Using Reconciliation to Eliminate the Mandate... Won't Happen

Timothy Carney makes an argument that is technically true, that with the mandate reinvented as a tax, the Republicans have a genuine shot at repealing it through reconciliation. But that won't happen.

The purpose of the mandate is to protect insurance companies. The free rider problem is real. If we can wait to get insurance until we need expensive care, pay the same premium as a healthy person, then drop coverage the second our care is complete, health insurance companies will go out of business. Leaving aside for the moment that very few voters or contributors that the Republican Party cares about will actually be affected by the mandate, they are not going to take an action that would outrage every health insurance company in the nation.

Ron Paul: I'm Not a Racist and... Look! A bird!

Ron Paul is having a difficult time distancing himself from the racist articles in his newsletters, in no small part because he profited from them, they went out under his name, and he won't disclose who wrote the articles that have no byline (i.e., virtually all of them). In the past Paul has claimed that he didn't know who wrote the content - but he's now a perennial presidential candidate, and it's simply not credible that he has chosen not to look into the issue.

Let me say this: if I were publishing a newsletter under my own name, became bored or disinterested with it to the point that I didn't know or care what went into it (as long as I got a royalty check from whomever was continuing to issue it), and discovered that they were repeatedly publishing offensive, racist drivel with no byline, I would have been livid and I would have found out exactly who was responsible both for writing that content and for deciding to publish it. And I wouldn't be at all coy about identifying them and calling them to the carpet for taking advantage of my distraction in their publishing of odious material under my name. When I hear of a politician who has been discovered to have racist associations, it generally means one of two things: The politician is a racist, or the politician saw the opportunity to advance his position by appearing sympathetic to racism. Paul denies being in the first category, and hopes that his claim of ignorance will keep him out of the second, but I simply don't find his claims of ignorance to be credible.

What do we get from Paul? First we get, "I'm not a racist, so why are we even talking about my newsletters", followed by an effort to change the subject:

In a debate hosted by ABC News, Yahoo! and WMUR, Paul was asked about some controversial newsletters with racist remarks that he sent out under his name in the 1980s and 1990s. Paul said they are distraction from the real issues at hand, which are his record and beliefs regarding race in the United States.

Paul said that Martin Luther King is one his heroes for practicing "the libertarian principle of peaceful resistance and peaceful civil disobedience," and highlighted his understanding that the drug laws in the United States unfairly penalize African Americans.

"True racism in this country is in the judicial system," Paul said, "the percentage of people who use drugs are about the same with blacks and whites. And yet the blacks are arrested way disproportionately."

The MLK comments are likely inspired by the fact that one of the controversial newsletters rails against King:

Boy, it sure burns me to have a national holiday for Martin Luther King. I voted against this outrage time and time again as a Congressman. What an infamy that Ronald Reagan approved it! We can thank him for our annual Hate Whitey Day.

Paul opposes the war on drugs, and also opposes the status quo approach to the military, unusual positions for politicians to take and certainly unique among Republican contenders. He does us a favor when he brings some of his contrarian viewpoints to the stage - we're locked into an ideology on certain issues that our political leadership is unwilling to challenge, even though many believe present policies to be misguided or counterproductive. But let's pause for a moment: over the past few decades our nation's legislatures have gone to extraordinary lengths to impose long sentences for drug crimes and to strip judges of their discretion in modifying sentences defined by sentencing guidelines. Prosecutors have a great deal of discretion in choosing what offense to charge, and can have a significant amount of control or influence in how sentencing guidelines are scored. The federal courts have pushed back a bit, but to the extent that long sentences and disproportionate outcomes are a problem it's not appropriate for a legislator to wag his finger at the judiciary.

Case in point: The disparate treatment in sentencing for crimes involving powder cocaine versus crack cocaine were legislated by Congress in 1986. It took almost a quarter century to inspire Congress to address that disparity. To his credit, Paul pushed for parity - but Congress chose simply to reduce the disparity from about 100:1 to about 18:1. If Paul wants to claim that the disparity represents institutionalized racism, he needs to point his finger at his own party and his colleagues in Congress. To the extent that he believes that it is somehow a failure of police agencies that "blacks are arrested way disproportionately" for drug crimes, that also is not the fault of the judicial branch. Police agencies fall under the executive branch or local government. Surely Paul knows all of this, and knew it even before having participated in confirmation votes for the heads of federal law enforcement agencies.

Another case in point: Paul complains that the death penalty is unfair because African Americans "get the death penalty way disproportionately" and that a "rich white person" is unlikely to be executed. Paul's thinking on the death penalty has changed over the years, but only to a point:

I do not believe in the federal death penalty and in my book, “Liberty defined” I explain it in more detail but basically I make the argument for being against the death penalty. But I would not come and say that the federal government and the federal courts to tell the states that they can’t have death penalties anymore, I don’t go that far.

