Bayh Humbug

This is intriguing especially as it moved a reach race into a toss-up race for Democrats.

I was just looking at the 2018 Senate Map and it is not as fugly as I thought it had been. There are five red state Democratically held seats up (Montana, North Dakota, Missouri, Indiana, and West Virginia) and a few swing state seats (Florida, Ohio, Virginia) that would be vulnerable in a lean Republican year. An unexpected seat in Indiana from 2016 would be a nice cushion.

Secondly, what do we know about Bayh — he is an opportunist, a weather vane, and conventional wisdom Very Serious Person. And those are his good qualities.

If he is willing to jump into a race that should be an uphill climb in a neutral environment, the opportunist as a concurrent indicator means things are looking good in November.

When Grown Ups Are In Charge

Here’s President Obama, writing in SCOTUSblog* on what he’ll look for in a Supreme Court nominee (h/t Washington Monthly):

First and foremost, the person I appoint will be eminently qualified.  He or she will have an independent mind, rigorous intellect, impeccable credentials, and a record of excellence and integrity.  I’m looking for a mastery of the law, with an ability to hone in on the key issues before the Court, and provide clear answers to complex legal questions.

Second, the person I appoint will be someone who recognizes the limits of the judiciary’s role; who understands that a judge’s job is to interpret the law, not make the law.  I seek judges who approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand.

But I’m also mindful that there will be cases that reach the Supreme Court in which the law is not clear.  There will be cases in which a judge’s analysis necessarily will be shaped by his or her own perspective, ethics, and judgment.  That’s why the third quality I seek in a judge is a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook.  It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times.  That, I believe, is an essential element for arriving at just decisions and fair outcomes.


Also — just in case you were worrying (I wasn’t and am not) that President Obama might take seriously for a moment any suggestion that he should punt on this choice, here’s all you need to know:

The Constitution vests in the President the power to appoint judges to the Supreme Court.  It’s a duty that I take seriously, and one that I will fulfill in the weeks ahead.

I will so miss this man.

*POTUS blogging FTW!

Image:  David Gilmour Blythe, Justicec. 1860

The court packing of 2025

Following up on Tom’s post this afternoon, we will see the Supreme Court go from 9 seats to 11 and then 13 or more by the time my preschooler is done with college.

The scenario is simple.

Let us imagine that there is a Republican trifecta, House, Senate and White House.  Given the way the House is gerrymandered, the House leans Republican through at least 2022 and more likely through 2032.  The Senate is a flip a coin proposition, and sooner or later there will be a national election with a Democratic incumbent who either was a putz or simply got caught with a moderate recession six to twelve months before voting started.  This is not an unlikely scenario at some point in the next decade.

At the same time there is a liberal majority Supreme Court with nine justices.  It is either 5-4 or 6-3 as President Clanders appointed tree or four new judges  in 2017-2018 and dropped the average age of the Court from the late 60s to the mid-50s.  The oldest justices are reliable conservative votes. This court’s configuration would be locked in for a decade or more assuming no unusual health events.

That Supreme Court slaps down several Republican priorities (it could actually define what a substantial burden is for Casey, it could say the 15th Amendment is still operative etc).

There is nothing in the Constitution which specifies how many Supreme Court seats are needed.  That number has changed several times in the past two hundred years.  The only reason why it has not changed is institutional norms that the Supreme Court should have nine justices and it should not be packed.

Norms don’t mean much as the slow moving constitutional crisis of the past twenty years has been that norms which previously precluded actions are not severely punished.  Threaten default, no electoral consequences.  Shut down the government, minimal electoral consequences.  Blockade the Supreme Court in 2016 for the hell of it, few long term consequences.

There is nothing to stop an ideologically and procedurally unified party that has control of the House, the Senate and the White House from expanding the Supreme Court from nine Justices where there is a 6-3 majority against the temporary trifecta to thirteen Justices.  The four new seats would be quickly filled by majority vote in the Senate and switch the Court from an anti-Trifecta majority to a pro-Trifecta majority.

The same logic applies to the circuit courts as it is a logical extension of the 2013 blockade that led to the nuclear option to flip control of the DC Court of Appeals from Republican appointed judges to Democratic appointed judges.

And once this happens once, any trifecta will have to engage in this same behavior to lock down their policy preferences under future divided government.


