Inappropriate and Uninformed Attacks on the Court

I support universal health care - I just want to make that clear. I understand and sympathize with the reasoning behind the health care reform law's individual mandate as well. The health care reform law precludes insurance companies from denying coverage to folks with pre-existing conditions. This means that many folks, needing costly medical care, will now come into the insurance market. Unless the cost of providing care to those sick folks can be offset by the premiums collected from healthy folks insurance premiums will skyrocket and more healthy people will opt to drop coverage - until they are sick. An individual mandate solves that problem.

But.... I happen to believe the individual mandate is unconstitutional. I certainly believe that it falls well outside Congress' "commerce clause" power. Though many legal commentators dismissed any suggestion that the mandate was unconstitutional that conventional wisdom was turned on its head last week when several justices on the Supreme Court asked very pointed questions about the constitutionality of the law. Indeed many court observers subsequently concluded that the individual mandate was likely to be overturned.

Now, proponents of the law have decided to start attacking the Supreme Court for daring to question an act of Congress, for behaving like a legislative body. Even President Obama broke his (very short period of) silence on the matter and warned the court to not overturn a law passed by a democratically elected legislature - Obama said to do so would surely be judicial activism.  Legal analyst Jeffrey Toobin wrote "Acts of Congress, like the health-care law, are presumed to be constitutional, and it is—or should be—a grave and unusual step for unelected, unaccountable, life-tenured judges to overrule the work of the democratically elected branches of government."

These attacks on the court are as unjustified as was the confidence in the constitutionality of the mandate. It is quite correct that the Supreme Court has recognized tremendous authority within the commerce clause. The commerce clause allows for a federal minimum wage, it empowers Congress to limit crop yields for personal use, to protect our air and water, and to prohibit discrimination by private businesses. But what the Supreme Court has never recognized is a Congressional power under the commerce clause to compel a citizen to first engage in commerce and then regulate it. The individual mandate requires citizens to purchase a private product - health insurance - from a private company - an insurer. This is quite unprecedented. Under the 10th amendment such a power would be considered as reserved to the states like most health and welfare powers such as education. The Supreme Court has frequently expressed limits on Congress' commerce clause power. In US v. Morrison, NLRB v. Jones & Laughlin Steel Corp., and US v. Lopez (you look them up!) the court struck down attempts to expand the scope of the commerce clause and specifically referenced traditional state powers.

Had Congress simply imposed a new tax to fund health care subsidies and then granted a tax credit to anyone who show proof of health insurance there is no doubt it would have been a constitutional exercise of the power to tax. Had Congress made Medicare universal it would have been constitutional - as it would be a government provided service. The government collects taxes and provides Social Security - that's constitutional. But the government cannot compel us to purchase stocks or bonds or to start a 401k. There is a line between providing a service and compelling an action. The individual mandate crosses that line.

I offer my opinion not as a casual observer but as someone who wroked in healthpolicy for a decade and as a professor who regularly teaches commerce clause precedent in several classes. I'm well aware of the arguments in favor of the court upholding the mandate and I am well aware of the arguments for overturning the mandate - I find the arguments against the constitutionality of the mandate to be the more sound.

All this is to say no one should have believed the mandate would be a constitutional slam dunk.

Now that it's in question no one should be attacking the court for questioning the law. With all due respect to President Obama, Jeffrey Toobin, E.J. Dionne and the others aghast at the court I will defer to Alexander Hamilton in Federalist 78:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority... Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void.

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm... that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

In other words it is up to the courts, and not Congress, to decide whether an act of Congress falls within the powers afforded under the Constitution. The fact that Congress was elected and the justices were not is a meaningless point. The courts exist as an unelected body precisely because those subject to election may at times be driven to enact unconstitutional laws in response to electoral pressures - or to create electoral pressures.

If the Supreme Court were to strike down the individual mandate it would be no more unprecedented or outrageous than when the courts over-ruled democratically elected legislatures with regard to white primaries, school segregation, inter-racial marriage, the right to privacy, or the line-item veto.

Rather it would be the courts acting as they were intended to act - as the final arbiter of the meaning of the constitution and all laws made under its delegation of power. I'm used to making this argument in response to conservative attacks on the court... clearly are equally in need of this basic civics lesson.

Same Sex Marriage and "Judicial Activism"

On Wednesday, August 4 a federal judge voided California's ban on same sex marriage (proposition 8) declaring that it violated the due process and equal protection clauses of the U.S. Constitution. The issues tends to be a bit divisive and as one can imagine the reaction to the ruling has varied - but there is one narrative that I find especially troubling. On supported of Proposition 8 said this: "The whole nation is watching, and the whole nation should be quaking to think that a single judge sitting in California can reverse the will of 7 million voters."

This is a variation on a similar theme often raised after controversial judicial rulings - that judges should not act counter to the will of the voters or their elected representatives. I will defer to the judgement of Alexander Hamilton on such matters. In Federalist 78, Hamilton addressed this very subject:

Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

Hamilton's point is clear - no act of law, whether approved by voters or representatives may violate the Constitution.

So who should determine what the Constitution means? The people? Their representatives? Again, Hamilton provides the answer:

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.

Interpretation of the law and of the Constitution is the sole responsibility of  the judiciary and if a law is found to violate the Constitution it does not matter if it was approved by 7 or 7 million voters - it is void. The same applies to any legislation enacted by the House and Senate and signed by a president.

Soon, the Supreme Court will likely be asked to consider whether the individual mandate included as part of comprehensive health reform violates the Constitution. The decision by the court to void the mandate would be significant as the health reform law did not include a severability clause - meaning that a decision to invalidate the mandate would likely invalidate the entire bill.

I will not presuppose what the court will decide - but I remain confident that the judges will do just what the are supposed to do - interpret the Constitution and uphold its will above all else.

Looking to Government in an Era of Incompetence

Peggy Noonan's latest column actually taps into something much larger than the BP spill - she speaks to the defining narrative of our current political era. American politics realigned in the 1960s and 1970s, we entered a period of declining trust in government and an ever growing sense that government was in fact incompetent. Our traditional attachment to mass-based political parties fell away and we began an era where neither party had a strategic advantage. It's not just a period of divided government, we've experienced that in the past (think of the balance between the Whigs and Democrats in the mid 1800s), and it was a vibrant policy era. The difference now is that neither party has a substantial base of support. Rather more than one-third of the electorate operate as non-partisan free-agents. So each party seeks immediate strategic advantage, but neither can undertake substantial policy reforms as they lack mass-based support. We entered an era that political scientist Walter Dean Burnham defines as the "politics of collision, coalition, and the permanent campaign." This has created a system of government incapable of addressing the significant challenges before us - which then reinforces the notion of incompetence.