This particular defect in Paul's thinking has been highlighted by many others: although he objects strenuously to certain acts of the federal government in a manner consistent with libertarian thought, his objections do not extend to the exact same actions taken by states. Even if the state action is much more frequent or, if you accept the basis of Paul's objections, a much greater threat to liberty and equality.

I think I read an article yesterday on the penalty, and 68% of the time they make mistakes, and it’s so racist, too; I think more than half the people getting the death penalty are poor blacks. This is the one place, the one remnant of racism in our country is in our court system; enforcing the drug laws or enforcing the death penalty.

So Paul believes that states do a terrible job administering the death penalty, inappropriately sentencing people to death for crimes they did not commit, pursuing the death penalty against "poor blacks", and that its continuation is racist. But that's okay, because it's not federal action? Also, does Paul sincerely believe that it's the judiciary's fault that Congress has expanded the number of death penalty crimes at the federal level and passed legislation such as the "Antiterrorism and Effective Death Penalty Act of 1996" with the express purpose of making it easier to impose and carry out the death penalty? Surely not. As Paul knows, assuming his party doesn't filibuster in the Senate, Congress can abolish the federal death penalty at any time a majority of the members of both houses vote to end it.

In summary, I'm not impressed with Paul's failure to explain the authorship of the racist content of his newsletters, or why he has not held accountable those responsible. I am not impressed with his effort to change the subject to, "Let's talk about real racism". And I'm not impressed either by his attribution to the judiciary responsibility for injustices caused by or that could be ended by the executive and legislative branches of government, or for how he won't extend his professed concern for protecting people from governmental overreach to the actions of state governments. I understand Ron Paul as a protest vote. I understand Ron Paul as the only candidate for certain single issue voters, particularly those concerned with civil liberties or military overreach. But I've lost track of the number of people I've heard announce support for Ron Paul, only to have to roll back that support when they realize how unhinged and inconsistent he is on some very important issues.

Airport Security (G)Randtanding

Paul Rand usually tries to portray himself as a different sort of politician - one who truly believes in individual responsibility, effective government, and who could cure much of what ails our system of government. But his position on TSA airport screening seems like run-of-the-mill politics - shifting responsibility for something that's unpopular from those who could actually do something, that is, people like Rand, to people who are trying to do their jobs as ordered.

My legislation is simple. It establishes that airport security screeners are not immune from any US law regarding physical contact with another person, making images of another person, or causing physical harm through the use of radiation-emitting machinery on another person. It means they are subject to the same laws as the rest of us.

No, really, it means that rather than addressing the TSA as an organization, or working through Congress to hold accountable those who created and implemented the policy, Rand is choosing an easy target and blasting away, knowing full well that his bill has no chance of being passed.

Rand does make some valid points although, as made, this one shares some of the same flaws as his legislation:

Imagine if the political elites in our country were forced to endure the same conditions at the airport as business travelers, families, senior citizens, and the rest of us. Perhaps this problem could be quickly resolved if every cabinet secretary, every member of Congress, and every department head in the Obama administration were forced to submit to the same degrading screening process as the people who pay their salaries.

I share Paul's sense that, if the nation's wealthiest and most politically powerful figures had to go through standard airport security, they would be insisting upon change. Does this mean that Rand will be including in his proposed legislation the requirement that "the political elites in our country" go through standard security screenings? Hm. He seems to have left that part out of his bill....

Rand's better point is this:

The incident of the so-called “underwear bomber” last Christmas is given as justification for the billions of dollars the federal government is spending on the new full-body imaging machines, but a Government Accountability Office study earlier this year concluded that had these scanners been in use they may not have detected the explosive material that was allegedly brought onto the airplane. Additionally, there have been recent press reports calling into question the accuracy and adequacy of these potentially dangerous machines.

Yes, there should be a demand that security measures be cost-effective, that we figure out if new technologies are safe and effective before spending $billions on implementation, and that those who made the decision to roll out the machines should be held accountable if the money proves to have been wasted. But alas, apparently there was insufficient space in Rand's proposed legislation to investigate the decisions involved or to hold the decision-makers responsible if their haste turns out to have produced massive waste.

Rand closes with dogma no less irresponsible than "security at any cost":

The solution to the need for security at US airports is not a government bureaucracy. The solution is to allow the private sector, preferably the airlines themselves, to provide for the security of their property.

So we are to disregard the history of private security at airports, and the massive holes it created that were supposed to be closed by the creation of the TSA, the professionalization of airport security and standardization of security screenings, and drink the Kool-Aid that "the private sector always does it better"? Paul and those who rolled out these new measures with no evidence to support their position represent two sides of the same coin.

