do what we cannot do.

Stewart elaborated the extent to which Obama wriggled out of the conceptual box in which COIN doctrine, the McChrystal report, and his own campaign rhetoric would have seemed to have placed him:

The simple process of naming our past and present strategies already generates and restricts our response. Thus by naming operations in Afghanistan a counterinsurgency, we may feel compelled to deploy one trained counterinsurgent for every fifty members of the population; by labeling our approach "an Afghanistan–Pakistan strategy," we imply that our actions in Afghanistan are vital to the security of Pakistan; by putting the Taliban in the category of those pursuing a global jihad, we conclude that we cannot negotiate with them; by naming Afghanistan a terrorist safe haven or a failed state, we conclude that failure (or even a light "footprint") is not an option.

Obama deftly avoided all these words and traps in his speech, perhaps because he has become aware of their extreme implications. There was no talk of victory. His aim was no longer to defeat but to contain the Taliban: to "deny it the ability to overthrow the government." He explicitly rejected a long "nation-building project." He talked not of eliminating but of keeping the pressure on al-Qaeda. He did not speak of a moral obligation to the Afghan people. He did not specify any necessary logical connections between the Taliban, al-Qaeda, Afghanistan, and Pakistan. He asserted that "there's no imminent threat of the [Afghan] government being overthrown." He emphasized that "we will support efforts by the Afghan government to open the door to those Taliban who abandon violence and respect the human rights of their fellow citizens." He did not draw parallels with the surge in Iraq. And most strikingly of all, whereas he had referred four times in March to insurgency, now he stated that "unlike Vietnam, we are not facing a broad-based popular insurgency." [snip]

...this moderate tone gains Obama the leverage that Bush lacked. As long as the US asserted that Afghanistan was an existential threat, the front line in the war on terror, and that, therefore, failure was not an option, the US had no leverage over Karzai.

And the kicker:

But perhaps even more importantly, defining a more moderate and limited strategy gives him leverage over his own generals. By refusing to endorse or use the language of counterinsurgency in the speech, he escapes their doctrinal logic. By no longer committing the US to defeating the Taliban or state-building, he dramatically reduces the objectives and the costs of the mission. By talking about costs, the fragility of public support, and other priorities, he reminds the generals why this surge must be the last. All of this serves to "cap" the troop increases at current levels and provide the justification for beginning to reduce numbers in 2011.

Indeed, the downsizing of goals in Afghanistan began much earlier -- in the first week of the Obama presidency. Here's Robert Gates on January 22, 2009, as reported by Joe Klein (his emphasis):

I think one of the — one of the points where I suspect both administrations come to the same conclusion is that the goals we did have for Afghanistan are too broad and too far into the future, are too future-oriented, and that we need more concrete goals that can be achieved realistically within three to five years in terms of reestablishing control in certain areas, providing security for the population, going after al Qaeda, preventing the reestablishment of terrorism, better performance in terms of delivery of services to the people, some very concrete things.

Today, the terms in which Obama describes both the condition of Afghanistan and the west's commitment to it closely track Stewart's:

I never believed that America could essentially deliver peace and prosperity to all of Afghanistan in a three-, four-, five-year time frame. And I think anybody who believed that didn’t know the history and the challenges facing Afghanistan. I mean, this is the third poorest country in the world, with one of the lowest literacy rates and no significant history of a strong civil service or an economy that was deeply integrated with the world economy. It’s going to take decades for Afghanistan to fully achieve its potential...

From the perspective of our security interests, I think we can accomplish our goal, which is to make sure that Afghanistan is not a safe haven from which to launch attacks against the United States or its allies. But the international community — not just us; the Russians and the Chinese and the Indians and the Pakistanis and the Iranians and others — I think all have an interest in making sure that Afghanistan is not engulfed in constant strife, and I think that’s an achievable goal.

As with other messes that Obama inherited, the fair measure of his conduct is whether he found the least bad strategy, or something reasonably close to it. The best argument against that claim in this case is that he wasted three years of blood and treasure without increasing the odds that Afghanistan won't devolve into total civil war or total Taliban control. Michael Hastings makes that case:

After Obama made what many around him now privately acknowledge was a mistake to escalate the conflict three years ago — essentially creating a new war of his own, tripling the size of U.S. forces after he caved under intense pressure from the Pentagon — the White House has been desperately searching for a way out. Ideally, one that couldn’t be spun as a full on retreat.

The administration didn’t find it at the last NATO Summit in Lisbon, Portugal, two years ago. The U.S. still had to pretend they were in it for the next decade. There, NATO Secretary General Anders Foghs Rasmussen boldly committed the U.S. and Europe beyond 2014. “One thing must be very clear: NATO is in this for the long term,” he told reporters at the time.

Today, the calculus has changed completely, while the strategy’s failure is nearly impossible to deny. Bin Laden’s killing — which, for what it’s worth, had zero relationship to the counterinsurgency plan we adopted — gave Obama the political cover to pull it off. Finally, Obama could overrule his generals (which he did a month after the Osama raid) whose plan called for 130,000 troops to stay for years more to come...

One thousand nine hundred and fifty six NATO soldiers have been killed since President Obama decided to escalate the war in Afghanistan in 2009, the majority of them American. That’s almost double the number of soldiers who’d been killed in the previous eight years of the conflict. About 362 billion U.S. tax dollars, likely to hit half a trillion the next two years, has been blown in the wastelands of Helmand and Kandahar and Kabul....

The peace negotiations that could have started three years ago have now finally begun in earnest. But not with us in a stronger negotiating position, as was the plan. The hardliners with the Taliban — and the hardliners within the Republican party — will do their best to scuttle any peace talks. That being said, everyone is more or less sick of this war — Afghans and Americans alike — and hawks on Capitol Hill and in the Quetta Shurra alike are likely to lose this debate.

Hastings' bottom line:

The tragedy here, however, is not so much that the strategy didn’t work, it’s that it never had a chance of working. Obama and many of his advisors knew or suspected this all along. The summit in Chicago will be the latest reminder of a very unfortunate mistake.

One response to that conclusion: it depends what your definition of "work" is. Does "Afghan good enough" have any meaning, or is the country headed for civil war/Taliban takeover? Does anyone know? Will the U.S. in fact sustain a Stewartesque strategy over ten years -- 15,000 troops, modest targeted aid, prevention of big-city Taliban takeover?

A second question: could the administration have achieved as good or better results if it had scaled back -- followed Stewart's advice -- in 2009? Could such a strategy have worked politically back then? Even Hastings admits that both the hardliners at home and "in the Quetta Shurra" have less leverage to scuttle a scale-down of hostilities.

