From Andrew Cohen in The Atlantic:
"U.S. District Judge Gladys Kessler didn't just endorse the constitutional legitimacy of the Patient Protection and Affordable Care Act on Tuesday evening. She used her 64-page ruling to answer some of the most basic criticisms of the new federal health care law. And she was as blunt in its defense as two of her colleagues on the federal trial bench, in Florida and Virginia, have been in striking down the contentious measure."
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In a footnote, Judge Kessler wrote: "To put it less analytically, and less charitably, those who choose -- and Plaintiffs have made such a deliberate choice -- not to purchase health insurance will benefit greatly when they become ill, as they surely will, from the free health care which must be provided by emergency rooms and hospitals to the sick and dying who show up on their doorstep. In short, those who choose not to purchase health insurance will ultimately get a 'free ride' on the backs of those Americans who have made responsible choices to provide for the illness we all must face at some point in our lives."
By playing the "free ride" card, and by suggesting that those who do not purchase health insurance are making irresponsible choices that eventually harm others, Judge Kessler is reminding her readers that the dense legal issues involved in all of these cases have as their backdrop the nation's colossal health-care mess. The quote is a very pointed and unusual expression of official frustration (no wonder it's in a footnote) and it speaks not to the lawyers and the judges who will ultimately determine the fate of the new law, or to the politicians who created it in the first place, but to all the Americans out there who refuse to buy health insurance in the name of federalism and the 10th Amendment.
Then, later in her ruling, as if her initial point were not clear enough, Judge Kessler wrote: "It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not 'acting,' especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality."
Here we have a direct shot across the bow of the good ship Vinson, as in U.S. District Judge Roger Vinson, the Reagan appointee who last month tossed out the health-care law in its entirety. At the time, Judge Vinson wrote (PDF): "If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be 'difficult to perceive any limitation on federal power.' and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended" Expanded Medicare for All - Single Payer, would have been so much easier - and cheaper....
Steve Benen takes a look at some of the media coverage of the four key rulings on the Affordable Care Act, and finds that the two rulings pronouncing the law unconstitutional received far more attention than the two upholding it.
Four federal district courts have heard challenges testing the constitutionality of the Affordable Care Act. Two judges concluded the law is legally permissible, two came to the opposite conclusion.
But it occurs to me the public has heard quite a bit more about the latter than the former. Indeed, it seems as if the media largely ignored court rulings that bolstered the arguments of health care reform proponents, while making a very big deal about rulings celebrated by conservatives.
Washington Post
* Steeh ruling (pro-reform): A2, 607 words
* Moon ruling (pro-reform): B5, 507 words
* Hudson ruling (anti-reform): A1, 1624 words
* Vinson ruling (anti-reform): A1, 1176 words
New York Times
* Steeh ruling (pro-reform): A15, 416 words
* Moon ruling (pro-reform): A24, 335 words
* Hudson ruling (anti-reform): A1, 1320 words
* Vinson ruling (anti-reform): A1, 1192 words
Associated Press
* Steeh ruling (pro-reform): one story, 474 words
* Moon ruling (pro-reform): one story, 375 words
* Hudson ruling (anti-reform): one story, 915 words
* Vinson ruling (anti-reform): one story, 1164 words
Politico
* Steeh ruling (pro-reform): one story, 830 words
* Moon ruling (pro-reform): one story, 535 words
* Hudson ruling (anti-reform): three stories, 2734 words
* Vinson ruling (anti-reform): four stories, 3437 words
Source: The Washington Monthly
Greg Sargent on Judge Vinson's ruling:
NYU law professor Rick Hills finds what looks like another gaping hole in Judge Vinson's ruling yesterday that the individual mandate -- and by extension the entire Affordable Care Act -- is unconstitutional.
Judge Vinson writes on page 62 of the ruling that the goal of "excluding or charging higher rates to people with pre-existing conditions" is clearly "legitimate" and "within the scope of the Constitution." He clarifies this by indicating that the means to that end must not be inconsistent with the "spirit" of the Constitution. But that end, he says, is valid.
Then, on page 63, Vinson writes that the defendants are right to assert that the individual mandate is "necessary" and "essential" to realizing that same end.
And yet, Vinson then goes on to conclude that "the individual mandate falls outside the boundary of Congress' Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers."
Which prompts this rejoinder from Professor Hill:
Huh? How can a means that is conceded to be necessary for a legitimate end not be within Congress' implied powers to pursue that end? Now, in case you're tempted to dismiss this argument as coming from a pointy-headed east coast liberal professor, please note that conservative legal writer Orin Kerr has reached a similar conclusion about this part of Vinson's decision.
Kerr argues that there's nothing in Supreme Court caselaw that justifies Vinson's conclusion that the individual mandate falls "outside the boundary" of the commerce clause, and bluntly characterizes Vinson's argument here as the "weak link" in his decision.
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UPDATE, 3:03 p.m.: Let me try to be a bit clearer about Kerr's argument. He's saying that Vinson's contention that the means (the mandate) to a legitimate end is outside the boundary of the commerce clause, and therefore not legitimate, is based on "first principles," and not on existing Supreme Court caselaw.
That seems to dovetail with Professor Hill's argument: That Vinson's contention that the mandate is not legitimate, even though it's necessary to accomplish a constitutionally legitimate end, is wholly arbitrary.
