The Freedom Speakeasy

JFK flashback

2012-02-07T19:50:00.002-05:00

Have you heard? Democrats of yesteryear would've never followed the dogma of today's ultra-liberal Democratic Party. Unemployment extensions as a central piece of economic stimulus? Nonsense! What we need is to get back to the more conservative days of the Kennedy era.

From this day in 1961:

JFK Asks $1.2 Billion Jobless Aid

Washington (AP) - President Kennedy asked for billion-dollar action on his anti-recession proposals yesterday. He sent Congress two bills, one to extend unemployment benefits, the other to help children whose fathers are out of work.

The two bills would provide more than $1.2 billion of assistance to the unemployed. A third bill, calling for a boost in the minimum wage, will reach Congress today.

The most expensive bill in the package was the one on unemployment benefits. It temporarily would continue or reinstate payments to those who have exhausted all their benefits and still have no job.

Kennedy estimated this bill would provide $950 million for three million workers.

His second bill would authorize temporary help to needy children who fathers are unemployed. An estimate of the cost: $305 million for the 15 months of its operation

"The need for prompt enactment of this legislation is clear," Kennedy said in a letter that accompanied the two bills. The letter was sent to Speaker Sam Rayburn, D-Tex., and Vice President Lyndon B. Johnson, who presides over the Senate.

The White House said the minimum wage bill would include a formula for raising the floor to $1.15 an hour immediately and to $1.25 within two years. The present minimum is $1 an hour.

Oh.

Mitt the Ripper

2012-01-15T14:19:00.004-05:00

The entity formerly known as Colbert SuperPAC, now helmed by Jon Stewart, comes up with a TV ad exposing Mitt Romney's dark secret.

The Colbert Report
Get More: Colbert Report Full Episodes,Political Humor & Satire Blog,Video Archive

Uncle Tom's Mathbook

2012-01-11T22:15:00.001-05:00

Wow.

The third-grade worksheet tried to mix math and social studies, and now some parents are saying a Georgia school made an error of historic proportions.

One question on the controversial elementary school test asked, “Each tree had 56 oranges. If eight slaves pick them equally, then how much would each slave pick?”

Another question was: “If Frederick got two beatings per day, how many beatings did he get in 1 week? 2 weeks?”

"Frontrunner" Mitt Romney ekes out 8-vote win in Iowa

2012-01-03T23:50:00.001-05:00

Republicans Voted to End Medicare

2011-12-22T20:20:00.003-05:00

This, according to Politifact, is 2011's "Lie of the Year." Which is unfortunate because it's true.

Indeed, Politifact's Lie of the Year article seems to acknowledge as much in describing the object of Democratic scorn, the GOP's FY2012 budget proposal (associated with House Budget chairman Paul Ryan):

Introduced by U.S. Rep. Paul Ryan of Wisconsin, the plan kept Medicare intact for people 55 or older, but dramatically changed the program for everyone else by privatizing it and providing government subsidies.

If the difference between the situation for those subject to the GOP's plan and those who are exempted from it (i.e. those 55 or older) is that Medicare is "kept intact" for the latter, the point has been conceded. The clear implication, of course, is that Medicare is not kept intact for those young enough to be subject to the GOP's plan. And indeed it isn't.

So, despite Politifact's self-congratulatory and sanctimonious follow-up to the outcry over their mystifying choice in which they blame the ideologues of the "Echo Chamber Nation" for not recognizing how their "independently researched information" has "disrupted the status quo," the essential facts remain:

	Medicare	GOP (Ryan) Budget
Public health insurer (CMS) exists	✓	x
Gov't reimburses doctors and hospitals for medical services rendered to seniors	✓	x
Guaranteed benefit	✓	x
Seniors must look for private commercial insurance plan	x	✓

Medicare is a public health insurance plan that pays seniors' doctor and hospital bills. The fact that it reimburses providers directly is part of its great power. It can thus tell hospitals that if they want to receive reimbursements from it, the hospitals must provide emergency stabilizing care regardless of citizenship or ability to pay. It can subsidize graduate medical education by folding extra money directly into its reimbursements. It can jumpstart a health information technology revolution by offering bonuses to participating doctors and hospitals who start using electronic health records. It can provide incentives for providers to offer higher-value care and begin changing the ways they deliver that care.

Those things are all gone under the GOP's budget, which instead pushes future seniors to look for Anthem or Aetna or some other private plan if they want coverage. Not right away--which is the only point Politifact even tries to offer in its own defense. Because the proposal grandfathers in existing beneficiaries and people within 10 years of becoming eligible for Medicare, the program doesn't end overnight. It dwindles over time as, starting in 2022, no one is allowed to enroll in it and those grandfathered into it die off or are squeezed out of it by a shrinking provider network and rising premiums.

Yes, it's phased out instead of abruptly eliminated. But last I checked, phasing something out is still ending it. And as Politifact implicitly conceded, under the GOP's proposal Medicare is no longer intact for future generations. So I'm afraid it's true. In April 2011, the Republicans voted to end Medicare.

Times is Hard

2011-12-15T08:33:00.002-05:00

Shocking and yet somehow utterly unsurprising.

'Dismal' prospects: 1 in 2 Americans are now poor or low income

WASHINGTON - Squeezed by rising living costs, a record number of Americans — nearly 1 in 2 — have fallen into poverty or are scraping by on earnings that classify them as low income.

The latest census data depict a middle class that's shrinking as unemployment stays high and the government's safety net frays. The new numbers follow years of stagnating wages for the middle class that have hurt millions of workers and families.

"Safety net programs such as food stamps and tax credits kept poverty from rising even higher in 2010, but for many low-income families with work-related and medical expenses, they are considered too 'rich' to qualify," said Sheldon Danziger, a University of Michigan public policy professor who specializes in poverty.

"The reality is that prospects for the poor and the near poor are dismal," he said. "If Congress and the states make further cuts, we can expect the number of poor and low-income families to rise for the next several years." [...]

About 97.3 million Americans fall into a low-income category, commonly defined as those earning between 100 and 199 percent of the poverty level, based on a new supplemental measure by the Census Bureau that is designed to provide a fuller picture of poverty. Together with the 49.1 million who fall below the poverty line and are counted as poor, they number 146.4 million, or 48 percent of the U.S. population. That's up by 4 million from 2009, the earliest numbers for the newly developed poverty measure.

I don't want to read too much into Obama's Osawatomie speech last week yet but it's a positive sign that maybe, just maybe, we'll see a strong Democrat on the campaign trail who isn't afraid to talk about frightening levels of inequality.

Now, this kind of inequality -- a level that we haven’t seen since the Great Depression -- hurts us all. When middle-class families can no longer afford to buy the goods and services that businesses are selling, when people are slipping out of the middle class, it drags down the entire economy from top to bottom. America was built on the idea of broad-based prosperity, of strong consumers all across the country. That’s why a CEO like Henry Ford made it his mission to pay his workers enough so that they could buy the cars he made. It’s also why a recent study showed that countries with less inequality tend to have stronger and steadier economic growth over the long run.

Inequality also distorts our democracy. It gives an outsized voice to the few who can afford high-priced lobbyists and unlimited campaign contributions, and it runs the risk of selling out our democracy to the highest bidder. (Applause.) It leaves everyone else rightly suspicious that the system in Washington is rigged against them, that our elected representatives aren’t looking out for the interests of most Americans.

But there’s an even more fundamental issue at stake. This kind of gaping inequality gives lie to the promise that’s at the very heart of America: that this is a place where you can make it if you try. We tell people -- we tell our kids -- that in this country, even if you’re born with nothing, work hard and you can get into the middle class. We tell them that your children will have a chance to do even better than you do. That’s why immigrants from around the world historically have flocked to our shores.

And yet, over the last few decades, the rungs on the ladder of opportunity have grown farther and farther apart, and the middle class has shrunk. You know, a few years after World War II, a child who was born into poverty had a slightly better than 50-50 chance of becoming middle class as an adult. By 1980, that chance had fallen to around 40 percent. And if the trend of rising inequality over the last few decades continues, it’s estimated that a child born today will only have a one-in-three chance of making it to the middle class -- 33 percent.

It’s heartbreaking enough that there are millions of working families in this country who are now forced to take their children to food banks for a decent meal. But the idea that those children might not have a chance to climb out of that situation and back into the middle class, no matter how hard they work? That’s inexcusable. It is wrong. (Applause.) It flies in the face of everything that we stand for. (Applause.)