Is it obscene to consider anything short of civil war or Taliban takeover a result 'good enough' to justify the blood and treasure spilled that Hastings chronicles? I don't know. The sense of failure on the ground does seem pervasive. But perhaps it's too early to tell. Of "Afghan good enough," perhaps the best that can be said is that those who are engaged will know it when they see it -- or know its absence when they see it.

One thing that does seem clear, though: there was wisdom in Stewart's call for both low expectations and long-term commitment.

-----
* Excerpts here, with annotations, are lifted from my own Jan. 2010 post responding to Stewart's article.

Is Obama still paying for the debt ceiling debacle?

2012-05-17T21:20:00.002-04:00

On Marketplace this evening, Gallup's Frank Newport delivered bad news for Obama: by a nine point margin, Americans think that the economy will be in better shape for years from now if Romney is elected than if he is. The question is, why do they think that? They prefer Obama's tax policies and "balanced" approach to deficit reduction. They would hate the massive cuts to domestic spending necessitated by Romney skeleton of a budget if they could be made aware of them. They support the separate elements of the job creation package Obama put forward last fall.

I would have thought that the answer is, first, that an incumbent president inevitably gets blamed for a weak economy, and second, that they have so far bought the Romney pitch that a highly successful businessman is well equipped to turn the economy around. But Newport said something that turned my head around and brought me back to August 1, 2011: "Romney does better than Obama in terms of being able to manage the government."

To me, that signifies that Obama is still paying for getting his clock cleaned last summer in the debt ceiling negotiations that resulted in the Budget Control Act. He told the nation that a deficit reduction deal had to be balanced, a combination of new taxes and spending cuts. He asked people to call their Congressional reps and tell them that. And then he acceded to a "deal" that was all spending cuts. In the wake of the deal his poll numbers sank -- I suspect at least in part because he let the Republicans have their way (though also because the stock market plunged, S&P reduced the U.S.'s AAA credit rating and job growth stalled almost completely). Now, people still think he can't "manage" the government effectively, which may mean getting his way with Congress.

I had hoped that that impression of fecklessness was washed away by Obama's escalating combativeness in the fall -- and more directly, by his letting the supercommittee negotiations fail, thus writing steep defense cuts into law, and by his two-stage victory extending the payroll tax cut and unemployment benefits. But people were paying attention during the debt ceiling battle last summer. Perhaps they weren't during the payroll tax battle.

Then again, maybe the numbers -- and question responses -- simply reflect the state of the economy.
---
9:30 p.m. Edited for clarity in response to reader query.

Don Taylor envisions a distant healthcare compromise; might Justice Kennedy impose something like it next month?

2012-05-16T21:54:00.002-04:00

At present it would seem that there is no common ground between the parties on healthcare -- though the Democrats built the ACA on Republican ground, which the GOP fled (and rhetorically bombarded) as soon as the Dems set foot on it.

Nonetheless, looking down the road and seeking the contours of a future compromise, Don Taylor, in his new book Balancing the Budget is a Progressive Priority, identifies Democrats' top priority as universal coverage, and Republicans', insofar as they have one, as ensuring that everyone has "skin in the game," i.e. is on the hook for some of the medical expense they generate. He therefore envisions this future deal:

Universal catastrophic coverage implemented through Medicare, with gap insurance available to persons wanting it (no mandate!) via state based exchanges
With a massive deductible (I suggest $10,000/persons; $15,000/family to maintain a key role for private insurance; far larger out of pocket exposure than Bronze level cover in the ACA)

While such further compromise might strike most progressives as equal parts unlikely and undesirable, it caught my eye because, as I have noted repeatedly, there's an outside chance that Justice Kennedy (as swing vote) may impose something akin to it in the Supreme Court's ruling on the constitutionality of the mandate.

In oral argument, Kennedy seemed troubled by the notion that the mandate was "unprecedented" in imposing "the affirmative duty to act to go into commerce" but also acknowledged that "the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries." Responding to Kennedy's ambivalence, Marty Lederman, former deputy assistant attorney general in the Obama administration's OLC, suggested both a "bounded, minimalist way to uphold the ACA" -- uphold the power to impose such a mandate only in the case of the unique characteristics of the healthcare/health insurance market that Kennedy seemed to acknowledge -- or else a way that Kennedy might further limit the mandate (if convinced that the scope of the mandate exceeded the economic need):

Moreover, even if Randy and Mike Carvin were correct, and the preventive care coverage could not be justified under my proposed, or any other, limited holding, that would only mean that the Court should declare invalid those subsections of section 18022(b) that go beyond coverage for catastrophic care and other services that are government-guaranteed. Such an excision would likely have, at most, only a marginal impact on the cost of insurance premiums, since it is of course catastrophic and longterm care--the services the state and federal governments guarantee--that account for the lion's share of uncompensated health care costs, and of the cost of health insurance (my emphasis).

I have argued that the plaintiffs misrepresented the scope of the mandate, and that the conservative justices seemed unaware that a) the ACA provides a catastrophic coverage option for those under 30; b) that it extends that option to others exempt from the mandate on financial or other grounds; or c) that the bronze plans offered in the exchanges, as the Kaiser Family Foundation recently detailed, might also reasonably be labeled "catastrophic" coverage. The mandate, in other words, is self-limiting. But were it further limited, that would not preclude making more comprehensive coverage available at subsidized cost.

More on catastrophic coverage in the ACA and misrepresentation of the mandate in the Supreme Court

Misrepresentation of the mandate in the Supreme Court: Why it still matters (5/10)

Attention, Justices Kennedy, Roberts et al: Read the young people's brief (5/5)

A pleas for one more pleading (4/29)

A growing chorus indicts GOP intransigence (updated)

2012-05-14T21:17:00.003-04:00

[Reposted, with additions from David Frum, Chuck Hagel and John Danforth. The list of testy-moany-yowls groweth apace.]

Sometimes the charge is leavened with a little bit of obligatory false equivalence -- or alternately, tinctured with partisan outrage. But left, right and center, in this election season of taking stock, a number of seasoned observers are stepping back for a global view of the hyperpartisanship and bad-faith obstructionism that Gingrich brought to Washington and that has become the Republican m.o.