Democrats, as the pro-statist party, are more harmed by this crisis of confidence than are Republicans. In "Why Trust Matters" Marc Hetherington makes a compelling case that American liberalism cannot recover barring a resurgence of trust and confidence in government. But since the 1960s every crisis, except 9/11, has served to further erode public confidence.

Noonan rightly points to hurricane Katrina to illustrate this point:

Katrina did at least two big things politically. The first was draw together everything people didn't like about the Bush administration, everything it didn't like about two wars and high spending and illegal immigration, and brought those strands into a heavy knot that just sat there, soggily, and came to symbolize Bushism. The second was illustrate that even though the federal government in our time has continually taken on new missions and responsibilities, the more it took on, the less it seemed capable of performing even its most essential jobs.

This is the problem for President Obama and for his supporters - conservatives have long believed that the government was ineffective, but liberals tended to believe that federal failures resulted more from a lack of competent leadership. The failure of financial regulation and the failed response to Katrina were emblematic of the incompetence of George W. Bush or the anti-government philosophy of Ronald Reagan - but certainly not the result of ineffective government.

Enter Obama:

His philosophy is that it is appropriate for the federal government to occupy a more burly, significant and powerful place in America—confronting its problems of need, injustice, inequality.

This is the real challenge for Democrats, the Left, and all advocates of active government - if government fails even when led by seemingly competent adherents to its promise and potential then who is at fault? The response from the Right will be that this simply provides additional evidence that government cannot solve society's problems. The likely response from the Left will be a call for an ever more powerful government (read E.J. Dionne's latest) - if only there was more oversight, more regulation - the crisis could have been avoided.

In the current era, the Right will win that message war with the Left - as Noonan observes:

But in a way, and inevitably, this is always boiled down to a promise: "Trust us here in Washington, we will prove worthy of your trust." Then the oil spill came and government could not do the job, could not meet need, in fact seemed faraway and incapable: "We pay so much for the government and it can't cap an undersea oil well!"

The Right will win in the short term, but in the long run we all suffer from this crisis of confidence in government. The current era has produced incompetent and ineffective government. Burnham argues that at some point a crisis will occur that will demand a reenergized governmental system.  Thus far, however, crises have served to reinforce the dominant narrative of ineffective governance. The Obama Administration's "handling" of the BP disaster offering the latest example.

An excellent piece from Michael Gerson in today's Washington Post on the public's reaction to health reform serves as a further illustration of the troubles that await the Democrats. The fundamental miscalculation made by President Obama and Congressional Democrats was that the recent crises would make the public more open to government intervention - but in fact the public sees the government as being complicit in the crises.

One and a half years after a financial meltdown that some supposed would be a crisis for capitalism itself, 58 percent of Americans agree that "the government has gone too far in regulating business and interfering with the free enterprise system."

The reaction from political elites has all too often been to dismiss the public as simply being uninformed - the real danger for Democrats is that the public is informed and is simply rejecting their policies.

Why Process Matters

Update: Realizing that it was undermining the credibility of the vote, Democratic leaders in the House have announced that they will not use the "deeming" procedure to pass health reform. This means that no one can question the process by which the Senate bill becomes law (if it is passed). Though the changes being made via reconciliation still represent a violation of process, the decision to abandon deeming goes a long way toward respecting the process of lawmaking.

With all of the talk about "deeming," "self-executing rules," and reconciliation proponents of health care reform have dismissed everyone who engages in a discussion of "process" as being opposed to reform and trying to avoid a real discussion of "the issues." As a proud advocate of health reform I reject such accusations and further contend that my obsession with "process" is a direct result of my support for health reform. In short, health reform is too important to passed in any manner other than one which embraces a clean, open, and honest debate. That means no parlimentary tricks, no rule making sleight of hand - no action which could ultimately undermine reform.

As a professor of public policy my students are introduced early to what is called the Policy Process Model - a six stage description of the process through which policy is created: problems are defined, policies considered, implemented, evaluated, and changed (if need be).  The third step in the process is one that is all too often overlooked - Policy Legitimation. According to public policy scholars Michael Kraft and Scott Furlong:

"Legitimation as a step in the policy process is at once both simple and complex. It is simple when it merely means that a recognized authority considered and approved a policy proposal. A bill becomes a law at the national level if both houses of Congress approve it and the president signs it, but does that process necessarily imply that the measure was legitimated?"

That's the simple, School House Rock, process of legitimation - but the authors continue:

"The complex view is that legitimation requires more than a majority vote... Policy legitimacy... flows from several conditions..." such as "demonstrable public support... and a full and open airing of the issues and controversies."

Kraft and Furlong conclude that without a sense of legitimacy:

"Policies... face serious hurdles. They may well fail to command public support, affected interest groups may... challenge them in court, and their implementation could be adversely affected."

I dwell quite a bit on the issue of legitimation in my classes and cite the examples of the Nuclear Waste Policy Act of 1982 and the Medicare Catastrophic Coverage Act of 1988 to illustrate why the simple process of legitimation is insufficient. If the public doubts the legitimacy of a legislative act, if there is any reason to question the decision-making process, a legally enacted bill (even two very good pieces of legislation) can ultimately fail.

Health care reform is one of the most important issues of our time. Health care spending is bankrupting our nation, our citizens, and 45 million Americans lack even basic coverage. The legislation pending before the House of Representatives marks the most substantial social reform since the creation of Medicare and Medicaid in 1965 and is equally as import. But if Democrats opt to use parlimentary trickery to pass health reform they risk everything they hope to accomplish. Relying on reconciliation to bypass the Senate's filibuster rules and now talk of "deeming" the Senate bill to have passed in the House without a true up or down vote only serve to further undermine already abysmal public support for the legislation. Members of the public may rightly ask 'If this legislation is so good, why are all of the normal rules of process being cast aside?'.

Aside from the public's reaction the "deeming" process would put the entire legislation in question as it would certainly face a court challenge. As reported by Politico, Alan Morrison, a professor at the George Washington University Law School who has litigated similar issues before the Supreme Court warned “If I were advising somebody," on whether deem and pass would run into constitutional trouble, "I would say to them, ‘Don’t do it.’” Michael McConnell, a former federal judge on the U.S. Court of Appeals, argues that the use of deeming to pass the Senate bill and simultaneously pass the reconciliation bii likely violates Article 1, Section 7 of the Constitution. Said McConnell:

"Most of the time a self-executing rule is used to incorporate amendments into a pending bill without actual votes on the amendments, where the bill is then subject to a final vote by the House and Senate. That usage may be a dodge around House rules, but it does not violate the Constitution. I am not aware of any instance where a self-executing rule has been used to send one bill to the president for signature and another to the Senate for consideration by means of a single vote. Self-executing rules have also been used to increase the debt ceiling by virtue of adopting a budget resolution. That procedure is questionable, but because budget resolutions are not laws, this usage does not have the feature of using one vote to send a bill to the president and at the same time to send a different bill to the Senate."

