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“Willfully Disobeying The Law”: Republican Leaders Refuse To Make Appointments To Key Obamacare Panel

The top two Republicans in Congress informed President Obama on Thursday that they will refuse to fulfill their duty under the Affordable Care Act to recommend members of a new board with the power to contain Medicare spending.

It’s a dramatic power-play driven by the explosive partisan politics of Obamacare and with potentially important implications for federal health care policy.

In a letter to President Obama, House Speaker John Boehner (R-OH) and Senate Minority Leader Mitch McConnell (R-KY) noted their original opposition to Obamacare, reiterated their intent to repeal it entirely, and declared that they would not make any appointments to the Independent Payment Advisory Board.

The IPAB is a 15-member panel whose members must be confirmed by the Senate. The President selects three members himself and is required by law to seek three recommendations each from the top Democrat and Republican in each chamber. With Thursday’s letter, Boehner and McConnell refused to make any recommendations.

The IPAB will be stood up in 2014 by Obamacare and tasked with making cuts to Medicare provider payments (it may not touch benefits) if costs exceed economic growth plus an additional percentage point in any given year. Congress can override it by passing equally large cuts with a simple majority or waiving the cuts entirely with a three-fifths majority.

“Because the law will give IPAB’s 15 unelected, unaccountable individuals the ability to deny seniors access to innovative care, we respectfully decline to recommend appointments,” Boehner and McConnell wrote in the letter.

But there is a catch: if IPAB fails to do its work for any reason, the Health and Human Services secretary must order the cuts herself. So in a way, Boehner and McConnell are surrendering some of their power in order to appear as though they’re thwarting Obamacare — when in reality they’re merely turning over more control to the executive branch.

“Under the ACA, if the IPAB fails to make a recommendation as required under the IPAB provision, the Secretary may make a recommendation in its place,” said Tim Jost, a professor of health law at Washington and Lee University. “So if no IPAB is created, it is not fatal.”

IPAB is, however, capable of functioning without all of its members confirmed. But the letter reflects a continuation of broader GOP obstruction of Obamacare implementation. Senate Republicans have suggested that they may filibuster any IPAB nominee, period.

This approach makes it easier for a future Republican president to neuter IPAB by executive fiat. In the short term, it puts the Obama administration more directly in the political line of fire for any cuts that it does approve.

The other political incentive for Republicans to oppose IPAB is that spending Medicare dollars more wisely makes it easier to sustain the single-payer structure of the program, and makes it harder to argue that it needs to be privatized, as the Paul Ryan budget does.

There is some irony as well in Boehner and McConnell refusing to play ball on IPAB — a key cost containment mechanism in Obamacare — while their party is complaining about potential cost increases under the law, and government spending more generally. Limiting Medicare spending and cutting the deficit, part of the rationale for IPAB, are routinely touted as central GOP goals.

“We believe Congress should repeal IPAB, just as we believe we ought to repeal the entire health care law,” Boehner and McConnell wrote. “In its place, we should work in a bipartisan manner to develop the long-term structural changes that are needed to strengthen and protect Medicare for today’s seniors, their children, and their grandchildren. We hope establishing this board never becomes a reality, which is why full repeal of the Affordable Care Act remains our goal.”


By: Sahil Kapur, Talking Points Memo, May 9, 2013

May 13, 2013 Posted by | Affordable Care Act, Politics | , , , , , , , | 1 Comment

“An Enron End Run”: Using Expensive Legal Claims As Leverage, Top Enron Fraudster Reaches Deal To Slash Sentence

Even when Jeffrey Skilling was first sentenced for conspiring in one of the largest corporate fraud schemes in modern history, he received less jail time than some low-level drug offenders sentenced to harsh mandatory minimums. But this week, Skilling reached a deal with the Department of Justice to cut his 24-year sentence to as little as 14 years, in exchange for abandoning the onslaught of appeals he has launched at his own expense. Reuters reports:

The agreement … could result in Skilling’s freedom in late 2018, with good behavior.