One strong screed of this sort is Thomas Mann and Norman Ornstein's 4/27 Washington Post op-ed Let's just say it: the Republicans are the problem, a foretaste of a book they've just published on "the problem." [Update: David Frum writes of Mann and Ornstein: "Both men have hard-earned reputations for nonideological independence" - link at bottom.] Their brief:

Today, thanks to the GOP, compromise has gone out the window in Washington. In the first two years of the Obama administration, nearly every presidential initiative met with vehement, rancorous and unanimous Republican opposition in the House and the Senate, followed by efforts to delegitimize the results and repeal the policies. The filibuster, once relegated to a handful of major national issues in a given Congress, became a routine weapon of obstruction, applied even to widely supported bills or presidential nominations. And Republicans in the Senate have abused the confirmation process to block any and every nominee to posts such as the head of the Consumer Financial Protection Bureau, solely to keep laws that were legitimately enacted from being implemented.

In the third and now fourth years of the Obama presidency, divided government has produced something closer to complete gridlock than we have ever seen in our time in Washington, with partisan divides even leading last year to America’s first credit downgrade.

On financial stabilization and economic recovery, on deficits and debt, on climate change and health-care reform, Republicans have been the force behind the widening ideological gaps and the strategic use of partisanship. In the presidential campaign and in Congress, GOP leaders have embraced fanciful policies on taxes and spending, kowtowing to their party’s most strident voices.

Republicans often dismiss nonpartisan analyses of the nature of problems and the impact of policies when those assessments don’t fit their ideology. In the face of the deepest economic downturn since the Great Depression, the party’s leaders and their outside acolytes insisted on obeisance to a supply-side view of economic growth — thus fulfilling Norquist’s pledge — while ignoring contrary considerations.

Like many, Mann and Ornstein ascribe the dysfunction in large part to Gingrich, who made an art of "exploiting scandals to create even more public disgust with politicians...and then recruiting GOP candidates around the country to run against Washington," and Grover Norquist, who has bound the party in the iron grip of his no-new-taxes-ever pledge and generated a cancer of compromise-killing pledges.

Next up, the stern signoff of the primaried five-term Senator Richard Lugar, who salted in a few granules of alleged Democratic recalcitrance in a salvo clearly aimed at the GOP ayatollahs who brought him down:

I don't remember a time when so many topics have become politically unmentionable in one party or the other. Republicans cannot admit to any nuance in policy on climate change. Republican members are now expected to take pledges against any tax increases. For two consecutive Presidential nomination cycles, GOP candidates competed with one another to express the most strident anti-immigration view, even at the risk of alienating a huge voting bloc. Similarly, most Democrats are constrained when talking about such issues as entitlement cuts, tort reform, and trade agreements. Our political system is losing its ability to even explore alternatives. If fealty to these pledges continues to expand, legislators may pledge their way into irrelevance. Voters will be electing a slate of inflexible positions rather than a leader.

As I and many others have pointed out, Democrats have been willing to compromise on the issues with which Lugar rounds out his brief. But we can cut an octogenarian Jeremiah a little slack for softening the salvo aimed primarily at his own party. His warning below gives he game away (my emphasis):

Partisans at both ends of the political spectrum are dominating the political debate in our country. And partisan groups, including outside groups that spent millions against me in this race, are determined to see that this continues. They have worked to make it as difficult as possible for a legislator of either party to hold independent views or engage in constructive compromise. If that attitude prevails in American politics, our government will remain mired in the dysfunction we have witnessed during the last several years. And I believe that if this attitude expands in the Republican Party, we will be relegated to minority status. Parties don't succeed for long if they stop appealing to voters who may disagree with them on some issues.

Needless to say, if "that attitude" were equally present in both parties, it could not relegate one to minority status.

Finally, joining the chorus today is economist Brad DeLong, who paints the hyperpartisanship as a destroyer of what he describes as a basic economic premise of two-party democracy: that both parties will respond to the gravitational pull toward the policy preferences of the median voter. He too traces the current distortion to Gingrich:

Republicans when I got to Washington at the start of 1993 decided that they were going to adopt the Gingridge [sic] strategy: oppose everything the Democratic president proposes, especially if it had previously been a Republican proposal and priority. That is not a strategy that would ever be adopted by anybody who wants to see their name written in the Book of Life.

But Gingrich found followers. Bob Dole decided he would rather join Gingrich to try to portray Clinton as a failure. So Bob Dole never got a legislative accomplishment out of his years in Congress. Instead, he got to lose a presidential election. … As my friend Mark Schmitt wrote in his review of Geoffrey Kabaservice’s book about the moderate Republicans, Rule and Ruin, the moderate Republicans were partisan Republicans first and Americans second.

..and then brings the indictment up to the present:

Then came Obama in 2009 and 2010. My friends–Christina Romer, Lawrence Summers, Peter Orszag, and company–headed off to Washington to plan a Recovery Act that they thought would get 25 Republican votes in the Senate. It was a squarely bipartisan fiscal stimulus: this tax cut to make the Republicans stand up and applaud, this infrastructure increase to make the Democrats applaud, this increase in aid to the states to make the governors and state legislators applaud. It didn’t get 25 Republican votes in the Senate. It got 3.

On healthcare reform, Barrack Obama’s opening bid was the highly-Republican Heritage Foundation plan, the plan that George Romney had chosen for Massachusetts. RomneyCare got zero republican votes.

On budget balance Obama’s proposals have not been the one-to-one equal amounts of tax increases and spending cuts to balance the budget of Clinton 1993 or Bush 1990. Obama’s proposals have been more along the lines of $1 of tax increases for every $5 of spending cuts. And the Republicans rejected them.

There are of course larger forces at work, as Mann and Ornstein acknowledge -- most notably the polarization that followed the Democrats' embrace of civil rights legislation, which drained most southern conservatives out of the Democratic coalition, creating incentives for Republicans to identify more wholly with the conservative brand and eventually purge their moderates. And most Republicans would doubtless argue that this narrative is a partisan Democratic one; when (usually retired or ousted) Republicans join the chorus, they generally add a Lugaresque both-sides-do-it fillip. Democrats, meanwhile, are getting increasingly confident in pressing the prosecution. Exhibit A is Obama, who last September "evolved" from attacking obstruction by "Congress" to attacking obstruction by Republicans in Congress, and who also has been quite specific in detailing points on which he was willing to compromise (spending cuts, including to Medicare and Medicaid) and those on which Republicans would not budge (taxes, taxes, taxes).

Update 5/14: Former Bush speechwriter and voice in the conservative wilderness David Frum validates Mann and Ornstein's indictment, adding a compelling contributory cause of GOP extremism:

In good times, we debate whether government should expand programs or cut taxes -- new benefits in either case.

In these times, we are debating whether government should impose large reductions in programs or impose big increases in taxes -- taking from people benefits that they now enjoy.

