“Congress Might Step In To Fix The Problem”: How Conservative Supreme Court Justices Harmed Their Own Anti-Obamacare Cause
Wednesday’s Supreme Court oral arguments made it evident that at least some conservative justices are worried about the disruption they’ll create if they rule for the challengers in King v. Burwell and void Affordable Care Act subsidies in 34 states.
The justices and lawyers themselves didn’t dwell on humanitarian costs, but those most hostile to the law repeatedly sought to downplay the consequences of an adverse ruling.
The plaintiffs’ lawyer, Michael Carvin, argued against all logic to incredulous liberal justices that eliminating subsidies wouldn’t leave states saddled with a punishing regulatory regime. Antonin Scalia got laughed out of court (sort of) for claiming Congress might step in to fix the problem. Samuel Alito even intimated that states might step in and establish their own exchanges. The Court could even lend them several months time to do so.
“It’s not too late for a state to establish an exchange if we were to adopt Petitioners’ interpretation of the statute,” Alito said. “So going forward, there would be no harm.”
If his suggestion was designed to appeal to skeptical conservatives, like Chief Justice John Roberts, and Anthony Kennedy, he may have harmed his own cause.
Alito’s comments evoke the image of many or most of the states that opted in to federally facilitated exchanges scrambling to reverse their decisions—to keep subsidies flowing and preserve the viability of their individual insurance markets.
That would stem the disruption. But it would also underscore the anti-federalist concerns Kennedy raised during oral arguments in dramatic fashion. What’s better evidence of coercion than sending a bunch of states into a blind panic to do something they weren’t originally inclined to do?
Supporters of the challenge might argue that the source of coercion in that case would be the disappearance of unauthorized subsidies, rather than the underlying scheme in the law. Essentially that this would all be the Obama administration’s fault. But Kennedy was explicit in his admonitions that the coercion problems with the challengers interpretation of ACA run deeper than money transferred by the federal government.
“The states are being told either create your own exchange, or we’ll send your insurance market into a death spiral,” Kennedy said. “We’ll have people pay mandated taxes which will not get any credit on on the subsidies. The cost of insurance will be sky high.”
To dull the implications of Kennedy’s concerns, conservatives enlisted Oklahoma’s Attorney General, Scott Pruitt, who banged out an op-ed arguing that his own state’s experience contradicts the premise that the ACA-as-written is unconstitutionally intrusive.
“Oklahoma knew the consequences of its decision but was not coerced into cooperating with implementation of the Affordable Care Act,” Pruitt wrote.
The argument lacks credibility coming from someone who adopted his position, on the advice of conservative activists, precisely because “in states that have not established their own exchanges, the structure of the ACA will crumble.” Seeking Pruitt’s guidance on the ACA’s impositions on states is a bit like taking flight lessons from a kamikaze pilot.
But Pruitt’s point also doesn’t allay Kennedy’s substantive concerns. His interpretation of the ACA arose not from its plain text, but, again, from the input of meddling activists trying to destroy Obamacare. It doesn’t follow from the fact that Pruitt is keyed in to conservative movement strategy that the ACA provides states clear notice that its subsidies come with major strings attached. Moreover, Kennedy’s problem isn’t just with states responding to the threat, but with the threat itself. “If petitioners’ argument is correct,” Kennedy said, “this is just not a rational choice for the states to make.” In other words, even if several states continue to resist ACA implementation after an adverse ruling, there’s still a problem here, because the federal government shouldn’t be allowed to confront states with such onerous choices in the first place.
Assuming Kennedy meant what he said about coercion, he has several options, most of which augur well for the ACA. He could allow the challengers’ anti-federalist construction of the law to guide him to a better available interpretation (i.e. the government’s). He could determine that the challengers’ construction should be avoided in favor of one that isn’t unconstitutional. He could essentially rewrite it, as the Court rewrote the ACA’s Medicaid expansion, to sever the offending phrase. Or, less auspiciously, he could find for the challengers, and leave the subsidy condition on the books, anticipating that a constitutional challenge will arise as a result.
But the fact that Alito and Scalia assumed a ruling for the challengers would send political actors scrambling for a fix doesn’t advance their ends with anyone concerned about coercion. It actually just proves the point.