In exchange, Skilling, 59, who has long maintained his innocence, agreed to stop appealing his conviction. The agreement would also allow more than $40 million seized from him to be freed up for distribution to Enron fraud victims.

A resentencing became necessary after a federal appeals court upheld Skilling’s conviction but found the original sentence too harsh.

Once ranked seventh on the Fortune 500 list of large U.S. companies, Enron went bankrupt on December 2, 2001 in an accounting scandal that remains one of the largest and most infamous U.S. corporate meltdowns.

Thousands of workers lost their jobs and retirement savings, and images were beamed around the globe of staff carrying possessions out of Enron’s downtown Houston office tower, past the company’s “crooked E” logo.

Even in 2006, when Skilling was first sentenced, his legal defense was deemed one of the most expensive in history at $65 million, and in the years since he has taken his case to the Supreme Court and back on appeal after appeal. By settling, the Department of Justice not only saved itself the considerable expense of continuing this legal battle; it also gets access to the more than $40 million in seized assets Skilling had previously not agreed to surrender. As a consequence of these negotiations, Skilling’s sentence is even more disparate from the 25-year-plus sentences of drug defendants charged for low-level offenses like selling their own pain pills to an undercover informant.

If Skilling’s reduced sentence is approved by a judge during his June hearing, as is likely, Skilling will nonetheless not have had an ideal run with the criminal justice system. His lawyers made a persuasive argument that the statute initially used to convict him was overly broad. And his sentence was disproportionately high relative to alleged Enron scandal mastermind Andrew Fastow, who got only six years in prison after he testified against both Skilling and Enron Chairman Kenneth Lay. But more severe versions of these problems plague countless criminal defendants, who, rather than having the leverage to shorten their sentence or the legal resources to take down a statute, are coerced into plea deals under threat of draconian prison terms.


By: Nicole Flatow, Think Progress, May 10, 2013

May 13, 2013 Posted by | Corporations, Justice Department | , , , , , | Leave a comment

“Panic Is Just What Republicans Want”: Democrats Shouldn’t Take GOP’s Bait On Obamacare Implementation

The notion that Obamacare’s implementation could become a major liability for Democrats in 2014 is gaining widespread currency, and today it’s the subject of a big New York Times piece reporting on confident predictions by Republicans that implementation problems will give them a powerful weapon against Dem candidates. Obama is set to do a series of events designed to educate the public on the challenges of implementing the law, beginning with one on Friday where he’ll promote the law’s benefits for women.

It strikes me that GOP Obamacare implementation triumphalism is a tad premature.

Here is how the Times characterizes the sentiment in Dem circles about the coming war over implementation:

Democrats are worried about 2014 — a president’s party typically loses seats in midterm years — and some have gone public with concerns about the pace of carrying out the law. Senator Harry Reid of Nevada, the majority leader, told an interviewer last week that he agreed with a recent comment by Senator Max Baucus of Montana, a Democratic architect of the law, who said “a train wreck” could occur this fall if preparations fell short.

The White House has allayed some worries, with briefings for Democrats about their public education plans, including PowerPoint presentations that show areas with target populations down to the block level.

“There’s clearly some concern” among Democrats “that their constituents don’t yet have all facts on how it will work, and that Republicans are filling that vacuum with partisan talking points,” said Representative Steve Israel of New York, head of the House Democrats’ campaign committee. “And the administration must use every tool they have to get around the obstructions and make it work.”

Quotes like these are widely held up as evidence that Republicans are right that Obamacare implementation is shaping up as a major problem for Dems. But this amounts to a fundamental misreading of what it is these Dems are actually saying. Democrats are simply doing exactly what they should be doing — that is, calling for care and caution in the implementation of Obamacare, and calling for a serious effort to educate the public about the challenges and potential pitfalls it entails. This is not tantamount to running away from the law wholesale; nor is it a concession that implementation will amount to a major political albatross.

