Per mcjoan at Daily Kos, I think it is important to re-emphasize that I’m not whipping the health care bill because I think that it’s perfect. Compared to what could have been, I wouldn’t even call it great. Here are three reasons why I will still go to the mat for it.
(1) Policy. Whatever you think about good ideas that never had a serious hearing, the bill unquestionably improves the status quo, in many cases by a country mile. Eliminating rescissions and pre-existing condition denials would by itself represent one of the most profound heath care reforms in U.S. history. Even Mary f*cking Matalin acknowledged as much two nights ago on Colbert. The individual mandate is just a necessary mechanism to make the other two elements work; otherwise people would only buy insurance when they get sick. As Ezra points out here student loan reforms make the package significantly better still.
(2) Politics. This bill truly is a do-or-die moment for the Democratic party. If we lose this vote, Democrats will spend the year looking, acting and feeling like losers. Press narratives will debate for months which of the party’s many defects proved the fatal one. Half the party will uselessly search for rocks large enough to hide under. Scared? Now flip that around. The GOP might have made a major mistake with the frantic and hysterical timbre of its opposition. If Democrats win then Republicans as much as anyone will have cemented the idea that Obama scored a massive, thundering political victory.
Imagine that the party gets a taste for winning legislative fights. Now every other aspect of the progressive agenda will get easier to pass. It will get harder for Mitch McConnell for hold his caucus together as effectively while centripetal forces of vindictive teabaggers and frightened moderates messily tear the right apart. Reid and Pelosi will almost certainly find it easier to peel off Republican votes if they win this one.
(3) Us. I honestly cannot say whether, without relentless pressure from you guys, Dems would still have stepped back from the abyss. I can tell you that it unquestionably made a difference. A number of Reps took the courage to talk about health care again, public option and all, because their phones finally lit up with positive voices to counter the constant chatter from angry wingnuts. Numerous staffers have told me that your calls made an impact. Many of you have heard it yourselves.
This fight engaged an entire class of people for the first time. It made many Congresspeople more conscious of their left flank than most have ever felt. It’s fun to make a difference. When this is done, assuming that it gets done, what do you say we do something about ENDA and DADT? We can also get frisky about Guantanamo and accountability for torture. You already know the numbers to call.
***Update***
Some very good arguments made in the comments that the bill is not so much awful-plus-great as it is not quite as good as many people wanted. Now the more I think about this analogy the more I like it. Some people really love a two-layer rueben with hot mustard on rye, and some people (inexplicably) hate it. Most people, however, will at least put up with peanut butter. Allergies permitting of course.
goblue72
But do we still get to punch hippies?
I mean, c’mon, tie-dye?
General Egali Tarian Stuck
Links thrus of Mcjoan, Greenwald, and Rahm is like mixing TNT with Nitro and a Tritium chaser. My zen is currently somewhat more or less not unbalanced as abnomal, so nolo mas fo me.
Clark
Your HTML is showing!
Warren Terra
I stopped by Congressman Capuano’s Cambridge office to push for him to back the health care bill. If anyone reading this has a similarly underperforming Congressperson and hasn’t pushed them on this, you’ve got about 90 minutes left on the East Coast, more elsewhere. We can’t let it get this far and die because some Congressperson wants to play Hamlet.
echohotel330
Boccierri is a yes!
jibeaux
@Warren Terra:
Good work.
Tim, your reasons are not going to fit on one of these signs, but they’re still good.
scav
@Clark: how ’bout
Omnes Omnibus
@goblue72: It’s the patchouli that really pisses me off.
But seriously, I agree with all three of Tim’s points. I think one of the problems with public perceptions of this bill stems from the fact that so many people on the left were so pysched by Obama’s victory and the Dem. majorities that they lost sight of the fact that the legislative process is messy. It has taken awhile but it looks like we are nearly there. If this bill were shown to progressives back in 2007, they would have have happily supported it. The disappointment we are seeing stems from comparing this bill to a Platonic ideal of a healthcare bill.
Now PTDB, so we can start bugging Congress to Fix The Damn Law (FTDL).
David in NY
Suddenly it’s a victory if you can even get your congressperson’s office on the phone.
PeakVT
Don’t forget the community health center funding negotiated by that noted sellout, Bernie Sanders.
Brien Jackson
Fixed.
eemom
It has been said before, and should be said again, that there is ZERO to be gained from the apologist “I know it sucks but” attitude. When you want to sell something you emphasize its strengths, not its weaknesses.
The republicans win, and we lose, exactly because of this kind of attitude. Have you ever seen a republican acknowledge so much as a misspelled word in any bill the republicans wanted to pass?
Coverage to 32 million uninsured!! Whatever trillion it shaves off the deficit in however many years!! THOSE are the fucking sound bites we need.
Mnemosyne
@Omnes Omnibus:
I like to tease people about looking for their ponies, but I do think that a lot of people really thought that the only problem was Bush and getting rid of him would fix everything.
Unfortunately, we’re not only trying to clean up 8 years of Bush — we’re trying to clean up 30 years of failed Republican policies. Just changing our head of government from an R to a D wasn’t going to magically change that overnight. We’re trying to change the conversation so that progressive ideas like healthcare for everyone are the status quo, not some pie-in-the-sky ideal.
Tenzil Kem
Tim, thank you for everything you and the other Balloon Juicers have done to get this bill moving again. From the pass-and-patch idea to tips on calling members to passthedamnbill.com this site has been nothing short of astonishing, and was a real lifeline in the days after the MA special election.
Jordan
4) History. Take a look at Social Security & Medicare in the years they became law. Social Security omitted well over half the American workforce, carving out jobs traditionally done by women and/or laborers with “a high melanin content” like seasonal farm harvesting, etc. It was in some ways an immoral, even obscene extension of traditional American racist ideals, and yet even so it did a great deal of good as soon as it was passed (in the middle of the Great Depression). More than that, the existence of the program enabled modifications over the decades, eventually bringing actual fairness & equality to its benefits. My point: you could argue that the limited, highly bigoted original bill was the only way to secure passage at the time, and open the door to more comprehensive & constitutional amendments later. It was literally that or wait 40 years for Civil Rights to kick in.
Steve
I’m not sure why people keep saying that eliminating rescission is such a huge deal.
If you read the bill, it says rescission is still permitted in two situations: (1) fraud or (2) an intentional misstatement of material fact by the Insured. I assume people agree that you shouldn’t be able to commit fraud on your insurance application (which is a crime, of course) and still keep the insurance.
Now, how is this different from the law as it currently stands? I asked one of the senior partners at my law firm, an expert on insurance coverage. He said, “Well, in some states that’s already what the law is. In other states, rescission is allowed for any misstatement of material fact, so I guess limiting it to intentional misstatements is a change, but it’s not much of one.”
The problem with rescission is not that the law allows insurance companies to rescind policies whenever they feel like it. The problem is that the insurance companies can get away with saying your policy was rescinded for fraud even when you didn’t commit fraud. The bill doesn’t help with that because it doesn’t create a new regulator or grant additional power to the existing regulators. It just states that insurance companies aren’t allowed to do something that, for the most part, they’re already not allowed to do.
I know the ban on rescissions has been a big selling point for the bill, but I’m not sure why that is, other than that most people don’t already know abusive rescissions are banned under current law.
Sentient Puddle
Because the budgetary side of this is one of the more important parts of this bill, I want to pass this along from Jonathan Cohn:
I’m going to pause here mid paragraph for dramatic effect.
Let that sink in a sec. The trillion dollar savings is considered worst case.
Omnes Omnibus
@Mnemosyne: Dems have been working on this since, 1948 or earlier depending on how you want to calculate it. If it were easy, it would have been done by now. This bill, if passed, would get the camel’s nose inside the tent, hell, it would get the camel’s head and shoulders inside the tent. People will get used to what this law will provide and start hammering on what it doesn’t. Peopel will see the parts that to work and demand that they get fixed. You know… Progress will be made.