Now, fortunately, that’s not a future that we have to accept, because there’s another view about how we build a strong middle class in this country -- a view that’s truer to our history, a vision that’s been embraced in the past by people of both parties for more than 200 years.

Late Night DS9

2011-12-04T02:32:00.003-05:00

I'm working my way through Deep Space Nine and I just got to my favorite episode of the first season, Duet. The series itself picks up shortly after the end of a four decade occupation of one world by another. Duet probes some of the backstory and very clearly establishes the parallel with the Holocaust. The former occupiers, the Cardassians, are transparent analogs of the Nazis, having brutally pushed their victims, the Bajorans, into forced labor camps and engaged in a genocidal campaign against them.

This particular episode is about the apparent capture of a Cardassian war criminal, the former commander of a ~~concentration~~ labor camp during the occupation. As the episode title suggests, the episode revolves around the interaction of one of the series' main characters (a Bajoran woman who fought in the resistance against the occupiers) and the Cardassian prisoner. A great episode and the performance from the "Butcher of Gallitep" is especially fantastic.

Well worth watching, particularly for the payoff at the end, if you haven't seen it before.

The 2014 Myth

2011-11-21T22:46:00.003-05:00

For some reason, smart people continue to repeat a misconception, and smart people continue to quote smart people repeating that misconception. The reason the health reform law's biggest pieces--the expansion of Medicaid and the launching of health insurance exchanges where people will be able to choose from a variety of private health insurance plans--don't go into effect until 2014, the misconception goes, is that a trick was played to make the numbers work out right. If only that trick hadn't been played, the law would already be fully in effect and in significantly less danger of being torpedoed after the next election.

The WashPo's usually great Sarak Kliff quotes the usually impressive Paul Starr:

Paul Starr makes a smart point in his recent Washington Post op-ed on the health reform law. The law’s unpopularity, he argues, has a lot to do with the fact that it had to be constrained to get a good score from the Congressional Budget Office:

Primarily to ensure that the Congressional Budget Office would “score” the legislation as reducing the deficit, Obama agreed to delay implementation of the major provisions of the law until January 2014, nearly four years after the bill passed. And contrary to his position during the 2008 campaign, the president also agreed to an individual mandate — again, partly to keep down the program’s cost — even though the mandate predictably became the law’s most unpopular provision and the focus of legal and political challenges.

These concessions have had opposite effects on the emotional commitments in the two parties. While opposition to the mandate has become a rallying point for Republicans, the long delay in implementing reforms has left many Democrats discouraged and uncertain about the law’s benefits. The four-year timetable also undercuts any possible political gain from the reforms; the president will have little to show by the 2012 election and little chance of clearing up the confusion and anxieties about the law.

The reality is that those big pieces of the reform law are tough. They're being built state-by-state and are subject to myriad local political hurdles, not least because the Republicans did especially well at the state level in the 2010 elections. But even putting aside the political constraints, the technical and policy feats needed to make this work are substantial. Even in those states that want to make this work and are moving full steam ahead to implement the law, the challenges are very real and the dangers of missing the 2014 deadline loom.

That's part of the reason the federal government is bending over backwards to be as collaborative and flexible as possible. For example, the law provides that states that don't set up their own health insurance exchanges get one set up and operated by the federal government. But through the rulemaking process, the folks at the Department of Health and Human Services are proposing a few more shades of gray--varying degrees of federal control to help states stand up their own exchanges by leaning on federal support for certain key features. States can then conceivably retain autonomy over their exchanges, yet not shoulder the technical and operational burdens of making an exchange work all by themselves.

The point here is that the suggestion that health reform could already be implemented under some scenario is simply wishful thinking. This is hard, uncharted territory: minus pieces of the Massachusetts experiment, no one has ever done anything like this. That's why it's going to work. But states were always going to need time to make it happen.

And guns. Lots of guns.

Conspiracy!

2011-11-18T20:16:00.003-05:00

As Stanek and Andrew are probably well aware of by now, I work in an office with some pretty hardcore Republicans - every day they listen to Glenn Beck and Rush Limbaugh on the radio, complain about the liberals and certain minorities in the city, etc. etc. Usually I just tune it out and concentrate on my work (I have a handy pair of headphones and an iPhone with a lot of Beatles music on it which has been instrumental in preventing migraines), and they have always been more than pleasant towards me personally so I can't really complain. But a few days ago they mentioned something to me that struck me as overwhelmingly ridiculous. According to them, the conservative radio shows that they listen to have been stressing that businesses are ready to hire again and are sitting on "piles of money", however they want to see how the next presidential election turns out because they're scared that President Obama might win again.

This helped put into words a suspicion I've always had about the Republican party. Maybe my theory is nothing new (Stanek can probably answer that better than I can and I find it hard to believe that nobody has connected the dots here), but considering that business owners and corporate executives are almost exclusively Republican, aren't they essentially holding the economy hostage to support their preferred political party? If what these conservative radio shows are arguing is true, and I don't know if it is or even that they actually said it (and I'm sure as hell not going to re-listen to their shows to find out), then the economy is supposedly getting better but business owners are holding it back because Obama is president. This creates a pretty interesting self-fulfilling prophecy among conservatives who think Democrats are bad for the economy. How can economic strength ever be used to gauge the effectiveness of a Democratic president when businesses are willing to cripple the economy until a Republican is elected? And I know what conservatives would say in response: "Democrats are innately bad for business so employers are just protecting themselves." But all that does is bypass the issue and fuel the self-fulfilling prophecy to carry on.

Again, I have no idea how true this is or if Rush or Glenn Beck even made this argument. However, it still makes me wonder about businesses manipulating the economy for political reasons in general. And as I said before I don't expect this to be all that revolutionary of an idea, but I am interested in what you guys think or know. At least it makes me more confident that President Obama is doing a better job than people seem to think.

P.S. - This is the 200th post at the Speakeasy! Grab a beer and celebrate.

The Path to Power, Perry-style

2011-11-16T21:02:00.009-05:00

Celebrated ideas man Rick Perry attempted to bounce back from his "oops" moment this week with the release of a bold--non-999--plan. From the man who brought you the optional flat tax comes the plan to "Uproot and Overhaul Washington." What caught my eye were his suggestions for "fundamental reform of the legislative branch." Specifically two items:

Part-Time Citizen Congress:

[...]

The U.S. does not need a full-time Congress that is more focused on increasing its perks instead of reducing spending. America needs a part-time, Citizen Congress – populated with those who choose to serve not for profit, or for the promise of a high-paying lobbyist job, but for the good of their communities, states, and the nation. Even with a 50 percent pay-cut, Congressional members would still make a significantly higher income than the average American.11 [...]

Slash Spending for Congressional Staff:
According to the Congressional Research Service, Congress employed more than 15,000 staffers as of 2009.13 In the Senate, the number of staff assigned to senators’ personal offices has more than doubled since 1977; the number of so-called “leadership staff” more than quadrupled over the same time period.14 As the number of staffers grows, so does congressional involvement in nearly every aspect of the American economy.

Why those two in particular? Because they strike me as being an enormous executive power grab.

I can't claim to be well-versed in Texas politics but the word on the street seems to be that Perry inherited a relatively weak office from his illustrious predecessor and found ways to strengthen it, centralizing power through heretofore untapped channels:

For most of history, Texas has been considered a “weak governor” state. That changed under Perry’s leadership. His lengthy tenure as governor has allowed him to appoint political allies in every single state agency, effectively establishing a Cabinet-style government and giving him vastly more power than any of his predecessors.

And now it seems the governor is setting his sights on accomplishing a similar feat in Washington, D.C.; disconcerting perhaps when you realize we already have a pretty strong federal executive. Aside from the obvious ramifications for executive power of slashing Congressional pay and sending Congress home, the gutting of their staffs is particularly significant. To see why, we need only look back at the overhaul of the modern bureaucratic state that occurred in the first half of the last century, particularly under FDR. With the balance of bureaucratic expertise (and raw numbers of staff) tipping heavily in the White House's favor, Congress found itself at a distinct disadvantage.

