Obamacare: On the ropes?

The second open enrollment period for the Affordable Care Act began on November 15, but it seems like Obamacare has been under attack forever. Republican lawsuits make their way through the courts, Democratic candidates run from President Obama's signature achievement, and Democratic Senators openly question it.  Here are 10 things to know about the current state of the Patient Protection and Affordable Care Act and the threats facing it.

1. As of April 2014 (after the first open enrollment period), approximately 15.2 million previously uninsured had gained health care insurance as a result of the ACA - either through the Marketplace or through the Medicaid and CHIP expansions. Daily Kos notes that a) the uninsured rate dropped more than 30 percent from September 2013 to September 2014; b) healthcare spending in the U.S. grew at a slower rate in 2013 than it had in 53 years; c) an estimated 50,000 lives were saved between 2010 (when ACA was passed) and 2013 because hospitals have been made safer.

2. The original ACA provided for an expansion of state Medicaid systems that would have made health care affordable for an additional 21.3 million Americans by 2022. The Supreme Court made that provision voluntary and, as of October 2014, 23 states had chosen not to expand Medicaid coverage. Nearly 4 million poor uninsured adults fell into the“coverage gap” that resulted from state decisions not to expand Medicaid, meaning their income is above current Medicaid eligibility but below the lower limit for Marketplace premium tax credits.  With Republican victories at the state level in the midterms, this denial of affordable medical care will continue.

3. SCOTUS will hear King vs. Burwell this term. This case, as well as its related brethren (Halbig vs. Burwell, Pruitt vs. Burwell, and Indiana vs. IRS), would deny subsidies to people who obtained their healthcare plan through the Federal exchange rather than through a state exchange. If successful, as many as 13 million people in 37 states could be affected, For many of these, healthcare would once again become unaffordable.

4. King vs. Burwell rests on what Think Progress calls a "glorified typo." If read in isolation, one line of the Affordable Care Act suggests that only “an Exchange established by the State” can offer subsidies to help people pay for health insurance in the exchange. Previous Supreme Court decisions have noted that “a reviewing court should not confine itself to examining a particular statutory provision in isolation” as the “meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.”

5.  With today's politicized Supreme Court, the outcome of King vs. Burwell will depend on Chief Justice Roberts. Once before, Roberts bucked conservative pressure when he sided with the court's liberals in determining the ACA to be constitutional. Will Roberts' concern for his legacy (or perhaps his conscience) let him do the right thing for the American people or will he cave to this political stunt and ignore previous Supreme Court rulings on the importance of context?

6.  Sen. Charles Schumer blamed the loss of the Senate and the general thumping of Democrats in the midterms on the timing of Obamare.  Perhaps the best response to Schumer came from Michael Hiltzik at the Los Angeles Times: "It's a startling admission of political spinelessness. Schumer gets the positive impact of the legislation wrong, he gets the politics of it wrong, and he displays a shocking ignorance of the problems facing the American middle class. The only good thing about his remarks is that they confirm how bad today's Democrats are at messaging."

7. The House GOP filed suit against President Obama on November 21. The lawsuit focuses on two points: (1) the administration's decision to delay the law's mandate that businesses with 50 or more workers provide comprehensive health benefits and (2) the requirement that insurers reduce the out-of-pocket expenses for lower-income customers with the government making "periodic and timely payments" to insurers to cover their costs. This suit is even more blatantly political than King vs. Burwell and stands less of a chance of success.  Still, as the LA Times opines in a November 24 editorial: "...it's worth noting how Republicans have sought to undermine and destabilize the Affordable Care Act by attacking the benefits it provides to Americans on the lowest economic rungs."

8. Retiring Sen. Tom Harkin, co-author of the ACA, now says that Democrats should have passed single payer healthcare when they had the chance in 2009.  By trying to address the concerns of three centrist Senators (Democrats Lincoln and Nelson and Independent Lieberman), the country ended up with a more complicated healthcare system. I agree with Sen. Harkin.  Single payer or public option healthcare would have been a better choice. Compromising did no good. The ACA passed the Senate without a single Republican vote and the complexity of the system has opened it to, as we have seen, unending lawsuits.