As Jonathan Cohn has detailed at length, it’s very possible there will be real problems with the health law’s implementation. If that happens, Republicans will relentlessly try to tie Dem candidates to those difficulties, in hopes for a rerun of 2010. But in 2010, public reactions to the new health law were largely suffused with deep anxiety about the severe economic crisis and uncertainty about the new president’s ability to cope with it. Republicans and allied groups made the assault on Obamacare central in 2012, in the presidential race and in many Senate contests, with absolutely nothing to show for it.

Will implementation make things different in 2014? By all means, the problems could be very real, particularly with Republicans intent on subverting implementation wherever possible. Dems should remain vigilant and prepare for turbulence. But they needn’t fret this too much. For one thing, as Josh Barro has noted, implementation is likely to be most keenly felt among those who currently lack insurance, who will naturally see getting insurance as a preferable outcome to nothing at all, even if it proves logistically difficult.

Dem candidates can strike a balance here: They can call for careful implementation and criticize it when it goes awry, while standing squarely behind the law’s overall goal of expanding coverage to the millions of Americans who lack it. What’s more, they can continue to remind the public that Republicans are offering no alternative of their own and simply want to return the country to a pre-reform free-for-all that nobody, particularly the large ranks of the uninsured, wants. This position is the correct one to take, substantively and politically, and it shouldn’t be that hard to get the balance right. After all, whatever the unpopularity of Obamacare, offering nothing in the way of reform isn’t exactly a winning message, either. Major reforms are not easy, and Dems can say so, while pointing to the endless GOP drive to repeal the law to reinforce the notion that Republicans have no interest in actually addressing the country’s most pressing problems.

Dems should refrain from displays of political panic, since panicking is exactly what Republicans want them to do. “A lot of this is psychological warfare,” is how Dem strategist Doug Thornell recently put it. “I would tell Dems not to take the bait.” So would I.


By: Greg Sargent, The Plum Line, The Washington Post, May 7, 2013

May 13, 2013 Posted by | Affordable Care Act, Republicans | , , , , , , , | Leave a comment

“How To Stop Government”: A Republican Field Guide To Obstructionist Techniques

In a recent Pew Poll, 80 percent of respondents said the president and Republican leaders were not working together to address important issues — and, by a two-to-one margin, said the G.O.P. was more to blame for gridlock.

Despite their minority status in the Senate, the people on the right side of the aisle have managed to muck up the works. Their obstructionist repertoire is so extensive that you almost need a field guide to their delaying techniques.

Here’s a start on that guide.

Filibuster Abuse: The practice of halting Senate deliberation is an old one, practiced by both parties, but the current Republican caucus has taken it to new heights. They have filibustered an unprecedented number of President Obama’s nominees. The District Court for Washington, D.C., perhaps the most important appeals court in the land, has four of its 11 seats vacant. The last time the Senate confirmed a judge was in 2006. The Republicans have filibustered all of Mr. Obama’s nominees because Republicans simply don’t want him to appoint any judges to a currently conservative court, which rules on appeals involving federal regulatory agencies, and which has exclusive jurisdiction over national security matters.

Boycotting: Also known as taking your marbles and going home, the most recent example came on Thursday, when Republicans refused to attend a meeting of the Environment and Public Works Committee, thereby blocking the nomination of Gina McCarthy as head of the Environmental Protection Agency. They claimed they were not completely satisfied with her answers to the more than 1,000 questions they dumped on her in the confirmation process. In addition to stymying Mr. Obama, holding up her nomination has the great virtue of hamstringing the E.P.A., which the right thinks shouldn’t exist in the first place. And that leads us to the next G.O.P. tactic:

Denial of services: Some government agencies require a certain number of members, or a permanent chief, to operate. If the Republicans don’t like those agencies, they simply make sure those positions never get filled. For instance, the National Labor Relations Board, which Republicans loathe because it protects workers, requires a quorum to take action. So the Republicans refused to confirm Mr. Obama’s nominees. Then they held fake pro-forma sessions during their vacations to try to prevent him from making recess appointments. He did that anyway and the Republican-packed D.C. appeals court (see above) ruled that the appointments were illegitimate — which could invalidate scores of decisions. The Republicans are playing this same trick with the Federal Consumer Financial Protection Bureau, which was created in response to the wildly reckless actions that led to the financial collapse of 2008.