By: Brian Beutler, The New Republic, March 6, 2015
“Dynamic Scoring Isn’t A Magical Tool”: Here’s How Conservatives Rig The Budget Game In Washington
When Republicans decided not to retain Doug Elmendorf as head of the Congressional Budget Office (CBO), Democrats became concerned that conservatives would try to rig the budget process. When the GOP required the CBO to use dynamic scoring for its legislative scores, Democrats became even more concerned. Those fears have proven overblown. The new CBO chair, whom Republicans announced last week, is Keith Hall, an economist at the Mercatus Center who was the commissioner of the Bureau of Labor Statistics under President Barack Obama. He’s a credible economist, not a partisan hack.
If you still want to see the budget gamed, though, look no further than the Tax Foundation’s score of Senators Marco Rubio and Mike Lee’s tax plan. The Foundation says that under a static scoring model, which doesn’t account for macroeconomic effects of the plan, the plan would cost the federal government $414 billion annually. That’s a huge amount of money. The government collects about $3 trillion a year in tax revenue, meaning the Rubio-Lee plan would be a 12.5 percent cut, a bold but unsurprising figure. Before Lee teamed up with Rubio, he released a first draft of his tax plan that reduced government revenue by an average of $240 billion a year. The new plan has even more tax cuts.
But when the Tax Foundation applies a dynamic scoring model to estimate the revenue effects of Rubio-Lee, the findings get downright wild. The Foundation projects that once the economy adjusts to the changes, it will grow enough to generate $508 billion (in 2015 dollars) in additional revenue each year. That would leave the American taxpayer with a cool $94 billion net annual gain.
To understand why this is so ridiculous, look at the Joint Committee on Taxation’s dynamic scoring estimates for the tax plan former Representative Dave Camp released last year. (The JCT produces revenue estimates for CBO.) The JCT used eight different dynamic scoring models and provided eight different estimates. “The increase in projected economic activity is projected to increase revenues relative to the conventional revenue estimate by $50 to $700 billion, depending on which modeling assumptions are used, over the 10-year budget period,” the report concluded. Now, $700 billion is nothing to sneer at, but that’s over a ten-year period. The Tax Foundation’s dynamic scoring model raised nearly that amount of additional revenue every single year.1
This is a slightly different comparison, because JCT’s numbers come from the 10-year period while the economy adjusted to the tax plan versus the Tax Foundation’s numbers, which are from after the economy full adjusted. The difference is still stark.
Once the Foundation releases the full report Monday, Rubio and Lee will surely cite the numbers ad nauseam to gin up favorable coverage and analyses of the proposal. The Tax Foundation is giving Rubio and Lee a major political boost by producing such a friendly score.
I’m sure the Foundation’s economists would disagree that they are doing the two senators a huge favor. They would say that the Rubio-Lee plan is far friendlier to economic growth than Camp’s plan was. Maybe they’re right. But it’s not that much friendlier. These numbers are far beyond any realistic estimate of Rubio-Lee’s macroeconomic effects. And it’s basically impossible to produce realistic estimates to start. “Theoretically dynamic scoring is the right thing to do,” Peter Orszag, who was director of CBO under President Barack Obama from 2007 to 2008, told me in January. “Just practically, it’s problematic. When you’re forced to pick one model, you’re pushing scientific knowledge beyond reality. You’re forcing the organization to pick one ‘true’ model when the economic science hasn’t produced a single model that works.”
Many conservative economists agree. Douglas Holtz-Eakin, a former CBO director, has frequently said that dynamic scoring isn’t a magical tool to make huge tax cuts look fiscally responsible. Greg Mankiw, who was the top economist for President George W. Bush from 2003 to 2005, recently wrote in the New York Times that while dynamic scoring is theoretically correct, “there are also good reasons to be wary of the endeavor.”
If Republicans had required that the CBO and the JCT use the Tax Foundation’s dynamic scoring model, it would have been a major problem. At least now the two parties accept the CBO’s score as legitimate. If they demand a bill to be deficit-neutral, the CBO is the final arbiter. That would all change if the Tax Foundation’s models were used. Of course, the actual likelihood of that happening was never clear. But if Republicans had required such changes, Democrats would never have trusted any score on any legislation—and rightfully so.
The two sides have enough trouble agreeing to pass anything today. It would be that much harder if they couldn’t even agree on the scores of legislation. You can understand why Democrats were so nervous as Republicans debated how to change the agencies.
1This is a slightly different comparison, because JCT’s numbers come from the 10-year period while the economy adjusted to the tax plan versus the Tax Foundation’s numbers, which are from after the economy full adjusted. The difference is still stark.