The Childish Nature of American Politics

My, how American loves leadership. The country loved George W. Bush when he "led" us into two completely unfunded wars, costing in the $trillions. The seniors loved George W. Bush for his "leadership" on Medicare, giving them another unfunded benefit projected to cost about 3/4 of another $trillion over the next decade. The nation, most notably the wealthiest 3% of the nation, is angry that G.W.'s unfunded tax cuts might not be extended - who cares about the unfunded $trillions lost to the tax cut, or that the cuts were scheduled by Bush to expire as part of the maneuverings to ram them through Congress without adequate funding or consideration of the future. That is leadership, American style, and the Republicans had his back.

Meanwhile, three items on our national budget prevent us from having any reasonable expectation of a balanced budget in the short- or longer term: Military spending, Medicare and Social Security. Bush, a self-described war president who had launched those two unfunded wars, was interested in increasing military spending. And he just got through making Medicare less sustainable, so he wasn't about to send the contradictory message that it was a pressing financial priority. So he picked the easiest of the three, and a long-term thorn in the side of the Republican Party, and announced a partial privatization plan for Social Security.

The question at this point is not whether Bush's plan was a good idea. It was poorly conceived - or, I suppose, well-conceived if you would have been among the money managers who received a government license to skim a percentage off of people's private accounts as "compensation" for your services. The question is not whether private accounts would have produced a greater return than treasury bonds. If you weren't already aware that it's foolish to believe that the stock market only goes up, the financial industry collapse and current recession should have set you straight. The question is, what price will the public pay for reform? What happened when the Grandpa Simpsons of the nation (that is, all of them except this one) got wind of the notion that somebody might be trying to cut their Social Security, the Republicans who had been so happy to push through Bush's $trillions in unfunded tax cuts and expenditures scurried for cover.

Some cynicism is appropriate here. Had Bush been serious about Social Security reform, in the sense of making the books balance for the indefinite future, he could have found enough Democrats to support reform. It's been done before - some minor tweaks to contributions, payouts, and the age at which you are eligible for partial or full benefits, and suddenly the program is projected to be sound for another century. Bush preferred to keep the system in a state of crisis, or more correctly something that could be misrepresented as a state of crisis, to make people believe that change must occur, and that it must occur quickly. Because it appears that about the only time you can get the public behind something that might involve even slight sacrifice is when you are dealing with imminent catastrophe. Bush's goal was not to fix the Social Security system, it was to undermine and privatize that system.

But what happened to any sense that you can lead a society toward an improved long-term outcome through some modest, short term shared sacrifice or adjustment, rather than waiting for that crisis? Absurd? Take a look at Ruth Marcus:

I write this from a perspective of sympathy with Obama's aims and overall support for his performance over the past two years. But Obama's dismissive analysis omits the non-emergency choices he made - primarily to press for and, in the end, muscle through the passage of health-care reform - and the ensuing discomfort of voters.

Discomfort that is entirely understandable, even to those of us who supported health-care reform.

Marcus speaks of how various Obama Administration ideas created "perceptions of intrusive government", but elides any mention of the intentional distortions that fueled those misperceptions. The health care reform plan that she sees as "too much" for the American people to take, of course, is similar to the Republican counter-proposal to the Clinton plan from twenty years ago, and is almost identical to the plan implemented for Massachusetts by once and future Republican Presidential contender Mitt Romney. "Cap and trade" was similarly a Republican idea, once championed by John McCain and supported in the tentative Democratic legislation by Lindsey Graham. The auto bailout started under the Bush Administration, and the larger financial industry bailout was also a continuation of Bush policies. By the time of the election, anybody paying attention was aware that the auto industry "takeover" had turned out to be a remarkable success.

So Marcus appears to be saying that as long as there are groups willing to play off of the public's fears and insecurities, even if it means portraying as frightening the very policies they once endorsed, and even if it means refusing to work for better solutions in order to obstruct reforms they concede are necessary, it's best to do nothing. The Obama Administration was not acting like G.W. on Social Security reform. It repeatedly reached out to and included Republicans in the drafting of its legislation, and to entice Republican support and contribution. It's possible that had the Republican Party been less interested in obstructionism, something they correctly anticipated would help them in the 2010 election, and more interested in forming good policy, we would have passed a better healthcare reform bill without the public misconception that this is a big government bill that's going to destroy health insurance as we know it.

