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“GOP Failure Theater”: How Conservatives Convinced Themselves That Another ObamaCare Loss Is Just Prelude To Greater Victory

There’s a ritual carried out by losing candidates on election night, in which they come before their supporters gathered in a hotel ballroom, look out at all the long faces and tired eyes, and say, “This has been a noble crusade. And though we may have lost today, the battle for the things we believe in goes on. I’ll be there fighting for that vision, and I hope you’ll be there with me.” Everyone applauds, and then they all go home.

Now that the Supreme Court has ruled against what was simultaneously the most absurd and the most threatening challenge to the Affordable Care Act, conservatives are enacting something similar to that election night ritual. In private, many are expressing relief, since there was widespread worry that if the King v. Burwell lawsuit had succeeded, they would have been responsible for at least six million Americans losing insurance subsidies, and quite appropriately gotten the blame for it. But what are they saying publicly?

The politicians are finding virtue in consistency; their line is that this changes nothing.

“Today’s ruling won’t change ObamaCare’s multitude of broken promises,” said Mitch McConnell.

“ObamaCare is fundamentally broken,” said John Boehner. “Today’s ruling doesn’t change that fact.”

“Today’s ruling makes it clear that if we want to fix our broken healthcare system, then we will need to elect a Republican president,” said RNC chair Reince Priebus, who also made the fascinating observation that a Hillary Clinton presidency would be terrible for America.

Naturally, conservatives are disgusted with Chief Justice Roberts, whom they regard as an unreliable ally, unlike Justices Scalia, Thomas, and Alito. Quin Hillyer of the National Review summed up their feelings: “He is a disgrace. That is all.” But as far as conservative commentators are concerned, the perfidy extends beyond the Supreme Court to the cowards and quislings in Congress. And so, in a particularly optimistic strain of thought, they’re arguing that the decision is really an excellent outcome.

That’s because it has saved the right from another round of what blogger Allahpundit calls “GOP failure theater,” in which Republicans in Congress “make a pretense of putting up a fight in hopes that conservative voters will be impressed and to obtain some sort of mostly meaningless concession to wave at them when the inevitable, and predestined, cave finally happens.”

Similarly, Ben Domenech argues that the decision is a good thing for conservatives, because now Republican candidates will have to come up with really good health care plans to enact when they take back the White House: “Thus, I think the ruling today probably increases the likelihood of repealing ObamaCare in 2017 by a not insignificant margin.” On a similar note, Bill Kristol tweeted, “Repeal of ObamaCare and replacement with limited-government alternative in 2017 will be one of modern conservatism’s finest hours.”

That presumes that the Republican nominee will win, of course. But it also presumes that he would have the ability and willingness to repeal the ACA upon taking office.

There’s no question that the Republican presidential candidates will continue to express their eagerness to do so, at least until we get to the general election. Though none of them has anything resembling a fully-formed plan for the “replace” part of “repeal and replace” that Republicans have been advocating for years, they still have to pay lip service to the idea that the consensus conservative health care plan is coming any day now. When you’ve spent the last five years arguing that this law is a poison-tipped dagger plunging into liberty’s heart, you can’t just say, “Eh, looks like we’ll live with it,” no matter what the practical reality might be.

The practical reality is that whatever public opinion may be about this large abstraction called “ObamaCare,” the law is delivering particular benefits of which Americans are quite fond and that they don’t want to lose. Taking away those subsidies through a lawsuit would have been a political disaster for Republicans, and that would have affected only a portion of the public. What if Republicans were to take away subsidies from people in all 50 states, and toss millions more off Medicaid, and make it so that now insurance companies can deny you coverage because of a pre-existing condition again? That’s what repealing the ACA would mean. Republicans may not be able to admit it, as they promise that their phantom alternative plan would take care of all that, but they know that just undoing the ACA would be a disaster.