So contrary to the claims that deeming and self-executing rules are common, or that they have been sanctioned by the courts, the simple fact is that they have not. So the use in this instance, a bill so substantial, represents poor judgement and certainly will raise questions of legitimacy.

House Majority Leader Steny Hoyer defended the use of the "deeming" approach by dismissing any need to worry about the rules of process. Said Hoyer, "We talk a lot about process in this town... 'So what?’ says the American public. What they’re interested in [is] ‘What result? What did you do for me and my family..." Congressman Hoyer is right and wrong - in most cases Americans do not care about process. In the past, the House of Representatives has used the deeming procedure on matters pertaining to House rules, it has been used to consider amendments to bills, there is a standing rule in the House to use deeming to raise the debt ceiling - but deeming has rarely been used to effect final passage of legislation. It has never been used to pass something as significant, and controversial, as comprehensive health reform. Americans do care about process - when they believe that it is being abused.

And the deeming approach is simply one more example of such abuse - it began with the decision to use reconciliation. The Constitution makes clear that the House and Senate must each approve a bill before it goes to the President. When they pass different versions of a bill they must reconcile those differences and if changes are made the new bill must be passed again by both chambers. The House and Senate passed different health reform bills last year, House and Senate negotiators were working on compromise legislation when Democrats lost their 60 seat filibuster-proof majority in the Senate following the special election to fill the late Ted Kennedy's seat in Massachusetts. Faced with the threat of a GOP filibuster in the Senate and a House that was unwilling to accept the legislation passed in the Senate, Democratic leaders decided that rather than abide by the rules of process they would instead have the House approve the Senate bill, but then use the budget reconciliation process to resolve key differences between the House and Senate bills. They essentialy decided to use reconciliation - a Senate budget process with limited debate that cannot be filibustered - to do an end run around the House/Senate conference process.

When party leaders discovered that many in the House were still unwilling to accept the Senate version they decided to explore the deeming process whereby House members would be asked only to vote on the House/Senate reconciliation fixes and if those fixes passed, the original Senate bill would be "deemed" to have passed.

If health reform passes as a result of the one-two punch of deeming in the House and reconciliation in the Senate there is little hope that it will ever be accepted as legitimate. It will face years of legal challenges and likely deeply entrenched public opposition. Worse, the manner in which the bill is being pushed may allow for errors or inconsistencies in the law that could weaken or undermine it in unanticipated ways. The normal process may cause delays and be fraught with obstacles, but it exists to protect the public and to promote sound legislation. In the end, Democrats will have turned the most important domestic policy issue of our time into a bill more toxic than the Nuclear Waste Act - and they will have only themselves to blame.

Democrats' March of Folley

Pat Caddell and Douglas Schoen offer a very frank warning to the current leadership of their party in the Washington Post:

"As pollsters to the past two Democratic presidents, Jimmy Carter and Bill Clinton, respectively, we feel compelled to challenge the myths that seem to be prevailing in the political discourse and to once again urge a change in course before it is too late. At stake is the kind of mainstream, common-sense Democratic Party that we believe is crucial to the success of the American enterprise.

Comprehensive health care has been lost. If it fails, as appears possible, Democrats will face the brunt of the electorate's reaction. If it passes, however, Democrats will face a far greater calamitous reaction at the polls. Wishing, praying or pretending will not change these outcomes.

Health care is no longer a debate about the merits of specific initiatives. Since the spectacle of Christmas dealmaking to ensure passage of the Senate bill, the issue, in voters' minds, has become less about health care than about the government and a political majority that will neither hear nor heed the will of the people.

Voters are hardly enthralled with the GOP, but the Democrats are pursuing policies that are out of step with the way ordinary Americans think and feel about politics and government. Barring some change of approach, they will be punished severely at the polls."

Only time will tell if President Obama, Speaker Pelosi, and Majority Leader Reid can break out of the Washington bubble long enough to see just how badly the have misjudged the meaning of the 2008 election. Voters wanted change - in that they wanted an end to the Bush administration - beyond that simple fact it is increasingly clear that there was no larger mandate.

Reconciliation is Not an Acceptable Approach for Passing Comprehensive Health Reform

According to multiple news reports President Obama and Congresional Democrats will seek to pass health reform via the reconciliation process - bypassing the possibility of a filibuster and thereby needing only 51 votes in the Senate. Many reform advocates have been urging the use of the reconciliation process and several experts on Congress have come forward to argue that reconciliation is an appropriate process for the creation of comprehensive new programs. According to the Center for Budget and Policy Priorities “Congress has employed reconciliation many times to make major policy shifts.”

These shifts in policy included the passage of the Personal Responsibility and Work Opportunity Act of 1996 (welfare reform), the Economic Growth and Tax Relief Act of 2001 (tax cuts), the Jobs and Growth Tax Relief Reconciliation Act of 2003 (more tax cuts), and the creation of several health programs such as the health portability changes contained in the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), and the creation of the State Children’s Health Insurance Program passed as part of the Balanced Budget Act of 1997. Indeed, each of those measures were enacted via the budget reconciliation process, but contrary to what the Center for Budget and Policy Priorities as well as Thomas Mann and Molly Reynolds of the Brookings Institution and Norman Ornstein of the American Enterprise Institute have explained, using reconciliation to enact health reform would NOT be consistent with past congressional practice.

I have argued many times in favor of enacting comprehensive health reform, including the need for a single payer system - but I cannot endorse the use of the reconciliation process and will explore prior uses of the procedure to argue that they do not, in fact, support the use of the process to enact comprehensive reform.