If you look at the few Republicans who are willing to articulate a healthcare policy, you tend to see the Newt Gingrich brand of reform - eliminate comprehensive health insurance in favor of catastrophic coverage and health savings accounts. If you come down with cancer, you're covered. If you develop a chronic health condition, you had better either be born rich or keep your job because you're going to pay for that out of your "savings". What if your salary is to meager to allow for any appreciable contribution to your health savings account? Well, that would be your problem, wouldn't it. And do you know how we get to that system from the one we have? By forcing a crisis. The bad news for the Republican Party arising from the modest healthcare reform bill is that it forestalls catastrophe, and creates a framework through which an alternative to the Gingrich-style system can evolve without the current system first reaching the point of catastrophic failure. So yes, they ginned up hysterical opposition to a center-right reform bill and are screeching about repeal. But in the view of Ruth Marcus, all of that is President Obama's fault - it's too scary when the government tries to act in a grown-up manner and prevent things from reaching a crisis point.

Fareed Zakaria was on Real Time last week, and reminded Adrian Fenty that it's better to serve one term in office with real accomplishments than to serve multiple terms with little to show for it. Even though he's among the first to trumpet his own accomplishments, Fenty didn't seem comfortable with that idea. (What's the first thing a politician thinks of when he wakes up in the morning? How to get reelected.) But Zakaria's point is valid, and it's one I wish our political leaders were mature enough to internalize. It would also be helpful if our political press weren't so happy to cover the horse race instead of the issues and, after egging on the mud-slinging and "objectively" refusing to separate fact from fiction, weren't so quick to blame the politicians who try to show actual leadership, make tough decisions, and prevent crises for getting ahead of the American people.

The Climate Change Bill that Wasn't to Be

The New Yorker recently published an article, "As the World Burns", about the failure of climate change legislation. The article finds plenty of blame to go around, including the actions of the Senators who drafted the legislation, the White House (particularly the person(s) responsible for suggesting that Lindsey Graham supported an increased gas tax), Republican obstructionism, and reactionary idiocy from members of the public at Republican "Town Hall" meetings. And let's not forget Harry Reid's self-serving gambit to prioritize a non-existant "Immigration reform bill" over the climate change bill. Harry Reid's statement seems to have ended the possibility of proceeding with the bill.

But what is truly striking is how much Joe Lieberman, John Kerry and Lindsey Graham were willing to give away in order to simply get the energy industry to agree not to oppose the legislation. If you thought the deals the Obama Administration cut to limit industry opposition to healthcare reform were offensive... this, to me, seems like at least another order of magnitude. The final bill was better than nothing, I suppose, but I have a real problem with buying off special interests with huge subsidies and promises that preferential treatment will continue far into the future, perhaps indefinitely.

Beyond that, I can understand why the White House at a certain point seemed to stop caring about this legislation and acting like the bill wasn't even under discussion, making concessions that the authors of the bill hoped to use as carrots to lure Republican moderates to support the legislation. After reaching out, time and time again, on other issues, President Obama seems to have learned that "Republican bipartisanship" inevitably involves Lucy yanking away the football.

I'll give Lindsey Graham credit for joining the team that drafted the bill, but I'm not convinced that he would have ultimately voted for cloture in the face of a filibuster by his party, or in favor of the final legislation. Graham noted that as soon as Fox News figured out that they had a serious bill, "it’s gonna be all cap-and-tax all the time, and it’s gonna become just a disaster for me on the airwaves" - it's not simply a matter of duplicity that leads Republicans to yank away the football, it's a realization that powerful, monied interests will turn against them. Fox isn't a wholly owned subsidiary of the Republican Party - it advances the policy goals of right-wing billionaires who, through Fox, campaign contributions, and other similar steps, hope to obtain and maintain the Republican Party as another of their holdings.

It's not so much that they can't by Democrats - there's a reason this bill needed Republican support to pass. It's more that, when it comes to their interests, the wholesale price on Republicans is lower. This will only get worse, thanks to the Supreme Court's wrong-headed Citizens United decision.

The article also points out that the public at large puts a very low priority on climate change.

Partisanship and Political Satire

Anne Applebaum, apparently desperate to meet a deadline, has tossed out a word salad of conflicting thoughts about politics and parody. She is depressed that Jon Stewart and Stephen Colbert are staging a giant party in Washington D.C., and is even more depressed that people are planning to attend:

I don't know about you, but my heart sank when I read about Jon Stewart's Million Moderate March, planned for the Mall next weekend. My heart sank further when I learned that liberal groups, lacking any better ideas, have decided to take this endeavor seriously. It's bad enough that the only way to drum up enthusiasm for a "Rally to Restore Sanity" is to make it into a television comedian's joke. But it's far worse that the "moderates" in attendance will have been bused in by Arianna Huffington and organized by People for the Ethical Treatment of Animals.

No, wait a minute, Anne. When a rally starts as a "television comedian's joke" it may be possible to turn it into something more serious, but it's a bit late to profess concern that it might "turn into" the very thing it has been since its inception. As for the attention-hound Arianna Huffington busing people in, or... PETA? (That's really her best, and only, second example of people "turning" the comedy event into a comedy event?) So what?

