The (Republican) Constitutional Challenge To Health Reform

Yesterday, we learned that a coalition of State Attorneys General — 12 so far — plan to launch a constitutional challenge to the just-passed-but-not-yet-signed Senate health reform bill on grounds that imposing an individual mandate to buy health insurance is not justified by the powers Congress enjoys under the Commerce Clause of the U.S. Constitution.

Interestingly enough, the media reports I’ve seen on this story do not mention that 11 of the 12 AGs in question are Republicans. The one Democrat, Drew Edmondson of Oklahoma, is running for governor in this very conservative state.

For what it’s worth, few constitutional experts find any merit for a Commerce Clause challenge to health reform. But the proposed suit is probably part of a longstanding conservative legal effort to slowly chip away at the expansive view of the Commerce Clause, which has been the basis for a variety of important congressional actions, including the Civil Rights Act.

While the challenge is unlikely to get anywhere, it is worth remembering that there wasn’t much if any precedent for the decision in Bush v. Gore, either.

This item is cross-posted at The Democratic Strategist.

Get a Grip

Just over a month ago, Jon Chait of TNR predicted that conservatives would “freak out” if and when health reform legislation was indeed enacted. Aside from the fact that many of them have been drinking their own kool-aid about the allegedly totalitarian implications of a health care system that would maintain America’s uniquely capitalist orientation towards health services, conservatives spent far too much celebrating the death of reform to accept its resurrection.

I don’t believe in spending too much time on schadenfreude, but it has been interesting to see the absolute shock with which some conservatives and tea party activists have reacted to last night’s vote. My favorite reaction is this from Newt Gingrich, posted on the Human Events site:

This will not stand.No one should be confused about the outcome of Sunday’s vote

This is not the end of the fight it is the beginning of the fight.

The American people spoke decisively against a big government, high tax, Washington knows best, pro trial lawyer centralized bureaucratic health system

In every recent poll the vast majority of Americans opposed this monstrosity

Speaker Pelosi knew the country was against the bill. That is why she kept her members trapped in Washington and forced a vote on Sunday.

She knew if she let the members go home their constituents would convince them to vote no.

The Obama-Pelosi-Reid machine combined the radicalism of Alinsky, the corruption of Springfield and the machine power politics of Chicago.

Sunday was a pressured, bought, intimidated vote worthy of Hugo Chavez but unworthy of the United States of America.

It is hard to imagine how much pressure they brought to bear on congressman Stupak to get him to accept a cynical, phony clearly illegal and unconstitutional executive order on abortion. The ruthlessness and inhumanity of the Obama-Pelosi-Reid machine was most clearly on display in their public humiliation of Stupak.

Hugo Chavez! Saul Alinsky! A six-adjective sentence (“big government, high tax, Washington knows best, pro trial lawyer centralized bureaucratic health system”)! The end of civilization as we know it!

This is the same Newt Gingrich, mind you, who led a Republican-controlled Congress over the brink in 1995 and 1996 in the pursuit of extremely unpopular policies, arguing he had a mandate from the electorate to carry out a conservative revolution. And this is the same Newt Gingrich who increased the power of the Speaker’s Office to levels not seen since the days of “Czar” Reed, all but abolishing the seniority system and making loyalty to the Speaker and the Caucus’ agenda the only criterion for advancement. As for “intimidation”: wonder what Gingrich thought of those Republicans who placed photos of defeated 1994 Democrats on the seats of wavering Democratic members yesterday?

Gingrich’s crocodile tears for Bart Stupak are even more ludicrous. Stupak made himself a national celebrity by creating a symbolic fight over essentially inconsequential language differences in the House and Senate provisions on abortion. Yesterday he accepted a symbolic victory that was equally inconsequential, and folded his tent. I can’t imagine how Obama, Pelosi and Reid were guilty of “ruthlessness and inhumanity” by accepting his face-saving deal.

Newt was almost certainly playing for the galleries where his heart really lives these days: among potential 2012 caucus-goers in Iowa, a right-tilting crowd if ever there was one. And speaking of Iowa Republicans, Rep. Steve King outdid Gingrich in his remarks to a crowd of Tea Party protestors outside the Capitol last night:

You are the awesome American people,” said King. “If I could start a country with a bunch of people, they’d be the folks who were standing with us the last few days. Let’s hope we don’t have to do that! Let’s beat that other side to a pulp! Let’s chase them down. There’s going to be a reckoning!

It’s interesting how King alternates between a threat of violence and a threat to leave this godless socialist country behind and take the “real Americans” with him.

Let’s hope Republicans get a grip over the next few days.

This item is cross-posted at The Democratic Strategist.

It’s Not Over Yet

They took the scenic route, but they got there. After a year of negotiations, town halls, summits and shouting, Democrats have passed comprehensive health care reform legislation. The reform measure passed by the House Sunday now goes to President Obama’s desk for his signature. The House’s fixes inscribed in a separate bill will now be taken up by the Senate, and is expected to pass via the budget reconciliation process.