They can’t acknowledge that fact, because they have a constituency that has been fed heaping plates of apocalyptic rhetoric on this issue ever since the ACA became law. Those Republican base voters need to be told that, though they’ve suffered a loss, the fight is not over. As Ted Kennedy said 35 years ago in what may be the prototypical example of that losing candidate’s speech to his dismayed supporters, “the work goes on, the cause endures, the hope still lives, and the dream shall never die.”

 

By: Paul Waldman, Senior Writer, The American Prospect; Contributing Writer, The Week, June 25, 2015

June 26, 2015 Posted by | Affordable Care Act, Conservatives, GOP | , , , , , , , , | 1 Comment

“The G.O.P. Opts Out Of Equality”: Conscience Is Never Just Personal When The Occasion Is A Fraught Debate Over Public Morality

On May 28th, North Carolina Governor Pat McCrory vetoed Senate Bill Two, which proposed allowing public officials to temporarily stop performing weddings based on “any sincerely held religious objection.” In other words, if a public official were confronted by a gay couple who wished to marry, he could refuse to perform the ceremony. McCrory’s veto put the Republican governor at odds with a Tea Party legislature, which immediately promised to override it. On June 1st, the state senate voted to override, and, this morning, the house of delegates did, too, making it legal for North Carolina magistrates to turn away gay couples.

The Bartleby-like public official who “would prefer not to” marry same-sex couples would not have been asked to just one year ago. In 2012, North Carolina adopted a constitutional amendment banning same-sex marriage, in line with thirty other states where a majority at one point opposed it. Then, in June, 2013, the Supreme Court struck down the Defense of Marriage Act, and federal courts turned decisively in favor of gay marriage. In October, 2014, a federal judge ruled North Carolina’s marriage amendment unconstitutional, and same-sex ceremonies began. That month alone, court decisions also lifted same-sex-marriage bans in thirteen other states—Alaska, Arizona, Colorado, Idaho, Indiana, Nevada, New Jersey, Oklahoma, Utah, Virginia, West Virginia, Wisconsin, and Wyoming—more than twice the number of states where same-sex marriage was legal in 2010.

Following this rout, conservatives have moved rapidly from enforcing a unified public morality based on traditional marriage to speaking the language of pluralism as they seek exemptions from the rising legal norm of marriage equality. Their model has been the Religious Freedom Restoration Act (R.F.R.A.), of 1993, which exempts believers from federal laws that “substantially burden” their religious exercise, except where the regulation is the least burdensome way to fulfill a “compelling governmental interest.”

The R.F.R.A.—which was intended to protect neglected religious minorities, such as Native American worshippers who had recently lost public-sector jobs in Oregon because of their ritual use of peyote—was the basis of last year’s Supreme Court decision in Burwell v. Hobby Lobby, which held that certain business owners can refuse to offer insurance coverage for contraception based on their religious objections. The Indiana Religious Freedom Restoration Act, which was signed into law this March, is a model for the state-level expansion of religious exemptions, applying its protections to all corporations and making religious belief a defense in private legal actions, such as anti-discrimination suits. A similar bill passed in Arkansas later that month.

Supporters describe the state R.F.R.A.s and other religious accommodation laws as acknowledging the “increasing religious pluralism in American culture,” and protecting “religious liberties and the freedom to live out religious convictions,” as Russell Moore, the president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, put it in March. These exemptions, for the individuals, public officials, and business owners who wish to say, “I would prefer not to,” have become the new front in the culture war, the redoubt of attitudes that were recently in the majority. Invoking tolerance to defend intolerance is ironic at best, but at a moment when disapproval of gay marriage looks ever more like plain bigotry, it is better to say not, “I disapprove of you,” but rather, “This is who I am.”