Brick Oven Bill
So if the majority of the States are preparing to sue the feds over the Constitutionality of this legislation, how would they respond to the feds using force to compel their Citizens to purchase certain forms of insurance?
Could be interesting.
The other scenario is Barack being told ‘no’. Let us remember that there were reports of him wigging out and yelling at Michelle and her servants, making her cry, after he lost the Olympics (the first time he was told ‘no’). Health care failure would be a much bigger ego-bruiser than the Olympics.
So that would be interesting too.
Let us remember that Balloon Juice termed the ‘Jack Nicholson Moment’ long before Cavuto stole it and used it on FOX.
Sentient Puddle
@Brick Oven Bill:
…then they’d get laughed out of court.
James Hare
It was neat talking to Representative Moran’s staff (VA-8) — they said they’d been hearing mostly positive stuff today. He sounded upbeat and confident.
jibeaux
@Steve:
Weeeelll, I’m gonna go with “if they can’t exclude you for having a pre-existing condition, that cuts down on a helluva lot of things that you might either commit fraud about in your health insurance application or things they might want to rescind your policy for.” There’s a reason they talk about these things being legs of a stool.
scav
@Steve: So googling HIV Rescission South Carolina Supreme Court and limiting the results to yesterday would be a waste of time? Waste Time Here
Brien Jackson
I’m calling bullshit. Even such a seemingly minor change would have a fairly large practical impact, since it would put the burden on the insurer to prove that the information was intentionally misstated, as opposed to simply having to prove that a misstatement was made.
Tom Hilton
I agree with all the reasons for passing the bill. What I don’t agree with is the self-indulgent pissing and moaning (by mcjoan, among others) that the bill isn’t ‘progressive’ enough.
To begin with, there’s the obvious point that this is the most progressive it could be and still have any chance of passing (and it’s still an open question whether it’ll pass even then); a more progressive bill that failed would not be a victory for progressives.
And then there’s the point that what the bill achieves really is progressive (near-universal coverage, community rating, subsidies for poor and middle-class, protection from industry abuses, etc.); the reason so many progressives are whining about it is that the bill achieves these ends through means that don’t carry the progressive label. Thus you have Glenn, in reference to the biggest victory for progressivism since LBJ, talking about how “progressives got rolled”–as if the progressive brand were more important than progressive results.
cleek
i can pass a shit & banana sandwich in like 20 minutes. no idea why it’s taken congress 12 months.
JGabriel
@goblue72:
Better, we get to punch Teabaggers and Orthogonians.
Teapunching!
.
Tim F.
@Steve: Let’s say that someone gets rescinded. Now he immediately applies for another plan and discloses whatever he missed the first time. He cannot be denied.
Adam Collyer
I appreciate and agree with most of this post. I also thank Tim for being at the forefront of the organized health insurance reform movement. You’ve really done something special here, and I hope you know that.
I do wish that we’d retire the phrase “shit sandwich” as well as the backhanded compliments that this bill often receives. Yes, this bill could’ve been better. I’m a public option advocate (but not really one for single-payer), and I truly wish a strong PO had been included in the bill.
Despite the failure to include a public option, this is a good bill. It’s not a “shit sandwich.” At the very least, it’s a peanut butter sandwich. It’d be better with jelly, or honey, or marshmallow fluff, but it’s still a pretty good sandwich. It works. It’s sustainable. It’s not perfect, but it’ll get you through the day.
The bill eliminates recission (and @Steve: the federal government has a much stronger regulatory hand that state governments, so it’s much more easily enforceable), denial due to pre-existing conditions, creates a national exchange, will lower health care costs for the majority of Americans, lowers the federal deficit, and will provide coverage to 95% of people in this country with heavy subsidies for people who need them. That’s literally a gigantic leap forward. Let’s not let this slide as “not a great bill.” It’s a very, very good one, and given the construction of Congress, the best bill we probably could imagine getting.
General Egali Tarian Stuck
@Steve: @jibeaux:
Now there is a legal framework with using the “fraud” word that will be codified with all the import of requirements for proving that crime, which is one of the hardest to prove.
Before, the insurance companies could define fraud any way they wanted, down to and including literally crossing T’s and minor errors made in applications. This will end that, or at least make it a lot harder to defend in court by the companies.
John S.
Simultaneously arguing against the tyranny of the majority for passing HCR while arguing for the tyranny of the majority against HCR.
What a precious gem you are, BOB.
gwangung
@Tom Hilton: What I also don’t get is why they think progressives can’t come back to the table in 4-5 years to make it better?
If they lost, yeah, there’s case and history that says you can’t come back with something you lost with. But if you pass something? I think history says you can come back within 4-6 years AT WORST to make improvements. See railroad trust regulation and civil rights legislation.
Sentient Puddle
@Adam Collyer:
I’ll drink to that. Is it that hard for us to admit that the bill is pretty good, even though it’s not everything we would have liked it to be?
Davis X. Machina
Anybody plussed up enough to tackle the new Sirota piece?
Oh, and be careful. Don’t plus and drive…
On edit:
Half or more of what we call ‘politics’ is social signalling by public display of brand preference via consumer product choices
It’s cheaper than driving a Hummer or buying a hybrid, and you can do it from your basement.
Tom Hilton
@Steve: I call bullshit. Look, the insurance companies don’t rescind policies for sport; they do it because their profit model depends on eliminating sick people. That won’t be the case anymore. Universal coverage, risk adjustment, and defined loss ratios all change the dynamic so that there won’t be nearly the incentive to rescind the policies of sick people.
So you can say that the anti-rescission language in itself won’t make much of a difference and maybe you’re right and maybe you’re wrong, but it’s an academic point because what really does the job is changing the incentives–and the bill does that.
Tom Hilton
I’m sorry, but JPF-punching is way over the line. This blog is now dead to me.
theturtlemoves
@Davis X. Machina: Huffnpuff is full metal Puma today with that one and a lengthy tome from Ms. Hamsher with footnotes wherein she cites her own site as the source several times. If I could have cited my own Web site in college, I’d have written some kick-ass papers, man.
IM
Steve,
the argument regarding rescission is this:
1. A refusal of insurance because of a pre-condition is no longer legal
2. Most rescissions now are based on false statements about your pre-condition.
3. A false statement about your health condition now longer a plausible reason for a rescission, the scope of rescission will be much smaller. You still be rescinded because of false statements about your age or smoking but these cases should be much rarer.
Sounds plausible to me.
JGabriel
Brick Oven Bill:
(Sound of machine guns firing.) Rat-a-tat-tat! Rat-a-tat-tat!
“Down on floor, asshole! Spread your fucking legs! Now sign that fucking Blue Cross/Blue Shield contract before I blow your goddamned fucking head off, cocksucker!”
Conservatives have the strangest fantasies.
.
Tim F.
@cleek: win.
@Adam Collyer: Sorry. I’m a pretty hardcore liberal, and the early decisions to shut liberal ideas out of the discussion still smart a bit. As far as good messaging goes I know that you’re right.
Here’s the thing. Almost everyone hates something about this bill. The point isn’t to pretend that it’s perfect, because I don’t think that most people will believe that. The point is to show that I feel what many skeptics feel, and I really do, but for reasons outlined above I’m going to do whatever the hell I can to see it done.
Seamus Levine-Wilkinson
Just moved to Burlington, MA represented by John Tierney and have been trying to call his office all afternoon. Finally called his office in Peabody. The teabaggers are HAMMERING him, if you live in the MA 6th please call him TODAY (as in RIGHT NOW).
This is it. If you cant take 5 minutes to call your rep today then you really dont care about the democratic party or the millions in this country who need health insurance.
aimai
I support this bill and, more to the point, support a Democratic party that has finally found out that it needs to *act like a fucking party* to get things done. I happen to believe that if the Dems had figured that out in February we would, indeed, have had a better bill. Better not because it looked like something more progressive but because it would have been more progressive. That’s ok. We take what we can get in this world. But the take home message isn’t that all the progressive activists were full of shit, or mistook in their judgements. But rather, and rather obviously, that when the Democratic leadership started seriously kicking ass, taking names, and handing out bribes that were well targeted and realizing that we stand and fall as a party then the legislation started to move.