Human beings will typically fight much more ferociously to keep what they possess than to gain something new. And the constituencies that vote Republican happen to possess the most and thus to be exposed to the worst risks of loss.

The Republican voting base includes not only the wealthy with the most to fear from tax increases, but also the elderly and the rural, the two constituencies that benefit the most from federal spending and thus have the most to lose from spending cuts.

All those constituencies together fear that almost any conceivable change will be change for the worse from their point of view: higher taxes, less Medicare, or possibly both. Any attempt to do more for other constituencies -- the unemployed, the young -- represents an extra, urgent threat to them.

That sense of threat radicalizes voters and donors -- and has built a huge reservoir of votes and money for politicians and activists who speak as radically as the donors and voters feel.

Update 2, 5/14: With only the flimsiest feint toward equivalence, Chuck Hagel, like Lugar a staunch conservative senator who worked with Obama on national security issues, joins the chorus:

"Reagan wouldn't identify with this party. There's a streak of intolerance in the Republican Party today that scares people. Intolerance is a very dangerous thing in a society because it always leads to a tragic ending," he said. "Ronald Reagan was never driven by ideology. He was a conservative but he was a practical conservative. He wanted limited government but he used government and he used it many times. And he would work with the other party"...

"Now the Republican Party is in the hands of the right, I would say the extreme right, more than ever before," said Hagel. "You've got a Republican Party that is having difficulty facing up to the fact that if you look at what happened during the first 8 years of the century, it was under Republican direction."

Former Republican Senator John Danforth is on the same page.

What poli-sci can't quantify

2012-05-14T11:02:00.002-04:00

When Eric Fehrnstrom came out with his indelible Etch-A-Sketch metaphor for the Romney campaign's intention to wipe the slate clean for the general election, I took issue with political scientist Brendan Nyhan's assertion that all such gaffes have "little electoral significance":

There are gaffes and gaffes, however. The evidence that they don't matter is often gathered from polls taken shortly before and after the incident in question, showing little difference -- e.g., in this John Sides post cited by Nyhan. Some campaign blowups sink deep, however, and some are gifts that keep giving for the opposition. When making phone calls for Obama in the fall campaign in '08, I spoke to several people whose opinion of Obama had seemingly been shaped by the Jeremiah Wright affair or by his "cling to guns and religion" riff. Perhaps their fears about him -- in some cases racist ones - -simply seized on those handy objects. But who's to say whether some such explosive objects-to-hand may not pack more charge than others? That anxieties about Obama's "black agenda," as one person characterized it to me, would not have been less intense if that particular fodder had not been furnished? And when a potent negative perception works its way over time into people's overall perception of the candidate, is it detectable in polling?

It seems to me that Fehrnstrom has put a weapon with staying power in the hands of Romney's opponents, chiefly Obama. Any time an antagonist wants to call attention either to a new tack-to-the-center policy shift or an old one, he or she can figuratively shake an Etch-A-Sketch

Well, the Obama campaign at least takes this view -- at the highest levels. Obama's May 10 interview with Robin Roberts (famous for other reasons) included this exchange:

ROBIN ROBERTS: Let's-- let's talk a little bit about that. Because Mitt Romney just recently said that he deserves the credit for the revival of the U.S. auto industry. In fact, he says a lot of credit goes to him. How do you respond to that?

PRESIDENT OBAMA: Well-- you know, I think this is one of his-- Etch-a-Sketch moments. I don't think anybody takes that seriously.

This proves nothing, of course. A convenient rhetorical handle can't be measured against substitutes (which Jonathan Bernstein suggests would be just as effective), and its effect on voters' final decisions can't be measured at all, especially if it's used for six months.

But really, you should watch Obama smile when he says it.

The Great Risk Shift, updated

2012-05-13T12:54:00.000-04:00

The Times' front page story today about the enormous growth in student loan debt loads is long on personal narrative, but also tells a succinct story in numbers:

From 2001 to 2011, state and local financing per student declined by 24 percent nationally. Over the same period, tuition and fees at state schools increased 72 percent, compared with 29 percent for nonprofit private institutions, according to the College Board. Many of the cuts were the result of a sluggish economy that reduced tax revenue, but the sharp drop in per-student spending also reflects a change: an increasing number of lawmakers voted to transfer more of the financial burden of college from taxpayers to students and their families. (Local funding is a small percentage of the total, and mostly goes to community colleges.)

“To say that tuition goes up because the state doesn’t pay enough money, well, that is the taxpayers’ money,” said Ohio’s governor, John Kasich, a Republican elected in 2010 whose budget included cuts to higher education because of the end of federal stimulus money.

Sound familiar? That's the GOP response to rising healthcare costs, too: shift ever more of the burden onto individuals. Kasich, need we note, has signed a no new taxes pledge, as have 24 Ohio legislators. The Great Risk Shift documented by Jacob Hacker all those years ago (2006) continues apace.

It's true that the financing challenges faced by state governments are complex. In Ohio, universities have lost revenue share over a generation to prisons, but also to Medicaid and primary education. Failure to get medical costs under control (though Medicaid controls such costs more efficiently than the private sector or Medicare) and to find effective means of education reform weigh on state budgets. There's also doubtless a good deal of truth in Kasich and allies' claims of inefficiency in the state university system:

They suggest, for example, that state schools are bloated, antiquated and don’t do a good enough job graduating students or training them for the work force. Some complain about the salaries of football coaches and college presidents, like Mr. Gee, who has a compensation package of $2 million a year as president of Ohio State. Mr. Kasich questions why all state universities need to offer every major, like journalism or engineering, instead of parceling those programs among the schools.

“It’s not just inefficiencies,” said the governor, an Ohio State graduate. “It’s, ‘I want to be the best in this.’ It’s duplication of resources. It’s a sweeping change that is needed across academia.”

But it's also true that the U.S. continues to eat its seed corn while the GOP pushes anti-tax orthodoxy to ever more insane heights. Our collective will, as expressed or distorted by our current political system, starves government at all levels of the resources necessary to maintain an advanced economy.

A growing chorus indicts GOP intransigence

2012-05-12T09:35:00.005-04:00

Sometimes the charge is leavened with a little bit of obligatory false equivalence -- or alternately, tinctured with partisan outrage. But left, right and center, in this election season of taking stock, a number of seasoned observers are stepping back for a global view of the hyperpartisanship and bad-faith obstructionism that Gingrich brought to Washington and that has become the Republican m.o.