"Congressional procedure," Life magazine was to note in 1945, is largely "the same as it was in 1789." As for the Senate's basic committee and staff structure, that had been established in 1890. During the intervening decades, government had grown enormously--in 1946 the national budget was three hundred times the size it had been in 1890--but the staffs of the Senate committees had grown hardly at all. To oversee that budget, the Senate Appropriations Committee staff consisted of eight persons, exactly one more than had been on that staff decades earlier. Not only were they ridiculously small, the staffs of Senate committees had little of the technical expertise necessary to understand a government which had become infinitely more complicated and technical. The salaries of congressional staff members were so low that Capitol Hill could not attract men and women of the caliber that were flocking to the executive branch.

A study done in 1942 concluded that only four of the seventy-six congressional committees had "expert staffs prepared professionally even to cross-examine experts of the executive branch." As for senators' personal staff, as late as 1941, a senator would be entitled to hire only six employees, and only one at a salary--$3,000--which might attract someone with qualifications above those of a clerk. So little importance was attached to staff that many senators didn't hire even the six to which they were entitled, and an astonishingly high proportion of the approximately 500 employees on senators' personal staffs and the 144 on the staff of the Senate committees were senators' relatives. The Founding Fathers envisioned Congress as a check on the executive. Congress couldn't make even a pretense of analyzing the measures the executive submitted for its approval.

During the decades since 1890, when the Senate had authorized a staff of three persons for its Foreign Relations Committee, the United States had become a global power, with interests in a hundred foreign countries. In 1939, the staff of the Senate Foreign Relations Committee was still three: one full-time clerk who took dictation, typed and ran the stenotype machine, and two part-time clerks. As one observer put it, "There could be no adversary relationship between the two branches of government [in foreign relations] because most of the professional work had to be done in the Department of State." Anyone seeking an explanation of the Senate's willingness to allow the rise of the executive agreement, which freed it from the details of foreign policy, need look no further: the Senate simply had no staff adequate to handle the details of foreign policy. The adversary relationship--the relationship that had lain at the heart of the Framers' concept of the American government they thought they were creating--had become impossible in virtually all areas; even Senate Parliamentarian Floyd Riddick had to admit that "with occasional exceptions, Congress did little more than look into, slightly amend or block bills upon which it was called to act."

Unable to analyze legislation, Congress was equally unable to create it.

This was perhaps the most significant alteration in the power of the House and the Senate. The Framers of the Constitution had given Congress great power to make laws, vesting in it "all legislative powers," and during the early, simpler days of the Republic, Congress had jealously guarded that power; as late as 1908, the Senate had erupted in anger when the Secretary of the Interior presumed to send it a bill already drafted in final form. But by the 1930s, with government so much more complicated, bill-drafting had become a science. Knowledge of that science was in extremely short supply on Capitol Hill. There were plenty of legislative technicians with the necessary expertise at the great law firms in New York. There were plenty at the White House, and in the executive departments--the legislative section of the Agriculture Department alone had six hundred employees. In 1939, the Legislative Drafting Service that helped both houses of Congress consisted of eight employees. And of all the scores of major statutes passed during the New Deal, approximately two per year were created by Congress--because, as Tommy Corcoran explained, Congress simply lacked the "technical equipment to draft a big, modern statute."

--Master of the Senate, Robert Caro

Does Perry really want to revert to a time when the legislative branch was so emasculated it didn't have the expertise to even ask executive branch officials to explain themselves?

He seems so stupid but, if only by accident, there's something Johnsonian about him. Stupid like a fox!

P.S. If you haven't read any of Caro's multi-part series (including Master of the Senate) chronicling the rise of Lyndon Johnson, do it. Just do it.

(The Passage of Power is coming in May. I'm going to fucking hyperventilate.)

Pendulum Swings

2011-11-08T22:43:00.002-05:00

So far it seems to be a night in which overreaches on the part of overzealous newly-elected Republicans have been repudiated. Issue 2 in Ohio, the anti-union legislation, has gone down in flames. Same day voter registration here in Maine was restored by the people tonight, after the Republican legislature and Governor eliminated it. Even in ruby-red Mississippi a movement to define personhood as beginning at conception seems to have been handily defeated.

One more example to make the point. Way back in January I posted Dis-integration about the demise of Wake County North Carolina's successful effort to integrate schools along socio-economic lines. Flashback:

IN RALEIGH, N.C. The sprawling Wake County School District has long been a rarity. Some of its best, most diverse schools are in the poorest sections of this capital city. And its suburban schools, rather than being exclusive enclaves, include children whose parents cannot afford a house in the neighborhood.

But over the past year, a new majority-Republican school board backed by national tea party conservatives has set the district on a strikingly different course. Pledging to "say no to the social engineers!" it has abolished the policy behind one of the nation's most celebrated integration efforts.

Remember?

And tonight: Democrats complete sweep of Wake school seats

RALEIGH, N.C. (AP) — A Democratic-aligned candidate retained his seat on the Wake County school board Tuesday, completing a sweep of the seats up for grabs this year.

Incumbent Kevin Hill beat challenger Heather Losurdo by nearly 1,000 votes Tuesday. The result means Democrats will have a 5-4 majority on the board governing North Carolina's largest school district.

It could also mean a change in direction for the board that decided last year to scrap a decade-old busing plan aimed at making sure schools didn't become too heavily identified as either poor or rich.

So it looks like working people, women, kids, and everyone entitled to political franchise are the big winners tonight. Smile, Teej.

Back swings the pendulum. Here's hoping that it gains momentum over the next 12 months.

Shades of 1912

2011-10-08T19:09:00.004-04:00

Bully!

Something is happening in cities across the nation, emanating from New York City and stretching to the West Coast (and perhaps ultimately around the globe). This event--I don't know whether to refer to it as a movement yet--is being called Occupy Wall Street (OWS) and it seems to be tapping into the same amorphous anger at ill-defined evils that briefly stirred popular sympathy for the Tea Party. But where the Tea Party's rage was leveled at the government, and more specifically at taxes, the metonymy in OWS's moniker fingers their nemesis: the modern day speculators and robber barons, imaginary or not, who escaped culpability for the depth and length of our financial crisis-induced economic malaise.

And whereas the Tea Party was largely a conscious re-branding of partisan, socially conservative Republicanism (and, yes, to some degree a manifestation of nativism and racism inspired by the President's background), OWS at present appears to primarily consist of left-leaning folks who may or may not have any great affinity for the center-left mainstream political party that's beginning to jockey cautiously for their support.

Time will tell if these demonstrations become a full-fledged movement or if they fizzle out and are quickly forgotten. But I want to comment on the irony inherent in this movement coming, at least for the time being, to be viewed as a rival of the Tea Party. The Tea Party's actual agenda was betrayed by its partisan roots but the idea of it--always a fiction, but a good one--was that of spontaneous anger at institutions that have failed us.

It's a fool's errand to attempt to boil down a complex historical event to a single oversimplified causative factor, but I dare suggest that a common stream of sentiment ran through a number of key social and political events in American history, including the event from which the Tea Party allegedly drew inspiration: the Boston Tea Party. The stream I speak of--a small component, to be sure, of what became a mighty torrent; one of many ripples that built a current which swept down the mightiest walls of oppression and resistance, as RFK might say--manifested itself then as anger at the East India Company's monopoly on the tea trade.

I don't mean simply an anger at a profitable corporation, but a revulsion at the perversion of a collusion between government and an interest, a corporation--a telltale sign of a government that has lost its way. This is a theme that would return, most notably at the end of the Gilded Age and the dawn of the Progressive Era. Folks across the land tired of watching the wealthy and connected interests taking power that didn't belong to them to further themselves and their industries at the expense of the people. And in their weariness and their indignation and their desperation they did something spectacular.

Fueled by the simple notion that government was the mechanism by which they could reclaim the power that rightfully belonged to them, these people formed a movement that changed the country. They dethroned the party bosses and democratized the electoral process, they demanded that the wealthy pay their fair share, they protected the working man and the consumer. The muckrakers and the trust-busters, the municipal reformers and the suffragettes didn't shrink from government (or shrink government, for that matter), they used it for what progressives understood its purpose to be. It wasn't enough, as the Roaring Twenties and Black Tuesday would reveal, but it remained the most impressive string of victories in a struggle that has characterized American (and, perhaps, human) history until a paralyzed New York Governor rose on a Chicago stage, supporting himself by resting his hands firmly on his lectern, and pledged himself to a New Deal for the American people.