9. A GOP Senate can be counted on to try to dismantle the ACA in stages should both King vs. Burwell and the House GOP suit against Obama fail. The idea would be to gather enough Democratic votes to avoid a filibuster, or better, to override a Presidential veto. Based on discussions with health care experts and lobbyists, the New Republic lists these possible Republican actions:

(a) Repeal the individual mandate

(b) Repeal or modify the employer mandate

(c) Eliminate "risk corridors" (government reimbursement to insurers for some losses)

(d) Repeal the 2.3 percent medical device tax. Its primary purpose is to generate revenue to help subsidize healthcare costs for lower income people.

(e) Abolish the Individual Payment Advisory Board. IPAB is a board with the power to ratchet down what Medicare pays for goods and services.

(f) Introduce "copper plans" which would cover less (50%) of an individual's health care expenses than the current plan levels.

10. I'll close with commentary from a source I don't often cite. Forbes magazine, the self-proclaimed "capitalist tool," has some bad news for Obamacare bashers. A McKinsey Center report found that a) competition and choice are increasing among insurance companies; b) the median increase in premiums for 2015 will be 4% (Forbes' comment: "When was the last time we saw insurance premiums experience an annual increase of less than 5 percent? I cannot remember such a time and doubt that you can either."); c) premiums for those being subsidized will vary - with some likely to pay more and others likely to pay considerably less.  The author's closing advice is priceless: "Even if you are committed to bashing the ACA at all costs, do yourself a favor and go check out the policies available to you come November 15th. You are likely to find something to your liking at either a lower price or at a very small increase. Should you find such a policy, buy it and be secure in the knowledge that the next time you trash Obamacare nobody will have to know that you benefited personally from the program."

  

R.I.P. - Campaign Finance Reform

In a 5-4 vote last week, the Roberts Court sounded the death knell of campaign finance reform with its McCutcheon v. FEC ruling.  "The Supreme Court...continued its abolition of limits on election spending, striking down a decades-old cap on the total amount any individual can contribute to federal candidates in a two-year election cycle."  [NYT, April 2]  If Citizens United opened the door to unlimited campaign spending, McCutcheon blows the roof off. 

“There is no right more basic in our democracy,” Chief Justice John Roberts Jr. wrote in the opening of his opinion for the court in McCutcheon v. Federal Election Commission, “than the right to participate in electing our political leaders.”  [NYT, April 2].  Hmm...I really wish he had said the right to vote rather than the right to contribute as much money as you want to as many people as you want.


The response to the ruling of the conservative plurality was about as expected - praised by the right and scorned by the center and left.  The Court's narrow definition of what constitutes "corruption or the appearance of corruption" bears special scrutiny.  The conservative majority on the Court reverted to an interpretation more suited to the Gilded Age in requiring quid pro quo bribery to be the low bar definition of corruption. 

Justice Breyer's dissent is a masterpiece.  "We specifically rejected efforts to define “corruption” in ways similar to those the plurality today accepts...Just as troubling to a functioning democracy as classic quid pro quo corruption is the danger that office­holders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder.”  The Daily Kos has a good writeup on Breyer's dissent.

Here are excerpts from some of the commentaries.