From Ezra Klein: The legal theory currently in vogue in conservative circles holds that the Constitution's vision of "a central government with limited power" -- to use Judge Vinson's phrase -- permits the government to establish a single-payer health-care system that every American pays into through payroll taxes and that wipes out the private insurance industry but forbids the government from administering a regulated market in which individuals purchase private insurance plans and pay a penalty if they can afford coverage but choose to delay buying it until they're sick.
There's a chance conservatives will come to seriously regret this stratagem. I think it's vanishingly unlikely that the Supreme Court will side with Judge Vinson and strike down the whole of the law. But in the event that it did somehow undermine the whole of the law and restore the status quo ex ante, Democrats would start organizing around a solution based off of Medicare, Medicaid, and the budget reconciliation process -- as that would sidestep both legal attacks and the supermajority requirement.
The resulting policy isn't too hard to imagine. Think something like opening Medicare to all Americans over age 45, raising Medicaid up to 300 percent of the poverty line, opening S-CHIP to all children, and paying for the necessary subsidies and spending with a surtax on the wealthy (which is how the House originally wanted to fund health-care reform). That won't get us quite to universal health care, but it'll get us pretty close. And it'll be a big step towards squeezing out private insurers, particularly if Medicaid and Medicare are given more power to control their costs.
Let’s assume the state attorneys general are able to get the courts to agree that the mandate to purchase insurance is unconstitutional. Does that automatically mean that the court will declare the entire Act unconstitutional? Not necessarily. After declaring a section of an Act unconstitutional, the courts determine whether the remainder of the Act remains valid. The guiding principle is this according to a report on statutory interpretation from the Congressional Research Service quoting a ruling in Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (quoting Buckley v. Valeo, 424 U.S. 1, 108 (1976)). “Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.”
In other words, if the individual mandate to purchase health insurance is declared unconstitutional, then the issue will become whether Congress would have enacted the rest of the ACT if there were no individual mandate. We can be fairly certain that four members of the Supreme Court (Scalia, Thomas, Alito, and Roberts) will rule that the entire Act is unconjavascript:void(0)stitutional if they can find any piece of the Act unconstitutional such as the individual mandate. The question then becomes how the remaining five members of the court will rule. It should be very interesting. Read more here....
From ThinkProgres
From the page: "The most surprising part of Judge Roger Vinson’s ruling was his argument that the individual mandate was not severable from the health care law as a whole and must therefor bring down the entire Affordable Care Act. “In sum, notwithstanding the fact that many of the provisions in the Act can stand independently without the individual mandate (as a technical and practical matter), it is reasonably ‘evident,' as I have discussed above, that the individual mandate was an essential and indispensable part of the health reform efforts, and that Congress did not believe other parts of the Act could (or it would want them to) survive independently,” Vinson writes.
But a closer read of his analysis reveals something peculiar. In fact, as Vinson himself admits in Footnote 27 (on pg. 65), he arrived at this conclusion by "borrow[ing] heavily from one of the amicus briefs filed in the case for it quite cogently and effectively sets forth the applicable standard and governing analysis of severability (doc. 123)." That brief was filed by the Family Research Council, which has been branded as a hate group by the Southern Poverty Law Center (SPLC). "
[...]
"Vinson's conclusion is peculiar because Congress usually defers to Congress on questions of severability. In fact, even Judge Henry Hudson - the Virginia Judge who also found the individual mandate to be unconstitutional - left the whole of the law intact noting, "It would be virtually impossible within the present record to determine whether Congress would have passed this bill, encompassing a wide variety of topics related and unrelated to health care, without Section 1501. Therefore, this Court will hew closely to the time-honored rule to sever with circumspection, severing any "problematic portions while leaving the remainder intact.""
As Chief Justice John Roberts noted in Free Enterprise Fund et al. v. Public Company Accounting Oversight Board, Because [t]he unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions," Champlin Refining Co. v. Corporation Comm of Okla. , 286 U. S. 210, 234 (1932) , the "normal rule" is "that partial, rather than facial, invalidation is the required course.""
From NPR:
The Necessary And Proper Clause
Koppelman, who teaches law at Northwestern University, says that the Constitution's 'necessary and proper clause' cannot be factored out of this debate.
'When somebody goes without health insurance, we can argue about whether they are or are not part of interstate commerce, but it doesn't matter,' Koppelman says.
Koppelman says that in order to carry out its responsibilities, Congress can enact policies that are not among its enumerated powers in the Constitution.
During an appearance on Rachel Maddow's program, Senator Ron Wyden said that he would fight all the way to floor to open the public option to everyone, not just the 10% who cannot get private insurance as is the case now. He says this is the time for progressives to demand that the rhetoric of choice matches reality in policy. As Wyden says,
The bottom line is that the public option can’t really hold private insurers accountable if it is only competing for 10 percent of the insurance market, because private insurance companies aren’t going to change their business practices if 90 percent of their customers can’t take their business elsewhere.
Real reform means empowering Americans to choose insurance that works well for them and their family, while rejecting plans that don’t. Including a public option is a step in the right direction, now let’s remove the firewalls in this bill that prevent Americans from choosing it,'' Wyden said in a statement.