This is how words, and then ideas, vanish from our political lexicon: Whatever connotations it once had, the word "moderate" has now come to mean "liberal" or even "left-wing" in American politics. It has been a long time since "moderate" Republicans were regarded as important, centrist assets by their party: Nowadays, they are far more likely to be regarded as closet lefties and potential traitors.

Seriously, by throwing what is pitched as a bipartisan comedic event, named to parody various marches that preceded it, Applebaum is concerned that Stewart is going to forever ruin the word "moderate", the way Reagan and his successors marginalized the term "liberal"? Is it that she imagines a world in which the only political descriptor remaining in use is "conservative"? She believes that the Republican Party's marginalization of its "moderates" - something that long preceded the planned comedic event, is the consequence of the event? Has it even occurred to her that Stewart's use of the term "moderates" is a reaction to the marginalization of moderates that she so deplores? The moderates "taking back America"? The joke seems pretty obvious to me.

"Moderate" Democrats, meanwhile, no longer exist: In their place, we have "conservative Democrats." Nobody pays attention to them either -- unless, suddenly, one of them threatens to vote against health-care reform. And then he is vilified.

More stuff and nonsense. There are plenty of moderate Democrats. In fact the majority of Democrats are moderate Democrats. (Does Applebaum believe Russ Feingold is the norm?) A great many "conservative Democrats" are aptly named, because they were fielded as part of an effort to bring into the party seats that were traditionally Republican, and the people holding those seats hold many or most of the political views associated with the Republican Party.

It's similar to the long-extinct species, the Southern Democrat. "Blue dogs" are an endangered species not because the party hasn't been accommodating, but because the present sentiment of the moderate Republicans who voted them into office is to vote for (drum roll, please) Republican candidates. We speak of "conservative Democrats" as "conservative Democrats because (as surprising as this may be) they're considerably more conservative than the centrists. That's what happens when you massively expand your party - you bring in people who lean toward the other end of the political spectrum.

As for the "vilification" of "conservative Democrats" who "threaten[] to vote against health-care reform", who did she have in mind? Ben Nelson and Mary Landrieu, who wanted to extort huge financial concessions to their states? Bart Stupak, whose concerns had nothing to do with the bill itself and everything to do with limiting women's access to abortion. Joe Lieberman, who after endorsing the expansion of Medicare suddenly changed his mind and threatened to withdraw support if a Medicare expansion were included in the final bill? Seriously, if you want vilification, look at the real and implied threats directed at Republicans who suggested that they might be convinced to sign on to a reform bill.

There is no lack of interesting people in the political center. New York Mayor Michael Bloomberg -- one of the few popular incumbents in the country -- has not only declared himself a centrist but has also launched a campaign of support for other centrists. He flies around the country endorsing both Democrats and Republicans who he thinks show the ability to compromise and have the courage to depart from party orthodoxy on issues such as gun control (he is in favor) or more stringent financial regulation (he is against).

Okay, so we have lots of interesting people in the political center, such as Michael Bloomberg and... and... anybody? Bloomberg being a billionaire Democrat who changed party affiliations to run for Mayor of New York and demonstrates "centrism" by opposing financial industry reform and advocating for gun control laws? Sorry, but picking two issues, one of which is more associated with the political right (financial industry deregulation) and the other of which as been all-but-abandoned by the Democratic party even if popular with some on the fringe (gun control) does not demonstrate "centrism" - but it does reflect what you might expect from a Mayor of New York City who, even overlooking his personal ties to the financial industry, is looking out for the future of his city.

He nearly lost me when he inexplicably endorsed Harry Reid, but never mind.

Wait, why "never mind"? Harry Reid is a Nevada politician who has close ties to the financial industry, who has gone to the wall for the state's hotel and casino industry. Did Bloomberg "almost lose" Applebaum because Reid's support of "gun control" appears to be pretty much limited to wanting background checks for firearms sales at gun shows? Seriously, Anne, tell us what your gripe is.

Others are trying, usually behind the scenes, to find solutions to problems that divide liberals and conservatives bitterly.

For her example of this, Applebaum doesn't draw examples from the center, but speaks of people who hold strong political views coming together under the auspices of their "think tanks" to create joint reports. As with Bloomberg, her evidence for this "trend" is a single example, the joint production of "a report called 'Post-Partisan Power'",

which calls for the removal of wasteful subsidies and advocates investments designed to make "new clean energy sources" commercially viable. Just as important, though, is the point this group made by working together. In their introduction, they note that bipartisanship has helped create economic growth. And not only the distant past: Welfare reform was passed thanks to both Bill Clinton and Newt Gingrich.

Ah yes, the good old "bipartisan days" when Newt Gingrich stewed over having to use the back entrance to Air Force One, shut down government and whined that Clinton's welfare reform proposals represented his stealing Republican ideas. Ah, the bipartisan harmony....