The Supreme Court...continued its crusade to knock down all barriers to the distorting power of money on American elections. In the court’s most significant campaign-finance ruling since Citizens United in 2010, five justices voted to eliminate sensible and long-established contribution limits to federal political campaigns.  [NYTimes, April 2]

The Supreme Court on Wednesday overturned yet another federal law meant to check corruption and influence-peddling in national politics. The ruling shows two things: The Roberts Court’s destructive view on these matters wasn’t changed by the backlash to its Citizens United holding, and Congress must respond by designing new rules that can pass the court’s overly skeptical review.[Washington Post, April 2]

One of the best commentaries is from Dahlia Lithwick at Slate:
Without even acknowledging that it is doing so, the Roberts Five has overturned 40 years of policy and case law, under an earnest plea about the rights of the beleaguered donors who simply want to spend $3.6 million on every election cycle....I worry that the court has located itself so outside the orbit of the 99 percent that it simply doesn’t matter to the five conservatives in the majority that the American public knows perfectly well what bought government looks like and that Breyer is describing a level of cynicism that has already arrived. Worse still, I worry that it matters very little to them that we will stop voting, donating, participating, or caring about elections at all in light of this decision to silence us yet further. In which case McCutcheon is a self-fulfilling prophecy in exactly the way Breyer predicts: Money doesn’t just talk. It also eventually forces the public to understand that we don’t much matter. It silences...

I hate to take issue with the optimism of the Washington Post editorial.  I can't imagine any campaign financing rule changes or laws coming out of Congress that would pass muster before the conservatives on the court.  After all, they think that corporations have the rights of persons and that money given to politicians is free speech. 

Until there is a liberal majority on the Court, the only way to reverse the poisoning of our democracy caused by Citizens United and McCutcheon is by a constitutional amendment.  To propose an amendment requires a two-thirds majority in both houses of Congress (or a request from two-thirds of the state legislatures to call a national convention).  Then three-quarters of the states will need to ratify it.  It's a tough, drawn out task but there has been some momentum underway since Citizens United - as of now 16 states have passed resolutions calling to overturn Citizens United.  Rick Weiland, the Democratic candidate for Senate in South Dakota has even proposed wording for such an amendment. "So that the votes of all, rather than the wealth of the few, shall direct the course of this Republic, Congress shall have the power to limit the raising and spending of money with respect to federal elections."  Sounds good to me.

Links
List of passed State Resolutions to reverse Citizens United [United for the People webpage]

Democracy - The What's Left of It Edition (Part 2)

This is the second post on the state of our democracy.  In the July 31 post, I listed my personal choices of the #10 through #6 threats to American democracy.   To wit: (10) Wealth disparity, (9) Misinformed citizenry, (8) Government spying, (7) Special interest money, (6) Political attack ads.  Concluding the countdown, here are the top five attacks on democracy in this country.

#5 - The Filibuster

The 60 vote requirement to break a Senate filibuster is the equivalent of 9 stolen elections.  Instead of the majority needing 51 votes to pass legislation, they need 60.  The filibuster's original purpose - preventing the hasty but perhaps unwise action of the majority - has been distorted and abused in an unprecedented fashion in the past several years after the election of Barack Obama. When first conceived, the filibuster required Senators to actually speak about the legislation under consideration. The primary purpose of the now non-talking filibuster as wielded by Senate Republicans today has been to block Presidential nominations (both judicial and executive) and to block legislation supported by the majority of the American people (e.g., universal background checks for gun purchases). Since Republicans lost the Senate in 2006, there have been 425 cloture motions. Cloture motions only represent the attempts to break the filibuster. Sometimes the majority will not even get that far. The Senate can change its own rules. Eliminating the filibuster altogether would be the right (democratic) thing to do. Failing that, there should be limits placed on debate. Senators need to talk to the issue and after a given number of hours of debate be required to give an up or down vote.

#4 - Congressional district gerrymandering

 

One man/woman, one vote, right? Well, thanks to the magic of gerrymandering of Congressional districts by state legislatures, that isn't always the case. Boundaries are often redrawn to give an advantage to the party in power in the state. Republicans have been excellent at it, taking full advantage of the most recent census and their victories in the 2010 elections. As noted on the PolicyMic website: "The Republican State Leadership Committee (RSLC) has an agenda. It has been costly but its goal is simple: Get more congressional seats without actually winning them. This wildly undemocratic goal has been successfully pursued in seven states: Michigan, North Carolina, Pennsylvania, Wisconsin, Virginia, Florida, and Ohio." In the current version of the 113th do-nothing Congress, Republicans hold a 34 vote majority. Yet nationwide, Republican House candidates received fewer votes than the Democrats in the 2012 elections. So how did they end up with ~54% of the House seats when they had less than 50% of the vote? I've created this chart from the PolicyMic post that goes some way towards explaining it.