Currently the Public Options being discussed would be open to 10% who have no other access to health insurance. This population would be disproportionately filled with very medically high risk people, and the cost of insuring them, even under a government sponsored public plan, could quickly skyrocket. Dumping by the big insurers during the first couple of years while reforms were still "kicking in" could further exacerbate this, effectively bankrupting the public plan (which must be law be self-sustaining) before it ever has the chance of succeeding.
Employee based coverage, Mandates and Opt-Outs:
Some additional thoughts I want to make sure you understand. Right now, only small businesses, those who can't get insurance and those who buy insurance on the individual market will be eligible to purchase insurance on the exchange. If you work for a large employer who offers bad insurance coverage, you can't purchase something better for yourself through the exchange or public option.
Most citizens no longer count on remaining with the same employer for 5 years, much less 20 and in the last few years, we've seen that it is not uncommon to have to change jobs multiple times within a few years. Should you also have to be switching insurance companies and doctors every time you change jobs? An individual able to buy their own insurance on an exchange or through the Public Option would not be burdened with that constant change - which frequently depending on the insurance plan, may require changing healthcare providers.
If states are allowed to opt-out of the Public Option, then shouldn't the citizens of those states who do want and need a public option have access to it on their own? Especially if there are mandates that everyone must have insurance.
The entire health care exchange along with the Public Option should be open to all citizens. Wyden's Free Choice amendment is not mere icing; it is essential. We should definitely rally to support this.
The New Republic had a forum in Washington, D.C. this morning and Representative Anthony Weiner shared his thoughts on this issue. Ezra Klein reports:
Determined to get as many people as possible covered, lawmakers first proposed fines of as much as $3,800 per family for health insurance scofflaws. But they have been steadily scaling back the penalties, with the Senate Finance Committee last week dropping them to $1,500 maximum per family in their version of a health care bill. The committee also phased the penalties in over five years with no fines at all in the first year and eliminated all criminal and most civil punishments for failure to pay.
The industry -- counting on millions of more Americans buying insurance -- says the penalties are now so weak they practically beg to be ignored. The result, the companies warn, is that people would wait until they get sick to buy coverage. That would raise premiums for everyone else, since Congress' health care overhaul would also require insurers to take all applicants.
Read more at: http://www.huffingtonpost.com/2009/10/05/health-insurance-companie_n_310591.html
In a late-game push to pass the public option, progressive groups are trying to convince Democrats that it would be political suicide to pass a bill requiring people to buy insurance coverage but not giving them the choice of a government-run plan.
A memo making the rounds on Capitol Hill makes the case that the current construct of the Senate Finance Committee's legislation - which includes an individual mandate but no public option - will be resoundingly opposed by the American public.
Commissioned by the progressive-leaning Health Care for America Now - and obtained by the Huffington Post - the piece is based on three new polls conducted by reputable polling firms in swing House districts and the state of Maine.
"Nationally," the memo reads, "voters oppose a mandate to purchase private insurance by 64% to 34% but support a mandate with a choice of private or public insurance by 60% to 37%... Each [survey] found that likely 2010 voters oppose 'requiring everyone to buy and be covered by a private health insurance plan' but support 'requiring everyone to buy and be covered by a health insurance plan with a choice between a public option and private insurance plans.'"
In a not-so-subtle message to Senate Democrats, the memo concludes with a warning shot at the Senate Finance Committee's legislation - which seems unlikely to include a public plan.
"All of the health care reform proposals that have passed Congressional committees to date, including three House committees and the Senate HELP Committee, include an individual mandate and the choice of private or public health insurance," the HCAN memo reads. "The Chairman's mark introduced into the Senate Finance Committee includes the individual mandate without the choice of a public health insurance option." Source: Huffington Post
RJ Eskow presents the top 5 reasons that the Baucus bill sucks. We mean really sucks.
1-0the bill allows insurers to charge up to five times as much for some enrollees as for others, based on age.
2- the mandate to buy insurance remains in place, but does nothing to reduce costs because of the ability to charge prohibitive higher prices to older people.
3- the provision to tax so-called Cadillac plans will encourage employers to discriminate against costlier older employees.
4- no public option alternative to private insurance.
5- "[Purchasing councils for co-ops] shall be prohibited from setting payment rates for health care facilities and providers." So small, state based co-ops are expressly prohibited from pooling their purchasing power to force lower prices.
Read it all
A lesson in politics. The Kucinich Prediction: Here's what's going to happen ...
1. House will make a big deal about keeping/putting a public option in HR3200 because it competes with insurance companies and will keep insurance rates low.
2. The White House will refer to the President's speech last week where he spoke favorably of the public option.
3. The Senate will kill the competitive public option in favor of non-competitive "co-ops". Senate leaders like Kent Conrad have said the votes to pass a public option were never there in the Senate.
4. The bill will come to a House-Senate Conference Committee without the public option.
5. House Democrats will be told to support the conference report on the legislation to support the President.
6. The bill will pass, not with a "public option" but with a private mandate requiring 30 million uninsured to buy private health insurance (if one doesn't already have it). If you are broke, you may get a subsidy. If you are not broke, you will get a fine if you do not purchase insurance.
This legislative sausage will be celebrated as a new breakthrough and will be packaged as health insurance reform. However, the bill may require a Surgeon General's warning label: Your Money or Your Life!