At the start the entire process appears to have been extremely disorganized and ungoal oriented, with lots of little fiefdoms and assholes allowed to decide for themselves whether they would or would not sign on to a signature democratic initiative. The leadership itself, and various congresspeople, have admitted as much over and over again. They didn’t manage to explain to their own congresspeople that this was kind of a make or break issue until the last few days? What were they waiting for?
Whatever we are seeing right now in the way of serious Pelosi/Obama whipping of the votes could have, and should have, happened much earlier. And it would have if the Democrats in washington hadn’t fatally mistaken the republican party’s ability to hold the negative line for an entire year. Steep learning curve. But they seem to have figured it out.
That’s largely behind us now. If the Democrats pass the bill, and the Senate doesn’t fuck up reconciliation, they will have demonstrated to us that they can run this country and that they don’t need Republicans to do it. Something that progressives have been begging them to do since the get go. And perhaps they’ll find the moxie and the organizational strength to pass the rest of their ambitious agenda. That agenda is, of course, a progressive agenda.
aimai
slag
@Tom Hilton:
Stop it stop it stop it stop it. Stop it. I don’t care if she hit you first or who started it. You’re instigating here, and I’m going on record as refusing to take the bait. Just take your win and let it go. All of you.
Don’t make me turn this car around.
Seamus Levine-Wilkinson
John Tierney #s:
DC: 202-225-8020
Peabody: 978-531-1669
Lynn: 781-595-7375
Brick Oven Bill
I think it is thirty seven states, John S, preparing paperwork.
As well a majority of Americans polled.
Pew: 38 Percent Favor Bill
Who oppose the legislation.
Idaho?
Fergus Wooster
Ok, I gotta bite – “JPF”? Not in the lexicon. . .
Jack
The same justifications amount to the same stoopid.
A corporate handout can be called “health care reform” as much as any other thing or event can be mislabeled, but it doesn’t make it so.
Tom Hilton
@aimai:
Right…and then, as the process went on, they’d have strayed again and the whipping would have had to be done all over again.
Like it or not, what they’re doing now could be done effectively only at the very end of the whole process.
Tim F.
@Brick Oven Bill: At least fifty percent of the disapprovers think that the bill doesn’t go far enough.
El Tiburon
Here here on Point 2.
Let the right-wing meltdown begin.
Toni
The bill that has emerged has the support of all the major outside groups except the Catholic Bishops. The Catholic Hospitals and Nuns support it so that helps to blunt the Bishop’s opposition. These outside groups have helped derail HCR several times in the past and the WH was smart to line them up and hold them. They are coming in handily for getting the democrats to tow the party line.
FormerSwingVoter
According to TPM: Boyd flips! One less no, one more yes!
Brien Jackson
@Tim F.:
It’s not that I disagree, I just think this is a dumb dichotomoy to fall into. Of course there’s something everyone hates about the bill. The American system of governance requires you to get 218 out of 435 people to support a bill in one house, the 60 out of 100 in another, and then have the support of another branch of government. And the bill is a big item with a lot of moving parts. It’s just not feasible that any item this big could possibly be perfect to someone. Even a single-payer bill would probably have some provisions at the margins that people would change if they got to write their dream-bill and have it passed.
The question isn’t, or shouldn’t be, how a bill compares to some hypothetical we’d write ourselves if we were king, it’s about
A) How a piece of legislation stacks up to the status quo
B) How it stacks up to what alternatives could conceivably pass through our system of governance.
There’s no question to me that the current healthcare reform bill stacks up very well on both counts, so yes, I’m more or less thrilled with it.
Tom Hilton
@Fergus Wooster: Look up. Way up…No, just below the blog title.
DanF
What this bill does is change the conversation about health care in this country. It will no longer be about 46 million people not having insurance vs. the I got mine crowd. All people will have coverage and they won’t let anyone take their coverage away. Period. The conversation now becomes “I’m paying $X-thousand dollars a year in premiums and I still have to pay $75 to see my doctor and my meds cost $35 a pop! WTF!” They’ll demand that their congressman mend it, don’t end it and we’ll move to even more cost effective and comprehensive solutions. This is what scares the poop out of the insurance companies.
Jack
@gwangung:
Because pwogs don’t pull the levers of power. That’s why the bill/legislation isn’t pwoggy. And that’s why pwogs won’t “come back to ‘fix’ it.”
It’s a piece of corporate hooey because that’s who controls the levers of power: pols beholden to their corporation patrons, preserving an institutional system suited to protecting the interests of very wealthy corporate organizations.
They’re not scared of “progressives.”
So they craft legislation which suits their own interests.
Last time any decent social legislation actually passed, Roosevelt and the Dems were afraid of revolution from the left.
Really, actually afraid.
Brien Jackson
When and how?
FRIFL
If the Democrats are successful on Sunday, I cannot wait to see how many heads explode on the right if he launches into immigration reform.
licensed to kill time
@Fergus Wooster: Check the blog header ;-)
Brien Jackson
So your idea of “decent social legislation” is measures that make substantial concessions to racism and social reactionaries as opposed to corporate interests?
Or you just don’t actually know anything about legislative history?
Jack
@Brien Jackson:
Republican operative still pretending he’s a liberal? Funny stuff.
Your schtick never changes.
Really, now – who’s arguing from the position of purity again?
Sure, the New Deal was bad for blacks and women, in so much as it excluded them. Who’s argued otherwise?
That doesn’t alter the point I actually made.
Roosevelt and the Dems were forestalling actual leftist inroads by passing social legislation.
Learn so more, Republican.
Fergus Wooster
@Tom Hilton: Sigh. I knew I’d regret asking. I suck.
I forgot – the only thing we hate more than the Romans is the fucking Judean People’s Front. (Although, as I recall, the PFJ and Judean Popular Front were the actual splitters.)
Brien Jackson
@Jack:
I’m not the one proclaiming a preference for legislative compromise with Southern apartheidniks.
Omnes Omnibus
@Jack:
Fair Deal. Civil Rights Act. Voting Rights Act. Medicare. Medicaid. Head Start. Et cetera.
Brick Oven Bill
“The democracy will cease to exist when you take away from those who are willing to work and give to those who would not.”
-Thomas Jefferson
We are getting to the point that probably 50% of the population wants to have the government provide for their needs.
kay
I don’t know how it’s going to work out.
One of the things that has bothered me about our health insurance system for a long time is how you’re tied to an employer. I stayed with an employer (the federal government, actually) way longer than I might have because I needed the health insurance. I wanted to change jobs. I eventually did change jobs, but I had to patch together this ridiculous gappy coverage, and it was wildly expensive. I might have done it sooner.
If the exchanges function as planned, people will be free to do a lot of things they might have not have tried before, in terms of work.
I don’t think anyone knows how that’s going to turn out, but it’s really appealing to me.
El Tiburon
Sam Stein via Digby reinforcing point #2
http://digbysblog.blogspot.com/2010/03/end-game-by-digby-sam-stein-at-huffpo.html
Tim F.
@Brick Oven Bill: Stop driving, Bill. That road is tax money.
FlipYrWhig
@Tom Hilton:
I think there’s a debate to be had about the placement of the “end of the whole process.” I mean, The End was originally supposed to be August ’09. So I take aimai’s meaning to be that, yes, what they’re doing now could be done effectively only at the very end, but why wasn’t that “very end” sooner? And if this somehow collapses, won’t we have to go through the whole thing again with yet another end and still more corralling of the renegades just beforehand?
low-tech cyclist
When this is done, assuming that it gets done, what do you say we do something about ENDA and DADT? We can also get frisky about Guantanamo and accountability for torture.
Climate change.
qwerty42
Nice article by Ed Kilgore on Republican concern trolls, specifically Peggy Noonan’s column in the WSJ. I will quote this:
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.”
…
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 Bair in last week’s interview, and hence for diminishing the presidency! Ah, if only we had a real president like you-know-who
gwangung
@Jack:
This STILL doesn’t answer the question.
