Not the least that can be done

The Senate has had a busy day.

First, Senators Scott (R-SC) and Rubio (R-FL) temporarily allied with a unified Democratic caucus to assemble a minimum blocking coalition to a nominee for a lifetime appointment on the 9th Circuit Court:

And then a bit later in the afternoon, the entire Senate told the White House to get a clue that it was being trolled by Putin:

So the Senate as a body and individual Senators in a closely divided body found ways to assert their institutional and personal prerogatives.

Baby Steps

Open thread

The ACA, rough drafts and resilience

Earlier this week, HILFY asked a good question:

how the Obamaites were able to create the ACA so cleverly that Trump’s vandals still have not been able to kill it?

I am reluctant to ascribe detailed and granular levels of intentionality to the ACA authors regarding anti-sabotage design.

At the highest levels, the political theory was that people would like the benefits of the ACA and provide a growing set of invested constituencies that would rally to the defense of the ACA if need be. And we have seen that at the highest levels. People now expect per-exisiting conditions to be covered and they expect guaranteed issue. Medicaid expansion has not been completely rolled back even in Kentucky despite a governor that campaigned on rolling it back. At the highest level of interest group politics, there is intentionality.

At lower levels, I don’t know. I really don’t. I think the key decision to make the US federal government the prime risk holder for individual market premium spikes was a key decision that has insulated the subsidized market has acted as a systemic counter-sabotage buffer but I don’t believe that decision was made for that purpose.

One of the key things that we need to remember is that the ACA as signed into law was a cobbled together contraption of various things that no one expected to be the final say on the issue.

I’m working with a great set of co-authors on a non-related piece that should be going out next week. I created the skeleton for the combined writing plan. The initial version had sections titled: “Explain the strangeness” and “Something awesome happens here” with bullet points and key references to explain the strange and the awesome. We then filled it in a bit more before handing it off to the publisher where they then did a nice edit with a bunch of questions. We then polished the piece, accepting all of the suggested edits and tweaked a few things that on a second read needed to be explained and had a nice long discussion on the implications of a comma. And then we sent the piece back to the publisher who will make it go live next week.

The ACA as signed in March 2010 was past the skeleton stage. It was not the final, finished, polished product of a regular process. The House bill passed with the belief that a Senate bill will also pass where the final details and polishing would happen in a conference committee. That did not happen due to the election of Scott Brown (R-MA) as the Senate GOP caucus promised to filibuster the appointment of conference committee members. So we got the rough draft Senate bill that passed 60-40 on Christmas Eve as the ACA.

If Democrats in 2009 were trying to repeal proof the bill, they would have extended subsidies to everyone, they would have insisted on a single national risk pool instead of state based risk pools and they would have enriched subsidies so that someone making $100,000 would be paying $200-$300 a month in out of pocket premiums for a $1,500 deductible plan.

The decision to make the federal government the partial risk holder for premium increases has been a major shock absorber over the past two years but I don’t know how much intentionality can be attributed past that decision?

Walker Stumbles

Wisconsin gets its special elections:

Wisconsin Gov. Scott Walker issued an executive order scheduling special elections to fill two vacant legislative seats Thursday…

It wasn’t shame, or a respect for the rule of law that drove the wholly owned Koch subsidiary to this decision.  Rather these guys finally got a clue:

Senate Republicans abandoned their efforts to pass a bill blocking the contests amid intense criticism that the GOP was trying to avoid adding to string of losses.

That is: it finally was driven home to these would be junta conspirators that being so obviously terrified of the voters was not merely a bad look, it was destructive.

The decision followed a very rapid rejection of Walker’s appeal, which sought a delay in enforcing a lower court’s order to call the elections that would last long enough for the WI legislature to pass their anti-election bill.  That court didn’t just say no:

“Representative government and the election of our representatives are never ‘unnecessary,’ never a ‘waste of taxpayer resources,’ and the calling of the special elections are … his ‘obligation,’” Presiding Judge Paul F. Reilly wrote.

Walker had one more appeal left, to the right-dominated WI Supreme Court, but chose not to pursue it.  IANAL, and IAN a Wisconsin politics maven, but here’s my guess: this was such an obvious matter on the law that Walker didn’t care to have his entrails handed to him a third time, especially given that the partisan lean of the court would highlight how out of bounds he and the state Republicans have been.

Anyway, a relatively small process win with, I think and hope, a bit more impact than that.  It’s easy to make the case that the GOP is only interested in democracy when it’s the North Korean version, no doubts at all about who wins.

That’s been true of the American right for a long time, no matter the party label of the day (3/5s of a person and all that).  But what seems to be changing now, maybe just a bit, perhaps even just enough, is that the idea that Republicans are scared of voters is starting to stick to the Grotesque Old Party.

Here’s hoping!

This thread, it opens.

Image: Constantin Hansen, A Group of Danish Artists in Rome, 1837.  I know it’s utterly unfair to lumber these 19th century hipsters with 21st century pipsqueak GOP shenanigans, but I couldn’t resist the image.

Once more dear friends

The BCRA is getting pulled but the healthcare fight is not over. Senate Majority Leader McConnell wants the Senate to vote on a Find and Replace version of the reconciliation bill that President Obama vetoed in 2016. That bill would repeal every funded element of the ACA on 12/31/19 and cut taxes effective immediately.

As a reminder this is the bill that the Congressional Budget Office (CBO) scored as leading to 32 million more people without insurance by the end of 2026 with 18 million not having insurance in the first year. Premiums on the individual market would increase by 50% over baseline by 2026.

Unless McConnell thinks that he can get his vulnerable in 2018 and 2020 members to fall in line with the barely veiled threat of a massive right wing primary challenge, I am having a hard time seeing the logic of bringing up this bill unless it is to show the House a body and move onto something else.

So you know what to do — call your Senator this morning.

Healthcare and KS-04

A loss can contain very useful information. Kansas-04 is such a loss.

There are half a dozen tactical decision making fights going on Twitter that I’ll avoid for a moment. What does this mean for healthcare?

Anything that has to get out of the House needs to have all of the House Freedom Caucus on board plus most of the Tuesday Morning group or all of the Tuesday Morning Group and a third of the House Freedom Caucus. The House Freedom Caucus policy demands are clear; revert the American healthcare system to 2009 as quickly as possible. The Tuesday Morning group’s demands are a bit more nebulous as they don’t want to be blamed for anything bad and they want large upper income tax cuts.

The AHCA went down because the House Freedom Caucus defected en masse and the Tuesday Morning Group was fleeing very quickly as it was obvious that the bill was going to inflict a lot of very obvious and blamable pain. Rep. Justin Amash (R-MI) thinks that there would have been at least fifty Republican votes against the bill.

Since then, the bill has become even more incoherent on a policy basis while moving in the direction of the House Freedom Caucus’s demands.

So what does this recent history lesson mean?

The AHCA, if it was to pass the House, needs the entire House Freedom Caucus and no more than twenty four total defections from the least conservative Republicans. The original danger zone for Republicans were the twenty three Republican reps who sit in seats where Hillary Clinton won. This matters. We can assume that Republicans who now sit in seats that Trump barely won are on edge. The margin of passage of the AHCA or anything that looks like it was always hyper narrow. It is even narrower.

And by the way:

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