Memo To Congress: “You’re In The Hot Seat If Obamacare Is Overturned”
In oral arguments before the Supreme Court in March, lawyer Paul Clement made the case that the simplest way to dispense with the 2010 health-care-reform law would be to overturn it entirely: If the Court finds that the individual mandate is unconstitutional, it should strike down the whole thing. “The better answer might be to say, ‘We’ve struck the heart of this act; let’s just give Congress a clean slate,'” said Clement, representing the National Federation of Independent Business and the 26 states that oppose the law.
On its face, Clement’s logic seems simple: If you’re going to monkey with a giant piece of legislation that restructures nearly one-fifth of the U.S. economy, it’s best not to get into the weeds. Just let Congress start from scratch. But this argument misunderstands what would happen if the sprawling law is suddenly moot. Unlike partial revocations, which would give Congress time to fix potential glitches, a complete invalidation would start several policy fires that would require immediate congressional action. And members of Congress have not spent much time planning for this scenario.
First up: Medicare. The Affordable Care Act changed the formulas that Medicare uses to pay providers from top to bottom. It shifted growth rates, boosted some providers’ pay, and baked in financial incentives for doctors and hospitals that achieve quality benchmarks. It also codified many of the Medicare payment adjustments that it passes every year. (After all, when you have one big health bill moving, why not throw in everything?) Since 2010, regulators have acted on those changes, and the Centers for Medicare and Medicaid Services pays out 100 million medical bills each month according to the new pay scale.
If the law is overturned, no one is sure what figures the system would use. Should CMS continue to pay providers at the rates set by the law? Or should it go back to 2009 levels? Both Donald Berwick, who ran CMS under President Obama before he joined the Center for American Progress last year, and Gail Wilensky, who held a similar post during the presidency of George H.W. Bush and is now at Project HOPE, said they don’t know the answer. The House Ways and Means and Senate Finance committees would need to move fast to establish a clear legal authority for CMS to pay providers.
Furthermore, CMS operates using an antique IT system that makes it difficult to enact quick changes. Last year, when Congress looked like it might not pass routine legislation to forestall a big cut to physician pay rates, CMS Deputy Administrator Jonathan Blum told reporters that the system could hold claims for only 10 days before the computers crashed. Congressional staffers say they would probably need to freeze the current rates for weeks or months to give CMS time to switch back to the old pay scale.
Sen. Tom Coburn, R-Okla., a physician and a member of the Senate Finance Committee, which has jurisdiction over Medicare, opposes the law. But, he says, “there’s going to be a lot of chaos.” Although “there are discussions going on all the time,” Coburn says, few decisions have been made. On the House side, a Republican aide says that staffers are making preparations, but members are not concerned about a real emergency if the law is struck down. “I don’t think, overnight, there’s going to be this immediate panic,” the aide said.
The health-care law also reauthorized several long-standing federal programs, including the Indian Health Service, the principal care provider for nearly 2 million American Indians and Alaska natives. And it dedicates billions of dollars to expand community health centers and the health care workforce. If it disappears, the legal authority for those programs or their funding would disappear with it. If Congress doesn’t want these programs to shut their doors and shed workers, it will need to reauthorize them quickly. Many of these programs have enjoyed broad bipartisan support for decades, and it’s unlikely that even Republicans clamoring for repeal of the health care law would want to see them eradicated.
A complete erasure of the health care law could also spell trouble for the Centers for Disease Control and Prevention. The law’s Public Health and Prevention Fund, despite recent reductions, is set to dole out about $10 billion for community health ventures over 10 years. But because of recent appropriations cuts, the agency is using $825 million of that sum to pay for bioterrorism response-planning, lead-poisoning prevention, immunization programs, and many other core functions this year. Without new appropriations, these public-health programs will face instant, dramatic cuts. Sen. Robert Casey, D-Pa., a member of the Health, Education, Labor, and Pensions Committee, says he has not talked to his Democratic colleagues about contingency plans, and he is not optimistic that much would pass in this Congress. “The last time we did this, it took 30 years,” he says.
Since the Court is not especially likely to overturn the entire law, few lawmakers — including party leaders — have planned for it. “You asked whether there have been discussions,” said Senate Minority Whip Jon Kyl, R-Ariz., who is a member of the Finance Committee. “The answer is yes. But there have been no conclusions reached yet.” In this Congress, though, even if both chambers ready blueprints in time, it’s hardly clear that anything could become law.
By: Margo Sanger-Katz and Meghan McCarthy, The Atlantic, June 25, 2012
“Horribly Misguided”: Supreme Court Again Smacks Down Campaign-Finance Reformers
The Supreme Court’s rejection of a long-shot legal challenge to let states bar corporate and union political contributions in their own elections underscores the legal quandary in which many left-of-center campaign finance reformers find themselves.
The court, in a 5-to-4 vote split along ideological lines, refused on Monday to strike down a Montana ban on corporate political spending. The decision effectively upholds its landmark 2010 decision Citizens United v. Federal Election Commission, which held that corporations and unions were entitled to the same free speech protections as citizens, or at least allow state law to supersede it.