By: Danny Vinik, The New Republic, March 5, 2015
“Three Legs Of The Conservative Stool”: The ‘War On Women’ Is The Latest War That Republicans At CPAC Want To Win
All political movements, to some extent, sound nonsensical to outsiders because groupthink elides the needs for certain connective thoughts to be voiced aloud. CPAC, a celebration of orthodoxy among a bullet-point-equipped faithful who all try to sound more stridently like everyone else than anyone else, magnifies this tendency to maddening degrees. Two separate subjects are mentioned with the causal relationship omitted. Facts appear without context; good things are named as though good outcomes inevitably eventuate. When cause-and-effect statements appear, they aren’t much better.
By this process, you can arrive at a conclusion like this: To win the War on Women, you better put a ring on it.
At CPAC, conservatives dedicated an entire panel to “The Future of Marriage.” One could be forgiven for assuming it tackled the issue via the sub-topic “Gays, and the Ickiness Thereof,” because that was the default assumption among those attending CPAC as part of an ongoing More Jaded Than Thou contest. Instead, the panel bypassed halting marriage equality and went straight for a return to celebrating a time when women had few stable life opportunities outside of marriage.
Heritage Foundation vice-president Jennifer Marshall signaled the need for conservative candidates to “be indivisible” on the matter of the “very interrelated” three legs of the conservative stool – marriage, small government and a stable economy. What a weird stool. Why these three things? Why not neighborhood bowling leagues, usury and the gibbet?
Marshall answered that question by explaining that “the sexual revolution has made relationships between men and women much more challenging”. Naturally, as polyamory and bed hopping have had very little effect on bowling or usury. Still, it was an important statement to make, because it implied that women had been complicit in the destabilization of their economic security.
Heather MacDonald of the Manhattan Institute – employer of such luminaries as Iraq War stooge Judith Miller, invariably wrong William Kristol and racist hack Charles Murray – was willing to go even further than Marshall in placing the blame for women’s economic travails on alienation from “the family” and then further blaming women’s thoughts for turning women against where they belong.
“Feminists have taken over college campuses. They run the bureaucracy. People are losing the vocabulary to say fathers are essential,” she said. “I predict there’s going to come a time when Father’s Day is hate speech because you’re dissing a lesbian couple.” Piles of unsold real, comfortable Wrangler Jeans clogging up landfills. Tasteful Methodist sex harnesses going unsold at tasteful Methodist sex harness shops. Ships teeming with rear spoilers for family sedans being turned away from the nation’s harbors. A chilling vision of dadless things to come.
Nonetheless, vague problems demand vague solutions. Thus MacDonald advised 2016 Republican candidates: “If you want to eliminate poverty overnight, you can wipe it out by having stable, two-parent households.” (Note the weaseling inclusion of “stable.”) After all, we determine income inequality by households, so take two people living together in poverty, marry ‘em, and presto! No more poverty. Statistical problems go away if you stop gathering statistics. That only sounds nutty if you don’t already know that global warming isn’t real because thermometers lie.
That more or less made sense if you’d listened to the previous hour’s explanations that everything is bad in the inner city, and too many urban folks don’t get married, so, like, the two things are connected, man. Meanwhile, according to MacDonald, “The most affluent members of American society are still getting married.”
Shortly after this, Wade Horn, former assistant secretary for children and families, weighed in with the observation that marriages save money and diversify productivity because “marriages allow for economies of scale and specialization” within the household. (For those scoring economies of scale at home, presumably because specialization has made one of you an actuary: economies of scale good when you are married to someone; bad when buying prescription drugs for nations.) When your bridesmaids give you bewildered looks at the altar, point at your groom and cross their eyes while miming throwing up, just hold your hands apart to show how much he scales your economy.
To a cynic, that might read like a heartless thought. But do you know what’s really heartless? Government. “Children need their mothers and fathers. There is no government program that can possibly substitute for the love and guidance and sense of place in the world that parents provide,” MacDonald explained. “What we’re seeing now in the inner city is catastrophic. Marriage has all but disappeared. When young boys are growing up, they grow up without any expectation that they will marry the mothers of their children.” And she’s right; people who think government will love you or your abandoned children are idiots. The Department of Love has been a failure since 1967, and large faceless institutions will never care for human beings no matter how well they claim to mean. Those “inner city” people shouldn’t have been trying to hug America. They should have hugged something more practical like each other and that smiley face from Wal-Mart.
But if these problems and solutions got too specific for you, there was always Kate Bryan of the American Principles Project and moderator of “The Future of Marriage in America” panel. Sometimes it’s all just The Culture. The Culture — the Great Silent Chobani — depicts marriage as negative. Example: “The old ball and chain.” Why, if we could just get rid of this expression that zero non-horrible people have used unironically for at least a generation, we could have this thing licked in no-time. Women, inequality, stability, stools, the Whole Chobani. Good talk, everyone.