The bill that Congress passes may pale in comparison to the bill that millions of Americans will get every month/year for having or not having private health insurance.
It will take four years for the new legislation to go into effect. During that time, we are going to build a constituency of millions in support of real health care, a constituency which will be recognized and a cause which is right and just: Health Care as a Civil Right.
Join our efforts. Sign the petition. Contribute. Insure a democratic future.
Thank you.
Dennis
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Dennis J. Kucinich (OH-10)
U.S. House of Representatives
Source: Daily Kos
How Washington is screwing up health care reform – and why it may take a revolt to fix it
This is a long piece and you really should read it all, because Tabbi, as usual is right on point with it all. For those who are reluctant to read something that goes over a page or two, here are some of the significant sections.
From Matt Taibb in Rolling Stone:
Let's start with the obvious: America has not only the worst but the dumbest health care system in the developed world. It's become a black leprosy eating away at the American experiment — a bureaucracy so insipid and mean and illogical that even our darkest criminal minds wouldn't be equal to dreaming it up on purpose. We might look back on this summer someday and think of it as the moment when our government lost us for good. It was that bad. The game in health care reform has mostly come down to whether or not the final bill that is hammered out from the work of these five committees will contain a public option — i.e., an option for citizens to buy in to a government-run health care plan. Because the plan wouldn't have any profit motive — and wouldn't have to waste money on executive bonuses and corporate marketing — it would automatically cost less than private insurance. Once such a public plan is on the market, it would also drive down prices offered by for-profit insurers — a move essential to offset the added cost of covering millions of uninsured Americans. Without a public option, any effort at health care reform will be as meaningful as a manicure for a gunshot victim. "The public option is the main thing on the table," says Michael Behan, an aide to Sen. Bernie Sanders of Vermont. "It's really coming down to that."
The House versions all contain a public option, as does the HELP committee's version in the Senate. So whether or not there will be a public option in the end will likely come down to Baucus, one of the biggest whores for insurance-company money in the history of the United States. The early indications are that there is no public option in the Baucus version; the chairman hinted he favors the creation of nonprofit insurance cooperatives, a lame-ass alternative that even a total hack like Sen. Chuck Schumer has called a "fig leaf."
Even worse, Baucus has set things up so that the final Senate bill will be drawn up by six senators from his committee: a gang of three Republicans (Chuck Grassley of Iowa, Olympia Snowe of Maine, Mike Enzi of Wyoming) and three Democrats (Baucus, Kent Conrad of North Dakota, Jeff Bingaman of New Mexico) known by the weirdly Maoist sobriquet "Group of Six." The setup senselessly submarines the committee's Democratic majority, effectively preventing members who advocate a public option, like Jay Rockefeller of West Virginia and Robert Menendez of New Jersey, from seriously influencing the bill. Getting movement on a public option — or any other meaningful reform — will now require the support of one of the three Republicans in the group: Grassley (who has received $2,034,000 from the health sector), Snowe ($756,000) or Enzi ($627,000).
This is what the prospects for real health care reform come down to — whether one of three Republicans from tiny states with no major urban populations decides, out of the goodness of his or her cash-fattened heart, to forsake forever any contributions from the health-insurance industry (and, probably, aid for their re-election efforts from the Republican National Committee). STEP ONE: AIM LOWHeading into the health care debate, there was only ever one genuinely dangerous idea out there, and that was a single-payer system. Used by every single developed country outside the United States (with the partial exceptions of Holland and Switzerland, which offer limited and highly regulated private-insurance options), single-payer allows doctors and hospitals to bill and be reimbursed by a single government entity. In America, the system would eliminate private insurance, while allowing doctors to continue operating privately.
In the real world, nothing except a single-payer system makes any sense. There are currently more than 1,300 private insurers in this country, forcing doctors to fill out different forms and follow different reimbursement procedures for each and every one. This drowns medical facilities in idiotic paperwork and jacks up prices: Nearly a third of all health care costs in America are associated with wasteful administration. Fully $350 billion a year could be saved on paperwork alone if the U.S. went to a single-payer system — more than enough to pay for the whole goddamned thing, if anyone had the balls to stand up and say so.
Everyone knows this, including the president. Last spring, when he met with Rep. Lynn Woolsey, the co-chair of the Congressional Progressive Caucus, Obama openly said so. "He said if he were starting from scratch, he would have a single-payer system," says Woolsey. "But he thought it wasn't possible, because it would disrupt the health care industry." And helping it not get to first base was … Max Baucus. It was Baucus' own committee that held the first round-table discussions on reform. In three days of hearings last May, he invited no fewer than 41 people to speak. The list featured all the usual industry hacks, including big insurers like America's Health Insurance Plans (AHIP), Blue Cross and Aetna. It's worth noting that several of the organizations invited — including AHIP and Amgen — employ several former Baucus staffers as lobbyists, including two of his ex-chiefs of staff.
Not one of the 41 witnesses, however, was in favor of single-payer — even though eliminating the insurance companies enjoys broad public support. Leading advocates of single-payer, including doctors from the Physicians for a National Health Program, implored Baucus to allow them to testify. When he refused, a group of eight single-payer activists, including three doctors, stood up during the hearings and asked to be included in the discussion. One of the all-time classic moments in the health care reform movement came when the second protester to stand up, Katie Robbins of Health Care Now, declared, "We need single-payer health care!"