I don't know if the Occupy Wall Street phenomenon is bigger than just the bailouts, the bonuses, and the banks. I don't know if it's the manifestation of that creeping suspicion that our government--never inherently evil or adversarial, as the Tea Party seems to believe, but an institution for whose success eternal vigilance truly is the price--has once again slipped from our grasp and serves new masters. I don't know what OWS is and I suspect its participants don't quite know what it is yet. But the possibility that it's motivated by the same righteous discontent that inspired generations past to protest by destroying the private property of a powerful joint-stock company or to seize the levers of political power and take back their government is too exciting a prospect to let pass unnoticed. Will modern day progressives demonstrate that the term isn't just a response to wariness of the "liberal" label but instead truly invokes real turn-of-the-(last)-century Progressive roots?

Maybe it is time to get mad.

We Have a Conundrum

2011-09-13T23:37:00.003-04:00

I'm about to warp your mind.

Yesterday we had news of a bold step down in Arizona:

Arizona Gov. Jan Brewer announced Monday that she will defy RNC rules and schedule her state's 2012 primary for Feb. 28.

That means Arizona will vote a full week before March 6, when a joint RNC-DNC agreement said states can begin holding primary elections without facing penalties at the 2012 conventions. As it is, only Iowa, New Hampshire, Nevada and South Carolina can hold officially sanctioned contests before that date.

As we all, know when it comes to presidential primaries and caucuses, those four states to get to go first. And so their response was swift and decisive:

South Carolina Republicans are reacting swiftly to Arizona Gov. Jan Brewer’s decision to defy the Republican National Committee guidelines and move her state’s primary to the same date they’ve got for theirs, promising they won’t remain on the calendar together for long.

South Carolina Republican Party Chair Chad Connelly says if his state can’t be alone in picking a presidential nominee on Feb. 28, they’re going to change to do a date when they can — setting off a likely domino effect of early state timing changes.

“We’re not going to share our date with anybody,” the South Carolinian told POLITICO. “Especially, not with any state that violates the rules.”

If South Carolina moves back, New Hampshire and Iowa are likely to as well. Connelly predicted strict consequences for any states — Florida is also looking at moving up its primary, as are others — which push the beginning of the official voting season back into early January.

And if you're wondering how the early states have cemented their vanguard status, it isn't just party rules. Some of them actually have state laws in place:

Traditionally New Hampshire and Iowa have coordinated to protect their early-voting status — with the support of the national parties, and presidential candidates eager for their votes — but with each presidential-election cycle, the pressure has grown from other states coveting candidates’ attention to them and their issues. By law, Iowa’s party caucuses must be eight days before New Hampshire’s primaries, and New Hampshire, by law, requires its primaries to be a week before any state’s similar contest.

The way out of this endless flirtation with one-upmanship is clear. Competing states must pass laws declaring that their primaries must be before New Hampshire's, creating a paradox, the result of which should cause a chain reaction that would unravel the very fabric of the space-time continuum and destroy the entire universe.

Mmm Mmm, Bitch!

2011-09-12T22:52:00.005-04:00

Some feisty audience members at tonight's Tea Party Express Republican Presidential Debate, particularly on the question of whether the uninsured should be left to...die.

Switching next to the true Tea Party candidate (i.e. the guy in the tri-corner hat), he was a bit more direct in his response than was Ron Paul:

Democratic Nostalgia: Truman Edition

2011-08-31T23:42:00.002-04:00

If you stay at home, as you did in 2010, and keep these reactionaries in power, you'll deserve every blow you get!

Remember--Tuesday is Soylent Green Day

2011-08-20T10:20:00.007-04:00

Governor Santini is brought to you today by Soylent Red, and Soylent Yellow. And, new, delicious, Soylent Green: The "miracle food" of high energy plankton, gathered from the oceans of the world. Due to its enormous popularity, Soylent Green is in short supply, so remember—Tuesday is Soylent Green day.

I hate to make two Soylent Green references in a row but this time it's really apropos. If you're not familiar with the sci-fi classic (and, really, by now you should be--rent it from the library, Netflix it, whatever), it offers a dystopic vision of the year 2022--an overpopulated, environmentally devastated planet in which food is scarce (leading to desperate measures!). Far-fetched stuff.

How's the food picture looking in the real world in 2011? Not good, it turns out. You can check out the World Bank's Food Price Watch for the details, though suffice to say that food prices have been on the rise.

The consequences of rising food prices are more than just empty bellies and barren tabletops, they manifest themselves on national scales as unease turns to unrest turns to upheaval. As this handy map from Wiki's page on the Arab Spring reminds us, the past nine months have seen tremendous political upheaval, particularly in the Middle East:

This coincides with the latest sharp rise in food prices on that chart. In late January of this year, the Tehran Times reported in "Arab dictatorships inundated by food price protests" that

Soaring food prices have forced people in many Arab states to allocate a larger portion of their income to the basic necessities of life pushing them deeper into poverty and sparking protests.

Widespread rallies last week in Algeria and Jordan demonstrated the public discontent about the economic situation that could have political repercussions. In the case of Tunisia, a 23-year-old dictatorship was overthrown. [...]

Food prices helped spark riots in Algeria earlier this month, forcing the government to cut import duties and taxes on sugar and cooking oil. Jordan cut fuel taxes and imposed price caps on sugar and rice to preempt unrest. Russia banned wheat exports last year after a poor harvest.

Prices for rice, world's most important and politically sensitive grain, have risen in the past six months, but remain well below 2008 highs.

A similar food price crisis in 2008 led to protests and riots in more than 30 countries.

Which brings me to an amazing article published in Foreign Policy earlier this year: "The New Geopolitics of Food."

It's absolutely worth reading the article in full but a few key points jumped out at me:

1. The prognosis is grim.

"Historically, price spikes tended to be almost exclusively driven by unusual weather -- a monsoon failure in India, a drought in the former Soviet Union, a heat wave in the U.S. Midwest. Such events were always disruptive, but thankfully infrequent. Unfortunately, today's price hikes are driven by trends that are both elevating demand and making it more difficult to increase production: among them, a rapidly expanding population, crop-withering temperature increases, and irrigation wells running dry."

2. Failures of our energy and transit policy are exacerbating the problem.

"At the same time, the United States, which once was able to act as a global buffer of sorts against poor harvests elsewhere, is now converting massive quantities of grain into fuel for cars, even as world grain consumption, which is already up to roughly 2.2 billion metric tons per year, is growing at an accelerating rate. A decade ago, the growth in consumption was 20 million tons per year. More recently it has risen by 40 million tons every year. But the rate at which the United States is converting grain into ethanol has grown even faster. In 2010, the United States harvested nearly 400 million tons of grain, of which 126 million tons went to ethanol fuel distilleries (up from 16 million tons in 2000). This massive capacity to convert grain into fuel means that the price of grain is now tied to the price of oil. So if oil goes to $150 per barrel or more, the price of grain will follow it upward as it becomes ever more profitable to convert grain into oil substitutes."

3. Fertile land is the new gold.

"Fearing they might not be able to buy needed grain from the market, some of the more affluent countries, led by Saudi Arabia, South Korea, and China, took the unusual step in 2008 of buying or leasing land in other countries on which to grow grain for themselves. Most of these land acquisitions are in Africa, where some governments lease cropland for less than $1 per acre per year. Among the principal destinations were Ethiopia and Sudan, countries where millions of people are being sustained with food from the U.N. World Food Program. That the governments of these two countries are willing to sell land to foreign interests when their own people are hungry is a sad commentary on their leadership."

4. The scenes in Soylent Green, particularly the riots around the food trucks, don't seem so far-fetched.

"Not only are these deals risky, but foreign investors producing food in a country full of hungry people face another political question of how to get the grain out. Will villagers permit trucks laden with grain headed for port cities to proceed when they themselves may be on the verge of starvation? The potential for political instability in countries where villagers have lost their land and their livelihoods is high. Conflicts could easily develop between investor and host countries."

At least, as a newly minted New Englander, I can take comfort in knowing we still have the vast bounty of the sea to sustain us.

World's oceans could be completely depleted of fish in 40 years: UN report
Tuesday, May 18, 2010

The world's oceans may be completely depleted of fish in 40 years if action is not taken to replenish stocks, the United Nations is warning in a new report.