WHAT STOPS YOU FROM COMING BACK TO GET MORE CHANGE?
The answer I get from you is, “I’m too fucking lazy.”
And that’s a piss poor answer.
Tsulagi
Sounds about right. But it’s encased in such a delicious bun. That’s what counts.
FlipYrWhig
@kay:
Yes, yes, yes, and I think this could be huge too. My wife is only an artist/entrepreneur (or, um, entrepreneuse) because I have insurance through my job. As things stand, if I were to lose mine, it would kill her business too. This HCR doesn’t make anything free, but I have to think it makes it more possible to take risks and follow passions.
Omnes Omnibus
@qwerty42:
Herbert Hoover?
General Egali Tarian Stuck
It was long and messy and maybe could have been done sooner or not, such is karma and the democrat way. Mistakes and miscalculations were made not only by Obama, but congress as well, and various and sundry dem activists by going to far in tactics.
But I do not believe any of it would have gotten us a PO or any involvement of the fed government more than we have now, not at this time anyways, nor having a bill that more closely mirrors the House version. This is true because our system favors the senate getting most of it’s way in controversial legislation. And as been stated here ad nauseum about a gazillion times, no one could have swayed Joe Lieberman other than maybe a promise to nuke Iran, to get his vote to allow a PO or med buy in vote.
I guess progs need to claim this to feel the aggrievement like always, but the country didn’t elect a left wing president, nor enough CC’s of that persuasion for that aggrievement to be based in electoral and democracy reality. But I understand it, and will just let the what if’s roll off my back, until and unless it turns into nasty recriminations again. Then it’s flame war back on.
We got a decent bill that was made much much better by Obama’s last minute inclusions, that likely would not have been made had Scott Brown not won in Mass, forcing the final bill to be partially done by reconciliation and the 50 vote standard for passage. Serendipity cannot occur in a perfect world.
FlipYrWhig
Why isn’t it more like a peanut butter and jelly sandwich? It’s no one’s first option but it keeps you fed and tastes fine.
aimai
Uh Oh, I tripped over the invisible line that Brien Jackson always draws in which he pretends to understand anything about legislation. We have this argument all the time because its very, very, very, important to Brien that no one be allowed to think anything Brien doesn’t think. I’m not sure why that is. Brien doesn’t know anything more about bargaining, politics, history, or reality than the rest of us.
Brien, get a fucking clue, Obama’s original timeline, and that of Pelosi, included getting to Yes *months ago*. That timeline wasn’t a fiction of my imagination–it was their actual timeline. At the time the House passed its bill they thought they would be getting to yes very soon. They thought they’d have good momentum on their side because they hadn’t lost the “outside game” of public opinion to the teabaggers in august and the resurgent lies of the unified Republican party. The Senate blew it, dragged its feet, allowed various bribes and poison pills to be put into its legislation and then had to figure out a way to strip them out to get the House to agree. This was *a very untidy piece of legislation* –not more untidy than others, perhaps, but definitely not the product of a single, coherent, strategy. More to the point the very things that were done badly at the start (like Nelson’s cornhusker kickback) are the things that have necessitated massively klugey arrangements like Reconciliation. People like me, of course, wanted reconciliation for the budget related parts of the bill and generic passage of the reform parts of the bill *much earlier* but were told by the big brains that reconciliation was out of the question. Now its all the rage.
I don’t get why you have so much at stake in insisting that this is the best of all possible worlds and that the legislation could never have been any better and that anyone who thinks that is some kind of starry eyed lunatic. *Everyone* in the mix thought that earlier iterations of the bill was better–the entire house thought that the house bill was better than the Senate Bill. The house bill only passed because people were told they would get a real conference.
I have no problem with the “pass the damn bill strategy” but I see no reason to pretend in the face of all the evidence of the last year that passing the damned senate bill was Obama/Pelosi/Reid’s/the house’s original intention and that they never thought things would ever go a different way. Obviously they did.
aimai
kay
@FlipYrWhig:
Your spouse is a lot more vulnerable than that. If the marriage goes, so goes her health insurance. It’s a huge issue in my practice, particularly for women older than, say, 45. I got nothing for them. I love that you have considered her coverage, and I’m not intimating that you’ll split up, but it’s reality. I hate telling them. They look terrified.
My husband plays a little game with conservative small business owners. He calls it “find the health insurance”.
Nine times out of ten, the risk-taking small-government conservative has a spouse in the background, covering the insurance angle.
It’s just this blissful delusion, on their part. “I’m covered!”.
Yeah, sure you are. Where’d it come from?
Tom Hilton
@FlipYrWhig:
But that’s a separate issue from what the President and the Speaker should have been doing. (In fact, the process dragged on in spite of the President’s attempts to speed it up.)
Lots of things slowed down the process, including but not limited to: the misbegotten gang of 6 negotiations; the individual egos of Lieberman, Nelson, Conrad, Lincoln, and Landrieu; CBO scoring of each iteration; and, of course, Republican abuse of the filibuster. (This last is probably the biggest: the necessity of getting every single Democrat probably added 3 months by itself.) None of those things are really susceptible to ‘whipping’ by the President or the Speaker.
The Grand Panjandrum
Tim I’ve thought about what else should be on the agenda and I think that ending the use of the Hyde Amendment should also be at or near the top of the list as well. As noted in the thread about this one the Hyde Amendment IS NOT the law of the land. It has been routinely added to federal funding bills since the 1970’s. Isn’t it about time that we make a push to get rid of this onerous burden on poor women? I don’t think I have to explain why this disproportionately effects poor women. Women who have the means can pay to terminate a pregnancy. Poor women don’t always have that option.
aimai
Yes, Flipyrwhig says it better and shorter.
Anyway, I’m very happy with this bill *as is* and I think its going to be fantastic. I just wish the Democrats were going to be better salesmen for it. In fact, I think that puts me on the side of “don’t call the biggest health care reform bill in history and the best deficit cutting bill of all time” a “shit sandwich” because its not. I’m not actually bothered by the lack of a true public option. I think that success breeds success and that the Democrats, if they understood their own power better, can easily come back and back and back and tinker with it. IF THEY GET IT PASSED THE FIRST TIME.
I guess I just get tired of the progressive bashing because its used, incorrectly, as some kind of shorthand. I’m a progressive. I support this bill. I have for quite a long time. I wish people would stop trying to separate the sheep from the goats and purity troll everyone to the left of them on this subject. I don’t see that it does any good. Its the exact opposite of what Obama has chosen to do with people as different as Cao, Kucinich, and Kaptur. Instead of looking for ways to humiliate and attack them, he’s looked for ways to make common cause with them. And in at least one of those situations its worked.
aimai
FlipYrWhig
@aimai:
I truly don’t think support for reconciliation would have been there earlier. I think a big chunk of the Senate Dems only got on board for reconciliation after Brown beat Coakley and it became evident that there was no longer a way to haggle out 60 votes among the Senators. Those Democratic Senators who don’t support reconciliation are probably feeling a world of butthurt right now, but no one cares what they think anymore, which is pretty sweet; but if there were still a way to get to 60 votes, there would be scant support for reconciliation, IMHO.
I don’t think they’d get 50 and stop if they could get 60. It would play as a preemptive parliamentary trick rather than a retaliatory parliamentary trick. There seem to be a lot of Senate Democrats who have a fetish for gentlemanly “fair play” and it takes a lot of effort to dislodge them from that mindset.
Terry
Yes, a good example of a serious primary challenge from the left getting a conservative Democrat to shift to the left.
I must be more cynical than most here. I am amazed that this HCR might actually pass. I never really thought it would, not even back in 2008 when I supported Obama. And after the shitstorm the Repubs and Tea Partiers have kicked up this past year? This would a major, major victory for America.
The honest truth is that reconciliation was always a serious option but one that could not be openly talked about until AFTER the non-budgetary parts passed through filibuster. Nelson and Co. would veto the whole thing if you admit that you will change it without their votes later.