One strong screed of this sort is Thomas Mann and Norman Ornstein's 4/27 Washington Post op-ed Let's just say it: the Republicans are the problem, a foretaste of a book they've just published on "the problem." [Update: David Frum writes of Mann and Ornstein: "Both men have hard-earned reputations for nonideological independence" - link at bottom.] Their brief:

Today, thanks to the GOP, compromise has gone out the window in Washington. In the first two years of the Obama administration, nearly every presidential initiative met with vehement, rancorous and unanimous Republican opposition in the House and the Senate, followed by efforts to delegitimize the results and repeal the policies. The filibuster, once relegated to a handful of major national issues in a given Congress, became a routine weapon of obstruction, applied even to widely supported bills or presidential nominations. And Republicans in the Senate have abused the confirmation process to block any and every nominee to posts such as the head of the Consumer Financial Protection Bureau, solely to keep laws that were legitimately enacted from being implemented.

In the third and now fourth years of the Obama presidency, divided government has produced something closer to complete gridlock than we have ever seen in our time in Washington, with partisan divides even leading last year to America’s first credit downgrade.

On financial stabilization and economic recovery, on deficits and debt, on climate change and health-care reform, Republicans have been the force behind the widening ideological gaps and the strategic use of partisanship. In the presidential campaign and in Congress, GOP leaders have embraced fanciful policies on taxes and spending, kowtowing to their party’s most strident voices.

Republicans often dismiss nonpartisan analyses of the nature of problems and the impact of policies when those assessments don’t fit their ideology. In the face of the deepest economic downturn since the Great Depression, the party’s leaders and their outside acolytes insisted on obeisance to a supply-side view of economic growth — thus fulfilling Norquist’s pledge — while ignoring contrary considerations.

I don't remember a time when so many topics have become politically unmentionable in one party or the other. Republicans cannot admit to any nuance in policy on climate change. Republican members are now expected to take pledges against any tax increases. For two consecutive Presidential nomination cycles, GOP candidates competed with one another to express the most strident anti-immigration view, even at the risk of alienating a huge voting bloc. Similarly, most Democrats are constrained when talking about such issues as entitlement cuts, tort reform, and trade agreements. Our political system is losing its ability to even explore alternatives. If fealty to these pledges continues to expand, legislators may pledge their way into irrelevance. Voters will be electing a slate of inflexible positions rather than a leader.

Partisans at both ends of the political spectrum are dominating the political debate in our country. And partisan groups, including outside groups that spent millions against me in this race, are determined to see that this continues. They have worked to make it as difficult as possible for a legislator of either party to hold independent views or engage in constructive compromise. If that attitude prevails in American politics, our government will remain mired in the dysfunction we have witnessed during the last several years. And I believe that if this attitude expands in the Republican Party, we will be relegated to minority status. Parties don't succeed for long if they stop appealing to voters who may disagree with them on some issues.

Republicans when I got to Washington at the start of 1993 decided that they were going to adopt the Gingridge [sic] strategy: oppose everything the Democratic president proposes, especially if it had previously been a Republican proposal and priority. That is not a strategy that would ever be adopted by anybody who wants to see their name written in the Book of Life.

But Gingrich found followers. Bob Dole decided he would rather join Gingrich to try to portray Clinton as a failure. So Bob Dole never got a legislative accomplishment out of his years in Congress. Instead, he got to lose a presidential election. … As my friend Mark Schmitt wrote in his review of Geoffrey Kabaservice’s book about the moderate Republicans, Rule and Ruin, the moderate Republicans were partisan Republicans first and Americans second.

..and then brings the indictment up to the present:

Then came Obama in 2009 and 2010. My friends–Christina Romer, Lawrence Summers, Peter Orszag, and company–headed off to Washington to plan a Recovery Act that they thought would get 25 Republican votes in the Senate. It was a squarely bipartisan fiscal stimulus: this tax cut to make the Republicans stand up and applaud, this infrastructure increase to make the Democrats applaud, this increase in aid to the states to make the governors and state legislators applaud. It didn’t get 25 Republican votes in the Senate. It got 3.

On healthcare reform, Barrack Obama’s opening bid was the highly-Republican Heritage Foundation plan, the plan that George Romney had chosen for Massachusetts. RomneyCare got zero republican votes.

On budget balance Obama’s proposals have not been the one-to-one equal amounts of tax increases and spending cuts to balance the budget of Clinton 1993 or Bush 1990. Obama’s proposals have been more along the lines of $1 of tax increases for every $5 of spending cuts. And the Republicans rejected them.

There are of course larger forces at work, as Mann and Ornstein acknowledge -- most notably the polarization that followed the Democrats' embrace of civil rights legislation, which drained most southern conservatives out of the Democratic coalition, creating incentives for Republicans to identify more wholly with the conservative brand and eventually purge their moderates. And most Republicans would doubtless argue that this narrative is a partisan Democratic one; when (usually retired or ousted) Republicans join the chorus, they usually add a Lugaresque both-sides-do-it fillip. Democrats, meanwhile, are getting increasingly confident in pressing the prosecution. Exhibit A is Obama, who last September "evolved" from attacking obstruction by "Congress" to attacking obstruction by Republicans in Congress, and who also has been quite specific in detailing points on which he was willing to compromise (spending cuts, including to Medicare and Medicaid) and those on which Republicans would not budge (taxes, taxes, taxes).

Update 5/14: Former Bush speechwriter and voice in the conservative wilderness David Frum validates Mann and Ornstein's indictment, adding a compelling contributory cause of GOP extremism:

In good times, we debate whether government should expand programs or cut taxes -- new benefits in either case.

In these times, we are debating whether government should impose large reductions in programs or impose big increases in taxes -- taking from people benefits that they now enjoy.

Human beings will typically fight much more ferociously to keep what they possess than to gain something new. And the constituencies that vote Republican happen to possess the most and thus to be exposed to the worst risks of loss.

The Republican voting base includes not only the wealthy with the most to fear from tax increases, but also the elderly and the rural, the two constituencies that benefit the most from federal spending and thus have the most to lose from spending cuts.

All those constituencies together fear that almost any conceivable change will be change for the worse from their point of view: higher taxes, less Medicare, or possibly both. Any attempt to do more for other constituencies -- the unemployed, the young -- represents an extra, urgent threat to them.

That sense of threat radicalizes voters and donors -- and has built a huge reservoir of votes and money for politicians and activists who speak as radically as the donors and voters feel.