State	Dem Popular vote	Rep Popular vote	House seats Dems	House seats Reps
North Carolina	51 pct	49 pct	4	9
Michigan	52 pct	47 pct	5	9
Wisconsin	51 pct	49 pct	3	5
Pennsylvania	50.65%	49.34%	5	13
Florida	48 pct	52 pct	10	17
Ohio	47 pct	53 pct	4	12
Virginia	49 pct	51 pct	3	8

For these seven gerrymandered states, Republicans were awarded 73 House seats; Democrats, 34 - a 39 vote margin when the popular vote was nearly evenly split.

The next step in the Republican plan is to try to pass "electoral college" legislation in states they control but which have typically voted for Democrats in national elections. This scheme would award electoral votes according to who wins the Congressional district rather than the popular vote across the state. Had this been the case in 2012 with the gerrymandered districts, we would be talking about President Romney's policies today even though Obama received more than 50% of the popular vote nationwide.

#3 - SCOTUS' Citizens United ruling on corporate "free speech"

SCOTUS' infamous Citizens United decision gave corporations the status of persons - at least as far as freedom of speech goes. The decision eliminated the ban on political spending by corporations and unions. As summarized on the Center for Public Integrity's webpage on the subject: "The Citizens United ruling, released in January 2010, tossed out the corporate and union ban on making independent expenditures and financing electioneering communications. It gave corporations and unions the green light to spend unlimited sums on ads and other political tools, calling for the election or defeat of individual candidates." A companion ruling several weeks later in Federal court (SpeechNow.org) decided that limits on individual contributions to groups that make independent expenditures are unconstitutional. It further allows non-profits and so-called "social welfare organizations" ( aka 501(c)(4)), such as business leagues, to keep their donor lists secret. And what was the result? "The 2012 election was the most expensive and least transparent presidential campaign of the modern era." The flood of super-PAC and "social welfare group" money was astounding. And it was mainly spent in opposition to candidates. 266 Super-PAC's spent $546.5 million dollars during the 2012 Presidential election cycle. More than half of the Super-PAC money ($290 million) was spent trying to defeat just one candidate - Barack Obama. Then there is the "dark money" from social welfare organizations and non-profits. Dark money is so-named because unlike PAC's, these organizations do not have to reveal their donors. Overall, dark money spent on the 2012 elections totaled $300 million. The financing of election campaigns is totally out-of-control thanks to these Supreme Court and lower court rulings. Several states have begun working on a Constitutional Amendment that would overturn Citizens United. This appears to be the only way out of the morass - both on a national and state level. It's obvious that there will be no relief from the current Supreme Court, who saw fit in their wisdom to overturn a 100 year-old Montana law limiting individual campaign contributions in February 2012.

#2 - SCOTUS destroys the Voting Rights Act

This has been previously blogged (June25, 2013 SCOTUS: R.I.P. Voting Rights Act) so I'll just sum up a few salient points here. Justice Ginsburg's dissent said it well: "The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective," Ginsburg wrote. "The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclear­ance is no longer needed." The provision has proven "enormously successful" in increasing minority registration and access to the ballot and preventing a "return to old ways," Ginsburg said. Even in jurisdictions where discrimination may not be overt, "subtle methods" have emerged to diminish minority turnout, such as racial gerrymandering. With the House in Republican hands and Mitch "Mr. Filibuster" McConnell leading the Senate Republicans, Sections 4 and 5 will not be rewritten by Congress in the foreseeable future. The decision has unleashed what MoJo blogger Kevin Drum describesas a "GOP feeding frenzy". The North Carolina legislature recently passed the worst voter suppression law in the country. For a complete listing of the provisions of this incredible attack on the right to vote see Ari Berman's post on the Moyers & Company website.  Berman's post points out that "Six Southern states have passed or implemented new voting restrictions since the Supreme Court’s decision last month invalidating Section 4 of the VRA, which will go down in history as one of the worst rulings in the past century."  The right to vote is the most fundamental and distinguishing feature of a democracy. A constitutional Amendment guaranteeing all citizens the right to vote is needed if we are to ensure democracy's survival.