The Grand Panjandrum
@aimai: And Kaptur is now reported to be leaning yes. So, yes, more honey, less vinegar!
FlipYrWhig
@kay: Too true re: vulnerable spouses.
Brien Jackson
@aimai:
And this post is a good example of why I have little patiece for your complaints about the Democratic strategy; it’s long on proclamations, short on acknowledgement of events. For example:
This just isn’t even remotely true. There’s no way the House thought they’d have momentum because they hadn’t gotte the bad press of the August townhalls…given that the House didn’t pass their bill before the August recess.
Well…yes. Because Ben Nelson and Mary Landrieu could have gummed up the whole thing if they didn’t get those poison pills. Again, you’re not so much wrong as there’s just no real alternative to what you’re complaining about.
Of course, the actual argument at the time was that if you did the reconcilliation part first, the Democrats you went around to do so in the Senate could very conceivably kill the non-eligible provisions that would have to go through regular order. That hardly seems like an outrageous assumption to me.
Great. But a bill that can’t get through the Senate is a bill that can’t become law, so at the end of the day such a bill is irrelevant.
Which they would have, except for that pesky Massachusetts election giving Republicans enough votes in the Senate to block a vote on a conference report in the Senate. If Democrats still had 60 Senators, we’d have had a formal conference and a bill would have passed weeks ago, but we don’t. That’s a pretty important little detail.
Also, since pretty much all of the changes being talked about even before Brown’s victory involve things that can be done through reconcilliation, how would a formal conference have produced a substantially different compromise between the two chambers?
General Egali Tarian Stuck
This road runs both ways.
afferent input
I come from the very liberal district of Jay Inslee of WA. I gave them a call to voice my support for a not-so-great bill that really has to pass. They told me they’ve been getting a lot of angry callers, but the positive calls help a lot. They we’re glad to hear from me, and they hope more positive people call as well.
I wouldn’t have done without the BJ whip. Thanks for doing it.
J. Michael Neal
@Steve:
Sigh. Here we go again. The others who have responded to you are right in the result, but not the reasoning. What this bill does is much more than even they say. Your lawyer friend gave you the answer he did because you’ve made the same mistake everyone else has: you’re looking at individual pieces in isolation. The key here isn’t the change in the language to requiring an intentional material misstatement; the key is what the rest of the bill does to the concept of materiality.
The person who said that fraud will be harder to prove since the insured didn’t have motive to lie on the application is close to correct, but not quite there. What the change means is that the insured’s intent DOESN’T MATTER. Any attempt to justify rescission, in most circumstances, won’t even get to the question of whether the misstatement is intentional. It gets wiped out over materiality.
The elements required for fraud include that the party alleging it has to demonstrate that the statement was not only wrong, but that they based their decision to enter into the contract was influenced by the decision. If it didn’t, it doesn’t matter what the misstatement was, or whether it was intentional. There’s no fraud.
In a world with community rating where people can’t be denied insurance for pre-existing conditions, there are very few things on the application that even could lead the insurance company to deny coverage, or price it cheaper. For the purposes of a rescission case, not putting something down if it wouldn’t have changed the decision to provide insurance is not material. No fraud. There are a number of other reasons, some of which could involve legal liability, why I wouldn’t recommend that you do it anyway, but not rescission.
Of course the bill allows for rescission in the case of fraud. That’s basic contract law, dating back centuries prior to the founding of the US. Fraud in the execution means the contract is voidable. That’s the same thing as rescission. (Not quite, but close enough for these purposes.) Congress not only isn’t going to change that, they shouldn’t change it. Prohibitions against fraud are there for good reasons.
theturtlemoves
@The Grand Panjandrum:
While I very much think the honey is helping our cause, I’m inclined to believe the vinegar from the other side is, as well. At some point, being bombarded by calls from loonies who seem to all be reading from the same script (because they are) would tend to make me want to do the opposite of what the loonies are saying. Maybe I’m just odd that having frothing right-wing crazies yelling at me all day wouldn’t cause me to see things their way…
Sentient Puddle
@FlipYrWhig: I’ll “yes and…” with this:
If I were majority leader and trying to game out a process involving reconciliation, I’d be really damned tight-lipped about the strategy. Obviously the contours of the strategy is pass what I can with 60, then follow up with reconciliation where I can afford to lose up to 10 votes.
And those 10 votes are the weak point with reconciliation. If they knew that I’d be rejiggering the original bill without them, then they’d tell me “fuck you,” and hold the original bill hostage over the things in the reconciliation package that they opposed. Instead, I’d want them to find out after Obama signed the original bill into law.
Obviously I have no idea if Reid was pursuing this strategy or not, so I’m not saying I’m defending him. But if he was, then he’d quite clearly want anybody talking up reconciliation to shut the fuck up.
Mike E
Just called Brad Miller’s office and registered my support for his solid ‘yes’ vote. The intern was funny, said he had a cousin by my same name–since my folks changed their name when they immigrated here, I have no cousins with that name, alas.
Now, it’s off to NCAA overkill, and later, a BBQ over the burning wreckage known as the GOP. Oh, and BoB, BITE ME.
Tom Hilton
@aimai:
And I get tired of progressives whining about what they call “progressive bashing” because I actually care more about progressive outcomes than about the progressive brand, and I think it’s not just worthwhile but necessary to criticize those tendencies of (many) progressives that militate against their effectiveness at achieving the outcomes.
AhabTRuler
I should like to point out that a shit-and-banana sandwhich would be pretty appealing to a dog.
That is, if you left out the banana.
And if it were cat shit, you wouldn’t be able to beat them off with a rake.
The Grand Panjandrum
@J. Michael Neal: Thank you for this elegant note. I very appreciate it and I will bookmark it!
ellaesther
This is off-topic, but not really, but actually yes, because I am so weary of the various topics on which we have all been on, and I am ready for something gentle to ease the evening in. So I posted some music:
Good stuff: Tough week, tough weekend.
I hope y’all enjoy it, and Tim F.? It can’t be said enough: Thank you.
General Egali Tarian Stuck
@The Grand Panjandrum: Let me second that. I think I was trying to say the same thing or thereabouts, but clumsily per usual. Mr. Neal nailed it down shut, I think
Joel
Took me many tries but I reached Jim McDermott’s DC office and left a supportive message.
Crashman
Just wanted to add my thanks to Tim here as well. I have a tendency to get despairing over politics. I probably wouldn’t have called my Rep (multiple times) if it wasn’t for your urgings. Whatever the result, at least I feel like I’ve done something. Thanks.
Adam Collyer
@Brien Jackson:
+1. This post is exactly how I feel.
I still commend Tim for his leadership. It was a monumental task, and he’s made a real difference.
brantl
I think that you’re missing the fact that this is still a pretty shitty bill, myself.
General Egali Tarian Stuck
Elvis shows us how
Jody
People that don’t like two-layer Ruebens on rye really are worse than a dump truck full of Hitlers.
Or, for a change of pace, try a Rueben’s Brother, which substitutes pastrami for the corned beef, and adds a bit of horseradish.
Also you are correct on the health care thing. But the sandwich comment was more important so I addressed it first.
aimai
I give up. I really do. I’m tired of standing in for a fictional person who “cares more about the progressive brand than…” or is engaging in “progressive whining.” I don’t even know what that means. I’m a progressive and I *like the bill* *because I think its progressive.* Lots of people do. I said right up front that i don’t think its a “shit sandwich.”
I think things could have gone better because I have an opinion about the process which is pretty mainstream. Opinions differ from mine and I accept that. What I’m not accepting is the right of Brien Jackson or anyone else to tell me that everyone to the left of them is Jane Hamsher. There’s a fuckload of room between “I think that various game plans might have worked out differently because time is what keeps things from happening all at once” and FDL.