Update 2, 5/14: With only the flimsiest feint toward equivalence, Chuck Hagel, like Lugar a staunch conservative senator who worked with Obama on national security issues, joins the chorus:

"Reagan wouldn't identify with this party. There's a streak of intolerance in the Republican Party today that scares people. Intolerance is a very dangerous thing in a society because it always leads to a tragic ending," he said. "Ronald Reagan was never driven by ideology. He was a conservative but he was a practical conservative. He wanted limited government but he used government and he used it many times. And he would work with the other party"...

"Now the Republican Party is in the hands of the right, I would say the extreme right, more than ever before," said Hagel. "You've got a Republican Party that is having difficulty facing up to the fact that if you look at what happened during the first 8 years of the century, it was under Republican direction."

Former Republican Senator John Danforth is on the same page.

Late update, 5/28: In the original post, I could not remember the name of the longtime Republican congressional staffer who wrote the mother of all indictments of GOP craziness (with an obligatory-for-Republicans "both parties are rotten" fillip). He is Mike Lofgren, whom James Fallows commends to us as "a familiar and highly esteemed figure...[who]spent 28 years as a Congressional staffer, mainly on budget matters, mainly in the defense-and-security realm, and mainly for Republican legislators." Lofgren does not stint to compare the current Congressional dysfunction to that in the Reichstag prior to the advent of Hitler:

It should have been evident to clear-eyed observers that the Republican Party is becoming less and less like a traditional political party in a representative democracy and becoming more like an apocalyptic cult, or one of the intensely ideological authoritarian parties of 20th century Europe. This trend has several implications, none of them pleasant.

In his "Manual of Parliamentary Practice," Thomas Jefferson wrote that it is less important that every rule and custom of a legislature be absolutely justifiable in a theoretical sense, than that they should be generally acknowledged and honored by all parties. These include unwritten rules, customs and courtesies that lubricate the legislative machinery and keep governance a relatively civilized procedure. The US Senate has more complex procedural rules than any other legislative body in the world; many of these rules are contradictory, and on any given day, the Senate parliamentarian may issue a ruling that contradicts earlier rulings on analogous cases.

The only thing that can keep the Senate functioning is collegiality and good faith. During periods of political consensus, for instance, the World War II and early post-war eras, the Senate was a "high functioning" institution: filibusters were rare and the body was legislatively productive. Now, one can no more picture the current Senate producing the original Medicare Act than the old Supreme Soviet having legislated the Bill of Rights.

Far from being a rarity, virtually every bill, every nominee for Senate confirmation and every routine procedural motion is now subject to a Republican filibuster. Under the circumstances, it is no wonder that Washington is gridlocked: legislating has now become war minus the shooting, something one could have observed 80 years ago in the Reichstag of the Weimar Republic. As Hannah Arendt observed, a disciplined minority of totalitarians can use the instruments of democratic government to undermine democracy itself.

Whew. Such comparisons often occur to me -- I think of a novelistic representation I read of Japan in the thirties, when extremists were assassinating public officials and judges -- but I repress them as exaggerated and a little hysterical. But then, Lofgren worked with had a rinkside seat. Or Reichstag-side.

P.S. How I found Lofgren, whom I googled in vain, having forgotten his name: Jonathan Bernstein has a fresh post with a similar tally of defectors, prompted by the latest, Michael Fumento, a self-proclaimed prophet who was knocked out by the Heartland billboards associating climate change believers with notorious monsters. Might as well keep the tally toted up.

Citizens United* has changed...me

2012-05-11T10:00:00.004-04:00

I was a little shocked when I caught my own train of thought after reading this:

A high school classmate of presidential candidate Mitt Romney told ABC News today that he considers a particular prank the two pulled at Michigan’s Cranbrook School to be “assault and battery” and that he witnessed Romney hold the scissors to cut the hair of a student who was being physically pinned to the ground by several others.

“It’s a haunting memory. I think it was for everybody that spoke up about it… because when you see somebody who is simply different taken down that way and is terrified and you see that look in their eye you never forget it. And that was what we all walked away with,” said Phillip Maxwell, who is now an attorney and still considers Romney an old friend....

“When I saw the look on his (Lauber’s) face, it was a look I’ll never forget,” said Maxwell. “When you see a victim, the sense of trust betrayed in this boy who was perfectly innocent for being different.”

“This was bullying supreme,” he said.

My thought was: this is what you need a Super Pac for. Obama could never get up on screen and announce "I'm Barack Obama and I approved this message" after some sleazy secretive voice drools, "When Mitt Romney was in prep school...." But someone should do it, because you can bet the contents of your own conscience that Karl "McCain-had-a-black-baby" Rove will throw whatever shit the GOP can dredge up -- or rather, make up -- at Obama.

Perhaps, if there were sufficient bucks on the Dem Pac side, the rival campaigns could impose some kind of Geneva Convention on their surrogates. In the absence of such a pact, it will be the purest insanity if the Democrats unilaterally disarm.

* and the DC Court of Appeals decision governed by Citizens United, SpeechNow.org v. Federal Election Commission, which made Super Pacs "possible and legal," as plaintiff Ed Crane boasted.

Portrait of the candidate as a cruel child

2012-05-10T17:06:00.001-04:00

In honor of deep-dive candidate bio day:

There was one other child in my class, though, who reminded me of a different sort of pain. Her name was Coretta, and before my arrival she had been the only black person in our grade. She was plump and dark and didn't seem to have many friends. From the first day, we avoided each other but watched from a distance, as if direct contact would only remind us more keenly of our isolation.

Finally, during recess one hot, cloudless day, we found ourselves occupying the same corner of the playground. I don't remember what we said to each other, but I remember that suddenly she was chasing me around the jungle gyms and swings. She was laughing brightly, and I teased her and dodged this way and that, until she finally caught me and we fell to the ground breathless. When I looked up, I saw a group of children, faceless before the glare of the sun, pointing down at us.

"Coretta has a boyfriend! Coretta has a boyfriend!"

The chants grew louder as a few more kids circled us.

"She's not my g-girlfriend," I stammered. I looked to Coretta for some assistance, but she just stood there looking down at the ground. "Coretta's got a boyfriend! Why don't you kiss her, mister boyfriend?

"I'm not her boyfriend!" I shouted. I ran up to Coretta and gave her a slight shove; she staggered back and looked up at me, but still said nothing. "Leave me alone!" I shouted again. And suddenly Coretta was running, faster and faster, until she disappeared from sight. Appreciative laughs rose around me. Then the bell rang, and the teachers appeared to round us back into class.