In a preview of its upcoming report entitled the Green Economy, the United Nations Environment Programme states that "mismanagement, lack of enforcement and subsidies totaling over $27 billion annually have left close to 30 percent of fish stocks "collapsed."

"If the various estimates we have received ... come true, then we are in the situation where 40 years down the line we, effectively, are out of fish," Pavan Sukhdev, head of UNEP's Green Economy plan, told Agence France Presse on Monday.

Well, fuck.

Recently, arXiv Blog reported on a paper posted to the "Physics and Society" section of the arXiv e-print server (basically a free online physics journal) in "The Cause Of Riots And The Price of Food." A trio of complexity theorists examined the evidence and came to the--fairly self-evident--conclusion that "when the food price index rises above a certain threshold, the result is trouble around the world." But what's more interesting is that they gave a rough timeframe for when things might really start to get ugly.

But what's interesting about this analysis is that Lagi and co say that high food prices don't necessarily trigger riots themselves, they simply create the conditions in which social unrest can flourish. "These observations are consistent with a hypothesis that high global food prices are a precipitating condition for social unrest," say Lagi and co.

In other words, high food prices lead to a kind of tipping point when almost anything can trigger a riot, like a lighted match in a dry forest.

On 13 December last year, the group wrote to the US government pointing out that global food prices were about to cross the threshold they had identified. Four days later, Mohamed Bouazizi set himself on fire in Tunisia in protest at government policies, an event that triggered a wave of social unrest that continues to spread throughout the middle east today. [...]

Today, the food price index remains above the threshold but the long term trend is still below. But it is rising. Lagi and co say that if the trend continues, the index is likely to cross the threshold in August 2013.

If their model has the predictive power they suggest, when that happens, the world will become a tinderbox waiting for a match.

So, if that analysis is correct, perhaps we have two years before the shit really hits the fan.

Corporate Green poster

2011-08-11T20:09:00.007-04:00

Update: Paul Krugman shares my sense of humor (a day late): Soylent Green Is Corporations

Mitt Romney took a bit of heckling today on the campaign trail, leading to a memorable line:

DES MOINES, Iowa — Mitt Romney, who likes to promote his years in the private sector when out on the stump, offered a glimpse into his own business perspective at the Iowa State Fair on Thursday, telling a group of hecklers, “Corporations are people, my friend.” [...]

“We have to make sure that the promises we make in Social Security, Medicare and Medicaid are promises we can keep, and there are various ways of doing that,” Mr. Romney said. “One is we can raise taxes on people.”

“Corporations!” the protesters shouted, suggesting that Mr. Romney, as president, should raise taxes on large businesses. “Corporations!”

“Corporations are people, my friend,” Mr. Romney responded, as the hecklers shouted back, “No they’re not!”

Move over, Soylent Green, and eat your heart out, Heston.

Evening Poster

2011-06-21T21:20:00.004-04:00

In honor of the abuse Obama has taken over saying this:

The president said that “the other thing that happened, though, and this goes to the point you were just making, is there are some structural issues with our economy where a lot of businesses have learned to become much more efficient with a lot fewer workers. You see it when you go to a bank and you use an ATM; you don't go to a bank teller. Or you go to the airport, and you're using a kiosk instead of checking in at the gate. So all these things have created changes in the economy, and what we have to do now -- and that's what this job council is all about -- is identifying where the jobs for the future are going to be; how do we make sure that there's a match between what people are getting trained for and the jobs that exist; how do we make sure that capital is flowing into those places with the greatest opportunity. We are on the right track. The key is figuring out how do we accelerate it.” [...]

That same New York Times story quoted various economists discussing automated machines displacing workers. William C. Dunkelberg, chief economist at the National Federation of Independent Business, for instance, said "We don't have 11 million unemployed farmers today because over time farmers and their children transitioned into different sectors. We don't usually have this kind of shock, though, that displaces a lot of workers at once."

But conservatives are trying to use the president seizing on the example of an ATM machine – hardly new technology -- is to paint the president as unaware of how the economy works.

A poster the Neo-Luddites can appreciate.

My Bad

2011-06-20T11:32:00.003-04:00

My apologies to the Cleveland Indians for the jinx. If it's any consolation, the Colorado Rockies are in town and since they are my other favorite team that means the Indians should have about a 50-50 chance of snapping right out of this cool streak.

Evening Poster

2011-05-26T23:45:00.006-04:00

I used to make "motivational" posters to amuse myself when I was bored. Might as well start again and post one on occasion.

Indians cooling off?

2011-05-26T18:57:00.001-04:00

Nice going, TJ...

Since the Indians might be going (temporarily) cold, you guys want some ice puns?

The Indians are Still Good

2011-05-22T19:48:00.003-04:00

Stanek wasn't kidding: the Indians have indeed been good so far this season. (I have a habit of causing sports teams to hit slumps by being confident they are better than so and so and will win, so I am attempting to keep this post in the past tense and will refrain from making predictions). Today they just finished a 3-game sweep of the Cincinnati Reds, not too shabby of a feat by itself. And in that series we saw a little bit of everything. Tomlin won a pitching duel yesterday against Homer Bailey, dealing him his first loss of the season; today they jumped on Volquez's shaky outing and didn't quit when the relievers came in, soundly beating the Reds to make up for Carrasco's below average start; and they didn't give up Friday with their comeback victory despite being down four runs into the sixth inning.

The series against the Reds typified Cleveland's season as a whole: they have found ways to win the game. On days where their offense wasn't stellar their pitching stepped up, and vice versa. Pitchers like Tomlin and Masterson have really found a groove and have had surprise years so far, and Carrasco and Carmona are keeping us in games (with a few exceptions). The lineup is producing when they need to, which has been occurring pretty much across the board - made all the more more important with Choo's struggles early on and the DL issues we've had with Grady Sizemore and now Travis Hafner. There have been a lot of pleasant surprises (especially with the lineup), and even more importantly it seems to me like they are working as a team, finding ways to win even if their go-to guy isn't doing it that night.

They've had their share of good luck and weak opponents, but we were supposed to be one of those weak teams too. Our age is another reason for optimism - we have a lot of young players who are learning early on that even in the majors the game isn't over until the final out. How will the season end up? Well it's a hell of a long road to October, and I refuse to predict how the next months will go and end up ruining another team's chances of winning (I'm only sort of kidding). But the past two months have been fun regardless of the end result.

The Indians are Good

2011-05-01T20:56:00.004-04:00

Though there's only been a month of baseball, we here at TFS shouldn't let it pass unnoticed that the Indians just had the best April they've ever had. And they're riding high at the top of the standings. Enjoy it while it lasts.

Ranking Trek Movies

2011-04-23T15:42:00.005-04:00

Hat tip to TJ for giving me the spark I needed to do something I’ve wanted to do for a while: post my rankings of all ten Star Trek movies (the eleventh is a reboot—it doesn’t count). To give the appearance of some kind of scientific basis to these rankings, I’ve tabulated scores for key things that matter to me when watching Star Trek movies: the interaction between the characters I know and love, as well as with any new ones introduced in the movie; the themes or message I take away from the film; the strength of the plot; the quality of the villain; the impressiveness of those uniquely sci-fi aspects of the movie (this is Star Trek, after all); and a final catch-all category, “enjoyability,” which is essentially my way of quantifying how much I want to watch this movie.

As is customary with these kinds of lists, we'll start with the worst and work our way up to the best. Also, for the uninitiated, the number in parentheses after each movie title is the order of the film in the franchise.

#10: The Motion Picture (I)

Characters: 3
Themes: 1
Plot: 3
Villain: 1
Sci-Fi-Ness: 8
Enjoyability Factor: 2
Total: 18

Star Trek: TMP is a hideous movie. The costumes are ugly, the sets are boring, the color scheme is almost sickening. The plot itself is extremely slow-paced and while there's an interesting bit of sci-fi at the center of it all, by the time you find out what it is you barely even care anymore.

Fundamentally, The Motion Picture is about getting the band back together, a decade after they drifted apart. In that goal it was successful, so we owe it that little debt of gratitude. And it gave us our first glimpse of modern Klingons and introduced the music that eventually became the opening theme of a new series, Star Trek: The Next Generation, eight years later. But ultimately I find it difficult to sit through the whole movie so it's got to come in dead last.