To which Baucus, who looked genuinely frightened, replied, "We need more police!" Many of the health care advisers in Obama's inner circle, meanwhile, are industry hacks — people like Nancy-Ann DeParle, the president's health care czar, who has served on the boards of for-profit companies like Medco Health Solutions and Triad Hospitals. DeParle is so unthreatening to the status quo that Karen Ignagni, the insurance industry's leading lobbyist-gorgon, praised her "extensive experience" and "strong track record."
Behind closed doors, Obama also moved to cut a deal with the drug industry. "It's a dirty deal," says Russell Mokhiber, one of the protesters whom Baucus had arrested. "The administration told them, 'Single-payer is off the table. In exchange, we want you on board.'" In August, the Pharmaceutical Research and Manufacturers of America announced that the industry would contribute an estimated $150 million to campaign for Obamacare. STEP TWO: GUT THE PUBLIC OPTIONOnce single-payer was off the table, the Democrats lost their best bargaining chip. Rather than being in a position to use the fear of radical legislation to extract concessions from the right — a position Obama seemingly gave away at the outset, by punting on single-payer — Republicans and conservative Blue Dog Democrats suddenly realized that they had the upper hand. Pelosi and Senate Majority Leader Harry Reid would now give away just about anything to avoid having to walk away without a real health care bill.
The situation was made worse as the flagging economy ate away at Obama's political capital. Polls showed the percentage of "highly engaged" Democrats plummeting, while the percentage of "highly engaged" Republicans — inspired by idiotic scare stories from Rush Limbaugh and Sarah Palin about socialized medicine and euthanasia — rose rapidly. By late summer, "the depth of Republican support was starting to rival the breadth of Democratic support," said noted statistician Nate Silver. The more the Republicans and Blue Dogs fidgeted and fucked around, the easier it would be for them to kill the public option. Democrats, who on the morning after Election Day could have passed a single-payer system without opposition, were now in a desperate hurry to make a deal.
The public option is hardly a cure-all: Among other things, it does nothing to reduce the $350 billion a year in unnecessary paperwork and administrative overhead that makes the current system so expensive and maddening. "That's one of the big issues," says an aide to a member of the progressive caucus. "None of this addresses the paperwork issue. It might even make it worse." But the basic idea of the public option is sound enough: create a government health plan that citizens could buy through regulated marketplaces called insurance "exchanges" run at the state level. Simply by removing the profit motive, the government plan would be cheaper than private insurance. "The goal here was to offer the rock-bottom price, the Walmart price, so that people could buy insurance practically at cost," says one Senate aide. For a while, the public option looked like it might have a real chance at passing. In the House, both the ways and means committee and the labor committee passed draft bills that contained a genuine public option. But then conservative opponents of the plan, the so-called Blue Dog Democrats, mounted their counterattack. A powerful bloc composed primarily of drawling Southerners in ill-fitting suits, the Blue Dogs — a gang of puffed-up political mulattos hired by the DNC to pass as almost-Republicans in red-state battlegrounds — present themselves as a quasi-religious order, worshipping at the sacred altar of "fiscal responsibility" and "deficit reduction." On July 9th, in a harmless-sounding letter to Pelosi, 40 Blue Dogs expressed concern that doctors in the public option "must be fairly reimbursed at negotiated rates, and their participation must be voluntary." Paying doctors "using Medicare's below-market rates," they added, "would seriously weaken the financial stability of our local hospitals."
The letter was an amazing end run around the political problem posed by the public option — i.e., its unassailable status as a more efficient and cheaper health care alternative. The Blue Dogs were demanding that the very thing that makes the public option work — curbing costs to taxpayers by reimbursing doctors at Medicare rates plus five percent — be scrapped. Instead, the Blue Dogs wanted compensation rates for doctors to be jacked up, on the government's tab. The very Democrats who make a point of boasting about their unwavering commitment to fiscal conservatism were lobbying, in essence, for a big fat piece of government pork for doctors. "Cost should be the number-one concern to the Blue Dogs," grouses Rep. Woolsey. "That's why they're Blue Dogs."
In the end, the Blue Dogs won. When the House commerce committee passed its bill, the public option no longer paid Medicare-plus-five-percent. Instead, it required the government to negotiate rates with providers, ensuring that costs would be dramatically higher. According to one Democratic aide, the concession would bump the price of the public option by $1,800 a year for the average family of four.