As I see it, to be meaningful bipartisanship has to tackle a large, difficult issue. Welfare reform represents an easy issue because, for the most part, Americans don't care for welfare programs, are easily led to believe that they're too generous, and will support cuts even when times are good. Clinton defused an issue that the Republican Party had been pushing hard for years (think Ronald Reagan and his Cadillac-driving "Welfare Queen") at no real risk to his own electoral future. That's Applebaum's vision of bipartisanship at its best? It seems more like "politics as usual."

Bipartisanship is, of course, the source of plenty of disastrous ideas itself. Sometimes it produces worst-of-all-possible-worlds types of legislation, like those energy bills that subsidize gas, oil, wind, nuclear, coal, biofuels, hydrogen and anything else that might keep a swing state happy.

Are we truly reducing the concept of "bipartisanship" to its most basic definition - anything that is supported by at least one member of the opposition party is "bipartisan"? I had thought Applebaum was trying to advance a more sophisticated notion of "bipartisanship", involving the two parties working together to solve difficult problems. Passing around enough money to gather enough votes on both sides of the aisle to pass a bill may, in a nominal sense, represent "bipartisanship", but it really seems that we're again talking about "politics as usual".

Sometimes it produces agreements that are so centrist that one or the other party eventually rejects them. That's what happened to the McCain-Kennedy immigration reform, a bill I'm sure John McCain wishes he'd never laid eyes on.

Bipartisanship can produce legislation so centrist that it becomes unacceptable to one of the sides that negotiated the bill? Does that even make sense? As Applebaum has to know, the problem with the bill that she identified is not that it is "too centrist", whatever that would mean. It's that it made any concessions at all - that was too much for the Republican base to swallow, particularly in this era of anti-immigrant rhetoric and popular fear (fanned and exploited by Republican politicians and pundits) resulting from a severe recession and ongoing economic malaise.

Applebaum lectures that without "cross-party compromise... our system doesn't work." She purports,

That's what "checks and balances" means. In American politics, if you don't want to cooperate with your political opponents -- if you prefer to scorn them, shun them or call them names -- that means that you don't, in fact, want to get anything done. Moderates often achieve less than they could. But extremists achieve nothing at all.

First, no, that's not what "checks and balances" means. "Checks and balances" refers to separation of powers - the division of government into three co-equal branches, structured in such a way to keep any one branch from becoming too powerful. The House and Senate can be viewed as institutions within Congress that serve to check and balance each other, but nothing in the concept of "checks and balances" requires that there even be political parties, much less that they cooperate.

Second, although it may be true that extremism is rarely a short-term approach to legislative victory, over the longer term ideas that started out as unambiguously "extreme" have become accepted by a majority and incorporated into our system of laws and jurisprudence. Abolish slavery? Grant women the right to vote? Prohibit alcohol? Forbid state-sponsored racial discrimination? Gender discrimination? Decriminalize homosexuality? Mainstream those with physical and developmental disorders? Permit the organization of labor? It's easy to look at today's society and see "nothing extreme", but you don't have to go back very far to find strong and often violent resistance to what we now take for granted.

And no, there was never an era in which the political parties held hands and sang songs of unity. Dirty politics, name-calling, and everything else Applebaum deplores existed before our nation was founded, and is often more obvious in parliamentary systems where you are more likely encounter opposition heckling on the floor of parliament. Does Applebaum believe more has been accomplished when politicians have been outwardly meek, focused on calming their supporters, emphasized the importance of working with the opposition, and pressed for compromise on everything? (I thought she didn't like Harry Reid.)

This, Applebaum lectures us "is why this Jon Stewart rally is such a gloomy development" - I mean the very idea that people might get together in a public square and engage in a lighthearted celebration of their centrism. What could be more destructive to Applebaum's brand of centrism - the approach to politics in which there are no absolutes, no lines that can't be crossed, and in which the best measure of legislation is not its quality but whether it earned "Ayes" from both sides of the aisle?

One of the many things Applebaum misses, and she seems to be trying to break a record for "most whiffs in a single column", is that to the extent that there are people who fit her narrowly constrained concept of "centrist" - people who scorn strong political ideology, will compromise on everything, and will celebrate that compromise above all else... Applebaum, Broder, and... I'm sure there's a third somewhere... they don't organize. Nobody organizes them - what's the point of holding rally for people who don't have an ideology? And they don't organize themselves because they have no issues around which they might coalesce. Yes, as right-wing critics of the Stewart/Colbert rallies point out, the primary appeal of these rallies is likely to be to politically active people whose politics are from the center (not Applebaum's bland center - one that is comprised of people whose political beliefs don't fit neatly under a party's tent and who, for example, may lean toward the Republicans on business issues but toward the Dems on social issues) and left-of-center - but so what? How, in Applebaum's sea of non sequiturs, does that become "blackly humorous" verging on "tragic"? And for somebody so devoted to "centrism", why is Applebaum's concern limited to entertainment-oriented rallies that are nominally centrist, when she doesn't appear to care about the rabid rallies led by demagogues like Glenn Beck?