The outcome certainly affirms President Obama’s reputation as a clutch player – someone who’ll come through when you need him the most. Of course, the game probably wouldn’t have been that close if he hadn’t sat out for so long. This is where I hope the Obama administration has learned its lesson. Throughout the process, the president decided to take a hands-off approach, letting Congress do much of the work. It was a strategy borne of the failure of President Clinton’s plan, which was seen as a case of a White House completely oblivious to how Congress works. But Obama overcompensated, and the result was a process that seemed rudderless.

Worse, the hands-off approach extended to the bill’s selling. Confident that it was the right policy, the administration was complacent that the media and the public would see that it was the right thing to do as well. What we got instead was tea parties and town halls and “death panels.” In the absence of a permanent campaign to enlighten the public, misinformation ruled the day — and continues to infect public understanding of what just passed.

Which is why this is a good sign:

President Obama is set to begin an immediate public relations blitz aimed at turning around Americans’ opinion of the health-care bill.

Planning inside the West Wing for the post-vote period has proceeded quietly, even as the president and his allies on Capitol Hill were fighting for the measure’s passage.

Reshaping the legislation’s image will take place in three phases, White House aides said: the immediate aftermath; the seven months until the November midterm elections; and the several years that follow, during which many provisions in the measure will gradually take effect.

The plans for a PR blitz to sell the bill post-passage suggest an administration that has learned its lesson. Polls show that support for health care reform, particularly among Dems, began inching up the more Obama threw himself into its passage. It was a powerful reminder: when Obama commits himself to firing up the base, the base tends to get fired up. The promise of an all-out publicity campaign by the White House probably also assuaged a lot of wavering Democratic congressmen. As Nate Silver points out, one of the best predictors of whether a congressman would vote for the bill was whether they thought Obama would be an asset to them.

He may be known as No Drama Obama, but the president supplied plenty of it these last few weeks, with a bipartisan summit, rousing public appearances and quiet one-on-ones with recalcitrant Dems, culminating in a tour-de-force address to House Democrats on Saturday. The result was a pitch-perfect campaign that rallied progressives, bucked up public opinion, and emboldened lawmakers.

This administration has the best salesman in the country at the helm. When he talks, people – at least the converted and the persuadable – tend to listen. It seems like they’re finally starting to figure it out.

A Huge Accomplishment

Health care reform legislation, declared dead so many times by its enemies and sometimes its friends, became an accomplished fact last night via House enactment of the Senate-passed bill. The House also passed the closely associated reconciliation bill “fixing” the Senate bill, and final action on that measure in the Senate will take a while. But no matter: the most important health care legislation since the enactment of Medicare in 1965 is on its way to the president’s desk. It will ultimately provide coverage for 32 million people lacking health insurance; will finally outlaw the denial of insurance (or outrageous premiums for) those with pre-existing conditions, beginning with children; will undertake the most serious effort yet to move the health care system from payment for procedures to payment for good health results; and is estimated to reduce federal budget deficits by $120 billion in its first decade. For dessert, the bill closes the arbitrary “donut hole” for the Medicare prescription drug benefit.

The winding road leading to this accomplishment almost defies description, particularly after Republicans gained a 41st seat in the Senate in January and with it the ability to veto any legislation that didn’t proceed under budget reconciliation rules. After endless mockery for their handling of the issue last year, the administration and the Democratic congressional leadership all earn a great deal of credit for the ultimate victory: Harry Reid for getting all 60 Senate Democrats on board for a bill in December; Nancy Pelosi for the deft negotiations that produced 219 votes in the House; and the White House and the president for refusing to heed a thousand calls to totally revamp or abandon the legislation.

And despite the many conflicts among Democrats over the composition of the ultimate bill, it’s significant that joy over the vote last night extends all across the party, from single-payer fans to managed competition advocates to all sorts of people focused on narrow issues. It appears we owe a special thanks to the Catholic nuns whose strong support for the legislation seems to have shamed Rep. Bart Stupak and several other House colleagues into a face-saving deal on abortion language, mainly a symbolic gesture offered to secure real live votes.

Now Republicans, of course, are predicting a huge public backlash and then a quick repeal of the legislation if and when they retake control of Congress. There will be a lot of noise made in the days just ahead by Tea Party activists who have become invested in apocalyptic rhetoric about the dangers of health reform, and perhaps others who have bought some of the lies and distortions conservatives deployed to fight this legislation, from wild claims about “death panels” to pervasive predictions that premiums will skyrocket and Medicare benefits will be cut. When these disasters don’t occur, much of the negative excitement will die down, even as the merits of health reform become more apparent.