And the #1 threat to American democracy is....state voter suppression laws.

For the most part, Republican voter suppression laws did not succeed in the 2012 elections - certainly not in their main objective: to defeat Barack Obama.  Aimed at denying the vote to traditionally Democratic voters, these laws were a combination of overly restrictive voter ID laws, reductions in early voting days, limitations on voter registration drives, and elimination of or severe restrictions on provisional balloting - what happens when you show up at the wrong polling place. These throw backs to the now unconstitutional poll taxes of yesteryear were overcome by a combination of judicial action in state and Federal courts and executive action (enforcing Section 5 of the Voting Rights Act) and a massive turnout effort on the part of Democrats. And a good thing they were. Based on the Brennan Center for Justice's October 2011 analysis, the laws in place by year end 2011 would have made it "significantly harder for more than five million eligible voters to cast ballots in 2012." States implementing these restrictive voter ID and registration laws "will provide 171 electoral votes in 2012 – 63 percent of the 270 needed to win the presidency." This figure of 171 electoral votes was revised upwards to 189 in a March 2012 update.  Democracy escaped Republican clutches this time but in 2014 and 2016, we may not be so fortunate. North Carolina recently enacted the most restrictive voting law in the country in the aftermath of SCOTUS' gutting of the Voting Rights Act.   (If you haven't gone to the Moyers & Company website, here's another chance - North Carolina really has passed a most incredible law.)  Five other Southern states have done likewise.  And if someone without Obama's drawing power and organizational savvy becomes the Democratic candidate, the laws will certainly have their desired effect. The best short-term hope to blunt this blatant attack on voting rights will be the Administration's challenging of the voter ID laws. They'll need to spend a lot more effort on this now that SCOTUS has effectively destroyed the Voting Rights Act .
 

Many of the problems affecting our democracy are rooted in our election laws and the way we finance public elections. Under the current system, money wins elections. Period. Public financing of all Federal elections has no chance of being enacted for now.  Nor is there any chance of bi-partisan reform of existing laws passing the obstructed 113th Congress. So, in the meantime, we need to take our gains, limited as they are by the Citizens United decision, and defend our rights, as difficult as it may be, wherever we can. In the end, it may be down to a constitutional amendment to protect the right to vote - this most basic right of a citizen of a democracy.

SCOTUS: R.I.P. Voting Rights

The long-awaited Supreme Court decision on the 1965 Voting Rights Act, renewed by Congress in 2006, is in.  While not ruling on the constitutionality of the law itself, the right-wing majority, in a 5-4 vote, struck down one of the most important clauses of the act and effectively invalidated another.  Hang with me on this.  SCOTUS struck down Section 4 of the Voting Rights Act.  Section 4 is a key provision that designates which parts of the country must have changes to their voting laws approved by the Federal government or in Federal court.  In striking down Section 4, the right-wing justices effectively emasculated the even more important Section 5, which enforces review of voting rule changes.  The justices did not rule specifically on Section 5 but as reported in the Huffington Post : "...the court ruled that the current formula that determines which states are covered by Section 5 is unconstitutional, effectively eliminating Section 5 enforcement, at least for the time being."  What do you think the possibility of getting an amended Section 4 through the Republican-controlled House of Representatives and Republican-filibuster-hamstrung Senate is?  The majority argument seems to have been "times have changed" and we don't need this any more.  Effectively, SCOTUS has declared dead the Voting Rights Act, one of the most important and fundamental achievements of the Civil Rights Era.