In one fell swoop, the public plan went from being significantly cheaper than private insurance to costing, well, "about the same as what we have now," as one Senate aide puts it. This was the worst of both worlds, the kind of take-the-fork-in-the-road nonsolution that has been the peculiar specialty of Democrats ever since Bill Clinton invented a new way to smoke weed. The party could now sell voters on the idea that it was offering a "public option" without technically lying, while at the same time reassuring health care providers that the public option it was passing would not imperil the industry's market share. The concession to the Blue Dogs comes at a potentially disastrous price: Without a public option that drives down prices, the cost of other health care reforms being considered by Congress will almost certainly skyrocket. The trade-off with conservatives might be understandable, if those other reforms were actually useful. But this is Congress we're talking about. STEP THREE: PACK IT WITH LOOPHOLESEven seasoned congressional aides, who are accustomed to sitting through long and boring committee meetings, have found the debate over health care reform uniquely torturous. Unlike other congressional matters, where there is at least a feeling that the process might at some point be completed, the endless sessions over health care have led many staffers to fear that they will be locked in hearing rooms for the rest of their lives, listening to words like "target" and "mandate" and "doughnut hole" being repeated ad nauseam by weary, gray-faced, saggy-necked legislators — who begin, after weeks of self-inflated posturing, to look like the ugliest people in the universe. "You come out of these hearings," says Behan, the aide to Sen. Sanders, "and the number of interconnected, moving pieces going in and out of these bills is insane — the case for single-payer health insurance makes itself." Another favor to industry buried in the bills involves the issue of choice. From the outset, Democrats have been careful to make sure that a revamped system would not in any way force citizens to give up their existing health care plans. As Obama told the American Medical Association in June, "If you like your doctor, you will be able to keep your doctor, period. If you like your health care plan, you'll be able to keep your health care plan, period. No one will take it away, no matter what."
That sounds great, particularly in conjunction with the new set of standards for employer-provided insurance outlined in the House version of reform. Under the bill — known as HR 3200 — employers must provide "essential benefits" to workers or face a stiff penalty. "Essential benefits" includes elements often missing in the fly-by-night plans offered by big employers: drug benefits, outpatient care, hospitalization, mental health, the works. If your employer does not offer acceptable coverage, you then have the right to go into one of the state-run insurance "exchanges," where you can select from a number of insurance plans, including the public option.
There's a flip side, though: If your employer offers you acceptable care and you reject it, you are barred from buying insurance in the insurance "exchange." In other words, you must take the insurance offered to you at work. And that might have made sense if, as decreed in the House version, employers actually had to offer good care. But in the Senate version passed by the HELP committee, there is no real requirement for employers to provide any kind of minimal level of care. On the contrary, employers who currently offer sub-par coverage will have their shitty plans protected by a grandfather clause. Which means …
"If you have coverage you like, you can keep it," says Sen. Sanders. "But if you have coverage you don't like, you gotta keep it." As a means of correcting the problem, Wyden wrote up a thing called the Free Choice Act, which like many of the prematurely sidelined ideas in this health care mess is actually quite sensible. The bill would open up the insurance "exchanges" to all consumers, regardless of who is offered employer-based insurance and who isn't. But Wyden has little hope of having his proposal included in later versions of the bill. Like Sanders, who hopes to correct the committee's giveaway to drugmakers, Wyden won't get a real shot at having an impact until the House and Senate meet to hammer out differences between their final bills. In a legislative sense, the bad ideas are already in the barn, and the solutions are fenced off in the fields, hoping to get in. STEP FOUR: PROVIDE NO LEADERSHIPOne of the reasons for this chaos was the bizarre decision by the administration to provide absolutely no real oversight of the reform effort. From the start, Obama acted like a man still running for president, not someone already sitting in the White House, armed with 60 seats in the Senate. He spoke in generalities, offering as "guiding principles" the kind of I'm-for-puppies-and-sunshine platitudes we got used to on the campaign trail — investment in prevention and wellness, affordable health care for all, guaranteed choice of doctor. At no time has he come out and said what he wants Congress to do, in concrete terms. Even in June, when congressional leaders desperate for guidance met with chief of staff (and former legislative change-squelcher) Rahm Emanuel, they got no signal at all about what the White House wanted. On the question of a public option, Emanuel was agonizingly noncommittal, reportedly telling Senate Democrats that the president was still "open to alternatives."
On the same day Emanuel was passing the buck to senators, Obama was telling reporters that it's "still too early" to have a "strong opinion" on a public option. This was startling news indeed: Eight months after being elected president of the United States is too early to have an opinion on an issue that Obama himself made a central plank of his campaign? The president conceded only that a "public option makes sense." The so-called "individual mandate" is currently included in four of the five bills before Congress. The most likely version to survive into the final measure resembles the system in Massachusetts designed by Mormon glambot Mitt Romney, who imposed tax penalties on citizens who did not buy insurance. Several of Romney's former advisers are involved in the writing of Obamacare, including a key aide to Ted Kennedy who was instrumental in designing the HELP committee legislation. The federal version of the Massachusetts plan would slap the uninsured with a hefty tax penalty — making the HELP committee clause barring people from opting out of their employer-provided plan that much more outrageous.
If things go the way it looks like they will, health care reform will simply force great numbers of new people to buy or keep insurance of a type that has already been proved not to work. "The IRS and the government will force people to buy a defective product," says Woolhandler. "We know it's defective because three-quarters of all people who file for bankruptcy because of medical reasons have insurance when they get sick — and they're bankrupted anyway."
STEP FIVE: BLOW THE MATHFor instance: All five of the bills envision a significant expansion of Medicaid.....