I’m just sick of the utterly pointless but pro forma accusations of insufficient centrism/pragmatism. I see that its some kind of reflexive grooming behavior that seems to have to happen at Balloon Juice from time to time. I see that it has some kind of important function for people and qua anthropologist I know that rituals are important and sacred and people have to engage whether they are useful or not. As I write this I acknowledge that I’m part of the ritual too. Because as far as I can see I haven’t done anything differently, politically speaking, than even the people who ritually accuse me of insufficient enthusiasm. I supported the PTDB strategy, I supported reconciliation. I gave money to all the groups who are currently whipping the bill. I happilly phoned and faxed around the country to encourage wavering Dems to back the leadership.
I don’t see what is gained by continually bashing people for being politically incorrect on some invisible party line.
aimai
Chuck Butcher
@Brien Jackson:
It is an unfounded assumption that you’ve had the chance, but have you ever voted a left candidate in your Primaries? I don’t mean this faux center left bullshit, I mean left. Or did you take the “can’t get elected” measure?
This thing is a shit sandwich with banana for a good reason and expecting “progs” (whatever you mean by that) to be quiet begs for a lot more shit and banana. You want to blame RR & GWB on the left voters? STFU is your position while you’re busy advocating pushing Reps to vote your way? You are a funny funny guy.
We might have gotten a peanut butter sandwich with a shit side instead of this. I’d be a hell of a lot more inclined to really push for that.
Sentient Puddle
@Chuck Butcher:
Um…lemme go back to that quote you pulled and fill it out on the sides a bit…
What are you talking about?
J. Michael Neal
@General Egali Tarian Stuck:
When you’re talking contract law, always go for the guy who’s a ridiculous pedant.
Brien Jackson
@aimai: @<a
I never said anything like that. Indeed, it seems like you and I are pretty close on the bill itself. What I disagree with is the notion that it could have been better if leaership had used different tactics, and I don’t think you’ve really thought out what realistic alternatives existed at the time. But that’s a disagreement with things you’ve actually said. I’m not ascribing anyone else’s opinion about the bill to you.
General Egali Tarian Stuck
I’m an indolibbycentrifico who worships the Zia and a few other natural icons like the Hummingbird. and occasional anarchist.
Depends on the rotations of my mood the moon and mother earth.
I don’t like Jazz however.
Time to walk the dog.
Omnes Omnibus
@aimai: Actually, I think that the fact that a number of people on the left have been quite vocal in their complaints about the bill and the process have help round up some of the more centrist votes. I can really picture some Blue Dogs sitting around and saying to themselves, “If the Progressive Caucus really hates it that much, it must be centrist enough to vote for.” If progressives had shown too much enthusiasm for it, it would have been dead. Look what Lieberamn did with Medicare for all as soon as he saw its popularity on the left.
On the other hand, this is a bad time for anyone associated with the Democrats to be sniping at anyone who supports the bill. I could give a flying f*ck whether some one votes for it with enthusiasm, thinking it is the greatest bill ever conceived or if some one votes for it and then goes back to their office and throws up with disgust. I just want this bill to pass. Then we can start looking at what went wrong with the process and how to fix it.
Anyway, I just say, in the immortal words of Frank Burns, “It’s nice to be nice to the nice.”
ruemara
Who the hell doesn’t love a 2 layer rueben with mustard on rye from the stage deli? I may not love this bill, but dammit, I want it to pass more than I want to sink my fangs into acres of meat with spicy mustard saurkraut swiss cheese and gulp down a coffee.
fucking diet.
Chuck Butcher
@Sentient Puddle:
What exactly don’t you understand? That voting for the faux center results in what we have? What do think, I should block quote his entire post?
Chuck Butcher
@Omnes Omnibus:
How about 30+ years of evidence that “then” is too fucking late? If you’ve got heat going on, that is the time to do something about the process going stupid.
Elie
@Steve:
I think the “how” parts of the bills will come in the regulations that follow to implement it. There will be detailed rules developed by the implementing and oversight agencies such as the Centers for Medicare and medicaid Services and HHS that in themselves will be work to enact to assure the appropriate interpretation of the bill’s provisions…this will be the next wave of our oversight and advocacy — make no mistake…no less work either as there will be incredible detail to go over and comments requested and reviewed by the same constituencies as had input on the bill development – insurance companies, providers, advocacy groups, citizens, etc
North Dallas Thirty
I love the Obamabots and their delusions.
What the change means is that the insured’s intent DOESN’T MATTER. Any attempt to justify rescission, in most circumstances, won’t even get to the question of whether the misstatement is intentional. It gets wiped out over materiality.
So even if you deliberately lie on your application, the insurance companies are forced to cover you. If your entire intent is to commit fraud, the insurance companies are forced to pay you.
Thank you for making that abundantly clear.
Joseph Nobles
Ezra has a point – 222 Democrats voted down ruling out “deem and pass” as a way to pass the Senate health care bill. It would have been easy to hide behind procedural concerns for skittish Democrats.
Third Eye Open
Anyone living in Tallahassee that wants to celebrate our own fuck-weasel finding his very own acorn today, meet up at Fermentation, i’ll be the guy with a shit-eating grin and the Avalanche shirt on. HOLLA!
Omnes Omnibus
@Chuck Butcher: Good idea, let’s start a circular firing squad about why the bill isn’t perfect before it is even passed.
Sentient Puddle
@Chuck Butcher: What I don’t understand is how that has anything to do with the Massachusetts election back in January.
Brien Jackson
@North Dallas Thirty:
I love how the fact that you’re too dumb to process what you read is proof that other people are delusional.
General Egali Tarian Stuck
@Brien Jackson: Don’t run him off, we need moran wingnuts to keep the peace around here. ND40 is an idiot, but a useful one. Ain’t that ND40?
General Egali Tarian Stuck
@Joseph Nobles: Ezra is right I think, like most times, but not always.
General Egali Tarian Stuck
@J. Michael Neal: No pendant in your comment. Fleshed out just right. IMO
Tonal Crow
@IM: I think that’s pretty close. More formally, the argument is this: Because insurers can no longer deny insurance or increase rates due to health status, misstatements about it are no longer “material” misstatements. Thus, they do not rise to the level of “fraud”, and therefore cannot be the basis for rescission. Insurers presumably will argue that such misstatements are still material because they make it more difficult and expensive to plan what kinds of care they need to provide. This counterargument will have to get firmly rejected (either judicially or by amendment) before the bill will be fully functional.
BTW, this is blogging, not legal advice. Please consult your favorite lawyer for legal advice.
Svensker
@General Egali Tarian Stuck:
But was there a hanging chad?
That was a quick dog walk, BTW!
Svensker
I am getting excited that this stupid bill may actually pass (ohpleaseohpleaseohpleaseohplease). But am totally bummed that I can’t show any excitement about it or even TALK about it because my stupid husband is a JaneHamsheroftehLeft — “the bill isn’t perfect and Obama should have passed a single payer and since he didn’t it’s time for a revolution !11! I want my pony!11! Anyone who doesn’t agree with me is a dumbfuck asshole…except you, honey, of course.”
Sigh.
Chuck Butcher
@Omnes Omnibus:
Let’s start one? OK.
go punch a fucking hippie.
Why you keep going on about MA is beyond me. Do you see MA in the block quote? I used the shortest synthesis of his post available or did you want it just repeated?
General Egali Tarian Stuck
@Svensker: A quick dog walk indeed, we currently have rain, sleet, and thundersnow moving through and 30 mph winds. I expect fishes to fall from the sky to thwart Obamacare and our mutual destruction anytime now.
We walked just long enough for Charlie to take his daily constitutional and high tailed it to cover. He is in the truck now so we are going to ride to the store, and that should just make his day. The little rascal loves riding shotgun. Puts his paws up on the dashboard to see whats what.
Chuck Butcher
Too bad Tim … ran right out of nerve to tell it like it is?
Peanut butter?? Cripes.
Svensker
@General Egali Tarian Stuck:
Love it when they do that. With the ears up and a big happy look on the little phiz, I bet.
J. Michael Neal
@North Dallas Thirty:
The only part of this that’s wrong is that there is no intent to commit fraud in the legal sense. You may think that you have an intent to commit fraud, but you don’t. For you to have intent, the action that you intend to take must actually be prohibited. Like a lot of words, “intent” doesn’t mean exactly the same thing under the law that it does in normal conversation.