The Cook Political Report Partisan Voter Index is an attempt to categorize how much more red or blue a state is compared to a national average.  It works by taking the average national two party vote share of the past two elections and calling that the zero index value.  States with vote shares for the Democrats that are above that index value are considered to have a D+x PVI.  States that vote more Republican than the index value are considered to have an R+x PVI.  It is very closely related to the hypothetical uniform swing.

It is a decent indicator of partisan lean of a state although it lags on fast changes (The eastern mountain states probably have an actual PVI above the reported PVI).

I want to point out some of the states whose Senators voted for PPACA and what their 2010 PVI was as a public service announcement:

Alaska R+13

Nebraska R+13,

North Dakota R+10 *

North Dakota R+10

Louisiana R+10

Arkansas R+9

Arkansas R+9

South Dakota R+9,

West Virginia R+8

West Virginia R+8 *

Only two of those seats are still held by Democrats.  None of those seats are on the top tier of the Democratic target list for 2016.

These ten seats were a minimal majority blocking coalition.  Another 8 Democrats were sitting in Republican leaning seats and plus the asshat Lieberman as a massive opportunity cost in Connecticut.  That is 19 Democrats in the Senate including any plausible majority combination where fulfilling major liberal policy goals was either personally distasteful (at least 1) or  politically challenging giving their home turf.  The actual policy space was severely constrained.

The morality of waiting for a pony

My  last post was a fairly technical dive  into Wyden waivers, subsidy bundling and actuarial value calculations.  It was an effort to explore a plausible future possibility space that in my opinion would lead to more people who are in the bottom half of our society to be made better off than they are today. It is,  as a commenter pointed out , a convoluted kludge to work within the context of our current political reality instead of an advocacy for maximal efficiency or effectiveness that can not be passed within the next decade.  I think that is a fair description of how I am trying to use my minuscule amount of influence to nudge policy in a better direction.

So when I see  arguments like the following , my moral sense is highly offended:

Health is not just another commodity for Wall Street to bleed to death. I am tired of these posts that attempt to make the writer appear to cheerlead for improving the system, rather than dealing directly with the con game that health insurance and health care has become. No wonder Trump’s ridiculous braggabully talk of cutting through the bullshit resonates so strongly.

The implication is single payer or bust and anything else is selling out to the man.  In a world with no political constraints, I would agree with this argument that creating a convoluted, complex system that mostly but not completely solves the stated problem at higher than needed costs is not an ideal solution that should be pursued.  However we don’t live in an ideal world.

We live in a world where vested interests have significant say.  We live in a world where there are numerous veto points that favor conservative interests in the best of circumstances (2009/2010) and reactionary interests in most circumstances.  We live in a world where large liberal majorities are fleeting (1933-1937, 1965-1966, 2009-2010) and even then the liberal majorities are dependent on a significant number of representatives and Senators who represent right of the nation seats.  We live in a world where ideal policy for anyone other than the top 2% or post office naming candidates can not be enacted.  We live in a complex and imperfect world.

Furthermore, I don’t think  American liberals are well positioned to take advantage of “shock doctrine” moments.    Enacting liberal policy plans in a shock moment is tough as liberal policy goals broaden the possibility space while most “shock” moments contract the possibility space.  These shocks are moments of high scariness.  Scariness means people and politics retract inwards and becomes far nastier and less complex.  People as a whole will sign off on inflicting pain on others of  lower status and power if that means they are re-assured that in doing so, they avoid pain that was otherwise hit them.

This is how I view the world.

And from there, my morality dictates that I do what I can to make things slightly better on any given day, especially if that slight improvement benefits people who need more help.  So that means advocating for improvements that continue to entrench a complex, bifurcated health insurance system as I don’t see any action today to smash the machinery of the insurance industry paying off for a generation or two.  I could be wrong, but I will take a bet that the insurance industry is recognizable and prominent in twenty years versus it is a supplemental industry appendage to a single payer (esque) system.  And I will give very good odds.

I can respect people advocating for single payer.  If I can be convinced that there has been  significant policy homework   done on a single payer plan and a plausible pathway to assemble a winning coalition (both electoral and interest group), I’ll hop on board.  However I don’t think holding one’s breath and condemning millions of people to more pain in the hope that the contradictions will be sufficiently heightened in a long shot bid that the entire American employer sponsored health insurance complex will death spiral itself out and from the wreckage, a panacea policy can be implemented is a viable strategy to actually achieve positive policy change.