By: Jeb Lund, The Guardian, February 28, 2015
“CPAC’s Bleeding-Heart Conservative”: A Misleading Appearance Of A Movement Crackling With Spirited Intellectual Frisson
Conservatives who hope to distance themselves from the whackadoodlier elements of CPAC often refer to the conference as a sideshow.
But this year, the sideshow has a sideshow: not a more extreme iteration, but an ideological double negative.
Down the hall from the main stage, there’s a three-day 9-to-5 “activist bootcamp” going on. Coordinator Matt Robbins considers it the first “comprehensive, timely, practical” attempt to turn CPAC’s unkempt exuberance into strategic, ground-game-winning competence.
If CPAC seems crazy to outsiders, it has something to do with the conference’s fundamentally incompatible aims: You can’t both serve as a training ground for future leaders and have speakers on the main stage regularly rattle off the reasons why civilization is doomed.
The conference’s young attendees, largely libertarian-leaning and not worldly enough to think that compromise is necessary, are presented with a slate of panels that give the misleading appearance of a movement crackling with spirited intellectual frisson.
At the same time, would-be presidential candidates deliver the same calculated one-liners designed to elicit hoots of agreement but are largely devoid of substance. No wonder it’s failed to produce an actual youth movement.
In the cocoon of CPAC, the next generation of leaders hears no good argument to change anything about the last generation’s approach.
They are New Coke (if you’ll pardon the pun) distributors at a New Coke conference where the liveliest debate has to do with why more people don’t like New Coke, and the loudest cheers are for the insults heaped upon those who refuse to drink it.
Robbins is here to tell them that some people do not like New Coke.
He is president of American Majority, a nonprofit [501c4] founded in 2010 to focus exclusively on state-level races and below. They say they have 2,700 trainees go on to run for office and 300 in office today—almost all of them at the county or even school board level.
CPAC has featured career fairs and activist workshops in the past, but, says Robbins, “those were mainly about how to get jobs in the movement. I don’t care about that. I want to get people elected.”
The solutions are, admittedly, mostly cosmetic and familiar to anyone that’s been around organizing of any kind—database building, coalition management, social media-tending.
But Robbins also wants to deliver a sharp message to a soft audience completely unprepared for criticism.
“This conference hasn’t been about actually winning for years.”
He gives only one workshop personally, “7 Grassroots Cheats Never Heard Of,” and it is less Alinsky than Oprah. He stresses making voters feel good about their choices. It is aggressively non-party-specific. Do listen to people you don’t agree with! Don’t manage your own social media!
His advice for a candidate posed the “gotcha” question as to whether Obama loves America is to take the political rhetoric out of the issue.
“Every president loves his country,” he says. “Every executive loves their country,” should be the response. “You may disagree, but that has to be the message.”
Toward the end, one audience member seems put off by the lack of red meat and asks, pointedly, why do conservative candidates need to do all this image-management stuff.
“If we can get the message out past the mainstream media,” he says, “the ideas can sell themselves.”
Robbins looks tired and amused.
“Can I be honest with you?” he says, not waiting for an answer: “No one cares. No one cares about our economic policy. No one cares about small-government federalism. No one cares about white papers.”
He returns to teaching mode and asks the audience, “You’re a candidate and you knock on someone’s door, what’s the first thing they want to know?”
“Who are you?” shouts someone. Robbins shakes his head.
After a few more guesses, Robbins interrupts.
“No, not ‘Who are you and what can you do for me,’ but, ‘Are you authentic, and do you care about me?’”
Voters want to know that the candidate is looking out for them, he explains. They will let the details slide.
This is clearly a sore spot. For another 10 minutes, Robbins harps on the GOP’s empathy gap almost exclusively.
It’s his theory for what’s behind the GOP’s slow-motion demographic implosion: Not enough candidates that seem genuinely interested in the problems of voters, whereas Obama definitely projects concern and Bill Clinton “was like a puppy dog in his enthusiasm for people.”
This seems, at first read, like an elegant way to get around the real problem: not the lack of empathic Republican politicians, but the lack of empathy that’s built into Republican policies.
This thought occurs to me after Robbins’ workshop, and I admit I am delighted, because it means I will get to ask someone my very own “gotcha” question.