#9: Generations (VII)
Characters: 4
Themes: 6
Plot: 5
Villain: 3
Sci-Fi-Ness: 5
Enjoyability Factor: 4
Total: 27

I'm not sure what to say about this one. As with the previous generation, the transition of the TNG crew to the big screen was a bit rocky. The film loses major points for taking one of my favorite characters and making him obnoxious for the entire movie. More seriously, the send-off they gave to one of the greatest and most significant characters in Trek history was absolutely disgraceful. It had no emotional import, no meaning, and felt utterly disconnected from what came before. Compare with the relevant send-off of a beloved character in TWOK to see how to bid farewell (if only temporarily) to a great character with love and respect.

On top of that, the villains were weak and the sci-fi MacGuffin at the heart of it all is nonsensical. Really, the Nexus/energy ribbon concept was just confusing and seems to be based around ignoring that motion is relative (i.e. in reality, there is no difference between you going to something and something coming to you).

#8: Insurrection (IX)
Characters: 7
Themes: 3
Plot: 3
Villain: 3
Sci-Fi-Ness: 7
Enjoyability Factor: 8
Total: 31

Insurrection might be the single biggest instance of squandered potential of any Trek movie. It’s set during one of the most momentous periods in Trek history, as Deep Space Nine fans know: the Dominion War, a massive conflict in which no less than the fate of the entire Alpha Quadrant (!) hung in the balance. And yet, aside from passing reference to the ongoing war, the film’s plot had nothing to do with it, instead centering on some relatively small potatoes. It’s as if you were watching a movie set aboard the USS Iowa at the height of World War II and there was nary a mention of the global conflict consuming the planet. Presumably, following the darkness of the preceding film (First Contact), the producers were anxious to get back to some lighter Trek but, man, what a waste.

That said, the movie did have some promise: a mysterious opener and hints of intrigue but ultimately its plot felt irrelevant and the sci-fi concept at its core was a bit of a yawner. There was some nice advancement of the character’s relationships and Insurrection is arguably the most visually pleasing of any of the Trek movies because of the stunning locations in which it is set. This one’s not a bad way to spend a rainy afternoon but it’s not among the best Trek has to offer.

#7: Nemesis (X)
Characters: 6
Themes: 8
Plot: 5
Villain: 4
Sci-Fi-Ness: 7
Enjoyability Factor: 5
Total: 35

There’s a lot to like in Nemesis. I enjoy its (admittedly underdeveloped) exploration of the nature of identity and what makes us who we are, and it was the first Trek movie to take us to Romulus and plunge us into Romulan politics, though in a way that strains credibility a bit. It has a very sci-fi-y premise and a pretty intense space battle—the bread and butter of a fine Trek movie—and a huge tip of the hat to what I’ve judged below to be the best film in the franchise.

Despite the positives, something about this movie feels a bit lacking. It almost seemed to me that perhaps it was cobbled together too fast and thus the opportunity to really refine it into something fantastic and meaningful was lost. And that’s a shame, considering this is the last we’ll ever see of the adventures of the cast of Star Trek: The Next Generation.

#6: Search for Spock (III)
Characters: 7
Themes: 10
Plot: 4
Villain: 6
Sci-Fi-Ness: 4
Enjoyability Factor: 5
Total: 36

The movie suffers significantly from the absence of the titular character. It also distinctly has the feel of what it is: the middle movie of a trilogy, albeit one with a significant loose end to tie up (as the name suggests). The movie isn’t big on the sci-fi factor, though it relies heavily on quasi-religious Vulcan mysticism to drive the plot. Also, I absolutely hate when a character who appeared in a previous film gets recast and is played by a new actress. That’s my single biggest gripe with this movie: if they couldn’t get Kirstie Alley back, they should’ve just written out the Saavik character.

But a movie about risking everything to save a friend can’t be all bad and certainly this one isn’t. All the Trek that came after this movie owes a debt to Christopher Lloyd’s (yes, Doc Brown) portrayal of the Klingon villain this movie. Sure, the character had sort of a villain-of-the-week feel but Lloyd played him brilliantly and in doing set up the template for all later incarnations of Klingons.

#5: The Undiscovered Country (VI)
Characters: 8
Themes: 9
Plot: 7
Sci-Fi-Ness: 3
Villain: 3
Enjoyability Factor: 7
Total: 37

From the very beginning, Star Trek had political overtones built into it. The Klingons in the original series are understood to have been a stand-in for the Soviet Union, while the virtuous Federation corresponded to the United States. But by 1987, when the Star Trek: The Next Generation (set about a century after The Original Series) premiered, peace had been made between the Federation and the Klingon empire. So in 1991, when the real-life Cold War had ended and the cast of The Original Series was looking for its last hurrah on the silver screen, it was only natural to tell the story of how peace was made between the Federation and its long-time adversary.

The result was an enjoyable tale, rife with political assassinations and kangaroo courts, daring escapes and enduring friendships, and the challenges of letting go of old hatreds and confronting old demons. This movie also marks the first time that Spock seemed entirely back to his old self since The Wrath of Khan. Aside from a pretty cheesy main villain and a general lack of significant sci-fi attributes (which, in a film like this, probably shouldn’t even be considered a weakness), this was a pretty good flick. And it’s the first in my list to make into the top half of Trek films.

#4: The Final Frontier (V)
Characters: 9
Themes: 10
Plot: 6
Sci-Fi-Ness: 6
Villain: 1
Enjoyability Factor: 7
Total: 39

This movie generally ranks lower in most people’s lists of the Best of Trek, in keeping with the well-known Curse of the Odds (as you can see, it’s the only odd-numbered Trek movie to make it into the top half of my list). But despite its flaws—of which there are many—I like this film a great deal. Despite Spock still being a little off, this is probably the movie with the original cast that comes closest to capturing the amazing Kirk-Spock-McCoy dynamic that made the TV series as fun as it was. Some fans find the interaction hammy and perhaps even cringe-worthy at times, but I enjoy it.

But more importantly, it showed us something you almost never see in Trek: hints that even in the utopian future of Trek dominated by technological magic and a whole lot of bold going to distant reaches of the galaxy, a certain existential emptiness lingers even among the mighty Starfleet. Religious sentiments in Trek are generally reserved for ancillary races; they’re often portrayed as curious inclinations of outsider (i.e. nonhuman) races. Interesting, but eccentricities that seem to have largely been abandoned by humanity. The Final Frontier is, in large part, about the search for God—and, indeed, it raises the question of what we even mean by “God.” It’s about pain and the human experience and the search for something beyond ourselves.

Despite that, it’s not an overtly religious film. No answers are suggested, it merely shows that even in Trek, human beings are still compelled to ask the questions that, presumably, will forever consume us no matter how advanced science and society become. So in spite of the movie’s many deficiencies (which I won’t go into here—just watch it, they’re not hard to notice), it has a special place on my list for boldly daring to go where Trek rarely does.

#3: The Voyage Home (IV)
Characters: 10
Themes: 9
Plot: 9
Sci-Fi-Ness: 8
Villain: 3
Enjoyability Factor: 10
Total: 49

This one is just fun. It concludes the trilogy begun by Wrath of Khan and it does it with a classic sci-fi device (time travel! To 1986!), an important objective (to save the Earth itself!) that can only be achieved with a somewhat unlikely acquisition (…whales?), and lots of fun with the setting. There’s really not much more to say about this one, other than “go watch it.”

#2: First Contact (VIII)
Characters: 9
Themes: 7
Plot: 9
Sci-Fi-Ness: 10
Villain: 6
Enjoyability Factor: 9
Total: 50

First Contact is hands-down the best of the TNG crew’s movie adventures. It helps that they tip their hat to The Original Series (the character of Zefram Cochrane first appeared in an episode of TOS), while putting their own spin on it. And how about that interplay between the plot and the sci-fi aspects? Time traveling back to a momentous event in sci-fi history—the invention of warp drive by humanity!—to save the planet from assimilation by the Borg? And how about the interaction of those elements with the characters, particularly Data’s quest to become more human and Picard’s demons left over from his own (brief) assimilation by the Borg during the TV run of Star Trek: The Next Generation?

This is a fast-paced, fun movie. The stakes are high, the sci-fi is good, the characters are at their best. Awesome flick.