Because the Supreme Court decided Citizens United only two years ago and its conservative majority remains intact, few legal experts expected it to rule in favor of the challenge.
The current case, American Tradition Partnership v. Bullock, stemmed from a century-old Montana law that prohibits corporations from spending money on political campaigns. The effort, joined by more than 20 states, stipulated states should be allowed to carve out their own rules to regulate political fundraising and spending, an argument backed by the Montana Supreme Court when it ruled in favor of the state law last year.
But the Supreme Court, in a one-page per curiam opinion that shut the door on the possibility of oral arguments, curtly dismissed the notion that federal law didn’t apply.
The Citizens United decision, combined with other court cases and FEC rulings, has dramatically loosened fundraising and spending regulations for independent political organizations, which have proliferated since 2010 and become a major force in campaigns. Effort to curb the spending through the judiciary have thus far proven fruitless; Paul Ryan, senior counsel to the Campaign Legal Center, a left-of-center interest group, called the ruling “disappointing but predictable.”
“Unfortunately the only surprise would have been if the Supreme Court had taken the opportunity to revisit its horribly misguided decision in Citizens United,” Ryan said. “Clearly, the Supreme Court has decided to wash its hands of the disastrous results of its earlier decision. Apparently the same five Justices who gave us Citizens United are not troubled by the fact that special interests are picking the winners and losers in our federal and state elections.”
In a dissent, Justice Stephen Breyer agreed. He reiterated his existing objection to the Citizens United decision, arguing that the proliferation of political spending amounted to a quid pro arrangement between politicians and political spenders. He also backed the state’s right to decide on its own whether corporate spending constituted to a corrupting influence, the threshold conservative justices have argued laws must pass to be constitutional.
“Thus, Montana’s experience, like considerable experience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so,” Breyer wrote.
But even as the liberal justice signaled he would like to reconsider Citizens United, he acknowledged the court’s unchanging conservative majority means he doubts there is a “significant possibility” the court will reverse itself — something that left conservatives pleased.
“This closes the door on the argument that unique facts in a certain state can be employed to overturn [Citizens United],” said Jim Bopp, an Indiana campaign finance attorney who has spearheaded an array of challenges to campaign finance laws across the country. “Further, it means that independent expenditures are never corrupting as a matter of federal constitutional law.”
Senate Minority Leader Mitch McConnell, a longtime advocate for loosening campaign finance regulations, hailed it as “another important victory for freedom of speech.”
“Clearly, the much predicted corporate tsunami that critics of Citizens United warned about simply did not occur,” he said in a statement.
By: Alex Roarty, The Atlantic, June 25, 2012
“Blame The Supreme Court”: Acting As An Arm Of The Republican Party
Liberals will be tempted to point the finger at themselves if the Affordable Care Act is overturned. They shouldn’t.
It’s a virtual certainty that, if the Supreme Court overturns the individual mandate or the Affordable Care Act wholesale, liberals will find a way to blame each other—or the administration—for its failure to anticipate the constitutional challenge. Yesterday, both The Washington Post and The New York Times ran stories in which critics and observers laid blame on the administration for its tactical strategy, and the bill’s authors for using the mandate to achieve near-universal health-care coverage. Here’s the Times:
With the benefit of hindsight, some advocates said they would have been better off framing the law more explicitly as a tax, although doing so would have been politically explosive. Short of that, some said, strategy alternatives like slowing down the case still might not have made a difference.
This strikes me as misguided. Underlying the assumption that the Court will strike down the individual mandate—or the Affordable Care Act as a whole—is the idea that the current Supreme Court is partisan in a way that’s never been true before. It’s one thing to stack the Court with Justices who are ideologically favorable; it’s something else entirely to stack the Court with fellow partisans, who are primarily loyal to the Republican Party and not any discernible legal principle.
Whether this has happened is an open question, but if it has—as James Fallows argued yesterday—then it’s silly to think that liberals could have avoided disaster by framing the law as a tax, or changing the structure of the mandate. Remember, when the law was being crafted in 2009, or when it was signed in 2010, the spurious distinction between “activity” and “inactivity” hadn’t been devised yet, and no one was concerned the the mandate would violate the Constitution. But eventually, movement conservatives developed a legal principle that would allow them to argue the case.
Likewise, if the mandate were framed as a tax—or even if the Affordable Care Act were shaped as “Medicare-for-all”—movement conservatives would have devised a legal doctrine that challenged its constitutionality.
Because of this, if the Court strikes down the Affordable Care Act, liberals should refrain from turning their guns on each other. Instead, they should take aim at the Supreme Court. A Court that acts as another arm of the Republican Party is one that doesn’t deserve the standing it claims or the respect it demands. Partisan institutions should be treated as such, and liberals should do as much as possible to challenge the legitimacy of the Court.
By: Jamelle Bouie, The American Prospect, June 25, 2012
“Quiet Room Magical Thinking”: Mitt Romney Pretends Congress Doesn’t Exist
Mitt Romney went before a group of Latino public officials today to offer some remarks on immigration. Calling it a “plan” would be too generous, although there were a couple of details, some of them perfectly reasonable, like giving green cards to people who get an advanced degree at an American university. But the part everyone has been waiting for—his reaction to President Obama’s recently-announced mini-DREAM Act—was pretty disappointing, because it engaged in a kind of magical thinking that has become increasingly untenable:
Some people have asked if I will let stand the President’s executive action. The answer is that I will put in place my own long-term solution that will replace and supersede the President’s temporary measure. As President, I won’t settle for a stop-gap measure. I will work with Republicans and Democrats to find a long-term solution.