What utter nonsense!  With the move towards restrictive voter ID laws aimed primarily at minorities and the continuing use of so-called poll watchers for intimidation purposes, these sections of the Act are needed just as much now as then.  As recently as the 2012 elections, the Voting Rights Act has been used to block a voter ID law in Texas and delay implementation of another in South Carolina. 

Justice Ginsburg's dissent says it effectively: "The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective," Ginsburg wrote. "The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclear­ance is no longer needed."  The provision has proven "enormously successful" in increasing minority registration and access to the ballot and preventing a "return to old ways," Ginsburg said. Even in jurisdictions where discrimination may not be overt, "subtle methods" have emerged to diminish minority    turnout, such as racial gerrymandering. [Huffington Post] [Photo: Mother Jones]

The reaction from civil rights leaders was swift - unanimous condemnation as the activist court interfered with Congressional authority to pass laws regarding the right to vote.  Obama expressed his deep disappointment and called on Congress "to pass legislation to ensure every American has equal access to the polls."  Honestly, has he been asleep for the past 3 or 4 years? The well-organized effort of Republican-controlled state legislatures with Republican governors has been undertaken to ensure that this equal access does not occur. 

Justice Ginsburg's dissent is 37 pages long and contains page after page of well-reasoned and passionate argument and numerous examples.  Fortunately, Mother Jones has selected the ten best quotes from the Justice in a June 25 post.  Here's just one of them: ""Demand for a record of violations equivalent to the one earlier made would expose Congress to a catch-22. If the statute was working, there would be less evidence of discrimination, so opponents might argue that Congress should not be allowed to renew the statute. In contrast, if the statute was not working, there would be plenty of evidence of discrimination, but scant reason to renew a failed regulatory regime." 

The most fundamental right in a democracy, the single most important difference from other political systems whether they be dictatorships, tyrannies, monarchies, or theocracies, is the right to vote.  Denying this right strikes at the heart of what it means to be a democracy.  Not protecting the voting rights of all brings us another step closer to plutocracy - a government of, by, and for the wealthy and the powerful.

Other Links

John Nichol's post in today's The Nation

Previous TLBC Posts on Voter Suppression Efforts
Stealing an Election
Keystone State is Key
What's with Florida?
Florida 2000 Redux

Today's Mixed Bag

The Supreme Court issued two important decisions today - one on Arizona's anti-immigrant law S. B. 1070 and the other on Montana's state law banning political contributions from corporations, the Corrupt Practices Act. 

First the really bad news.  SCOTUS summarily reversed the Montana Supreme Court's ruling that held Montana's century old ban on corporate political donations to be constitutional and not in violation of Citizens United.  The vote was the same 5-4 as Citizens United with the conservative majority putting to the lie the argument that conservatives support states' rights.  I guess that only applies to those rights that conservatives agree with - such as the unlimited, anonymous corporate donations to political candidates and parties which they astoundingly classified as "free speech".  As summarized in a HuffingtonPost blog today by correspondent Mike Sacks: "By summarily reversing the case, American Tradition Partnership v. Bullock, the justices refused to reconcile their sweeping statement of free speech principles in Citizens United with the real-world facts -- from Montana's history to today's super PACs -- put forward by Montana and its supporters to demonstrate that independent expenditures do, indeed, corrupt or create the appearance of corruption."