As for threats that the bill will soon be repealed: the very tools of obstruction that Republicans so eagerly utilized to try to thwart health reform will be available to those trying to stop its repeal. Will 60 senators vote to withdraw health coverage from tens of millions of Americans any time soon? Will 60 senators go to the mats to re-establish the “right” of insurance companies to deny coverage to children with pre-existing health conditions? Will Republicans vote to re-open the Medicare prescription drug “donut hole”? Where will they find the funds to offset elimination of health reform’s deficit savings? Maybe they ignored the president’s recent arguments about how the most popular reform measures won’t work without a comprehensive approach. But if Republicans try to repeal reforms piece-meal, they’ll finally figure out what he was talking about.

All in all, it’s clear that President Obama and most congressional Democrats did one thing that cynical voters don’t much expect of politicians these days: they kept a promise to meet one of America’s most urgent national challenges, and they kept it despite a collective Republican decision against any cooperation, despite vast institutional barriers in the Senate, and despite predictable public nervousness about — and, for many, hostility towards — comprehensive action on such a complex issue.

That’s an accomplishment worth celebrating, extending and, if necessary, defending. Let’s prove America’s not ungovernable after all.

Inverted Hubris

As we count down towards the health reform vote(s) in the House, it’s clearer than ever that there are two distinct but mutually reinforcing conservative takes on the bill. The most obvious, of course, is the bizarre construction of “ObamaCare” that the Right has been building for nearly a year now, based on distortions, fear-mongering, a few outright lies and sweeping smears, all in order to make legislation pretty close to what moderate Republicans have promoted for years seem like a socialist revolution if not a coup d’etat. This is the hard sell, and it will continue up to and well beyond this weekend’s votes.

But then there’s the soft sell, beloved of today’s model of “moderate” Republicans, such as they are, which involves lots of tut-tutting at the unedifying spectacle of the health reform debate, constant if unsupported claims that there are plentiful opportunities for a bipartisan “incremental” approach, and above all, phony concern for what Barack Obama is doing to his party and his country. This approach typically ignores or rationalizes the hard sell that most conservatives have undertaken, and the lockstep obstructionism of the congressional GOP, and blames Obama and Democrats for all the problems they are encountering in getting this legislation done.

A pitch-perfect example of the soft sell is Peggy Noonan’s latest Wall Street Journal column, presumably her final pre-vote expression of contempt for the president in the guise of respect for the presidency, which alas, isn’t what it used to be when her mentor, Ronald Reagan, stood astride Washington and the globe like a colossus.

The column begins with an extended expression of horror that Obama would postpone a trip to Indonesia and Australia in order to lobby for this little domestic bill that would deal with the trifle of health coverage for 40 million or so Americans:

And to do this to Australia of all countries, a nation that has always had America’s back and been America’s friend. How bush league, how undisciplined, how kid’s stuff.

It’s characteristic that Noonan does not mention that Obama is trying to give Americans the universal health coverage that Australians have and take for granted, or that final passage wouldn’t have been delayed until now if Scott Brown hadn’t come to Washington pledging to kill “ObamaCare.”

Noonan then engages, with the air of someone examining an especially loathsome insect, in a lengthy attack on the procedural issues involved in House passage of health reform, asserting that Obama’s trying to hide something in the legislation via the “deem and pass” (which she suggests sounds tellingly like “demon pass”) mechanism that House Democrats are apparently going to deploy this weekend. She endorses as self-evidently correct the complaint of Fox News’ Bret Baier, in his obnoxious interview of the president last week, that “deem and pass” means nobody will know what’s in the bill that’s “deemed” and “passed.” Like Baier, Noonan doesn’t seem to understand the simple fact that the underlying bill we are talking about here is exactly the same bill passed by the Senate in December — long enough even for Peggy Noonan to have gotten wind of it. The changes in the bill — namely, the reconciliation measure — were made available, along with a CBO scoring of their impact, before the votes were scheduled, and will be voted on explicitly by the House (and later the Senate). Yes, this is complicated, but you’d think someone with Noonan’s experience and pay grade would be able to figure it out, and again, Democrats would have never resorted to this approach if Republicans weren’t using their 41st Senate vote to thwart the normal process after a majority in the House and a supermajority in the Senate had already passed similar legislation.

But whatever — Republican obstruction is never much mentioned in Noonan’s stuff on health reform. And so it is entirely in character that Noonan concludes her column by blaming Obama for the rudeness exhibited by Baier in last week’s interview, and hence for diminishing the presidency! Ah, if only we had a real president like you-know-who:

[W]e seem to have come a long way since Ronald Reagan was regularly barked at by Sam Donaldson, almost literally, and the president shrugged it off. The president—every president—works for us. We don’t work for him. We sometimes lose track of this, or rather get the balance wrong. Respect is due and must be palpable, but now and then you have to press, to either force them to be forthcoming or force them to reveal that they won’t be. Either way it’s revealing.

I’d say it’s hardly as revealing as Peggy Noonan’s inveterate habit of not only ignoring conservative hubris, but attributing it to its victims.

This item is cross-posted on The Democratic Strategist.