Were Applebaum a more thoughtful person she might recognize that this nation does face serious issues, that there are serious ideological differences in how those issues might be approached, and that partisanship is not a bad word. What is in many ways a bad word is "bipartisanship" as used in the manner of David Broder, in which the term is reduced to "politicians setting aside their differences and agreeing with my agenda." Applebaum's notion of solutions to problems as being "too centrist" only serves to highlight the sloppiness of her thinking - again, it is the partisans who keep such legislation from passing, not the centrists. And "centrist" solutions to non-pressing, non-controversial issues does not illustrate how "centrism" is effective - it highlights how much easier it is to address the little things that don't excite the voters than it is to address the big, difficult issues that raise hackles on both sides of the aisle.

Losing the Public Option

Having a healthcare bill pass without a public option inspires a valid question, what's the point? Or, in more detail, how do you inspire the changes and efficiencies you need in the current health insurance market without introducing a robust competitor whose focus is on providing care and not on profit? But perhaps losing the public option, at least the hobbled option that would pass under the current reform bill, isn't as bad as you think.

The number of compromises that were being injected into the public option to keep it from being effective, or even competing on a level playing field with for-profit competitors, were worrying. It may in fact be more productive to walk away from those demands and side deals, passing a cleaner version of a public plan in future years. The public plan was to be entirely separate from Medicare (why?), was to be forbidden from negotiating drug prices (why?).... Rhetorical questions - to make it less effective, more costly, and less able to price compete with private insurers who don't face similar restrictions.

I acknowledge the retort that if it doesn't happen now, we can't count on it happening in the future. True. But we can count on the trends in private insurance continuing - the dropping of high cost patients (sometimes in flagrant violation of contract), rapidly increasing premiums, employers finding themselves unable to offer quality plans or perhaps any plan at all, people being made more and more responsible for their own medical expenses - whether or not they can afford them. Stripping out the public option is meant by the insurance companies and their captive congressmen to maintain the status quo - but the status quo is not sustainable.

Don't get me wrong. Killing the public option is cowardly and backward-thinking, the type of thing you would expect from a Member of Congress whose primary concern is the size of his campaign coffers. Those who stood in the way, or might stand in the way in the future, should be rewarded with primary challenges. But it may be more important to end the hysterics, let Obama move on to other parts of his agenda, and figure out how this issue can be more successfully addressed in the future.

If a public plan is postponed, the Democrats should evaluate what can be done through reconciliation. Can Medicare be expanded to let older workers buy in, at an unsubsidized rate, for a full or partial set of benefits? Could it be expanded to provide an administrative framework and national care provider network for insurance companies organized at the state level? Could it at least be rebranded with in-your-face tagline, such as "Medicare: Government Health Insurance That Works For You!"

Meanwhile, where's the Issa-Kingston "Federal Cafeteria Plan for Everyone" bill?

Like 'Em Or Hate 'Em....

Whatever your personal position on cases like Heller and Roe, today George Will does a pretty good job of explaining how those decisions lead to cases that require judges to substitute their policy preferences for actual interpretation and application of the Constitution. In terms of Roe,

Parental consent? Spousal consent? Spousal notification? Parental notification? Waiting periods? Lack of funding for nontherapeutic abortions? Partial-birth abortion procedures? Zoning ordinances that exclude abortion facilities? The court has tried to tickle answers for these and other policy questions from the Constitution.

In terms of Heller,

Now the court must slog through an utterly predictable torrent of litigation, writing, piecemeal, a federal gun code concerning the newfound individual right. What trigger locks or other safety requirements impermissibly burden the exercise of this right? What registration requirements, background checks, waiting periods for purchasers, ballistic identifications? What restrictions on ammunition? On places where guns may be purchased or carried? On the kinds of people (e.g., those with records of domestic violence) who may own guns? On the number of gun purchases in a month?

Where do I disagree with Will? While he, as a pundit, has fully embraced the notion that conservatives favor judicial restraint, the reality is quite different. Heller is not an exceptional ruling following a history of conservative deference to constitutional language and state and federal legislatures, it's a continuation of an activist history masquerading behind claims of "originalism" or "textualism". For the most part, political partisans either don't pay attention to the other side's judicial excesses, or simply don't care about their own. Will's column suggests that he falls into the former category, but now that he is aware of the issue it's up to him to demonstrate how much he actually cares about judicial activism that advances his own political agenda.