I could be wrong, but in the mean time, I’ll keep plugging away at making things incrementally better.

If The Phone Don’t Ring…

Hey everyone!

I’ve got a message for you:

Pick up the damn phone.

The backstory:  I heard last night from a valued reader with connections to the Hill reminded me that there is more this crowd can do than point, sigh, and mock the GOP pants-wetters (abetted by an increasing number of feckless Dems) who so fear the widows and orphans from the latest spasm of our long decade of war in the Middle East.*


What to do about the attempt to make fear the ground state of American policy?  What to do about the spreading political meme that the proper exercise of US state power is to bar the door to Syrian refugees? How should we stand with President Obama when he says of the fear mongers “that’s not who we are”?

Pick up the damn telephone.

Call your Congressional representatives in the House and the Senate.

You know the drill:  Speak your mind, politely, respectfully, but firmly to whoever you get on the phone.

My reader emphasized, and my own distant memory of an internship on the Hill concurs, that these calls really matter.  House and Senate staffs keep notes and logs.  There are regular reports of how many calls came in, on what side, and with what passion or urgency.  \

Paradoxically, because of the ubiquity of social media, an actual human voice that has taken the trouble to pick up a phone carries a great deal of weight.  So call.

The numbers:

The Senate.

The House.

If you’re feeling extra virtuous — your governor and state legislature representatives would also be worth a call.

We can water the tree of liberty not with blood, but words.

Pick up the damn phone.

*Yes, I do know that the conflict there — and “Great” Power strategerizing through its misery — extends well before 2003.  But the Syrian Civil War of the last few years is (at least to me) both a conflict with deep roots and a proximate consequence of Bush the Lesser’s attempt to remake the Middle East into an model US client region.

Image: attr. to Rembrandt van Rijn, The Flight Into Egypt 1627


Haggling with no position

The Senate Republicans are pissing off their Teabagging cousins in the House GOP caucus because Senate Republicans face non-gerrymandered districts where the median voter is significantly to the left of the typical House Republican median voter.  The GOP majority in the Senate depends on seats being held in New Hampshire, Pennsylvania, Ohio, Illinois, Wisconsin, North Carolina and Florida.  All of those states voted for Obama in 2008 and almost all voted Obama in 2012.  The incumbent GOP senators won in 2010 depressed and bleached white turnout mid-terms.  The presidential year elctorate constrains the marginal majority members policy and political space.

Politico reports:

Members up for reelection in 2016, and some Republicans from purple states, are leery of launching a repeal without offering any sort of replacement. They’re reluctant to take away Obamacare subsidies for the lower-income and middle class without providing an alternative path to health coverage.

Other lawmakers are floating the idea of mixing repeal of part of Obamacare, such as the medical device tax, which is loathed by members of both parties, with non-health care items such as broader tax reform.

There is a deal space available if the Republican Senate was willing to first engage in policy making and trade-offs seriously, and then secondly be willing to jam the House GOP caucus.

A deal would give everyone something that they wanted.  A potential deal could look like this.

Democrats get the family glitch fixed.  The family glitch eliminates subsidy eligibility for families where at least one person is offered affordable, qualified coverage at work.  Family coverage does not need to be offered or deemed affordable but subsidies are no longer eligible for the entire family.  A few other technocratic clean-up amendments could be offered.  The aspirational outcome of the deal for Democrats would be further coverage expansion by making Medicaid expansion even more enticing by either increasing the federal share of Legacy Medicaid for states that have expanded eligibility or increasing the length of time that the feds pay 100% for expansion programs.  Shovel more money at the states as a lure for expansion as well as building a slightly better counter-cyclical insurance policy.

Republicans could get a couple of policy goodies.  They could get a copper plan defined as QHP, and/or they could get the medical device tax repealed without a veto threat.  They could get slightly more regressive tax treatment on HSAs.  There are policy trade-offs that the veto position holding Democrats would not prefer in isolation but could swallow if they get other policy preferences.

There is a deal available here.  But it probably won’t happen as the Republican Party does not have the ability to engage in health policy right now.