Note, again, that this is basic contract law, not anything to do with the health care bill. With any contract, no lies that you tell in the negotiations can be fraud unless the other party relies upon them to make their decision to sign it. If they rescind the contract, end up in court, and try to convince a judge that they don’t have to pay because you intended to commit fraud by telling lies that were immaterial to their decision, he’s going to laugh at them. Next case. So, the outrage you are expressing should be directed all of Anglo-American jurisprudence, not this bill.
Now, there are other ways that lies can get you in legal hot water, even if they don’t qualify as fraud. Again, I don’t recommend lying on your health insurance application, even from a perspective of pure self-interest. It just doesn’t count as fraud, and thus can not justify rescission. Again, except on a few narrow issues, such as smoking. Since smokers can be charged higher premiums under this bill, lying about whether you do could be considered a material misstatement.
Elie
@General Egali Tarian Stuck:
How long have you had him now, General? Six months?
He seems to have settled in nicely….
I have my old guy cat Bill laying in the sun here as I work and Buddy off watching the birds at the feeder…
We just got our first Rufous Hummingbird back for the spring, though me and several friends spotted a couple of over wintering hummers in Dec – February — informally we see a few each year, but not sure whether this is a larger trend or not.
Aint nature grand and unpredictable? A little bitty bird who we think eats only nectar and bugs manages to stay on through a season with no nectar and bugs….
Miracles…yes, I believe…
liberty60
I keep thinking of Jim De Mint, telling the wingnuts that health care will be Obama’s Waterloo, that it will break him.
No matter what anyone thinks of the bill, right now the entire Obama Presidency, and progressive agenda, is on the line.
I wish it wasn’t- I wish it was merely one bill, one issue, but they have successfully framed the issue and now we are either going to win or lose the momentum, and show once and for all if anyone but the Rove/ DeLay forces can actually govern.
Omnes Omnibus
@Chuck Butcher: Where was the hippie punching in what I wrote?
Tonal Crow
@J. Michael Neal: Some insurer is sure to argue that a misstatement of health history is material because it makes it more difficult and expensive to plan for and acquire the resources required to provide care. This argument will need to get soundly rejected (either judicially or via amendment) before we’ll be completely free of the terror of rescission.
Elie
@liberty60:
“No matter what anyone thinks of the bill, right now the entire Obama Presidency, and progressive agenda, is on the line.”
Ya know, to me, you aren’t alive if you are not risking to get something important done. I believe that part of the problem in this whole effort has been the risk averseness of our entire population which has mostly stuck its head in the ground and waited for the Messiah too often rather than mixing it up.
Legislation and policy development is and always has been a messy process. We had not done it in so long that we forgot and we so over subscribed to the authoritarian business mantra of top down, my way or the highway that many actually adopted it as the preferrable process for even progressive legislation. Screw that democracy, representative stuff — ram it down!
If – no – when this passes, the fight will not be over, but we will have gotten a little bit stronger for the next round.
sparky
nice post Tim, though i am sorry to say i can’t agree with it. the most compelling point to my way of thinking is #2. but to me that merely highlights the futility of hoping (without forcing) the oligarchy inside the party to do anything that would actually compromise their money supply. the coming financial “reform” package will make this apparent.
as for point #1, honestly, i don’t see how this is a significant change. it tinkers at the margins with the scope of coverage but enshrines in federal law the obligation to buy health insurance from private companies that are guaranteed by that same law to make a profit. guess which aspect of the legislation is going to be more rigorously upheld. in a way, it’s a brilliant insurer strategy–guaranteed profits, and the invective will, in the future, be directed against the government for ineffective regulation.
and as for the pre-existing issue, since there is no cap on the premiums, they will go through the roof and that will be the end of that discussion, except, as noted above, for the outrage people will feel when they find that (a) they cannot afford the insurance pony they were promised and then (b) they are dunned by the IRS for insurance company profits.
as for point #3, i think the easy answer is: let the record reflect the deafening silence with which criticisms of Obama on other fronts are met with here.
oh and as a comment to a thoughtful post above:
it is possible that i misunderstood your argument here, but assuming i understood it,
(a) there is no necessary connection between community rating and decisions to offer coverage to individuals, because no two individuals are identical. in other words, while it is true that pre-existing conditions may no longer be used as a sufficient justification for a coverage denial, there are no other substantive limits on denial grounds. AFAIK there are no other statutory restrictions on grounds for denials, so all this exclusion does is cause insurers to shift out of what had been the easiest ground (see (b) below). consequently, while it is certainly possible that ratings can assist in lowering the number of turn-downs, it seems to me an error to assume that coverage offers will be structured so as to avoid coverage of high-risk individuals in any way possible. the last time i read the text of the Senate bill, the only limit on turndowns was that the insurer would be in trouble if the insurer offered the insured money to not take the policy. as the likelihood of this event is rather low i would not be surprised to see the universe of turn-downs shrink only at the margins.
(b) AFAIK there is no–as in not any–definition of materiality in this bill. consequently insurers are free to claim that any oversight, whether intentional or not, was material to their decision. so the removal of the intent element is not relevant.
(c) finally and most importantly, as there is no cap on the amount to be charged, all of this is nothing more than a rhetorical reshuffling. it matters not if pre-existing conditions are not a bar if there is no cap on the premium.
incidentally, i am not one of those “wah wah sit on your hands types”. to the extent we are talking about policy that is economic-related, it seems that organizing outside the existing party apparatus may be the way to go. it is somewhat naive to expect any entrenched political party to risk power or money for principle.
fixing the political rot at the center of the empire is a different, more difficult task than these issues, which are, ultimately, just money disputes, from the perspective of the oligarchy.
gwangung
Kinda frivolous as an objection, since AFAIK, materiality is a legal term established by past precedence. I.e., you don’t (and usually shouldn’t) need the law to define it unless you’re changing it.
liberty60
@North Dallas Thirty:
Insurance for a house that burns down consists of a cash payment, thus being very tempting for fraud;
What is the equivalent for health insurance “fraud”? People are going to obtain their life-saving chemotherapy by lying?
Shouldn’t we as a civilized society make sure that people get chemotherapy regardless of ability to pay anyway?
Setting up health care that can only be accessed through the portal of health insurance turns it into an adversarial relationship- the insurer always have an incentive to deny you access to the hospital.
But access to the hospital, unlike a cash payment, isn’t something people want to get, even if it were free. If they were giving away gall bladder surgery, would people rush to get one? Would people line up to get free spinal taps, just because it was on the taxpayer dime?
This notion that we need a “gatekeeper” system to prevent excessive medical treatment is nonsense.
Its the postponing of access that leads to higher cost. This is why even the most miserly insurance companies make teeth cleaning and medical exams free- it holds down costs later.
J. Michael Neal
@Tonal Crow:
Again, no. That doesn’t constitute fraud. It might, I guess, be looked at as a tort, and merit damages, but it’s not fraud, and won’t lead to rescission. Even then, the insurance company would have to show that they were somehow damaged by the misstatement, which is going to be pretty hard to do given the relative insignificance of any individual patient, even a sick one, compared to the resources any of them have.
For fraud, the element of materiality applies explicitly and exclusively to the decision to enter into the contract, not the actions taken after signing. You have to show that you would not have signed the contract, or at least may not have, in the absence of the misstatement. In this case, the insurance company is required to sign the contract, regardless of what the applicant tells them, again with a few limited exceptions. Given that, there’s no fraud.
sparky
@gwangung: sorry, i should have made my point clearer.
i disagree with what i think is your premise: i think this IS a change to existing law. this is, after all, a rather comprehensive statutory overhaul. so, while it is, admittedly, only my opinion, i think an argument that this is not a change would be treated as frivolous (in the legal sense).
perhaps HHS will issue regulations regarding materiality. but as there is AFAIK no requirement that they do so, i see no reason to assume that they shall, or that should they do so, the definition will favor the potential insured.
Omnes Omnibus
@sparky: It is a comprehensive statutory overhaul, but that does not change the legal definition of materiality.