The Bartleby strategy has taken center stage in conservative resistance to a wide range of liberal policies. In 2012, the Supreme Court nearly overruled the Affordable Care Act’s requirement that individuals buy insurance. Five justices voted to protect the consumer’s freedom to opt out of a market, such as the health-insurance market, warning that, if Congress could require this purchase, it could also command people to buy health-club memberships, American cars, or broccoli. (The insurance requirement survived through a sleight of hand, as Chief Justice John Roberts, who agreed with the rest of the Bartleby argument, found a hook for the law in Congress’s constitutional power to impose taxes.) In 2014, the Court held that certain members of public-sector unions could opt out of paying their union dues, which fund organizing and advocacy. Writing for the majority, Justice Samuel Alito argued that mandatory dues impinge on the First Amendment’s rights of free expression and voluntary association, and hinted that dues requirements in general might be found unconstitutional in the future.

As conservatives press these claims for personal exemptions, they have also been highly solicitous of states that would prefer not to accept new federal standards. The Supreme Court did real damage to the Affordable Care Act when, as part of its 2012 ruling, it found that states could not be penalized for refusing to expand Medicaid, which was an essential part of the A.C.A.’s path to near-universal coverage. As a result, twenty-one states have not signed on to the Medicaid expansion, and nearly four million low-income Americans have not obtained health insurance that the federal government intended them to have.

Similarly, Senate Majority Leader Mitch McConnell is urging state governments to disobey the Obama Administration’s order to develop climate-change regulations. McConnell has some support for his argument that the Clean Air Act does not stretch far enough to require these regulations, and there is sure to be litigation on the issue. But his call for a coordinated strategy of passive resistance in the meantime is extraordinary. The more opt-outs any climate policy includes, the more likely it is to fall apart in a wave of free-riding, as everyone decides to let someone else make the sacrifice, leaving no one to make the sacrifice at all.

Of course, a state refusing to make law is different from an individual refusing to bake a wedding cake for a gay couple. Medicaid policy and pollution regulation directly affect millions of people and billions of dollars of economic activity. The argument for conscience-based individual exemptions is that they concern the exempted individual most of all. The problem with this argument is that an individual’s conscience is never just a personal matter when, as in the case of the Hobby Lobby decision, it bears on the terms of employment. Then the person denied contraceptive benefits, or who is looking for a new job where she can get those benefits, is also part of the picture. Economic life is deeply interdependent, and involves conflicting interests and unequal power. This is why, from the New Deal until very recently, the Supreme Court did not permit many opt-outs from economic regulation. The new raft of conscience claims is creating unprotected spaces within an already precarious economy.

A second problem with individual opt-outs is just as basic. Conscience is never just personal when the occasion is a fraught debate over public morality. Once public laws banning same-sex marriage are gone, authorizing supposedly private discrimination against same-sex couples continues the cultural fight by other means. In hindsight, no one doubts that allowing business owners to discriminate against black people during the Civil Rights era would have denied them full equality and hampered desegregation. (Arguably, the continued tolerance of discrimination by private clubs also undermines desegregation, though club membership is less essential to daily life than shopping.) Similarly, allowing private discrimination against gay couples is not an exemption from a new rule of full equality; it is a compromise that allows inequality to persist. Proposals to let magistrates withhold marriage licenses have the same problems, with the added insult that the discrimination is effectively coming from the state. If officials can decide not to implement laws they dislike, then equality under the law—for gay couples, at least —is just a slogan.

The Bartleby position appeals to touchstone liberal values: personal conscience, diversity, tolerance, and autonomy. On their face, these values seem to promise there are no hard conflicts: there is room for everyone’s conscience, everyone’s outlook, and tolerance enough for each person’s freedom. The new generation of opt-outs show that this is a misconception: there is conflict over what these values mean, and there is never enough room for all their meanings. The politics of tolerance, diversity, and autonomy are distributive politics, with winners and losers.

From Thoreau’s night in jail protesting slavery and the Mexican-American War to the Greensboro lunch-counter sit-ins, sitting still and not doing as you are told has been among the most potent of political tactics, though its effects are often complex and long delayed. As in much else, initiative in this tradition of creative refusal belongs to the political right today. There is no paradox in conservatives using liberal values and tactics to their ends. By the same token, there should be no liberal embarrassment in resisting. There is no incoherence here, but there is disagreement too sharp for tolerance alone to resolve it.