For the rest of the afternoon, I was haunted by the look on Coretta's face just before she had started to run: her disappointment, and the accusation. I wanted to explain to her somehow that it had been nothing personal; I'd just never had a girlfriend before and saw no particular need to have one now. But I didn't even know if that was true. I knew only that it was too late for explanations, that somehow I'd been tested and found wanting; and whenever I snuck a glance at Coretta's desk, I would see her with her head bent over her work, appearing as if nothing had happened, pulled into herself and asking no favors.

Dreams from My Father (pp 60-61).

Not exactly a campaign bio, is it? There is no happy resolution, no purging of the remorse expressed. Obama was ten at this time.

Most children (my dearworthy wife excepted) are cruel at some point. Most of us, I suspect, remember some incidents with remorse. That is what struck me when I read the well-documented tale in yesterday's Washington Post of Mitt Romney's sometimes cruel prep school pranks -- including, most notably, his raising of a posse to pin down a boy widely recognized as homosexual while Romney cut off a shock of his signature bleached-blond hair. The Post corroborated the story with five classmates, four of whom spoke on the record, and three of whose recollections were noteworthy for the remorse expressed:

“It happened very quickly, and to this day it troubles me,” said Buford, the school’s wrestling champion, who said he joined Romney in restraining Lauber. Buford subsequently apologized to Lauber, who was “terrified,” he said. “What a senseless, stupid, idiotic thing to do.”

“It was a hack job,” recalled Maxwell, a childhood friend of Romney who was in the dorm room when the incident occurred. “It was vicious.”

“He was just easy pickins,” said Friedemann, then the student prefect, or student authority leader of Stevens Hall, expressing remorse about his failure to stop it...

Friedemann, guilt ridden, made a point of not talking about it with his friend and waited to see what form of discipline would befall Romney at the famously strict institution. Nothing happened.

Romney claims not to remember the incident, though today he offered a generic apology:

“Back in high school, I did some dumb things, and if anybody was hurt by that or offended, obviously I apologize for that...I participated in a lot of hijinks and pranks during high school, and some might have gone too far, and for that I apologize.”

Imagine, for a moment, a candidate who could say, "to this day it troubles me...what a senseless, stupid, idiotic thing to do." Perhaps no candidate could risk that -- at least, not less than twelve years before running for president (Dreams from My Father was published in 1995).

But his current reaction, more than the event itself, captures what bothers me about Romney as a candidate, besides the extremist policy commitments he's made. He won't own up to anything; he won't take a stand when the situation calls for it; and he has no compunction about lying from sunrise to sunset.

If Romney has a domineering side, The Real Romney musters good evidence that in private life he can also be quite caring, generous with his time and money, ready to engage in the problems encountered by neighbors, friends and Mormon church members. I would not find it difficult to believe that later life ironed out of him the exuberant preppy cruelty captured by the Post article. It's in his constant lying about Obama and clinically cynical policy shifts that I read a ruthlessness, a willingness to make roadkill of anyone or anything (Medicaid, Planned Parenthood) who gets between him and his goal.

Ambition is a necessary condition of major political success, as Jonathan Bernstein likes to remind us. But ambition unconstrained by other commitments is dangerous. And whatever the political scientists would have us believe, we all have to make a judgment about whether any given candidate puts the public interest first.

Misrepresentation of the mandate in the Supreme Court: why it still matters

2012-05-10T11:59:00.008-04:00

I have made the case below piecemeal, across many posts. This is an attempt to make it as succinctly and completely as possible.
---
In his oral argument against the constitutionality of the ACA's individual mandate on March 27, plaintiff's counsel Michael Carvin asserted, "Congress prohibits anyone over 30 from buying any kind of catastrophic health insurance" (p. 105).

That is not true -- the ACA provides the catastrophic coverage option for others exempt from the mandate, e.g. on grounds of financial hardship. And that factual error signals a greater distortion, one that was not countered and apparently made a major impression on Justices Alito, Roberts and Scalia: that the mandate forces Americans to buy coverage greatly in excess of what's required to offset the cost of catastrophic care for those lacking health insurance. No one pointed out that a) the ACA provides a catastrophic coverage option for those under 30; b) that it extends that option to others exempt from the mandate on financial or other grounds; or c) that the bronze plans offered in the exchanges, as the Kaiser Family Foundation recently detailed, might also reasonably be labeled "catastrophic" coverage.

It seems to me that a) the justices were misled on this potentially crucial point, and b) Kennedy and/or another might still be convinced, if not to accept the mandate as constructed, to divide the baby by further limiting it -- as Marty Lederman suggested they might:

Moreover, even if Randy and Mike Carvin were correct, and the preventive care coverage could not be justified under my proposed, or any other, limited holding, that would only mean that the Court should declare invalid those subsections of section 18022(b) that go beyond coverage for catastrophic care and other services that are government-guaranteed. Such an excision would likely have, at most, only a marginal impact on the cost of insurance premiums, since it is of course catastrophic and longterm care--the services the state and federal governments guarantee--that account for the lion's share of uncompensated health care costs, and of the cost of health insurance (my emphasis).

When I first noted that Michael Carvin misrepresented the availability of catastrophic coverage in the ACA oral argument, a healthcare attorney* left a comment suggesting this course:

RatmanApril 12, 2012 7:58 PM
Supreme Court Rule 25, Paragraph 7 provides:

After a case has been argued or submitted, the Clerk will not file any brief, except that of a party filed by leave of the Court.

By implication, the Court will not object to a party filing a Request for Leave To File a Special Supplemental Brief. The request, within its own body, would state the urgent matter at hand and why that matter requires further briefing.

Here, the availability of catastrophic coverage under the ACA:

(a) emerged for the first time at oral argument;

(b) was not briefed to the Court by either party or any of the amici;

(c) appears to have been misapprehended by one or more members of the Court;

(d) was misstated to the Court during oral argument Court by counsel for one of the parties; and

(e) supports the position advanced by a different party.

In most courts, it would not be considered a breach of etiquette for the Request for Leave to file a brief to include, as an appendix, the brief itself. In this case, an extremely short brief. I can almost imagine it being done in a sentence or two, although the brief with all the required formalities might run to ten pages or so.

Attaching the brief itself, however, would hardly be necessary. Recitation of the five bullet points (a)-(e) alone in the Request for Leave would likely put the focus of at least one clerk in at least one Justice's chambers exactly where it needs to be.

One way or another, It seems to me worthwhile to try to reach Justice Kennedy and/or one of his colleagues with a two-track argument: 1) the mandate is properly 'minimized'; Congress exercised what you might call a self-limiting principle; and 2) if you don't think it is sufficiently minimized, limit it further without killing it.