#1: The Wrath of Khan (II)
Characters: 10
Themes: 8
Plot: 9
Sci-Fi-Ness: 9
Villain: 10
Enjoyability Factor: 10
Total: 56

The Star Trek film against which all others must be measured (and, almost certainly, none will ever surpass). TWOK set in motion the great trilogy in the Star Trek movie franchise (Star Trek II-IV), a story arc that took us beyond death and across time.

TWOK had it all: a compelling, entertainingly over-the-top villain played to perfection by Ricardo Montalban, and one Trek fans were already familiar with (Khan didn't emerge out of the blue, after all, the character first appeared in a 1966 episode of Star Trek, setting up the film's revenge angle); a major, yet believable, revelation about a major character's history; some terrific sci-fi elements, with villains who are explicitly genetically-enhanced products of the Eugenics Wars and a plot revolving around the awe-inspiring Genesis Device, part doomsday device and part Godlike creator of life; themes of life and death, youth and age, and the needs of the many vs the needs of the one that are always worth exploring; a great score; and an extremely poignant ending.

It’s not as flashy, visually, as First Contact but the meaning and emotional import with which they were able to imbue every frame of the film using elements perfected during the TV run (e.g. Kirk’s swashbuckling ways and Spock’s flawless logic colliding in the final “Kobayashi Maru” in the final minutes of the film) and the elephants in the room (e.g. the aging of the cast between the end of the TV run and the start of the films) more than make up for it. This movie is solid gold.

But don't take my word for it on these rankings. By all means, watch some Trek. And let me know where you think I've gotten it wrong.

The Art of Compromise

2011-04-06T21:22:00.002-04:00

February 3, 2011:

WASHINGTON — After clamoring loudly about their plans to curtail federal spending, House Republicans announced Thursday that they would cut $32 billion for the remainder of the fiscal year — a minuscule amount compared with a projected annual deficit of nearly $1.5 trillion.

The Republican proposal is effectively $58 billion less than the domestic and foreign aid programs in President Obama’s budget request for 2011 — far short of the $100 billion in cuts that Representative John A. Boehner promised before the November elections that catapulted Republicans into the House majority and made him the speaker.

March 30, 2011:

The potential difficulty of their job became clear after Vice President Joseph R. Biden Jr., following an evening meeting with Senate Democrats, said negotiators had effectively settled on $33 billion in reductions from current spending, a substantial difference from the $61 billion endorsed by the House in February.

April 1, 2011:

Democrats and Republicans are running in two different directions when it comes to the $33 billion figure that forms the basis for the ongoing negotiations on Capitol Hill about how much to trim from the federal budget this fiscal year.

“As I said yesterday, there is no number, there is no agreement on a number,” House Speaker John Boehner, R-Ohio, told reporters on Friday. “We’re going to fight for the largest spending cuts that we can get. And I’m hopeful that we’ll get it as soon as possible.”

But on Wednesday no less an authority than Vice President Joe Biden, who has been involved in the negotiations, said that two sides had agreed to that figure.

Money, Meet Mouth

2011-03-25T18:14:00.002-04:00

Earlier this month, I mentioned that while states have the power to enact certain proposals--like allowing out-of-state health insurance policies to be sold in their markets--none were yet putting their money where their mouth is. Well, one state edged its way a little closer to that possibility this week (though it's still a long away away from actually allowing this):

With supporters arguing it would make coverage more affordable, lawmakers began considering a bill Wednesday that would open Florida to stripped-down health insurance policies from other states.

The bill, which was approved by a House subcommittee, could undergo major changes in the coming weeks. But at a minimum, the proposal refueled a long-running debate about whether coverage requirements --- known as "mandates" --- drive up the cost of insurance in Florida.

State Symbols

2011-03-18T20:15:00.004-04:00

Utah recently designated the nation's first official state firearm , choosing the Browning M1911 pistol. I say Ohio shows everyone who's got the bigger balls (figuratively and literally) and makes their state firearm "the Dictator" from the American Civil War.

I don't know if the Dictator could technically be classified as a "firearm", but then again choosing a state firearm is ridiculous anyway so who cares.

Why Conservatives Hate Trains

2011-03-04T23:15:00.002-05:00

A recent piece by conservative columnist George Will—which is earnestly subtitled “Why Liberals Love Trains”—offers this delightful bit of analysis:

Forever seeking Archimedean levers for prying the world in directions they prefer, progressives say they embrace high-speed rail for many reasons—to improve the climate, increase competitiveness, enhance national security, reduce congestion, and rationalize land use. The length of the list of reasons, and the flimsiness of each, points to this conclusion: the real reason for progressives’ passion for trains is their goal of diminishing Americans’ individualism in order to make them more amenable to collectivism.

To progressives, the best thing about railroads is that people riding them are not in automobiles, which are subversive of the deference on which progressivism depends. Automobiles go hither and yon, wherever and whenever the driver desires, without timetables. Automobiles encourage people to think they—unsupervised, untutored, and unscripted—are masters of their fates. The automobile encourages people in delusions of adequacy, which make them resistant to government by experts who know what choices people should make.

Though obnoxiously written, Will’s article gets at the great philosophical schism of our time, of the modern era, perhaps in all of human history: man vs. ~~wild~~ society, individual vs. the collective, E Pluribus Unum.

A slightly more useful tool than trains for thinking about that difference, I think, is from this summary of a report, “Thoughts and Feeling About Health Differences Across Populations in the United States,” which appears as Appendix A in this document. Through interviews with Congressional staffers and health policy folks affiliated with one party or the other, the authors attempted to identify the prevalent frames that shaped the thinking of partisans on the social determinants of health.

The conclusion was that Democrats understand health and the social factors influencing it in terms of a system:

Broadly, the system-deep metaphor refers to the unification and organization of separate entities into a whole. The unity of a system means that the parts are interdependent; these connected parts often operate in a predictable and recurrent pattern with certain results.

For Democrats in particular, the system frame operates on two levels. First, American society as a whole is a complex system that unifies all citizens. As such, all individuals, from the poorest person in the Bronx to the wealthiest person in Manhattan, are interdependent, even if this is not readily apparent. [...]

The second level on which the deep metaphor system operates is that Democrats view poor levels of health as emerging from a complex and interrelated system of social, cultural, economic, and biological factors.

Republicans, on the other hand, conceptualize these factors in terms of a journey:

Where system forms the fundamental lens through which Democrats view society and health, the deep metaphor journey is the predominant frame through which Republicans view American society and health issues. Broadly, journey often frames our discussion of life itself. Journeys can be fraught with challenge or can be smooth sailing; they can be direct or divergent. Some journeys are unpredictable, where others focus on a series of steps that, if followed, will take you to a predetermined place or goal.

The type of journey that a group describes can yield much insight into how they view a given topic. For Republicans, American society as a whole is on a long, unpredictable health journey through time. They use metaphors of winding paths and stress the importance of adaptability in the face of an unknown future direction. [...]

Much as they see America and health care as a whole on a journey through time, Republicans see individuals as on their own health journeys. Echoing the common theme of “individual responsibility,” Republicans view poor health as arising from bad choices along one’s path and the inability to overcome obstacles to health that one encounters along the way.

I can certainly understand that; I'm partial to path metaphors myself. But extrapolating this out a bit beyond health issues, it's an apt way to think about the philosophical gulf between the left and right.

The right sneers that the liberals are "collectivists" because the left tends to think systemically and conceptualizes the individual as being embedded in a broader structure, a structure that inexorably binds the fates of all those who share it. Liberal thought thus often focuses on how to improve various systems. The world is a project, one in which mandatory busing is a plausible mechanism for overcoming centuries of pervasive racism and segregation; publicly-supported low-income nutrition and early education programs coupled with a strong public school system and diversified, subsidized post-secondary education is key to building the well-functioning workforce of tomorrow; and one in which a comprehensive law with multi-faceted moving parts working in concert is a conceivable avenue toward higher quality, lower cost health care.

The left, on the other hand, marvels at the right's uncompromising understanding of liberty and individualism. To the right, "society" as an emergent structure with a meaning and existence independent of the myriad interactions between individuals is a fiction--or at least an unsubstantiated myth. Thus the supremacy of markets is beyond doubt, as they are the embodiment of the journey concept. They revolve around individuals acting in accordance with personal preferences; even the hint of some sort of centralized component, such as the fact that federal legislation is compelling the creation of new health insurance markets as we speak, will raise suspicion among the right.