The Big Misconception About “Deem and Pass”

Over at TNR, congressional expert Sarah Binder provides a very useful and detailed explanation of the procedures the House will go through this weekend in dealing with health reform. There will be (assuming things go as planned and Democrats have their votes) four separate votes: one on a Republican motion to recommit the rule for consideration of the reconciliation bill, one on the rule itself, one on a Republican motion to recommit the reconciliation bill, and one on the reconciliation bill. If the first or third motions pass, or the second or fourth votes fail to pass, health reform will have been defeated, at least for the moment if not forever.

But it’s the vote on the rule that will (assuming the Rules Committee goes in the direction Speaker Pelosi has indicated is likely) “deem” the Senate health care bill as having been enacted. This “self-executing rule” is what all the yelling and screaming on the Right is about. But since everybody understands what’s going on, it is fundamentaly erroneous to say that the House is trying to avoid a vote on the Senate bill. The vote on the rule is a vote on the Senate bill, and will have exactly the same effect as an explicit vote on the Senate bill, no more and no less.

That fact obviously does raise the question of why the House leadership is utilizing the “deem and pass strategy,” since anyone voting for the rule is actually voting for the Senate bill. I can’t answer that question, but presumably this basically meaningless distinction matters to at least one House Democrat. But in any event, the conservative charge that the House is going to enact the Senate bill without voting on it just isn’t true, and is simply part of the fog Republicans are trying to spread over the fact that by the end of this process (again, if all goes as planned), majorities in both Houses will have twice approved health reform.

This item is cross-posted at The Democratic Strategist.

Progressives and Poker

There’s been some interesting talk going on this week involving a post mortem assessment of “the Left’s” strategy on health reform, particularly in terms of the ultimate emptiness of threats from progressive House Democrats that they would vote against any bill that didn’t include a “robust” public option.

Glenn Greenwald argues that progressives have once again exposed–and possibly even increased — their “powerlessness” within the Democratic Party. Chris Bowers challenges the premise by arguing that progressives did secure significant changes in the Senate bill, most notably the agreement to “fix” it, which certainly wasn’t the path of least resistance.

Meanwhile, Armando of Talk Left has compared the lack of leverage of progressives over items like the public option to the success of the labor movement in forcing concessions on the “Cadillac tax.” And Nate Silver has responded by arguing that progressive threats didn’t work because they weren’t credible in the first place.

I think everyone in this debate would agree that it’s generally a bad idea in politics to make threats you are entirely unwilling to carry out, but the real division of opinion is on whether such threats should be tempered or in fact intensified. But Nate makes one point that bears repeating: the political value of aggressiveness and posturing can and often does get exaggerated.

It feels good to assert that progressives just need to be tougher — perhaps even to the point of feigning irrationality. These arguments are not necessarily wrong — a reputation for being tougher bargainers would help at the margins — but it misdiagnoses the problem on health care. The progressive bloc failed not because of any reputational deficiency on the part of the progressives but because their bluff was too transparent — they claimed to be willing to wager enormous stakes (health care reform) to win a relatively small pot (the public option). That would have been beyond the capacity of any poker player — or activist — to pull off.

I’ve never much liked the strain of progressive analysis that endlessly promotes “fighting” and “spine” and “cojones” as the answers to every Democratic political problem. Sometimes “brains” or “heart” are more important, and moreover, if politics is reduced to a willingness to project brute force, the bad guys are going to win every time; it’s like getting into a selfishness competition with the Right — we’ll never win. But in any event, however you feel about the Will to Power theory of politics, Nate’s right, people aren’t all stupid, and macho posturing by progressives when it doesn’t make sense isn’t going to convince anybody. Poker playing is a relatively small and overrated part of politics. Real conviction and strategies based on conveying those convictions to friends and potential friends are the best building blocks for successful strategy.

This item is cross-posted at The Democratic Strategist.

Stupak: The Man and the Movement

Given the importance of Rep. Bart Stupak (D-MI) and his allies in the struggle for health care reform in the House, it’s worth thinking a bit about what actually makes him tick. A very revealing moment came yesterday, when Stupak blew off a communication from Catholic religious orders representing 59,000 Catholic nuns urging approval of the health reform bill. According to Fox News’ report of Stupak’s reaction:

The conservative Democrat dismissed the action by the White House saying, “When I’m drafting right to life language, I don’t call up the nuns.” He says he instead confers with other groups including “leading bishops, Focus on the Family, and The National Right to Life Committee.”

Stupak’s meaning couldn’t be clearer: in figuring out his position on health reform, he’s not identifying with fellow Catholics who are struggling to balance various ethical considerations; he’s acting as an agent for the Right-To-Life Movement and its often-machiavellian political game plans. It’s particularly interesting that he mentioned Focus on the Family, the right-wing evangelical Protestant “ministry,” as a greater influence on him than 59,000 nuns.