• The Consolidated Omnibus Budget Reconciliation Act of 1985 amended existing tax law to deny employers the ability to deduct health insurance costs unless it allowed employees and their immediate family members to maintain their coverage if for up to 18 months if they were to lose coverage. COBRA initially passed in the Senate in November on 1985 by a 93-6 margin. A subsequent vote on the conference report reconciling differences between the House and Senate passed with 78 votes, additional changes were then made to appease the House and the final bills was passed in the Senate with no recorded vote – meaning there was no serious opposition. So COBRA passed the Senate with a filibuster proof majority, reconcilation was a procedural not a strategic choice.
• The Personal Responsibility and Work Opportunity Act of 1996 amended the Social Security Act to end the entitlement to Aid to Families with Dependent Children and replace it with the non-entitlement program Temporary Assistance for Needy Families. PRWORA passed the Senate 74-24 and a subsequent conference report passed 78-21. So like COBRA, PRWORA passed via reconciliation, but not in an effort to bypass negotiation and compromise.
• The Balanced Budget Act of 1997 and the creation of the State Children’s Health Insurance Program (SCHIP) represented the culmination of true bipartisan negotiations in the Senate. SCHIP, a program to provide grants to states to provide health care to children with family incomes too high to qualify for Medicaid was the work product of Democratic Senator Ted Kennedy and Republican Senator Orrin Hatch. After several early roadblocks over funding mechanisms and worries about the creation of a new social program broad agreement was eventually reach on SCHIP and it was attached to the Balanced Budget Act of 1997. Although the Balance Budget Act was passed via reconciliation it initially passed the Senate with Unanimous Consent and a subsequent Conference Report passed by an 85-15 margin. So SCHIP was technically created via reconciliation, but only after negotiations garnered broad support for the program, and it was merely attached to a budget bill as “last train leaving the station” means by which to enact an already bipartisan piece of legislation. Reconciliation was not used to bypass negotiations.
• The Economic Growth and Tax Relief Act of 2001 (EGTRA) amended existing tax law to utilize projected surpluses to provide broad tax reductions. Consistent with the reconciliation process the law included an expiration date of 10 years post enactment and it passed the Senate by a vote of 62-38. The subsequent Conference Report was passed by a vote of 58-33. Two Republicans, that supported the measure, were not present to cast votes – Mike Enzi (R-WY) and Pete Domenici (R-NM). So the bill enjoyed a filibuster proof majority.
• The Jobs and Growth Tax Relief Reconciliation Act of 2003 amended existing tax law – namely the Economic Growth and Tax Relief Act of 2001 – to accelerate tax reductions. This is the one example that could be pointed to as an effort by the Republican majority to circumvent the process – because they did. The GOP violated the letter and spirit of reconciliation to accelerate the bipartisan tax cuts approved in 2001 – they did not, however, create any new programs.

Although 19 bills have passed via reconciliation since the creation of the process, the five that I just cited are the ones most frequently mentioned as evidence that the reconciliation process has been used to create new programs – including new health programs - and would therefor be appropriate for enacting health care reform. The fact of the mater is that these bills show quite the opposite. The most extensive health reform, SCHIP, represented the culmination of intense bipartisan negotiations and though it was attached to the budget bill passed via the reconciliation process reconciliation was not “used” to create a new program. The President and Congressional Democrats are seeking to use reconciliation so as to avoid compromise and negotiation - this is not what has been done in the past.

The use of reconciliation to enact comprehensive health care reform would be a violation of the process. The only reason that reconciliation is being considered is because health reform, as currently written, cannot overcome a filibuster threat. In other words, reconciliation is being proposed solely for the purpose of bypassing normal rules of procedure in the Senate. This represents a clear abuse of process and one that should be rejected by all responsible. James Madison warned that men are not governed by angels nor are they angels themselves – as such we rely on auxiliary precautions to prevent the abuse of power. The division of the legislature into a House and Senate, each with a distinct connection to the electorate, and each with divergent interests and motivations, was done to prevent majoritarian tyranny – in other words, it was never expected that in America 51 votes would be enough for a majority to do whatever they wished.

Eliminating the Filibuster is a Cure Worse than the Disease

Update: Word comes today that Illinois Senator Dick Durbin has now joined the effort to essentially eliminate the filibuster. So what has changed since May 23, 2005 when Durbin said “Those who would attack and destroy the institution of the filibuster are attacking the very force within the Senate that creates compromise and bipartisanship.”? All that has changed is that Democrats had only 45 seats in the Senate when Durbin defended the filibuster... today they have 59. Those who would abandon the filibuster for short term political gain need to sit down, take a deep breath, and truly consider what they are proposing.

Original Post: Two Senate Democrats have formally launched an effort to kill the filibuster. Sens. Tom Harkin (D-Iowa) and Jeanne Shaheen (D-N.H.) introduced a bill that would set a gradually lowering threshold to shut off debate on legislation, starting at 60 votes and lowering to 51 over six days.

So let’s just imagine the future – a future where the filibuster is no longer an option and only 51 votes are needed in the Senate to pass, or repeal, legislation.

In the near term, Democrats will pass Cap and Trade, Comprehensive Health Reform, and a truly progressive tax code. Then, by 2012 Republicans reclaim the House, the Senate, and the White House – a very plausible scenario, especially if the public reacts negatively to Democrats passing their agenda by changing the rules to circumnavigate debate and public scrutiny.

The new Republican majority, needing only 51 votes in the Senate to accomplish anything, shuts out the minority Democrats and repeals Cap and Trade, repeals Health Reform, passes a flat tax – and with their new freedom they privatize Social Security, next they decide to turn Medicaid into a block grant giving states the freedom to cover whomever they wish –or no one at all. Vacancies on the U.S. Court of Appeals? No problem, no debate. Vacancies on the Supreme Court? No problem, no debate. Drilling in ANWAR? No problem, no debate. Offshore drilling? No problem, no debate.

Are you thinking “well if they did all of that then the people would vote the Republicans out of office.” Indeed they would, and Democrats would then spend their time repealing what the Republicans had done… and then proceed to pass their partisan legislation and approve their partisan nominees… and the process would repeat.

Make no mistake, if Democrats repeal the filibuster it will set the stage for a complete breakdown of the legislative process – and yes, I reject the claims that the process is already broken. The best fix for our federal woes must take place at the state level where congressional districts are drawn. Partisan gerrymandering has created a polarized House making compromise with the Senate difficult and has served to polarize the Senate by discouraging turn-out among moderate and indepedent voters.

In Federalist 63 James Madison wrote of the Senate “that such an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions. As the cool and deliberate sense of the community ought… ultimately prevail over the views of its rulers… how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves…”

The Senate was intended to be the place where everything slowed down, where the passions of the people, as expressed in the House, received a more discerning look. Where “the cool and deliberate sense of the community” prevailed. The filibuster does not represent what is wrong with our system of government, rather it represent what is best. The filibuster served our nation when it forced more intense scrutiny of George W. Bush’s judicial nominees and his proposal for Social Security reform and it serves us now as we debate fundamental policy changes.