 

By: Jedediah Purdy, The New Yorker, June 11, 2015

June 13, 2015 Posted by | GOP, Marriage Equality, North Carolina | , , , , , , , , | Leave a comment

“From Unlikely To Long-Shot”: Rand Paul Just Sacrificed His Presidential Campaign For His Libertarian Principles

Sen. Rand Paul (R-Ky.) had what will probably be the defining moment of his presidential campaign on Sunday night. It could conceivably help him, but at a high political cost. It could also end his presidential hopes.

The junior senator from Kentucky infuriated his Republican colleagues by blocking a vote on the USA Freedom Act, a bill that would curtail a controversial National Security Agency bulk phone-data collection program and reauthorize three other surveillance programs that expired at midnight. The NSA had stopped collecting telephone metadata Sunday afternoon, when it became clear no deal would be finalized in time. It won’t be able to resume until the Senate acts, the House approves any changes, and President Obama signs the bill.

In Rand Paul’s telling, and that of the red-shirted “Stand With Rand” supporters who filled the Senate gallery on Sunday evening, Paul stuck a shiv in the government surveillance state, at least for a few days. “The Patriot Act will expire — it will expire tonight,” Paul said on his way out of the Senate chamber Sunday night. “The point I wanted to make is that we can still catch terrorists using the Constitution.”

Paul had some other help, if inadvertent. Senate Republicans, notably Majority Leader Mitch McConnell (Ky.), had wanted to extend the USA Patriot Act as is. They fell short. Then, after a week’s recess, when it became clear the votes just weren’t there for the Patriot Act renewal, McConnell reluctantly agreed to put the “flawed” USA Freedom Act up for a last-minute vote on Sunday, and the Senate agreed, 77 to 17. The bill had passed the House on May 13, 338-88, and Obama supports it.

Senate GOP hawks say the Freedom Act puts too many constraints on the NSA; Paul and some other civil libertarians say it still goes too far. But his usual civil-liberty allies in the Senate signaled their comfort with the House bill, leaving Rand Paul the lone holdout. In the Senate, that’s often enough to delay a bill, and Paul did so on Sunday.

Whether or not it was his prime motivation, as Sens. Dianne Feinstein (D-Calif.) and John McCain (R-Ariz.) suggest, Paul will earn a lot of money for his presidential campaign. But his chances of becoming the 2016 Republican nominee just went from unlikely to long-shot.

Shutting down American espionage and surveillance capabilities, even for a few days, is too off-brand for the GOP — especially at the moment.

Paul is “a niche candidate of a shrinking niche, because events are not playing out the way he anticipated two years ago when he began running for president,” George Will said on Fox News Sunday. “The world looks much more dangerous than it did,” and “literally cashing in” on his “conscientiousness as a libertarian” really “muddies the waters” of his intentions.

In a crowded Republican presidential field, Rand Paul is betting he can monopolize the libertarian caucus. It’s a gamble. Forcing expiration of the NSA provisions for a couple of days was a small victory on its own. But “his larger political victory was that he took ownership of Patriot Act opposition,” said David Weigel at Bloomberg Politics, “angering Republican colleagues whom he is happy to anger.”

Weigel names McCain and Sen. Lindsey Graham (R-S.C.), but Paul also angered McConnell, who has endorsed him for president, and Senate Intelligence Committee Chairman Richard Burr (R-N.C.), who vowed on Sunday that “there won’t be any negotiations with Rand Paul from this point forward.” Paul didn’t attend the GOP caucus meeting before Sunday’s session, and Republicans walked out on him en masse when he started speaking.

The big question for Paul is whether there are enough civil libertarians in the Republican Party, and if so, whether they will vote in the primary. Plenty voted for his father, former Rep. Ron Paul (R-Texas), but it wasn’t enough.

“People here in town think I’m making a huge mistake,” Rand Paul said Sunday evening. “Some of them I think secretly want there to be an attack on the United States so they can blame it on me.”