Why does this matter? Well, aside from the fact that any serious ethical review of the bill has to include the positive impact of reform on maternal and childhood health, it’s also pretty clear that the net effect of the bill will be to reduce federal subsidies for abortion. As Matt Yglesias reminds us today, current law massively subsidizes abortions via the tax exclusion for employer-sponsored private health insurance, which frequently includes abortion coverage. By encouraging (especially over time) people to move from employer-sponsored coverage to the new health exchanges for individual coverage, which under the Senate language will make insurance for abortion exceptionally inconvenient, it’s a sure bet that the overall use of federal money to pay for policies that include abortion services will decline. Indeed, a group of twenty-five prominent pro-life Catholic and Protestant leaders recently penned a letter describing claims that the pending bill would expand abortion subsidies as “misinformation.”

So official right-to-lifer opposition to the health reform bill isn’t really “about” abortion. It’s “about” the desire of the Right-To-Life political movement to score a big symbolic triumph, and it’s “about” the non-abortion political agenda of some of the movement’s constituent members. For a group like Focus on the Family, to which Stupak listens so closely, that agenda includes the Republican takeover of Congress and a wide variety of right-wing policy measures that have zero to do with abortion.

This item is cross-posted at The Democratic Strategist.

The Wait Is Over

It took longer than expected, but the wait was worth it. The CBO score for the Senate health care reform bill and amendments that the House will vote on this weekend is now out (well, in leaked form anyway) and the numbers, at first glance, look good for reform’s prospects.

According to House Majority Leader Steny Hoyer, the legislation got slapped with a price tag of $940 billion over the next decade, more expensive than the Senate version, which makes sense since expanding coverage is one of the fixes the House wants to enact. But the CBO reportedly said the legislation would cut the deficit by $130 billion over the next decade and $1.2 trillion the decade after that — steeper deficit cuts than the Senate bill had. As Ezra Klein summed it up, “that’s more deficit reduction than either the House or Senate bill, and more coverage than the Senate bill.” Hoyer noted that it’s the biggest deficit reduction act since the 1993 Clinton budget.

It’ll be interesting to see how the bill achieves that goal. There had been word in the last 24 hours that the excise tax on Cadillac plans — something labor unions had opposed — had to be tweaked to make sure the legislation met its deficit-reduction aims. Will a more robust excise tax on high-end plans weaken labor’s support for the bill? One thing is certain: with the release of the CBO’s numbers, moderate Democrats concerned about the fiscal impact of the bill can now rest easier and support it.

One wait is over, but another one begins. With the official release of the CBO score later today, the clock officially begins on the 72-hour window that Democrats had promised to give members before voting on the legislation. This pegs the vote for Sunday — though Republicans have promised to pull out all the stops to delay the process.

The Furor Over “Deem and Pass”

A couple of weeks ago, I wrote about the ridiculous attention that the media — cued by the GOP — lavished on process in general and budget reconciliation in particular:

Regardless of the outcome of the Democratic health reform push, one point is obvious: at every turn, they lost the messaging battle to Republicans and the Tea Party. The latest reminder came this morning, as the umpteenth story on budget reconciliation came on the radio. These days, to talk about health care reform is to talk about process — exactly where the GOP wants the conversation to be.

Replace “reconciliation” with “deem and pass” and the same post pretty much applies to today. “Deem and pass” is the procedure by which Democrats are reportedly planning on using to pass health care reform, allowing House members to “deem” the Senate bill passed while voting on the bill fixing it. The reasoning is that this would enable House Democrats to say that they didn’t technically vote for what they see as a flawed Senate bill. Let me repeat that: they’ll be voting for the Senate bill but can claim that they didn’t vote for the Senate bill. Really, what could go wrong with that strategy?

Republicans have pounced, and the media have been right there with them. Today’s Washington Post headline: “House Democrats’ tactic for health-care bill is debated.” From a New York Times on the “controversy”: “Democrats struggled Tuesday to defend procedural shortcuts they might use to win approval for their proposals in the next few days.” Clearly Dems did not think through the politics of this move.

But its head-slapping idiocy notwithstanding, is “deem and pass” really all that controversial? Congressional scholar Norman Ornstein, hardly a lefty advocate, calls out Republicans for their hypocritical rending of garments over its anticipated use for health reform:

In the last Congress that Republicans controlled, from 2005 to 2006, Rules Committee Chairman David Dreier used the self-executing rule more than 35 times, and was no stranger to the concept of “deem and pass.” That strategy, then decried by the House Democrats who are now using it, and now being called unconstitutional by WSJ editorialists, was defended by House Republicans in court (and upheld). Dreier used it for a $40 billion deficit reduction package so that his fellow GOPers could avoid an embarrassing vote on immigration. I don’t like self-executing rules by either party—I prefer the “regular order”—so I am not going to say this is a great idea by the Democrats. But even so—is there no shame anymore?

Steve Benen sums up my thoughts on the latest demonstration of GOP faux outrage and media complicity nicely:

Let me get this straight — the single biggest story in the political world yesterday was over consideration of a House procedure, used many times before by both parties? Republicans decided they don’t like “self-executing rules” anymore, so the matter dominated the discourse?