Indeed, in 2005 when Senate Republicans were threatening to strip the ability of Democrats to filibuster judicial nominees it was current Senate Majority Leader Harry Reid who defended the filibuster saying that "stripping away these important checks and balances is about the arrogance of those in power who want to rewrite the rules so that they can get their way... This isn't about some arcane procedures of the Senate. It is about protecting liberty and our limited government... It would mean that one political party — be it Republicans today or Democrats tomorrow — gets to have all the say." Reid's words were true in 2005 and are true today.

In Federalist 73, Alexander Hamilton bragged openly about the difficult nature of policymaking in America “It may perhaps be said that the power of preventing bad laws includes that of preventing good ones; and may be used to the one purpose as well as to the other. But this objection will have little weight with those who can properly estimate the mischiefs of that inconstancy and mutability in the laws, which form the greatest blemish in the character and genius of our governments… The injury which may possibly be done by defeating a few good laws, will be amply compensated by the advantage of preventing a number of bad ones.”

If Democrats cannot muster 60 votes in the Senate, the answer is not to change the rules so that they only need 51 – the answer is to craft legislation that can attract a coalition of 60 Senators – whether that is 59 Democrats and 1 Republican, or 40 Democrats and 20 Republicans, or 35 Republicans and 25 Democrats. Anyone who dismisses that approach should take the time to read Robert Caro’s Master of the Senate and read how Lyndon Johnson negotiated the Civil Rights Act of 1957 – a bill that liberals viewed as toothless and hollow. But Johnson knew that he needed a bill that could pass, so he caved to Southern Democrats and accepted a weak bill – he didn’t win their vote, but he overcame their filibuster. That legislation then served as the foundation for the Civil Rights Act of 1960, and then 1964, and most importantly the Voting Rights Act of 1965 - perhaps none of which would have been possible without that crucial, and toothless, first bill.

Coalition and compromise that’s the Senate and it forces us to recognize that the true test of any bill is not how effective or comprehensive it may be – the true test is whether it can pass. If it can’t, move on, start over, make changes. Only those measures that can successfully navigate the obstacle course that is the American legislative process are worthy of becoming policy – and that’s how it was always meant to be. In Federalist 10, Madison argued that the only way to eliminate the threat of faction was to eliminate liberty. Today we face the question of how we might eliminate obstacles to legislating, the supposed solution is the elimination of the filibuster.  I'll respond in the same manner as Madison - such an option would be a "cure worse than the disease."

Differences Remain between House and Senate on Health Reform

News broke yesterday that Democrats will bypass normal rules of process and not convene a House/Senate Conference to reconcile differences between the two chambers' health reform bills. Rather the House and Senate will play a game of legislative "ping-pong" as each body seeks to pass amendments until an agreement between the two is reached. This was views as being the only way to exclude Republicans from the process given the minority protections built into the Conference process. Interestingly, Democrats instituted many of those minority protections after reclaiming Congress in 2007 with the passage of the Honest Leadership and Open Government Act. By bypassing the Conference Democrats hope to speed up the process and have a bill for the president by early February. But many difficult negotiations await as an 11 page memo prepared by Democratic staffers shows - there remain over 50 substantive differences between the House and Senate that must be resolved. In the House, their version of reform passed with only 3 votes to spare and the Senate had not votes in reserve - the question now is how can Harry Reid and Nancy Pelosi craft a compromise that will be acceptable to both chambers.

Health Reform Secures 60 Votes in the Senate! Will the House Play Ball?

After weeks of false starts it appears that Senate Democrats have united behind a health reform bill - my read of Harry Reid's changes - the so-called Manager's Amendment - convinces me that this is a good bill and one that will substantially improve the American health care system. It is also, with minor exceptions, essentially the bill that Max Baucus reported from his Senate Finance Committee months ago. The key sticking points came down to federal funding for abortion and the creation of a so-called public option - both are gone. No federal funds will be used to cover or even subsidize insurance that covers abortion and states will have the option of excluding abortion coverage within the newly created health insurance exchanges. The Medicare expansion is gone as well, but the federal Office of Personnel Management will oversee a new national non-profit plan that people can buy in to.

Significant Elements:

• Insurers in the large group market will be required to spend at least 85% of all premiums on medical care (that leaves 15% for administration, marketing, profit), in the small group market the standard will be 80%.
• Individuals and families under 400% of the federal poverty line who receive employer-sponsored coverage and spend 8-9.8% of their income on premiums, could “convert their tax-free employer health subsidies into vouchers that they can use to choose a health insurance plan in the new health insurance exchanges. This would allow folks more choices in selecting coverage and force insurers to compete with the exchange.
• Medicaid eligibility would be extended to everyone earning less than 133% of the federal poverty level and as a protection for states the federal government will pay for 100% of the cost until 2017 - typically a state pays nearly half the cost of Medicaid.

Why should Ben Nelson and Joe Lieberman - the hold outs who forced so many concessions - be celebrated and not derided?

• Lieberman - Had it not been for Lieberman's efforts to strip away the public option the bill never would have received 60 votes. Lieberman has provided political cover for vulnerable Democrats like Mary Landrieu (D-LA) and Blanche Lincoln (D-AR) as well as dozens of House Democrats from conservative districts.
• Nelson - The abortion concessions won by Nelson will also  provide coverage for House Blue Dogs, but Nelson's greatest contribution was his insistence that the full cost of the Medicaid expansion in Nebraska be covered by the federal government forever - while the expansion in all other states is covered for only 5 years. Seem unfair? Sen. Tom Harkin (D-IA) summed it up well "In 2017... when we have to start phasing back from 100 percent, ... they are going to say, 'Wait, there is one state that stays at 100?' And every governor in the country is going to say, 'Why doesn’t our state stay there?'" In other words, Nelson win for Nebraska is likely a win for every state.

According to the Congressional Budget Office, the new proposal would reduce the deficit by $132 billion over 10 years and by $1.3 trillion over 20 years and it would extend insurance to 31 million individuals, covering approximately 94% of legal residents by 2019. This bill is a step in the right direction. It deserves the support of conservatives and liberals alike. To those on the left who argue that it is better to have no bill at all than to accept a bill that limits abortion coverage and contains no public option - I urge you to get your priorities straight. This bill is about extending health insurance, not about imposing ideological rigidity. To those on the right who lament the lack of malpractice reform or the fact that you were essentially shut out of the process – get over it. This is a common sense bill that deserves bipartisan support.

If Harry Reid truly has the 60 votes necessary for cloture then the stage would be set for a vote by December 24th. After that it goes to conference committee where Nancy Pelosi will need to win major concessions from House liberals in order to avoid having this deal fall apart early in the new year. Of course, early word is that House Democrat conservatives may not be willing to accept the abortion compromise...