When I follow up with him later, I deliver as rehearsed: “Do you think the fact that you have trouble recruiting empathetic candidates might have to do with how conservative policies themselves don’t appeal to people that have a lot of empathy?” Pencil poised, I await stammering. I am not rewarded. Or, rather, I am, but not by telltale hemming and hawing, but a simple, “You have point.”
“If you’re a small government-minded conservative, and you enact those policies, someone is going to lose. Something is going to get cut,” he admits, and people attracted to that philosophy have to be OK with that.
He suggests that perhaps such surety is the luxury of those who have never met those on the receiving end. Robbins worked in the Virginia statehouse and recalls being floored by the constant roll call of emergency requests: “There were tens of thousands of Virginians without running water… people going hungry…with mental health problems out on the street…These are people with real needs and there’s no homeschool association to take care of them, no church that can take care of them, no neighborhood group—it’s a situation where government does seem like the answer.”
“I am not sure most conservatives believe that world exists,” he says. “Or, they do, but since they think those problems exist because of Democrats’ policies, those problems SHOULDN’T exist, and then their brains lock up and start to smoke when you ask for a solution.”
So, how do you fix that? I ask.
“If I had my way, every candidate would go on a ride-along with police on the coldest night of the year, when they pick people up because they literally won’t survive otherwise.”
And, he said, there needs to be more conservative candidates and fewer movement activists, period—more people faced with the task of looking in the eyes of those on the other end of an philosophically unpalatable policy “and trying to thread that needle.”
“You know it only costs, on average, $2,000 to $4,000 to run for school board? How many people here do you think could afford that? Stop watching Fox News and go run.”
By: Ana Marie Cox, The Daily Beast, February 27, 2015
“Don’t Blame Liberal Media For Giuliani Gaffe”: The Go-To Explanation Among Conservatives For Almost Everything That Happens
We’ve had a terrific demonstration over the last week or so of why the belief in liberal media bias is so strong.
It isn’t because of actual liberal media bias. Academic research finds plenty of ways the press gets things wrong, but an ideological slant isn’t one of them.
Most bias has to do with the industry’s norms (stories involving the president get more play than articles about governors, and so on). In some cases, the self-interest of the media plays a role, whether it’s promoting freedom of the press, for example, or building up anyone who might take on Hillary Clinton for the Democratic presidential nomination as a way to build interest in that snooze fest.
What sustains the belief in liberal bias? It’s the go-to explanation among conservatives for almost everything that happens, and has been for at least four decades. Repeat something long enough, without strong opposition, and people will accept it.
So the reaction to the Rudy Giuliani story, in which the former New York mayor claimed Barack Obama didn’t “love” America, invoked howls of media bias from conservatives. Some said it wasn’t a story at all — Giuliani hasn’t been in office for years, so who cares what he says? Isn’t there real news out there? Others were upset that Republican candidates were pressed to agree or disagree with Giuliani — look, the liberal media is trying to make conservative politicians look stupid!
But we had an almost perfect parallel in the coverage of Howard Dean’s complaint that Republican Governor Scott Walker of Wisconsin shouldn’t be president because he didn’t graduate from college.
Giuliani left office in 2001, ran for president in 2008, has since been out of active politics but shows up on TV all the time. Dean left office a year after Giuliani did, ran for president in 2004, was Democratic National Committee chairman through 2008, has since been out of active politics but shows up on TV all the time.
Republicans were forced to take a stand on whether Obama loves America; Democrats were pressed to say if they thought a college dropout was unqualified to be president.
The Giuliani story was bigger only because attacking the president is a bigger deal than attacking one of many Republican presidential candidates, and New York (where much of the national media is based) trumps Vermont.
Both accusations were pretty much denounced by everyone; both sparked predictable partisan bashing and a few interesting reflections.
But liberals didn’t go crying about conservative media bias in the Dean-Walker case because they don’t see every news story as an example of prejudice against them. Conservatives do.
For example, they screamed that the media ignored the scandal ending the career of Democratic Governor John Kitzhaber of Oregon, but as Philip Bump explained, this too was caused by ordinary press norms, not ideological bias. Kitzhaber’s scandals were undercovered (at least in the national media) compared with those of Republican Chris Christie because Christie is running for president and he’s a governor in the New York area. Think about it. The press hardly ignored scandals costing Democratic Governors Rod Blagojevich or Eliot Spitzer their jobs. It’s just that Democrats never interpreted those firestorms as examples of Republican media bias.
There’s nothing wrong with pointing out when news coverage is wrong or wrong-headed. But ideology isn’t at the root of those mistakes and biases.
By: Jonathan Bernstein, Columnist for Bloomberg View; The National Memo, February 25, 2015
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