As with the moronic furor over reconciliation, the same dynamic is at work: a relentless GOP messaging machine that puts process ahead of substance — canny on their part because it’s the process, rather than the policy, that voters are fed up with; a tone-deaf Democratic caucus (They really thought that adding a layer of complication to the process was what health care reform needed? Really?) and feckless communications operation that seems to perpetually be on the defensive; and a mainstream media expertly played like a piano by the GOP.

Civil Disobedience for Republicans

I know, I know, paying attention to anything Rep. Michele Bachmann (R-MN) says is a bit lazy, since she offers up irrational outrages on a near daily basis. But her remarks suggesting that Americans don’t have to comply with health care legislation if it’s enacted via procedures she doesn’t like really do blaze some new trails for the American Right — or at least trails not pursued since the early 1960s, when segregationists urged noncompliance with Supreme Court decisions and civil rights laws.

Here’s Bachmann flirting with jail-time in defense of the great American principle of unregulated private health insurance, or whatever it is she’s standing for:

If they pass the bill legitimately, then yes, we have to follow the law — until we repeal it. But if they pass it illegitimately, then the bill is illegitimate, and we don’t have to lay down for this. It’s not difficult to figure out. So if for some reason they’re able to get their votes this week and pass this 2,700-page Senate bill — if they get it, trillions of dollars is what it’s gonna cost, when we didn’t vote on it, we need to tell them a message: That if they get away with this, they will be able to get away with anything — with anything. And you can’t say you voted on a bill when you didn’t, because it’s fraud. But we are not helpless here. We are not helpless, there are things that we can do.

What Bachmann is thundering about here specifically are reports that the House may vote on a reconciliation bill to “fix” the Senate bill, and then by a Rules Committee provision “deem” the Senate bill itself as having passed the House via efforts to amend it. Turns out the “deem and pass” strategy was used by Republicans during the Bush administration to enact a debt limit increase — never a popular vote — so there is, ahem, some bipartisan precedent for the procedure. And for all the talk about its sneakiness, it should be remembered that it is being considered not because of some substantive concerns about a “fixed” Senate bill, but because House members fear the Senate will just celebrate House passage of their bill and not bother to get around to the “fix.” In other words, it’s all procedural mumbo jumbo that’s unrelated to real health care reform. Any House member voting for the “fix” is, in fact, going to be held responsible by Republicans for supporting “ObamaCare,” so conservatives are being more than a little disingenous in claiming that “deem and pass” is some sort of devilish trick to avoid accountability.

In any event, the courts are where such matters should be thrashed out, not the streets. And by suggesting that her own view of “deem and pass” as representing “tyranny” should trump the law of the land, Bachmann is taking a fateful step towards the revolutionary posture that her Tea Party allies have been hinting at all along.

I’m reminded of an incident back in Georgia some time ago when Congress had enacted a tax bill that imposed a state-by-state volume limitation on the use of tax-exempt financing for private development projects. I was part of a state government team that designed Georgia’s system for implementing this law, and after a public briefing on the new rules in one locale, a local development official replied: “We appreciate y’all coming down here to explain all this, but we think we’ll just use the old system.” We decided not to humiliate the guy by pointing out that the IRS wouldn’t exactly let him “use the old system,” but instead informed him of that privately.

I hope someone informs Michele Bachmann and her listeners that she doesn’t get to pick and choose which laws are “valid.” And if she’s willing to go to the hoosegow to resist ObamaCare, there are quite a few other Americans who think the supremacy of law is a rather important principle who will be happy to accomodate her.

This item is cross-posted at The Democratic Strategist.

Empty Threats

As the political world prepares for what appears to be Last Stop Week on health reform, conservatives seem astonished that the president and congressional Democrats are pushing ahead for final enactment of legislation passed by both Houses last year, instead of folding their hands and fleeing in terror. They are particularly incensed that Democrats aren’t being shamed or frightened by the prospect of–gasp!–a poisoned partisan atmosphere in Washington. Here’s how Julie Mason of the conservative Washington Examiner presents the threat:

The White House claims it’s above worrying about the politics of health care — they just want a bill passed this week.Good thing, because politics in Washington could become a lot more ferocious and partisan, whether their plan flies or not.

“If they pull off this crazy scenario they are putting together, they are going to destroy a lot of the comity in the House,” said Brian Darling, a congressional expert at the conservative Heritage Foundation. “Even in the current, highly partisan atmosphere, it can get a lot worse.”

Sorry, Brian & Julie, you are wrong. It really can’t get much worse. And for that, conservatives have no one but themselves to blame, if they actually even care.

Just to cite the most obvious example, there were many moments over the last year when the White House and congressional Democrats might well have significantly changed health reform legislation in exchange for just a few Republican votes (in fact, they made unilateral concessions in the Senate again and again simply to keep the possibility open). And after the loss of the 60th Senate vote last month, had Republicans offered any suggestions other than complete repudiation of the bills already enacted by a majority in the House and a supermajority in the Senate, Democrats would have snapped them up instantly. But in an atmosphere where long-held Republican ideas on health reform like the individual mandate were suddenly being denounced as socialist or even fascist by the Right, no serious offers were forthcoming, unless you think such “ideas” as sweeping away state regulation of health insurers via mandatory interestate sales is “serious.”