Health Reform Will Pass.... Probably

Update - There's a reason why I tend to practice cautious optimism - Susan Collins appears to be a solid "No" and Ben Nelson continues to say "No" as well. And the Democratic Left may be unwilling to accept the watered down bill.

Last month I took to this page to argue that health reform would fail to pass. In my original post and one subsequent follow-up I theorized that disagreements within the Democratic Party and between the House and Senate over funding, mandates, taxes, and abortion would ultimately sink health reform - and they almost did. But it is now increasingly likely that health reform will pass and all credit goes to two Senators - Max Baucus (D-MT) and Joe Lieberman (I-CT). Lieberman has become public enemy number one among the Left this week since stating that he would filibuster any bill with a Public Option AND any bill that allowed for a Medicare buy-in. Baucus enjoyed a similar bit of infamy back in September when his Senate Finance Committee drafted health reform legislation that did not include a public option and had watered done the individual and employer mandates. Baucus argued that his goal was to write a bill that could receive 60 votes.

Senate Majority Leader Harry Reid (D-NV) took Baucus' bill and added a public option and has spent the better part of a month trying to reach 60 votes. It seems that Reid has now surrendered. Word out of Washington is that the Senate will strip away the public option, will strip away the recently proposed Medicare expansion and will essentially consider the legislation originally reported by Baucus' committee back in October. Liberal Senate Democrats such as Tom Harkin (D-IA) have stated that they will accept scaled back legislation and the White House has urged Reid to make what ever concessions are necessary to get the bill passed.

Perhaps most significant is the increased likelihood that the scaled back Baucus inspired bill may receive 2 Republican votes – Olympia Snowe and Susan Collins, both from Maine. Snowe supported the Baucus bill in committee and Collins recently praised Lieberman’s efforts to strip away objectionable elements in the bill. So there you have it – the bill that Baucus originally produced has now become the savior of the Democrats' health reform effort and because of the efforts of Joe Lieberman it is likely to pass complete with a Republican vote or two.

If you are wondering why Harry Reid opted to not introduce the Baucus bill in the beginning it is because of the politics of the House of Representatives and the powerful progressive caucus there. Reid needed to prove that a public option could not survive in the Senate, he needed to prove that the Baucus bill was the only acceptable legislation. The last month has made that clear. Given that the House has passed a health care bill the normal process would be for a House/Senate Conference Committee to reconcile differences between the chambers and return a compromise bill for final votes in each. I do not expect that to happen – rather I suspect that whatever passes in the Senate will be introduced in the House and approved unamended, thereby negating the need for a conference. Any other approach would introduce more delay and uncertainty. The White House and Democratic Leaders will exert tremendous pressure on progressive House members to grit their teeth and simply vote for the Senate bill, or risk getting no reform at all.

I would add that abortion remains a hurdle – but I suspect that it is one that will be overcome.

As Progress is Made on Health Reform, Public Opposition Solidifies

Update II: Senate Democrats have reached an agreement and the Public Option is gone. This clears one hurdle, but another has popped up. The Senate rejected Ben Nelson's abortion funding amendment making the math of 60 votes still a difficult equation.

Update: Late word indicates that GOP moderate Olympia Snowe is not a fan of the new compromise that would expand Medicare and Medicaid, this could make it very hard for Democrats to reach 60 votes. Especially if they lose Ben Nelson over the issue of abortion coverage.

News today suggests that significant progress is being made in the Senate on compromise health care reform as Democratic Party leaders seek a path to 60 votes. It is increasingly clear that the Public Option that Majority Leader Harry Reid had included in the bill will be dropped - but progressive members of the Democratic caucus have not simply surrendered, rather they are using the elimination of the Public Option to bargain for new and potentially far reaching concessions. Multiple sources are reporting that the Public Option would be replaced with a new nationwide nonprofit health plan to be administered by the federal Office of Personnel Management (the same agency that administered the federal employee health benefit system). The new national plan would be offered by a private insurance company. Party leaders hope that progressives will find this to be an acceptable alternative to a Public Option run by the government. In exchange for dropping their demands for the Public Option, progressives have pursued amendments to the current legislation in the form a significant expansion of the Medicare program – the nation’s health insurance system for those over the age of 65. Under the proposal currently being discussed, the Medicare program would be opened to Americans over the age of 55. This is a population that can face great difficulty obtaining affordable coverage – especially if they suffer a job loss. Also being pursued is a proposal to open the new national health insurance exchange to more Americans. As originally proposed, the exchange would have been limited to a select few small employers and uninsured Americans, perhaps as few as 15-30 million. Adoption of these compromises would have a far more significant impact on health reform and coverage expansion than would the limited Public Option and progressives would be wise to pursue them.

Interestingly, or perhaps distressingly for Democrats, just as progress is being made on reform public opposition is on the rise and public support is collapsing. According to the latest tallies from Pollster.Com a majority of the country now opposes reform and less than 40% is in support. As heated debates remain over touchy issues such as abortion and funding – to say nothing of a needed reconciliation with the House – Democrats in tough re-election fights need the cover of public support - at the moment they do not have it. Only time will tell if that changes as details of these new negotiations emerge.

Why Health Reform Will Fail (To Pass) - Part Two

I wanted to provide an update to my prior post in which I explained why I think health reform will ultimately fail to pass. This weekend, in an historic vote, the House passed health care reform by a very narrow 220-215 vote. Never before has any house of Congress passed legislation for universal health care in America. So does this alter my prediction? Hardly - in fact I am more convinced than ever that no bill will reach the President's desk. And the seeds of its destruction were sown in the deals made to reach 220 votes in the House. To win the votes of pro-life Democrats Speaker Pelosi allowed a vote on an amendment offered by Rep. Bart Stupak (D-Mich.) that would prevent the use of federal subsidies to pay for insurance that covers elective abortion. The amendment was adopted with the votes of 64 Democrats. Pro-choice Democrats were angry, but they knew that the bill could not pass without the votes of pro-life Democrats, so they accepted the amendment. Now the bill has moved to the Senate, where moderate Democrats have made it clear that they too will demand a bill that bars any federal funds for abortion. So, the Senate is unlikely to pass a bill if it does not include the Stupak language. Problem is 40 pro-choice Democrats in the House have now signed a letter pledging to vote against any House/Senate compromise bill that includes the Stupak amendment. If the Conference Committee agrees to a bill with the Stupak language it will lose the 40 pro-choice votes in the House and fail.  If, on the other hand, the Conference strips the Stupak language then it would lose the votes of pro-life Democrats in the House and the Senate and fail to pass. What must be remembered is that in the Senate, Conference Reports can be filibustered - it's rare, but allowed. So now add abortion to the list of reasons why health reform will fail - and later, expect me to add immigration policy to the growing list.