Investigate again and again and again: When Darrell Issa, took over the House Committee on Oversight and Government Reform after the G.O.P. won the House majority in 2010, he said he wanted to hold “seven hearings a week times 40 weeks.” His supposed reason was that Mr. Obama is “corrupt.” That’s a frequent Republican talking point, but it’s so obviously ridiculous that I wonder if they actually believe it. In any case, the real reason is that endless “investigative” hearings cause trouble and distract administration officials from their actual jobs. The hearings on Benghazi, for example, have revealed none of the impeachable offenses that Republicans claimed would come to light. They have kept Congress and the administration focused on what happened in Libya eight months ago, which was awful, rather than on what is happening there today, which is awful.

Refuse to negotiate: Republicans in Congress used to complain that the Senate Democrats hadn’t produced a budget in the last four years. But recently the Democrats did just that. So the Republicans abandoned their old talking point and are now refusing to form a conference committee to reconcile the Senate budget with the House budget.


By: Andrew Rosenthal, The Opinion Pages, The New York Times, May 10, 2013

May 13, 2013 Posted by | Politics, Republicans | , , , , , , , | 1 Comment

“Bad Heritage”: One Wonders If Jim DeMint Is Quite The Person To Lead The Way Toward The Think Tank’s Redemption

When Jim DeMint left the Senate to assume command of the Heritage Foundation, some people questioned the wisdom of the move. Not from DeMint’s perspective—after all, instead of being a staunchly conservative member of the minority party with a staff of a few dozen whose job was to throw rhetorical bombs at the majority and say mean things about Barack Obama, now he’d have a staff of a few hundred and rule one of the right’s most important institutions, not to mention probably quadrupling his salary. No, the puzzle was why a think tank like Heritage would want someone like DeMint, not known for putting much stock in thinking, as its leader.

And before you know it, Heritage is taking a huge hit to its reputation. It was always known for producing tendentious analyses of issues, but the report it released this week on immigration, claiming that reform would cost the country trillions of dollars, was a masterpiece of glaring omissions and questionable assumptions; included among the latter was that immigrants and their children will never move up the economic ladder.

Then we got a little more insight into where that belief might have come from. It turns out that one of the report’s co-authors, the spectacularly named Jason Richwine, wrote a dissertation at Harvard claiming that there are immutable differences in intelligence between races, and that should govern our immigration policy. “No one knows whether Hispanics will ever reach IQ parity with whites, he wrote, “but the prediction that new Hispanic immigrants will have low-IQ children and grandchildren is difficult to argue against.” Then we discovered that this wasn’t the first time Richwine had opined on the alleged intellectual inferiority of certain races. With the heat growing, today Richwine resigned from Heritage.

But there may be an upside for Heritage in all this. For some time to come, their quantitative work will be subject to extra scrutiny, with observers on the lookout for both statistical shenanigans and the authors’ repellent views whenever a new Heritage report comes out. The organization will surely know this, which could lead them to be unusually careful and restrained in the arguments they make. If so, they could end up producing better work and eventually overcome the damage this episode has done. But one wonders if Jim DeMint is quite the person to lead the way toward redemption.


By: Paul Waldman, Contributing Editor, The American Prospect, May 10, 2013

May 13, 2013 Posted by | Immigration Reform, Politics | , , , , , , , | Leave a comment

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