The House plan would expand Medicaid eligibility to automatically include every American whose income is 133 percent of the poverty level or less. For those earning somewhat more — up to 400 percent of the poverty level — federal subsidies would help pay for the cost of a public or private plan purchased via the insurance "exchanges." That worries state governments, which currently pay for almost half of Medicaid — and which are already seeing their Medicaid rolls swelled by the economic meltdown. A massive surge in new Medicaid members — as many as 11 million Americans under the current proposals, according to the Congressional Budget Office — might literally render many big states insolvent overnight. Congress in this instance is behaving like corporations in the Enron age, orphaning hidden costs and complications through clever wording and accounting. Another neat trick involves the federal subsidies for low-income people who make up to 400 percent of the poverty level. The Congressional Budget Office projects that under the House bill, the subsidies will cost upward of $773 billion by 2019. But some aides think that number could end up being much higher. "Without a real public option to drive down costs, the federal support to make sure everyone gets coverage is going to get very expensive very fast," says Behan, the aide to Sen. Sanders.
Here's the other thing. By blowing off single-payer and cutting the heart out of the public option, the Obama administration robbed itself of its biggest argument — that health care reform is going to save a lot of money. That has left the Democrats vulnerable to charges that the plan is going to blow a mile-wide hole in the budget, one we'll be paying debt service on through the year 3000. It also left them scrambling to find other ways to pay for the plan, making it almost inevitable that they would step in political shit with seniors everywhere by trying surreptitiously to whittle down Medicare. As a result, the Democrats have become so oversensitive to charges of fiscal irresponsibility that they're taking their frustrations out on people who don't deserve it. Witness Nancy Pelosi's bizarre freakout over the Congressional Budget Office. When the CBO questioned Obama's projected cost savings, Pelosi blasted them for "always giving you the worst-case scenario" — which, of course, is exactly what the budget office is supposed to do. When you start asking your accountant to look on the bright side, you know you're not dealing from a position of strength. To recap, here's what ended up happening with health care. First, they gave away single-payer before a single gavel had fallen, apparently as a bargaining chip to the very insurers mostly responsible for creating the crisis in the first place. Then they watered down the public option so as to make it almost meaningless, while simultaneously beefing up the individual mandate, which would force millions of people now uninsured to buy a product that is no longer certain to be either cheaper or more likely to prevent them from going bankrupt. The bill won't make drugs cheaper, and it might make paperwork for doctors even more unwieldy and complex than it is now. In fact, the various reform measures suck so badly that PhRMA, the notorious mouthpiece for the pharmaceutical industry which last year spent more than $20 million lobbying against health care reform, is now gratefully spending more than seven times that much on a marketing campaign to help the president get what he wants.
So what's left? Well, the bills do keep alive the so-called employer mandate, requiring companies to provide insurance to their employees. A good idea — except that the Blue Dogs managed to exempt employers with annual payrolls below $500,000, meaning that 87 percent of all businesses will be allowed to opt out of the best and toughest reform measure left. Thanks to Harry Reid, Nancy Pelosi and Barack Obama, we can now be assured that the 19 or 20 employers in America with payrolls above $500,000 who do not already provide insurance will be required to offer good solid health coverage. Hurray!
Or will they? At the end of July, word leaked out that the Senate Finance Committee, in addition to likely spiking the public option, had also decided to ditch the employer mandate. It was hard to be certain, because even Democrats on the committee don't know what's going on in the Group of Six selected by Baucus to craft the bill. Things got so bad that some Democrats on the committee — including John Kerry, Chuck Schumer and Robert Menendez — were reduced to holding what amounts to shadow hearings on health care several times a week, while Baucus and his crew conducted their meetings in relative secrecy. The chairman did not even bother to keep his fellow Democrats informed of the bill's developments, let alone what he has promised Republicans in return for their support of the bill. "The Group of Six has hijacked the process," says an aide to one of the left-out senators.
This leaves Democrats on the committee in the strange position of seriously considering pulling their support for a bill that will emerge from a panel on which they hold a clear majority. Other Democrats are also weighing an end run around their own leadership, hoping to sneak meaningful reforms back into the process. In the House, Rep. Anthony Weiner of New York refused to support the bill passed by the commerce committee unless he was allowed to attach an amendment that will enable Congress to vote on replacing the entire reform bill with a single-payer plan (Bernie Sanders is working on a similar measure in the Senate). On the labor committee, Rep. Dennis Kucinich of Ohio took a more nuanced tack, offering an amendment that would free up states to switch to a single-payer system of their own.
It's highly unlikely, though, that the party's leaders will agree to include such measures when the five competing reform bills are eventually combined. On the House side, "Pelosi has unfettered discretion to combine the bills as she pleases," observes one Democratic aide. Which leaves us where we are today, as Congress enjoys its vacation, and the various sides have taken to the airwaves in an advertising blitz to make sure the population is saturated with idiotic misconceptions before the bill is actually voted on in the fall. It's a joke, the whole thing, a parody of Solomonic governance. By the time all the various bills are combined, health care will be a baby not split in half but in fourths and eighths and fractions of eighths. It's what happens when a government accustomed to dealing on the level of perception tries to take on a profound emergency that exists in reality. No matter how hard Congress may try, though, it simply is not possible to paper over a crisis this vast.
Then again, some of the blame has to go to all of us. It's more than a little conspicuous that the same electorate that poured its heart out last year for the Hallmark-card story line of the Obama campaign has not been seen much in this health care debate. The handful of legislators — the Weiners, Kuciniches, Wydens and Sanderses — who are fighting for something real should be doing so with armies at their back. Instead, all the noise is being made on the other side. Not so stupid after all — they, at least, understand that politics is a fight that does not end with the wearing of a T-shirt in November.