The only real answer to Citizens United is a constitutional amendment.  Sen. Bernie Sanders of VT has proposed a constitutional amendment to do just that.  You can find a petition supporting this amendment at his website.   Another option would be to legislate disclosure requirements but the odds of getting this through the Republican-held House and the Republican-throttled Senate are negligible.  These steps will take time and will do nothing to stop the massive flow of anonymous money into the 2012 elections.  We'll have to put up with the negative, often erroneous attacks against Democratic candidates across the country.  We saw what this massive amount of Super Pac and corporate money could do in Wisconsin's failed recall election.  And it is not stopping any time soon.  Sen Sherrod Brown of Ohio, for example, has been the target of more than 10 million dollars trying to unseat him.  With 75-80% of elections decided by the money spent, things do not look good for November.

Now for the kinda bad news.  In a 5-4 vote, with Kennedy joining the moderate and liberal justices, the Supreme Court upheld the constitutionality, at least temporarily and on a technicality, of the "papers please" provision of Arizona's anti-immigrant law S.B. 1070.   SCOTUS did strike down other parts of the law that "made it a crime for undocumented immigrants to be present and to seek employment in Arizona...[and]..authorized police officers to make warrantless arrests of anyone they had probable cause to believe had committed a deportable offense."  These provisions were found to violate the Federal government's authority to regulate immigration. 

What is amazing is that four justices (Scalia, Alito, Thomas, Roberts) were content with allowing some or all of the provisions of this profoundly offensive and discriminatory legislation to stand.  It is clear that civil rights will have some tough sledding in the coming years as these radical activist justices rewrite what it means to be an American and what it means to live in a democracy. 

At least Kennedy had the sense to see how bad the Arizona law was.  He will be the deciding vote on the Health Care Reform Act (probably this Thursday) but I hold little hope for him to act as the moderate swing vote in this crucial decision.  I'm afraid that his Republican/corporate leanings (Florida 2000 recount, Citizens United) will kick in and Obama's signature legislative victory will be sundered. 

The most likely provision to destroy the health care legislation is the individual mandate.  Quick: who first proposed the individual mandate?  If you said Republicans, you would join the 2% of Americans who know this.  It was first proposed by the ultra-conservative Heritage Foundation and supported by numerous Republicans over the years - including Mitt Romney when he was governor of Massachusetts.  In an insightful article today, "young Turk" Cenk Uygur calls the mandate the "perfect symbol of the central mistake of the Obama administration."  But that's for a discussion on another day.

Train Wreck?

A legal reporter from one of the cable news stations (I believe he was from CNN) described yesterday's hearings on the Patient Protection and Affordable Health Care Act as a "train wreck" for the Obama Administration.  Intense questioning from the five conservative members (actually four since Clarence Thomas appartently never asks any questions) made it clear that the law was in danger of being struck down. 

Today, the last day of hearings, the court expanded on the theme of invalidation of the law.  Specifically, if the personal mandate were to be declared unconstitutional, would the entire law need to be declared invalid?  Or could separability be invoked as it often is in commercial contracts?  (A separability clause ensures that if one section of the contract is declared invalid, the remaining sections still remain in effect.)  Further, would the law be viable without the individual mandate?  That is, could the system of health benefit exchanges function and could the affordability of health care coverage be ensured without the individual mandate? 

What's at stake?  A good summary of the health care reform act can be found at the senate.gov health reform bill webpage.  Among its immediate effects (2010), the law eliminated lifetime and unreasonable annual limits on benefits,  prohibited the voiding of health insurance policies, provided assistance for those who are uninsured because of a pre-existing condition, prohibited pre-existing condition exclusions for children, required coverage of preventive services and immunizations, and extended dependent coverage up to age 26.  Other elements of the law are aimed at simplifying the purchase of health insurance, making it more affordable and assisting those who cannot afford it. The act would add between 30 and 40 million people to the ranks of the insured. 