As for the rest, read what JMN said in his comments above.
J. Michael Neal
@sparky: I’ll leave it to someone else to go through the errors you made in describing the bill and just say that gwangung has it close enough to right. The bill doesn’t need to define materiality. It doesn’t even, so far as I know and within this context, even mention materiality. It just says that there has to be fraud for the insurance company to be allowed to exercise rescission.
Materiality is defined within the statues on frauds. (Not the Statute of Frauds, which is only tangentially related to fraud.) So, while materiality can mean many different things in general, it has a very specific meaning within the context used here.
I would also like an explanation of all of the other reasons an insurance company can use to deny someone coverage. What are these?
Tonal Crow
@J. Michael Neal:
I might be misrecalling the common-law elements of fraud (Error! Restatement of Torts not found!), but I thought that the central issue whether the plaintiff was injured by relying upon the defendant’s misrepresentation. I don’t recall that that reliance had to take a particular form, such as a showing that the plaintiff would not have signed the contract had she known about the misrepresentation.
This isn’t correct. A loss of one cent is still damage. This issue goes to the amount of damages, not to whether there is liability.
gwangung
@sparky: You’re still being very fuzzy on your argument, perhaps because you’re not particularly clear on the legal concepts involved (this is not a sin). But as far as I understand, materiality is a basic legal concept and doesn’t necessarily need to be referenced. There’s plenty of previous law that establishes what is and what is not material. And nothing you’ve argued about has anything to do with changes in this previous body of law, as far as I can tell. What in this law will change legal precedents of materiality?
General Egali Tarian Stuck
@Elie: Mother Nature has always sustained me through thick and thin. Only had Charlie about 3.5 months, but he has settled in. And now barks sometimes, especially when he gets cabin fever and wants to go out. He really is a little sweetheart and the pleasure and privilege is all mine taking care of him.
I will put my first hummer feeder up in a week or so, the first to arrive here are male Blackchinned, and then Broadtailed hummers in April. The Rufus and Caliope don’t arrive until July 1, and you can almost set your clock by it.
Tonal Crow
@Tonal Crow: To make this concrete, imagine that P and D sign a contract for P to haul a truckload of stuff to D’s house. Imagine that D lied, saying that his house was in an accessible area, when it was really up a steep, windy mountain road. P tried to deliver the stuff, but found the road too steep. He had to return to headquarters and finish the delivery using a different truck. P sues for fraud, asking for damages for the vain first trip. Imagine also that P would have signed the contract for the same price if D had told him the truth (while the road was steeper, the time/fuel/etc. for delivery would have cost the same).
Has P stated a case of fraud? Is say yes. He relied upon D’s intentional misrepresentation and was proximately damaged by it. That he would have signed the same contract for the same price had he known the truth is immaterial.
Keith G
Oh fucking g*d. David Brooks is bloviating on the News Hour. Mark Shields is doing a good job rebutting, but still….
Baby Jeesus weeps.
Omnes Omnibus
@Tonal Crow: If he would have signed the contract anyway, the misrepresentation was immaterial. He was not damaged by it either. It had no effect on his decision.
Tonal Crow
@Omnes Omnibus: Of course he was damaged by the misrepresentation: he had to make the vain first trip with the wrong truck. It cost him twice as much time, twice as much fuel, and twice as much truck-wear. If D had told him the truth, P would have used the mountain truck instead and accomplished the task in one trip.
J. Michael Neal
@Tonal Crow:
You remember that damages is a central issue because it is. There are five elements required for fraud, but I didn’t discuss ones that I thought weren’t relevant. They are:
1) a false representation
2) of a fact
3) that is material and
4) made with knowledge of its falsity or the intention to deceive and
5) which representation is justifiably relied upon.
My business law text states, “Justifiable reliance requires that the misrepresentation contribute substantially to the misled party’s decision to enter into the contract.”
I admit that I confused materiality and justifiable reliance. I claim that this is understandable, since materiality consists in whether or not the other party would be likely to assent because of the misrepresentation. It’s a mildly important distinction, since materiality is not actually required rescission, only damages. However, justifiable reliance is so required.
Omnes Omnibus
@Tonal Crow: You are right. I read too quickly and missed that he went back and used a different truck. Mea culpa.
kilo
@Brick Oven Bill:
You guys lost democracy in 1844, when your courts held that corporations were natural persons under the law.
It’s nice to see somebody finally working at clawing it back.
J. Michael Neal
@Tonal Crow: Based strictly upon the facts you provide, there is no fraud. We don’t even need to get to question of materiality or justifiable reliance, because there was no misstatement of fact. All that D said was that his house was accessible. That was a true statement, as P demonstrated by successfully driving to it in the second truck. No fraud, and no damages.
Now, let’s postulate that, rather than saying that it was accessible, that D had said that the road to his house was flat. Everything else remains the same. This is a gray area. Is a statement that the road is flat one of fact, or one of opinion? Define “flat” in a way that is satisfactory for establishing that the road either is or is not. I can see a ruling either way, depending upon exact circumstances.
Now let’s postulate that D made neither statement. Instead, let’s say that P asked him whether or not he would be able to drive to D’s house in the first truck, and D said that he would. Now, the question hinges upon whether or not D knew that the truck wouldn’t be able to make it up the road. If he did, then you have a deliberate misstatement of fact. Assuming that P can demonstrate it in court, the question becomes whether or not P justifiably relied upon that statement. If he should have known that he wouldn’t be able to drive the first truck up the road, then there is no fraud and no damages. In this context, the standard for “should have known” is very high. If it was merely that it would have been easy for P to assess the road himself, and he never bothered to, that probably (“probably” is a favorite word in this sort of analysis) does not mean that he should have known. He may be able to sue for damages. I wouldn’t want to hazard a guess either way. However, he can not rescind the contract, because he would have signed it anyway.
PEDANT ALERT
At this point, I’ll note that rescission doesn’t even make sense in your example, because D has already completed the contract. To get that into the mix, we would have to posit that D tried to get to the house in the first truck, and when he was unable to do so, told P that he would not fulfill his end. That’s rescission. Again, he wouldn’t have been defrauded, since he would have signed the contract anyway, but it would all come down to who could prove what once the lawyers get involved.
Tonal Crow
(deleted)
Tonal Crow
@J. Michael Neal:
Good points about my hypo’s lack of precision.
I’m not sure I understand the last clause (“but it would all come down to who could prove what…”). In this hypo, P definitely incurred damages in reliance on D’s misrepresentation. Though he would have signed the contract had he known the truth, he also would have executed it differently. I’m not convinced that P hasn’t stated a case of fraud, but I also can’t point to a case supporting my view. I’ll add this to my stack of curiosities to research. Thank you for the excellent conversation. And I do hope that you’re correct.
NobodySpecial
All I can say is, I doubt it gets ‘fixed’ in my lifetime.
When it was ~50 million insured, it was a big problem.
Post-bill, when it’s down to about 20 million or so, it’s a much smaller problem with a much smaller constituency to complain about it to their reps. Even if you don’t change the makeup of the Congress at all (highly unlikely), I can see a lot of ConservaDems saying ‘STFU, they got insurance now’ to any scattered complaints for the people who fell through the cracks.
And those people who fell did so with the eager aid of the same people who promise this is gonna be fixed…later. I don’t have confidence they’re going to use political capital for the people they wouldn’t the first time.
slightly_peeved
People are only mandated to buy insurance (at the cost of a fine) if there is a functioning Exchange, and if insurance is available on that exchange below a certain cost.
The Exchanges must have a non-profit member.
Therefore there is a cap on premiums which must be purchasable under the mandate, and there is no requirement to purchase for-profit insurance.
In short, you have no idea what the bill actually contains.
Oh, and the people saying no new regulatory rules or structure appear as part of the bill missed Sec. 2719. This requires insurers to establish an internal appeals process, and requires coverage to be maintained during the appeals process.
Gary
Won’t anyone stick up for the peanut butter, though? Ruebens, yuck: big salty piles of grease.