So let’s not hear any empty threats about Republican “partisanship.” For better or worse, the GOP made a clear and collective decision last year to take partisanship to the max on every conceivable front, and they have been quite successful with that strategy in a nilhilistic sort of way. But there are no arrows left in that particular quiver.

This item is cross-posted at The Democratic Strategist.

False Friends

Today’s big whoop in the manic conservative drive to kill health care reform is a Washington Post op-ed by Pat Caddell and Doug Schoen urging Democrats to abandon reform and work with Republicans on “bipartisan” proposals like “purchasing insurance across state lines, malpractice reform, incrementally increasing coverage,” and so on and so forth.

Now normally I don’t like to get into the motives or personality of people making political arguments, but in this case it’s unavoidable. The only reason anyone on earth is paying any attention to the views of Caddell and Schoen on this subject is that, as they note prominently in the WaPo piece, they used to work as pollsters for Democratic presidents (Schoen for Clinton, though it was really his business partner, Mark Penn, who had the White House account, and Cadell way back in the Carter administration). But the impression they give of being good Democrats who have finally spoken out in exasperation at the folly of health care reform is completely false. Schoen has never been much of a loyal Democrat; his latest enthusiasm has been encouraging a third party. And Caddell has a history of cranky eccentricity dating back at least a few decades. As Jon Chait points out, both of them have become fixtures on Fox News recently.

They are entitled to their opinion like anyone else, but Schoen and Caddell should check their worn-out Party Cards at the door before they write a piece repeating Republican talking points on health care reform.

This item is cross-posted at The Democratic Strategist.

More On ObamaCare/RomneyCare

Here’s something to tuck away in your files on both health care reform and 2012 presidential aspirant Mitt Romney, from Tim Noah at Slate (via Jon Chait). Looking at Romney’s new pre-campaign book, Noah observes:

Romney’s discussion of health reform is, from a partisan perspective, comically off-message. (How could he know what today’s GOP message would be? He probably finished writing the book months ago.) Remove a little anti-Obama boilerplate and Romney’s views become indistinguishable from the president’s. They even rely on the same MIT economist! At the Massachusetts bill’s signing ceremony, Romney relates in his book, the late Sen. Ted Kennedy, D-Mass., quipped, “When Mitt Romney and Ted Kennedy are celebrating the same piece of legislation, it means only one thing: One of us didn’t read it.”

Noah goes on to mix up some Obama and Romney quotes on health care reform, and challenges the reader to say which is which. Can’t be done.

Back in January, I predicted that Romney’s sponsorship of health care reform in Massachusetts might turn out to be a disabling handicap in a 2012 presidential race, given the shrillnesss of conservative rhetoric about features in Obama’s proposal that are also in Romney’s–most notably, the individual mandate.

Something happened since then, of course, which has been of great value to Romney in protecting his highly vulnerable flank on health reform: Scott Brown, another supporter of RomneyCare in Massachusetts, became the maximum national GOP hero and set off to Washington to try to wreck Obama’s plans. That meant that not one, but two major Republican pols would be promoting ludicrous distinctions between RomneyCare and ObamaCare as though they were actually vast and principled.

But I can’t see this illogical brush-off as working forever. If the Mittster does crank up another presidential campaign, fresh media attention will be devoted to his record and “philosophy” on health care. And more importantly, Romney’s rivals in a presidential race won’t for a moment give him a mulligan on the issue the GOP has defined as all-important. Mitt’s “socialism” in Massachusetts will eventually re-emerge as a big, big problem for him, and arguments that it was just state-level “socialism” won’t quite cut it in a Republican Party that’s moved well to the Right since the last time he ran for president. Before it’s over, they’ll make it sound like he’s the reincarnation of Nelson Rockefeller, money and all.

This item is cross-posted at The Democratic Strategist.

Photo credit: https://www.flickr.com/photos/newshour/ / CC BY-NC-ND 2.0

Pro-Reform Majority?

With Republicans beating the drums incessantly for the proposition that “the American people have rejected health care reform,” it’s probably not a bad time to recall the discussion that broke out late last year over evidence that many people saying they oppose specific proposals do so because they want to take reform much farther.

Exhibit A was an Ipsos-McClatchy poll taken in November. Here was Nate Silver’s take on it:

Ipsos/McClatchy put out a health care poll two weeks ago. The topline results were nothing special: 34 percent favored “the health care reform proposals presently being discussed”, versus 46 percent opposed, and 20 percent undecided. The negative-12 net score is roughly in line with the average of other polls, although the Ipsos poll shows a higher number of undecideds than most others.Ipsos, however, did something that no other pollster has done. They asked the people who opposed the bill why they opposed it: because they are opposed to health care reform and thought the bill went too far? Or because they support health care reform but thought the bill didn’t go far enough?