So there is a lot at stake.  (Or in the memorable words of Joe Biden "This is a big f***ing deal".)   Make no mistake about it - mortality is affected adversely by poverty and other social factors The inability to get health care costs lives.  Researchers at Columbia University's Mailman School of Public Health analyzed 47 studies published between 1980 and 2007.  These studies provided estimates of the relationship between social factors and adult all-cause mortality.  The researchers' meta-analysis produced some stunning results: "The investigators found that approximately 245,000 deaths in the United States in the year 2000 were attributable to low levels of education, 176,000 to racial segregation, 162,000 to low social support, 133,000 to individual-level poverty, 119,000 to income inequality, and 39,000 to area-level poverty. 
Overall, 4.5% of U.S. deaths were found to be attributable to poverty..."

There is probably no other action more immediately helpful to the lives of those living in poverty than to provide them with adequate health care.  This makes the poll results reported today on Yahoo's Daily Ticker, disturbing:  "A new poll by CNN/ORC International finds that the majority of Americans do not want the high court to completely overturn the current law. Nearly 25% of Americans want the Supreme Court to leave the bill untouched; 43% of respondents believe some parts should be overturned and 30% want the bill completely overturned."  (Emphasis added,)

Who are these 30% that would deny people the ability to access adequate medical care?  Are they ignorant of the effects of poor medical care?  Are they driven by a free-market ideology that clearly has failed in the delivery of health care to those living in poverty?  Whoever they are, let's hope that SCOTUS ignores them and does what is right for the American people - uphold the law as passed by Congress.  If the Patient Protection and Affordable Health Care Act is struck down or if it is made inviable, it will be another generation before we will have the opportunity to address this most important issue again.

In Praise of Montana and Vermont

Money wins elections.  Whether it be a scholarly article by academics or an empirical analysis of the 2010 elections by the Wall Street Journal , the general rule is that the more money a candidate spends,  the better is that candidate's chance of winning.  Quite a few years ago, I read that something like 80% of the elections were won by the candidate that spent the most money.  Nothing much seems to have changed in the intervening decades.  The Wall Street Journal analysis of 2010 campaign spending shows that Republican groups prevailed in nearly 75% of the House races in which they significantly out-spent Democratic organizations. 

True, it doesn't happen every time.  Just ask Meg Whitman.  She lost to Jerry Brown in the California gubernatorial contest after spending $145 million of her own money.  Her campaign manager was quoted as saying of this very blue state "you can't change Democrats into Republicans". 

But money affects elections often enough to make the Citizens United ruling a threat to our democracy.  SCOTUS'  Citizens United decision, a grossly bizarre interpretation of free speech and personhood, allows unlimited direct corporate funding to candidates' campaigns.    Now here's the kicker... the Center for Responsive Politics estimates that 72% of the political advertisement spending in the 2010 elections would have been prohibited before Citizens United.  You remember the 2010 elections - those were the ones that swept those zany Tea Party Republicans into control of the House of Representatives and made a significant dent in the Senate Democratic majority.  

And it gets worse...on February 17, the Supreme Court of the United States blocked a Montana Supreme Court ruling that had upheld that state's century old limit on corporate campaign spending.  As reported in Bloomberg Business Week, "The high court yesterday put the Montana law on hold until it announces whether it will review the measure, which is being challenged by two nonprofit corporations and a family-owned business."  In a ray of light, the eminently reasonable Justice Ruth Bader Ginsberg, writing for herself and Justice Stephen Breyer, said that the appeal in the Montana case “will give the court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.” 

The care2 political blog provided additonal details of Justice Ginsburg's opinion: ”Montana’s experience, and experience elsewhere since this court’s decision” in Citizens United “make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption. A petition for certiorari will give the court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.”

One other ray of light is the state of Vermont.  As reported in AlterNet, on the one-year anniversary of Citizens United, "state senator Virginia Lyons ...presented an anti-corporate personhood resolution for passage in the Vermont legislature. The resolution, the first of its kind, proposes 'an amendment to the United States Constitution ... which provides that corporations are not persons under the laws of the United States.'  Polls show that three-quarters of Americans oppose the Citizens United ruling.  If a constitutional amendment is eventually enacted, Vermont's action may be remembered as the first small step on the path to reform.