"Without a public option, this bill will do a lot of nice things but only by throwing a couple hundred billion dollars at insurance companies," says Nadler, [Jerrold Nadler (D-NY) ] adding that a public option is necessary to hold down the cost of health insurance. "What is the point of passing a bill that mandates people to buy insurance that is going to be unaffordable?" he says.
Nadler insists that a bill lacking a public option cannot pass the Democratic-controlled House, noting that in July, he and fifty-six other House Dems sent a letter [PDF] he had drafted to House Speaker Pelosi declaring they would not vote for health reform legislation without a public option. (At the moment, it looks as if there's practically no Republican support for any health care reform measure that might be crafted by House Democrats.)
Though a public option can likely make it through the House without much assistance from Obama, Nadler notes points out that no such bill could succeed in the Senate absent pressure from Obama. If Obama doesn't make an effort, Nadler says, "I believe it will cause a very big split" in the Democratic Party." "From a progressive point of view," Nadler says, "we've already compromised five or six times." He cites liberal Democrats' willingness to give up on a single-payer approach and to agree to several restrictions on a public insurance plan. But he acknowledges that voting against a bill without a public option will be a "test" for progressive Democrats: "A lot of them have said they will vote against such a bill, but will they?"
What of the argument that the House Dems should not permit the perfect to be the enemy of the good? Isn't half a loaf better than none? "I am convinced," Nadler remarks, "that you can't take a loaf without the public option because that's not sustainable, with the costs going up. If we did this, what will we accomplish in the end?" Read it all at Mother Jones"I believe it will cause a very big split" in the Democratic Party." - I agree.
Health care reform could be the insurance industry's greatest nightmare or a dream-come-true, depending on the fate of some of the most sweeping proposals. And health and accident insurers, in addition to HMOs and health services, are hoping that the $586 million they've spent on lobbying since 1998 will pay off now.
What these insurers want more than anything, of course, is to get some help in improving their bottom line, and they can't do it if the system maintains the status quo. According to the Chicago Tribune, private insurers have been rapidly losing customers since 2000 and this trend has only accelerated since the start of the recession, when people lost their jobs en masse. They're also worried about what will happen to their business when baby boomers are eligible for Medicare and no longer need private insurance. The perfect fix, the industry says, is the government requiring all people to buy medical coverage, which would add millions of new customers and generate a steady revenue stream, the Tribune reported. Read more at OpenSecrets
The insurance industry’s offer to agree to guaranteed issue in the individual market is dependent on a mandate to require every uninsured individual to purchase insurance. That would distribute risk broadly even if it doesn’t specify how such coverage could be paid for. Guaranteed issue has been opposed by WellPoint since it is not compatible with its business strategy of selling only to the healthy.
What about guaranteed issue in the small-business market? Since current proposals also would permit the continuation of the employer-sponsored market, insurers such as WellPoint would remain successful only if they could continue to use underwriting and premium flexibility in the small-business market. If they were required to issue coverage to every small business that applied, then they would have to have a mandate for all small businesses to purchase coverage. Though that would distribute risk more evenly in the small-business market, it still would defeat WellPoint’s successful strategy of keeping premiums competitive by selling their products to healthy individuals and only to small businesses with healthy employees.
WellPoint worked very hard to defeat reform efforts in California since it would have destroyed its dominance as the insurer of the healthy. There is every reason to believe that WellPoint likewise will oppose reform on a national level if Congress includes measures that would require private insurers to participate in a regulated social insurance program. Read More...
by Don McCanne, MD - PNHP’s official Blog
But what is shared responsibility? The responsibility of the individual is to pay his/her portion of the premium plus all out-of-pocket expenses, including cost sharing and costs of products and services not covered by the insurance plan. The responsibility of the employer is to pay a portion of the employee’s insurance premium, but economists agree that it is really the individual’s forgone wage increases that pays the premium. The government’s responsibility is to pay for part or all of the care provided to individuals who do not have the funds to pay for care, but it is really ultimately individuals who are paying the taxes that fund the government programs. And the responsibility of the private insurance industry? They don’t pay into the system; they take a large amount of funds out of the system - funds that again are ultimately paid by individuals.
So "shared responsibility" is not a sharing of responsibility; all of the responsibility falls on individuals. "Shared responsibility" is merely a rhetorical framing that advances the interests of some of the stakeholders, especially the private insurance industry.
Even if the respondents to the survey accepted the concept of shared responsibility, it would be a real stretch to conclude that a 48 percent support of a stand-alone mandate means that the public is opposed, whereas a 59 percent support of a mandate with shared responsibility is a solid public endorsement (11 percent difference). This is not a ringing endorsement of a concept that is more of a marketing slogan than a genuine policy proposal.
That said, there is an important take-home message from this survey. Those opposed seemed to understand the policy principles involved. Republicans were opposed because of higher taxes and greater government involvement. Democrats were opposed because a single government health program was needed instead of a mandate to purchase private plans that might not be affordable.
Pretending that the marketing ploy of shared responsibility will bring us bipartisan consensus on reform will only reinforce the process that we are about to see. The Republicans have already gained the greatest concession - single payer is off the table - and they will continue to use the process to gain further concessions that will destroy any semblance of health care equity, and then they will vote against the final bill anyway.
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