It has been said that the most important word in the Supreme Court's lexicon is not "liberty" or "equality" or even "justice," it is "five." But whereas in baseball a tie goes to the runner, in controversies about the constitutionality of legislation, a tie between serious arguments should, Wilkinson says, tilt judicial judgment to the democratic side - the legislature.

Except if the subject is campaign finance reform? Seriously, when it's your own ox that's being gored, it's really difficult to take a step back and say, "We should defer to the legislature," as opposed to, "Those judges are gutting the Constitution and stripping this right of any meaning." Moreover, whatever the right, there's a point where that will be true. Then what? Do we simply check to see whether or not the legislation under review includes "findings" that nominally support the legislation? Legislatures figured that game out a long time ago.

Will closes,

So, regarding judging, too, conservatism is a house divided. And as Lincoln said (sort of), a house divided against itself is really interesting.

And Will raises interesting issues that, unfortunately, aren't likely to be resolved at any time during the next two centuries of constitutional litigation.

Prisons, Mental Health Policy and Incarceration Rates

At Lawyers, Guns and Money, we're reminded of this prison's extremely high incarceration rates and the resulting costs to states. The Detroit Free Press explains the cost to Michigan:

Before the nation hits two in 100 behind bars, which seems inevitable, it's time for a national debate on corrections and criminal justice policies that will lead to a more rational, humane and cost-effective system. The nation has gotten far too little for its enormous investment in locking people up. Violent crime rates are higher than they were more than three decades ago, when tough-on-crime policies, including mandatory sentencing laws, created a prison-building boom.

States can no longer afford to divert so many resources from education, health care and other pressing needs. Michigan, for example, with one of the nation's highest incarceration rates, spends $2 billion a year on corrections, or 20% of its general fund. It is one of four states spending more on corrections than higher education. In today's economy, spending more on prisons than college is a recipe for failure.

If you've been reading this weblog for a long time, you have a sense of my position on this - "... before we get "tough" on them by throwing away tens of thousands of taxpayer dollars on their repeated stints behind bars, perhaps we should take a long and hard look at what we are doing and, for those cases where it isn't working, what we can and should do differently." Our nation's legislators irresponsibly toss billions of dollars at prisons without any sense of whether incarceration works, or whether there are more effective or more cost-effective alternatives.

A while back, an interesting graph was put up at the Volokh Conspiracy, illustrating our nation's prison and mental institution incarceration rates. Short of saying "correlation is causation", the illustration makes it hard to miss a connection between the closing of state-funded mental hospitals and the exploding incarceration rates in jails and prisons. I'm not arguing for reopening state mental hospitals and mass "mental health" incarceration as an alternative to prisons. But I am saying this: We had a lousy mental health policy that was followed by a paradigm shift (community-based mental health, self-determination) that was not adequately funded and supported, followed by misguided budget-slashing in states like Michigan which closed many of the state's remaining mental health facilities, followed by a willful blind eye to the fact that jails and prisons were filling up with people who were mentally ill, and otherwise untreated or given a lot less community-based support than they need.

I'll renew my call for evidence-based public policy.

Evidence Based Public Policy

In the field of medicine, a great deal of attention has been paid in recent years to evidence-based or science-based medicine, in which doctors attempt to apply the following steps to medical diagnosis and treatment:

1. Accurately define the medical condition;
2. Investigate the medical literature, ferreting out that which is scientifically valid and clinically relevant; and
3. Apply the best available evidence and science to treatment of the medical condition.

This approach is not perfect, and counter-arguments include the allegation that it underestimates the value of clinical experience, and that it can be misleading to apply epidemiological techniques to diagnosing and treating the conditions of individual patients. Also, as the available evidence may be insufficient, it may be premature to attempt to discern an evidence-based solution. But, whatever the drawbacks, significant advances can result from the application of evidence-based medicine, and from the aggregation of data which can be used to evaluate and improve the efficacies of various treatments in particular populations of patient.

In our nation, we ostensibly have a federal system, where states are free to experiment with their own solutions to problems, and where the good solutions can be emulated by other states. The reality, it seems, is a bit different, with state legislatures often seeming inclined to jump on a public policy bandwagon rather than looking at what in fact works, and the federal government finding a variety of means to impose its will on the states. And significant changes in public policy often result not from evidence of what might work better, but from raw political ideology.

Now, whether or not they are willing to admit it, everybody has prejudices and political perspectives which color their opinions on various issues of public policy. But what is more important? Being true to a political ideology, or finding the best possible solution for a public policy issue? Too often, our nation seems to prioritize ideology. I think it is long past time we focused on the science and evidence, and where inadequate that we focus on improving the body evidence and scientific knowledge we require to form the best solution. Granted, it is easier to shortcut the thinking process by declaring your ideology as a sufficient reason to support or oppose a particular policy. But if you have to experiment on society, I would rather turn to the evidence.