In other words, Rand Paul sounds like a lot of Democrats after the Sept. 11, 2001, terrorist attacks. That wasn’t a good place to be, politically.

Brit Hume at Fox News hammered the same point on Sunday. Paul “seems confused about which party he’s running in,” he said. “There’s a segment of the Republican electorate which shares his somewhat paranoid views of things, and he’ll have their support, but that’s not a nominating set.”

Rand Paul seems to know the risks, and he seems content to go down swinging. And if he does stake his political future on curtailing government spying and lose, unlike other GOP presidential contenders, he probably shouldn’t expect a soft landing at Fox News.

 

By: Peter Weber, The Week, June 1, 2015

June 2, 2015 Posted by | Civil Liberties, Patriot Act, Rand Paul | , , , , , , , , | 3 Comments

“The Patriot Act Fight Enters The Twilight Zone”: Naturally, The Legislature Is In A State Of Disarray

Congress is up against a tight deadline to extend or reform Section 215 of the Patriot Act, the provision that the government claims authorizes the National Security Agency’s phone data program, before it sunsets on June 1. Naturally, the legislature is in a state of disarray.

The House has already passed the USA Freedom Act, which would put modest limits on the intelligence agency for the first time in decades. Now the Senate is under pressure to act before lawmakers leave for recess Thursday afternoon. If they do nothing, Section 215 will expire hours before they return to Washington, imperiling not only the phone records program but whatever other still-secret intelligence gathering activities the government conducts under the statute.

The USA Freedom Act is hardly radical. One of its main components—mandating that phone companies store phone records instead of the government—was initially suggested by former NSA director Keith Alexander, and it’s been endorsed by President Obama. But a major blockage to the reform bill has been Senate Majority Leader Mitch McConnell, who proposed instead to extend the current version of Section 215 for five years, and then last week offered a two-month extension. GOP leadership in the House indicated that an extension of any length was a non-starter and that they would not wait around while the Senate hemmed and hawed. In other words, McConnell could accept the USA Freedom Act, or nothing.

On Tuesday McConnell retreated slightly, and announced that he would allow a vote on the reform bill. It isn’t clear if it has the 60 votes needed to pass; McConnell seemed to be betting that it would fail and Congress might then accept a short-term extension rather than letting Section 215 expire commpletely.

Things got even more dramatic on Wednesday afternoon, when Rand Paul showed up to stage a “filibuster.”At the time of this writing Paul is speaking on the Senate floor, but it’s not totally clear what he’s doing there. It’s not technically a filibuster, and the first thing it disrupts will likely be work on the fast-track trade bill. There’s some speculation that Paul is trying to run out the clock in order to block both a clean extension of Section 215 and the USA Freedom Act, which he opposes on the grounds that it does not go far enough (as do some civil liberties groups). Whatever his other goals are, it’s definitely at least partly a campaign stunt. “As you read this, I will be on the Senate floor to launch my filibuster to stop ANY extension or reauthorization of the ‘PATRIOT Act’s’ unconstitutional and illegal domestic spying programs,” he wrote to donors.

Oregon Senator and NSA critic Ron Wyden joined Paul on the floor, where he promised “to use every procedural tool available to me” to prevent an extension of the bulk phone records program. Wyden also criticized supporters of surveillance programs for waiting until the last minute and then claiming, “‘Oh my goodness! It is a dangerous world! We’ve got to continue this program to protect us.’” As he and Paul chatted, Wyden suggested that they could continue indefinitely.

Meanwhile, Republicans who want a two-month extension are pushing a dubious argument that the NSA might have technical difficulties meeting the requirements of the USA Freedom Act. Over at the The Intercept, Dan Froomkin argues that resistance from McConnell et al. is all just a charade, so that when the USA Freedom Act inevitably passes, it will look like surveillance reformers won more than they did. I’m sympathetic to that argument. The Justice Department, however, is less sure of the bill’s chances. A memo circulated Wednesday warns that “After May 22, 2015, the National Security Agency will need to begin taking steps to wind down the bulk-telephone-metadata program in anticipation of a possible sunset.” Keeping in mind Congress’s penchant for blowing deadlines, anything could happen.