Original Post
There has been much news this week about the momentum for health reform. House Speaker Nancy Pelosi has just introduced a 1,990 page bill representing the House version of reform, complete with a public option that would allow the government to negotiate payment rates with providers. On the Senate side, Majority Leader Harry Reid made news earlier this week when he announced that the Senate bill would include a public option with an allowance for states to “opt-out” of the program.

Given these developments there is now a sense of inevitability that health reform will pass and be signed into law by President Obama either this year or early next year. I’m not so certain. In fact, I am increasingly convinced that no reform legislation will make it to the president’s desk.

Allow me to explain why…

The Public Option
For too long the press has been obsessed over the question of the public option, as if it were the only point of contention between the House and the Senate. The truth of the matter is that the debate over the public option was as much about disagreements within the House and within the Senate as it was about a disagreement between the two bodies. In the House, Democrats can be divided into three camps 1) those who demanded a public option that paid doctors a fee linked to Medicare reimbursement rates, 2) those who supported a public option but wanted negotiated reimbursement rates (mostly rural state members where Medicare rates are low), and 3) those who simply oppose creation of a public option (mostly Blue Dogs who hail from conservative districts). There are 256 Democrats in the House and it takes 218 votes to pass any legislation – so Democratic leadership had to find a compromise. In the end, Pelosi went with group 2 (negotiated reimbursement) based on the assumption that many in group 1 and perhaps a few from group 3 would come on board. At last count, Pelosi is still short of the 218 votes; so passage in the House is still an open question.

In the Senate, disagreement over the public option and the form it should take is a bit more complicated, but Senators can also be grouped. There are 1) those who support a public option but would allow states to “opt-out”, 2) those who favor the creation of a trigger that would create a public option if other reforms efforts fail, 3) those who support allowing states to create their own public option, and 4) those who oppose the creation of a public option. Harry Reid has decided to go with group 1 and the opt-out provision in hopes that it would represent an acceptable compromise. The problem that Reid faces is that any bill requires 60 votes given the likelihood of a filibuster. There are only 60 Democrats in the Senate and only 1 potential GOP vote – Maine’s Olympia Snowe – so Reid cannot afford to lose anyone. So far Snowe has said that she opposes the opt-out approach and Joe Lieberman (CT) (and Independent who caucuses with the Democrats) has said the he to will seek to block such an approach as well. By most counts Reid is about 5 votes shy of the 60 he needs. Trouble is, if the opt-out provision comes to the floor as part of the bill any effort to strip it out via amendment would also need to overcome the 60 vote hurdle – and there may be 41 Democrats who want to keep it. So Reid finds himself lacking the votes to pass legislation with the public option opt-out and possibly lacking the votes to remove the opt-out from the bill. As such, reform could easily die in the Senate.

But let’s assume that the House and Senate do pass their bills. Then a conference committee will be convened for the purpose of reconciling the differences. With regard to the public option there are key differences between the House and Senate. The House bill would not allow for an opt-out and it is doubtful that House liberals would accept such a provision; likewise, the Senate could not muster enough votes to pass a public option without an opt-out. The greater threat to compromise between the House and Senate would be the elimination of the public option in the Senate version. It is unlikely that Pelosi could wrangle the 218 votes needed for compromise legislation with no public option, even with the provision for a trigger. So the public option could derail passage in the House, in the Senate, and especially in the final stage of compromise between the two bodies.

But the public option is just one point of disagreement. The House and Senate also differ on how to pay for reform and how to achieve universal coverage. The differences are significant and philosophical and raise serious questions about whether compromise can be attained.

Mandates
Employer provided insurance is the principle source of health insurance for Americans under the age of 65 (99% of those over 65 have Medicare). About 60% of the non-elderly population receives health insurance through an employer (or a parent/spouse/guardian’s employer). As health care costs have increased more and more employers are opting to no longer provide insurance. But 83% of the uninsured live in a family headed by at least one employed person. As such, many support requiring employers to provide insurance as a way to expand coverage. To that end, the House legislation requires that employers provide insurance coverage to their employees or face a penalty equal to 8% of total payroll. The Senate legislation does not require employers to provide insurance, but is expected to contain a provision stipulating that if an employer has any uninsured employees who receive a federal subsidy to purchase insurance that employer would face a fine of $750 multiplied by its total workforce. It is an odd provision to be certain, but well short of a mandate. Given that individual insurance costs approximately $5,000 per year, and that most employers pick up the tab for 75% of that cost, a $750 fine per employee may seem like a bargain compared to providing health insurance. It is unlikely that a strict employer mandate could pass in the Senate and equally questionable whether progressive members of the House would accept any compromise that eliminated the employer mandate. The House bill also contains an individual mandate to purchase health insurance, those who fail to do so face a fine equal to 2.5% of their adjusted gross income. In the Senate the individual mandate has been all but eliminated with individuals who fail to purchase insurance facing a maximum fine of $750 per year, and that fine is phased-in slowly over the next 7 years. Given that individual insurance costs about $5,000 per year, the $750 fine may not motivate many to purchase insurance. House Democrats view the mandates as essential to maximizing coverage, many Senate Democrats view mandates as being too burdensome and punitive.

Taxes
Concern over rapidly rising deficits and President Obama’s pledge that he will not sign any bill that exceeds $900 billion over the next ten years or that “added one dime” to the national debt has forced the House and Senate to find ways to pay for health care reform. Not surprisingly each found its own way. The House would fund a substantial portion of its reform via a proposed 5.4% surtax on individuals earning more than $500,000 per year and couples earning more than $1 million. In the Senate income tax increases are a non-starter, instead the Senate has proposed a 40% excise tax on extravagant health plans – so-called Cadillac plans – defined as those that cost more than $8,000 a year for individuals and $21,000 for families. The argument being that this would keep the source of new revenue within the existing health care system and it could discourage such extravagant plans in the future, plans that encourage the overuse of services. The tax on these insurance plans will go nowhere in the House given that many of these Cadillac are in fact the result of years of bargaining on the part of organized labor. Labor is a key constituent of the Democratic Party, labor opposes the Senate tax, and it would never survive the House. The House and Senate taxes are essential to paying for the bills, yet it is hard to see how the House and Senate can come to any compromise on this key funding issue.