I will prioritize measures that strengthen legal immigration and make it easier. And I will address the problem of illegal immigration in a civil but resolute manner. We may not always agree, but when I make a promise to you, I will keep it.
It’s certainly nice to know he’ll be “resolute,” but you may have noticed that getting a major immigration reform through Congress is kind of a difficult thing to do. George W. Bush and Barack Obama both tried to do it and failed. So how is Mitt going to accomplish this feat? He will “put in place my own long-term solution.” Now why didn’t anyone think of that before?
This isn’t something new, of course—most challengers act as though through the overwhelming force of their personality, they’ll sweep away all opposition, bring both parties together, and get things done. The messy details are left for when you’re actually in office. Obama certainly talked that way four years ago. But after all we’ve been through in the last few years, isn’t it incumbent upon a presidential candidate to at least not pretend that enacting large, sweeping legislation that requires bipartisan cooperation on an intensely controversial issue is going to be a piece of cake?
Last weekend, Bob Schieffer asked Romney what he would do about the Obama policy while he was getting his awesome new policy in place, and Romney dodged the question. But no one who knows anything about Congress believes it’ll be anything but enormously difficult.
And it’ll be particularly difficult for Mitt Romney. It isn’t a matter of the complexity of the issue, as it was with health care reform where there were hundreds of small and large details to be worked out. In this case, it’s about the fragile coalition that would have to be assembled to pass immigration reform. I spoke today to a staffer for one of the most influential members of the House on the immigration issue, and he pointed out that there have been comprehensive immigration bills sitting around for ten years. The problem, he said, is the House Republicans. As long as they’re in control, no immigration bill that grants any undocumented immigrant anything other than a swift kick in the pants has any hope of passing. If a President Romney was to pass immigration reform, he’d have to do it with overwhelming support from Democrats and enough moderate Republicans peeled off to get to 218 votes.
But this is Mitt Romney we’re talking about. The guy who is going to have to spend his entire first term convincing conservatives he’s still one of them, lest he face a primary challenge from the right. What do you think are the chances he’d take on a high-profile fight with his party’s right wing, with the odds stacked against him?
By: Paul Waldman, Contributing Editor, The American Prospect, June 21, 2012
“With Eyes Wide Shut”: Right Wing Spins The Media With “Job-Killer” Claims
The media is indiscriminately using the term “job-killer” to describe government policies and programs, but without verifying or substantiating the claims, according to a new study. Use of the phrase by major media outlets has exploded since President Obama took office and rapidly circulates throughout the press with little or no fact checking of the “job killer” allegations.
“Job-Killing” Rhetoric From the Right
“The news media, by failing to seek to verify allegations made about government policies and proposals, typically act more like a transmission belt for business, Republican, and conservative sources than an objective seeker of truth when it comes to the term ‘job killer,'” its authors found.
The independent study, Job Killers in the News: Allegations without Verification, conducted by Prof. Peter Dreier of Occidental College and Christopher R. Martin of the University of Northern Iowa, reviewed the use of the term “job-killer” in stories from The New York Times, The Wall Street Journal, The Washington Post and The Associated Press going back to 1984.
The vast majority of the “job-killer” allegations were directed at federal or state government policies to regulate business (particularly policies towards the environment, taxes, health care, and raising the minimum wage). Most of the sources for the “job-killer” charges came from business spokespersons and Republican Party officials, but in around 17 percent of the articles and editorials, news outlets used the phrase without citing a source. In 91.6 percent of the stories about “job killing” government policies, the media failed to cite any evidence or quote an authoritative source to corroborate the claim.
“With little or no fact checking of ‘job killer’ allegations, Americans have no way to know if there is any evidence for these claims or whether they are simply a cynical political ploy used to discredit opponents’ policy ideas,” Dreier and Martin noted.
Indeed, according to the authors, “There is no correlation between the frequency of the phrase ‘job killer’ and unemployment rate. Instead, ‘job killer’ allegations correspond much more closely with political cycles,” particularly during election season and under Democratic administrations.
“Job-killer” allegations were barely used under the Clinton administration and virtually disappeared during the eight years George W. Bush was president — despite job growth under Clinton and job loss under Bush — and skyrocketed once Barack Obama became president. The number of news stories alleging that a particular government policy would be a “job killer” increased 1,156% between the first three years of the George W. Bush administration and the first three years of the Obama administration.
“The cavalier nature in which the ‘job killer’ allegations are reported suggests that term is used loosely by those who oppose government regulations, and they can get away with it because news organizations fail to ask—or at least report – whether they have any evidence for the claims they make,” the study’s authors wrote.
The Wall Street Journal was the most likely news organization to use the phrase with no attribution.
By: Emily Osborne, Center For Media and Democracy, June 22, 2012
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