 

By: Zoe Carpenter, The Nation, May 20, 2015

May 21, 2015 Posted by | Congress, National Security Agency, Patriot Act | , , , , , , | Leave a comment

“As Evidence Grows For Climate Change, Opponents Dig In”: GOP Has Abandoned Science For The Siren Call Of Their Monied Backers

Water, water everywhere.

Here on the nation’s Gulf Coast, where I live, we’ve got precipitation to spare — severe thunderstorms, overwhelmed sewer systems, and flash floods. It’s hard to remember I’m not living in a land with regularly scheduled monsoons.

Meanwhile, the great state of California is desperately dry as it endures the fourth year of a drought that has already burned through every historical record. It’s been 1,200 years, according to a recent study, since the state has experienced anything like this.

As different as the manifestations are, though, both regions are likely grappling with the effects of climate change. As the Earth warms, droughts will become more frequent and more severe, leading to devastating fires, water shortages and, in some areas, agricultural collapse, according to climate scientists.

At the same time (and this befuddles the layperson), a warmer atmosphere holds more moisture, so areas that tend toward rain will have more of it, leading to more floods. There may also be more snowfall in colder climes, so don’t let a blizzard or two fool you.

According to the National Oceanic and Atmospheric Administration, 2014 was the hottest year on record, with continents and oceans warmer than any year since 1880. And despite a bitterly cold winter in the Northeast and Midwest, 2015 is vying to best that. January, February, and March were the warmest on record for the planet, scientists say. Climate change is real.

Jerry Brown, California’s Democratic governor, knows that. He is living through its havoc and trying to meet it squarely. After enacting rigid new regulations about water use weeks ago, he has just issued new rules on carbon emissions — even though his state already had pretty tough requirements. Good for him.

In a speech, Brown said he wants California to stand out as an example for how to deal with global warming. “It’s a real test. Not just for California, not just for America, but for the world. Can we rise above the parochialisms, the ethnocentric perspectives, the immediacy of I-want-I-want-I-need, to a vision, a way of life, that is sustainable?”

President Obama is also doing what he can. He has called for increased fuel efficiency for vehicles; cars and light-duty trucks should be getting the equivalent of 54.5 miles per gallon by model year 2025. And, in a more ambitious move, the Environmental Protection Agency has set new rules for power plants, requiring them to limit the amount of carbon dioxide they dump into the atmosphere.

But those commonsense measures have met fierce resistance, not only from industries and the billionaires who own them (think the Koch brothers), but also from their lap dogs in the Republican Party. Several GOP state attorneys general — in apparent collusion with energy companies — have sued the EPA to prevent the regulations from taking effect. “Never before have attorneys general joined on this scale with corporate interests to challenge Washington and file lawsuits in federal court,” according to The New York Times.

Senate Majority Leader Mitch McConnell (R-KY), for his part, has urged states to refuse to cooperate in setting targets to limit emissions from power plants. In other words, he has — shades of the Old South — advised them to rebel against federal authority.

(In April, one of his state’s largest newspapers, The Lexington Herald-Leader, printed a powerful editorial rebuking him for that stance. “Mitch McConnell and others who are trying to obstruct climate protections will be regarded one day in the same way we think of 19th-century apologists for human slavery: How could economic interests blind them to the immorality of their position?”)

While the scientific consensus on climate change — that human activity is causing it — grows stronger with each week’s evidence, so does Republican resistance to measures to combat it. Though conservatives once held science in high esteem, they have abandoned it for the siren call of their monied backers.

California’s governor has called this era a “test,” a challenging moment in which we are called to rise above greed, partisanship, and selfish convenience. So far, we’re not doing so well.

 

By: Cynthia Tucker, Pulitzer Prize Winner for Commentary in 2007; The National Memo, May 2, 2015

May 4, 2015 Posted by | Climate Change, GOP, Science | , , , , , , , , | 2 Comments

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