In purely legal terms, the extent of coverage "mandated" by the ACA's minimum coverage provision may seem a sidelight. The 3/27 oral argument, however, centered largely on a morality tale spun by the plaintiffs. In this tale, the main characters were hoards of healthy young adults being forced to buy more coverage than they need in order to subsidize the coverage of older adults. The key verbs, deployed relentlessly in the plaintiffs' briefs and testimony, were force, conscript, compel, and commandeer. Free, strong, savvy young Americans were being robbed of their ability to assess risk, drive bargains, and buy precisely the amount of risk transfer that their robust condition required. The ACA is structured "to compel the uninsured into engaging in economic activity that is harmful for them" (Carvin brief, p. 1). Several of the justices appear to have swallowed it hook line and sinker. Alito, Roberts and Scalia buzz-sawed Solicitor General Donald Verrilli with serial restatements of it.

Countering these myths, an amicus brief filed by a coalition of youth organizations calling themselves the Young Invincibles is especially germane. Citing a range of reliable sources, the brief documents that young people overwhelmingly want health insurance; that they are disproportionately uninsured and underinsured; that their lack of health insurance causes them bodily and and economic harm; and that the ACA makes insurance affordable, not unaffordable or unduly expensive, for them. I've posted a precis of the key points here.

If the minimum coverage provision in the ACA is self-limiting in the extent of the burden it imposes on individuals, it is also self-limiting in the mandate imposed on the states. In his reply brief on the mandate question, Solicitor General Verrilli points out that a) no one (including the plaintiffs) questions states' right to impose an individual mandate; b) the "authority of the federal government over interstate commerce does not differ in extent or character from that retained by the states over intrastate commerce"; and c) the states can in any case "opt out of the minimum coverage provision if they establish an alternative means of affordably providing comprehensive coverage to a comparable number of residents" (as of 2017, but Obama has proposed moving the waiver up to 2014). More on that argument here.

Further reading

External links
Patient cost-sharing under the Affordable Care Act (Kaiser Family Foundation. 4/27)
Will the justices make a catastrophic error? (Jonathan Cohn, 4/19)
Policy ignorance at the Supreme Court (Steve Benen, Maddow blog, 4/16)
Supreme Court misunderstanding on health overhaul? (AP's Ricardo Alonso-Salvidar, 4/10)
The bounded, minimalist way to uphold the ACA (Marty Lederman at Balkinization, 4/2)
Ragbatz on the catastrophic coverage options in the ACA - a healthcare attorney picks up the plaintiff's con in real time ( 3/28)

xpostfactoid on catastrophic coverage

Attention, Justices Kennedy, Roberts et al: Read the young people's brief (5/5)

A pleas for one more pleading (4/29)

On the mandate more broadly
The individual mandate is a piece of Cake (4/25)
Verrilli's limiting principles (4/24)
If only Verrilli had said (A, B, C) (3/31)
Verrilli, slapped silly, recovers willy-nilly (3/28)

* The commenter cited is co-author of the Ragbatz tumblr, which has a 3/28 post highlighting the catastrophic nature of the bronze plans.

Lugar's noble sign-off, leavened with false equivalence

2012-05-09T12:27:00.000-04:00

Richard Lugar's statement issued last night in the wake of his primary loss to Tea Party candidate Richard Mourdock will be rightly celebrated as warning and diagnosis about the dangers of extreme partisanship. At the same time, in perhaps inevitable loyalty to his own side, Lugar raises false equivalence to a high art:

Unfortunately, we have an increasing number of legislators in both parties who have adopted an unrelenting partisan viewpoint. This shows up in countless vote studies that find diminishing intersections between Democrat and Republican positions. Partisans at both ends of the political spectrum are dominating the political debate in our country. And partisan groups, including outside groups that spent millions against me in this race, are determined to see that this continues. They have worked to make it as difficult as possible for a legislator of either party to hold independent views or engage in constructive compromise. If that attitude prevails in American politics, our government will remain mired in the dysfunction we have witnessed during the last several years. And I believe that if this attitude expands in the Republican Party, we will be relegated to minority status. Parties don't succeed for long if they stop appealing to voters who may disagree with them on some issues... I don't remember a time when so many topics have become politically unmentionable in one party or the other. Republicans cannot admit to any nuance in policy on climate change. Republican members are now expected to take pledges against any tax increases. For two consecutive Presidential nomination cycles, GOP candidates competed with one another to express the most strident anti-immigration view, even at the risk of alienating a huge voting bloc. Similarly, most Democrats are constrained when talking about such issues as entitlement cuts, tort reform, and trade agreements. Our political system is losing its ability to even explore alternatives. If fealty to these pledges continues to expand, legislators may pledge their way into irrelevance. Voters will be electing a slate of inflexible positions rather than a leader.

Obama, with buy-in from his party's House and Senate leadership, put major Medicare cuts on the table, signaled very clearly he would trade some measure of tort reform but minimal Republican buy-in to the ACA, and signed three trade agreements.. Not finding common ground with opponents who won't compromise is not the same as not being willing to compromise.

Despite the gesture toward equivalence, the thrust of Lugar's critique is against his own party's intransigence -- as it had to be, since it was unabashed far-right extremism that defeated him:

If Mr. Mourdock is elected, I want him to be a good Senator. But that will require him to revise his stated goal of bringing more partisanship to Washington. He and I share many positions, but his embrace of an unrelenting partisan mindset is irreconcilable with my philosophy of governance and my experience of what brings results for Hoosiers in the Senate. In effect, what he has promised in this campaign is reflexive votes for a rejectionist orthodoxy and rigid opposition to the actions and proposals of the other party. His answer to the inevitable roadblocks he will encounter in Congress is merely to campaign for more Republicans who embrace the same partisan outlook. He has pledged his support to groups whose prime mission is to cleanse the Republican party of those who stray from orthodoxy as they see it.

This is not conducive to problem solving and governance. And he will find that unless he modifies his approach, he will achieve little as a legislator. Worse, he will help delay solutions that are totally beyond the capacity of partisan majorities to achieve. The most consequential of these is stabilizing and reversing the Federal debt in an era when millions of baby boomers are retiring. There is little likelihood that either party will be able to impose their favored budget solutions on the other without some degree of compromise.

I am sorry to see Lugar go. His courage in helping to drive the New Start treaty past Jon Kyl's bad-faith stonewall was something to behold. I imagine that Obama, if he gains a second term, won't even be able think about negotiating a treaty of any sort. And the mind reels at the prospect of his next Supreme Court appointment.