It turns out that a significant minority of about 25 percent of the people who opposed the plan — or about 12 of the overall sample — did so from the left; they thought the plan didn’t go far enough.

Well, Ipsos-McClatchey is back with another poll, and it’s shows an even stronger percentage of reform “opponents” thinking current bills don’t go far enough: more than a third of the 47% of respondents opposing “the reforms being discussed” say it’s because “they don’t go far enough.” Added to the 41% of respondents who say they support “the reforms being discussed,” that’s a pretty significant majority favoring strong government action to reform the health care system.

If that’s right, then maybe a majority of Americans technically favor a “no” vote on health care reform. But it’s not at all clear that they’ll be any happier with a perpetuation of the status quo, much less the kind of “reforms” Republicans are talking about. It looks like a significant share of the public wants something with a strong public option, or perhaps a full-blown single-payer system. It’s disengenuous to pretend these are people who have linked arms with Rush Limbaugh and congressional Republican leaders to fight against serious reform.

This item is cross-posted at The Democratic Strategist.

A Heavy Lift

We always knew it would be a heavy lift. When Scott Brown swept away the filibuster-proof majority in the Senate – by taking Ted Kennedy’s seat no less – it seemed like a puckish and malevolent act by the legislative gods. Now, as the endgame draws near, the degree of difficulty only continues to go up.

The problem this time is not the Senate but the House. The plan is for the House to pass the bill that the Senate passed, and for both chambers to then pass a “fix” via reconciliation, which would require only a majority in the Senate.

But since the beginning of the year, Speaker Nancy Pelosi has lost several “yes” votes on health care. Rep. Robert Wexler (D-FL), a liberal stalwart, resigned January 3; Rep. John Murtha (D-PA) passed away February 8; Rep. Neil Abercrombie (D-HI) stepped down on February 28. On top of that, Rep. Joseph Cao (R-LA), the only Republican in either chamber to vote for reform, has come out and said he would not be voting for the bill this time around. Add on the Stupak bloc, the group of representatives led by Rep. Bart Stupak (D-MI) who reject the Senate bill on the grounds that its anti-abortion provisions are less strict than in the bill the House passed, and the bill’s prospects become even dimmer.

Just today, more bad news. Initially, with all the departures from the House, including that of Rep. Nathan Deal (R-GA), the magic number for Pelosi had at least shrunk to 216. But Deal today said he would stick around until the vote, raising the threshold to 217 again. But there’s more! There have been reports of other previous “yes” votes now wavering as the GOP ramps up its anti-health reform campaign to “spook” Dems: Rep. Shelley Berkley (NV), Rep. Michael Arcuri (NY), Rep. Kurt Schrader (OR).

But anyone expecting less than a full-on blitzkrieg from the right to sway quaking Dems has not been paying attention. The question is: Does that include the White House?

Too Much Inside Baseball

One of the ironies of health reform legislation has been its declining popularity with the public even as it progressed up the legislative chain. As it passed each new congressional hurdle, public opinion dipped. By the time 2010 rolled around (and before Scott Brown), health reform was on the brink of passing, but the victory seemed like it wouldn’t be quite the rout its supporters had hoped, with the bill so damaged in the public’s eyes.

I always thought that this was the result of an overcorrection on the White House’s part from the mistakes of the Clinton administration. The Clinton health care plan floundered because the administration was so ham-handed when it came to dealing with Congress. This White House adjusted accordingly, and played the beltway game to perfection.

But it never learned from another Clinton mistake, which is that it’s not all about the beltway – the ground game matters, too. With a highly mobilized right wing getting its message out to congressional districts, hardcore opponents – the town hall screamers of last summer – came out of the woodwork, inevitably coloring the impressions of the casual political observer. Phone calls started coming in to congressional offices opposing the bill.  Poll numbers dropped.

Meanwhile, the White House, with both eyes on Congress, failed to fire up its own base. Obama held events here and there, but nothing like a sustained campaign to mold public opinion. Without that leadership, the progressives and moderates who knocked on doors for Obama simply weren’t there this time around to match the other side’s intensity. By the time Scott Brown showed up, some lawmakers were all but ready to be done with health care.

And so here we are. President Obama has gone all in, even going so far as to set a date for when he wants the House to vote. He has also assiduously courted iffy Democrats, inviting them over to the White House and no doubt seeking to buck them up. And with news that he’s about to embark on a barnstorming tour to stump for health care, it’s clear that the White House sees the importance of aggressively shaping public opinion and the media narrative.

But will it be enough? Or is it too little too late? And will the progressive grassroots that helped Obama win the presidency be there to neutralize motivated right-wing foot soldiers and Astroturf groups? Or will those GOP robocalls and conservative vehemence ultimately topple unsteady Democrats? It’s a real test of leadership for the president. And as others have rightly pointed out, it’s a test of the progressive base, too.