In the end, I simply find too many substantive differences between the House and Senate proposal to see how a conference committee could reach consensus that would then be acceptable to each chamber. Months of negotiation, deals, and concessions in each chamber have resulted in legislation that would be acceptable to the barest majority needed to pass a bill in each house of Congress. The conference committee negotiations would necessarily unravel those deals and the fragile coalitions they created within each body. So the House has introduced a bill that currently lacks the 218 votes it needs to pass the bill, the next couple of weeks will be dedicated to finding those votes. In the Senate, Harry Reid is preparing to introduce legislation that is at least 5 votes shy of the 60 votes it needs. The next month (at least) will be spent trying to find those 60 votes. But even if the House and Senate clear the considerable hurdles that remain within their own chambers the far greater, and perhaps insurmountable, challenge will be reconciling the two bills. But the differences between the House and Senate on key provisions – the public option, mandates, and taxes – are considerable and represent deep philosophical and political differences that may prove impossible mediate.

Many expect that once the House and Senate have passed their respective bills President Obama will wade into the negotiations and hammer out a deal – those expectations may not be realistic. Progressive Democrats in the House and the Senate see this as a limited window of opportunity to enact substantive reform and have expressed little willingness to compromise. They know that whatever passes will be policy for years if not decades; after all, it took 15 years just to put health reform back on the agenda after the Clinton failure in 1994. But progressives lack the votes to pass anything without the votes of moderate Democrats, and they are far less willing to embrace substantive change.

(Of course, if I'm wrong I reserve the right to delete this post and pretend that I never wrote it...)

Beyond the Shouts: A Discussion of Health Reform in America

Everyone - from Congress to drug and insurance companies to providers and patients - has an opinion on health care reform. On September 28, 2009 St. Mary's College of Maryland brought together a panel of policy experts to offer their take on the heated debate and answer community questions about this complicated issue.

Participants in the panel included health care financing expert Greg Scandlen, pediatrician Margaret Flowers, and Karen Davenport, director of the Center for American Progress. Todd Eberly, Assistant Professor of Political Science and Coordinator of Public Policy Studies served as moderator.

Watch the forum here (please note that the volume is quite low):

Deciphering Public Opinion on Health Care Reform

As Harry Reid (D-NV), Chris Dodd (D-CT), Max Baucus (D-MT), Rahm Emanuel, and Olympia Snowe (R-ME) continue to hammer out the Health Reform compromise between the Senate's HELP and Finance Committees there is a picture emerging with regard to public opinion toward health reform – and at first glance it makes little sense. The most recent data from Pollster.Com (see chart below) show that public support has begun to drop (after a mini-rally last week) and opposition is on the rise. A recent ABC News survey found that 48% opposed “the proposed changes to the health care system being developed by Congress and the Obama administration,” while 45% supported such changes. A Fox News survey found that 54% opposed “the health care reform legislation being considered right now,” and only 34% supported it. According to Rasmussen Reports 54% opposed “the health care reform plan proposed by President Obama and the congressional Democrats,” and 42% supported.

Taken together these polls suggest considerable opposition – but beyond these topline questions the picture becomes murkier. When ABC News asked “Would you support or oppose having the government create a new health insurance plan to compete with private health insurance plans” an overwhelming 57% indicated support – odd given that such a proposal is being considered as part of the changes being developed by Congress – the same changes that only 42% of respondents supported. When Fox News asked whether respondents would prefer “the current health care system or the health care plan proposed by the Democrats in Congress” the current system was favored by a 51% to 34% margin. The Rasmussen survey found that a majority of respondents believed that health care costs would increase and quality decrease if the current reforms were enacted.

So what can we make of this? There appears to be clear opposition to the health reform plans in general, support for maintaining the current system, a lack of faith in the ability of the proposed reforms to control costs or maintain quality, but also clear support for the creation of a public option. I see two possible explanations – one being that many Americans don’t know what the “public option” is and therefore their response to questions regarding support or opposition must be taken with a grain of salt. A recent post by Mark Blumenthal at Pollster.Com gives credence to the theory that the public does not understand the term. As he points out, a recent PEW study found that 56% of the public correctly linked the term “public option” to health, meaning that 44% of the populace does not recognize the term. He also points to a randomized internet survey where only 37% of the adult population could correctly identify the public option when presented with three choices (by random chance you would get 33%). So perhaps the public simply does not get it. There is one other possibility that gives the public a bit more credit. When Fox News asked respondents whether they supported reforming “the entire health care system” or reforms to provide “health insurance to those who don't have it,” covering the uninsured was preferred by a 50% to 27% margin. With that answer, current public opinion makes much more sense.

The current proposals in Congress would represent system-wide changes, though largely incremental in nature, they are more akin to the “Comprehensive Incrementalism” defined by the Washington Post's Ezra Klein. It would appear that most Americans are opposed to the proposed comprehensive incrementalism, but support efforts to cover the uninsured – such as a public, or government-sponsored health insurance option. So when ABC News asked whether respondents would support “a plan that includes some form of government sponsored health insurance for people who can't get affordable private insurance, but is approved without support from Republicans in Congress; or a plan that is approved with support from Republicans in Congress, but does not include any form of government-sponsored health insurance for people who can't get affordable private insurance?” it should not be surprising that “government sponsored health insurance for people who can't get affordable private insurance” was preferred over bipartisanship by a 51% to 37% margin. This is roughly the margin that preferred covering the uninsured over system-wide reform in the Fox poll. By no means does it suggest that the public would prefer Democrats to “go it alone” on overall health care reform, nor does it suggest public support for current proposals would be higher if those proposals contained a public option. It does tell us that Democrats are correct when they say that the public supports a public option, and Republicans are correct when they say that the public opposes the health reform proposals currently being considered in Congress.

Let it Snowe, Let it Snowe, Let it Snowe...

On Tuesday, Olympia Snowe (R-ME) became the only Republican member of the Senate Finance Committee to vote in favor of the so-called “Baucus Bill” for health reform. Though threatened with repercussions by Republican leadership Snowe simply stated that “when history calls, history calls.” Snowe also prefaced her vote by saying that her vote today did not forecast what her vote would be when final legislation came to the floor of the Senate. With that one vote, Snowe has catapulted herself in to the final negotiations over health reform legislation. In fact, Ezra Klein reports today that Snowe now has a seat at the table along with Senate HELP chairman Chris Dodd (D-CT), Finance chairman Max Baucus (D-MT), and White House representatives Rahm Emanuel and Nancy-Ann Min Deparle. This has incensed liberal Democrats in the House and Senate. They are angry that in an effort to create the veneer of bipartisanship one GOP senator has been granted tremendous influence on the final product. Make no mistake, Snowe’s involvement will influence the final product, it will likely ensure that the Senate bill contains no strong public option (if anything), and it will likely mean that the weakened individual mandates (see prior post) will remain. One thing is certain, with that one "Yes" vote, Snowe demonstrated that she is a very shrewd politician.