Crude caricatures through these may be, we can see them playing out even now. The liberal's systems-eye view of power differentials between workers and corporations or, yes, even governments lends itself to an affinity for organization: collective bargaining provides the counterweight in the system that's needed to ensure fair remuneration for labor. The conservative's journey frame reassures him that the determination or negotiation of wages and benefits is a part of the personal journey, to be based on the individual's merits. The phrase "collective bargaining" is enough to give him chills.

And so I find that, despite my initial revulsion at Will's column, it has a certain element of truth to it. Trains are invariably part of a system; something's got to keep them running on time. Cars, on the other hand, are closer to the conservative's individualistic journey metaphor. Of course, I don't think liberals inherently dislike cars. But notice that the pretexts for high-speed rail that Will dismisses as flimsy--combating climate change, bolstering national security, reducing congestion, and rationalizing land use--all imply pursuing rail as part of a collective solution to a collective problem. Each of those issues is a problem to be addressed by tinkering with systems, not by us taking it on individual-by-individual, one at a time, like villains in a Jackie Chan movie. But more narrowly, transit itself is an issue of systems: we're talking about the connections that network our cities, the fabric that binds out society. Roads are part of that same system, of course, but alone in his car and choosing his favorite radio station, the conservative can forget that his journey is only possible because it's embedded in a broader structure (dare I say system yet again?) of crisscrossing, well-defined roads. But no one would accuse cars of being part of a coherent system for collectively achieving a goal.

States' Rights

2011-03-04T19:28:00.000-05:00

The 2010 election was a tidal wave that swept the Republican Party into power. I'm not talking about at the federal level (though the U.S. House elections could be described similarly), I'm talking about state-level elections. Take a look at where things stand at the state level now, in the wake of the 2010 elections:

Governors

State legislatures

And to condense that information into a single map I've put together myself (instead of stealing it from NCSL) with some shading to indicate the degree of Republican control over the levers of state power:

So now we've got an interesting situation. The Republican Party is typically--particularly during the 2010 election cycle--considered to be a conservative party. That often manifests itself as a declaration that the size of the federal government ought to be reduced and its powers and responsibilities pared down. "Let the states run their own affairs!" some of them exclaim. Their bias, rhetorically at least, is to leave governmental functions to state governments unless it's absolutely necessary for the federal government to assume them.

That party is now in a position of tremendous power in state governments across the nation (a reality that traditionally blueish states like Wisconsin are just waking up to now, apparently). So one might expect some of the Republican standby policy suggestions to be implemented in at least some states. Taking health care as an example, the national Republican party often likes to push suggestions such as insurance market deregulation, tort reform, and across-state-lines health insurance purchasing.

Good news for them: all of these things can be done at the state level. To take a Republican favorite: any state may allow out-of-state insurance policies to be sold in its insurance market. That would bring the insurer competition to the state's market that Republicans claim to desire and it doesn't require any federal action. So I perused the websites of the state legislatures of the red-tinted states to see what kind of action is happening on this front now that Republicans have such a prominent role in the nation's state-level politics.

As near as I can tell, interstate purchasing bills have been introduced in the legislatures of only six states (and of them, only the bill in Missouri seems to have actually made it as far as having a committee hearing thus far):

State	Legislation
Arizona	SB1593
Indiana	HB1063
Maine	LD226
Missouri	HB 262 Foreign Health Insurance Purchase Act
Montana	HB445 Allow health care choice thru out-of-state policies
New Hampshire	SB150

A bit of an anemic showing given the alleged Republican affection for this idea. Perhaps the Party of the Tenth Amendment is waiting for action at the federal level? Time will tell.

But the fact remains that the Republicans now hold power in quite a few states and they supposedly have a philosophical predilection toward letting states handle most kinds of policy reforms, leaving the federal government out of it. It will be fascinating to see how much of their erstwhile national agenda (e.g. the federalization of tort law or federal laws allowing interstate insurance purchasing) they push in the states. My guess is that it won't be quite as much as one might expect.

Twisted History

2011-02-21T18:58:00.005-05:00

A few months ago, Stanek messaged me with an interesting observation: it's curious to see all the nostalgia these days for a supposed "time before corporations" in American history when we consider that we are a country that was literally founded by one (that's not his argument verbatim, just my summation of it). I know almost nothing about economics so I won't comment on American corporate history here. However, I've always been one to keep an eye out for tidbits that fly in the face of the generic, vague, or flat-out false "facts" about U.S. history that get thrown around, especially those used for political arguments (what I call "twisted history"). It's not that I'm a buff for alternate history or that I go out of the way to find any facts I can that support my own opinion, but I do keep the door open while reading for when those facts do happen to show up. And at the very least if it turns out that I'm wrong then my own views on history will have been challenged for the better.

Thus, with all the generalized comments these days about returning to a time in American history when the government never told us what to do and that the states should be calling the shots, it made me laugh when I caught this brief mention in Ira Berlin's Many Thousands Gone: The First Two Centuries of Slavery in North America of South Carolina telling its citizens what to do:

"...other strictures were added, including limitations on movement of slaves and penalties against white persons who traded with slaves. A recapitulation of these laws in the 1691 slave code forbade slaveowners from giving slaves Saturday mornings free, 'as hath been accustomed formerly.'" (page 68)

To me, there is something incredibly ironic about the government of South Carolina, of all places, not only attempting to force its citizens to do something (that is, be more cruel to their slaves) but also trying to control the free market. But to be fair, Berlin shows throughout the book that the north had its share of reprehensible laws regarding slavery and individual rights too. This passage in particular caught my eye:

"Often the punishment meted out to free blacks drove them back into bondage, as the Pennsylvania law enslaved free blacks found to be without regular employment, and who "loiter[ed] and misspen[t]" their time." (page 187)

Freed blacks being enslaved for not spending their time the way the state thinks they should... I understand the different mindset whites had back then towards African Americans but regardless, that is a pretty significant showing of just how intrusive state governments could be back then. Of course libertarians might argue that government at any level should stay out of our lives, whereas I would counter that that's likely one of the ways slavery got started in the first place.

Anyway, I don't really have an overall argument here. It is generally true that government was less intrusive in 18th and 19th centuries. The examples I pointed out were also from the colonial era, although to me it's a hard argument to say colonial governments were any more intrusive than early American state governments. Additionally, these laws are hundreds of years old and have little to do with the governments they are associated with today; if conservatives in South Carolina or Pennsylvania want little or no government interference today then that's their political ideology. I just like pointing out that governments at all times and in all places have had a tendency to try and tell people what to do, for better or for worse. In many instances in addition to the two that I listed, things weren't as hands off and "free to do as you please" in the previous centuries as certain people like to believe. Ironically, you would think that having a system of slavery would make that self-evident...

Simpsons Flashback

2011-02-19T18:55:00.000-05:00

Life as a Movie

2011-02-11T19:17:00.003-05:00

I recommend playing both videos simultaneously.

Necessary, ergo Improper

2011-02-06T12:03:00.004-05:00

One (brief this time) addendum to the last post. In thinking more about the N&P-related bit of Vinson's ruling, I find a piece of it very puzzling. Here's an extended quote to get the point across:

One of the amicus curiae briefs illustrates how using the Necessary and Proper Clause in the manner as suggested by the defendants would vitiate the enumerated powers principle (doc. 119). It points out that the defendants are essentially admitting that the Act will have serious negative consequences, e.g. encouraging people to forego health insurance until medical services are needed, increasing premiums and costs for everyone, and thereby bankrupting the health insurance industry--unless the individual mandate is imposed. Thus, rather than being used to implement or facilitate enforcement of the Act's insurance industry reforms, the individual mandate is actually being used as the means to avoid the adverse consequences of the Act itself. Such an application of the Necessary and Proper Clause would have the perverse effect of enabling Congress to pass ill-conceived, or economically disruptive statutes, secure in the knowledge that the more dysfunctional the results of the statute are, the more essential or "necessary" the statutory fix would be. Under such a rationale, the more harm the statute does, the more power Congress could assume for itself under the Necessary and Proper Clause. This result would, of course, expand the Necessary and Proper Clause far beyond its original meaning, and allow Congress to exceed the powers specifically enumerated in Article I. Surely this is not what the Founders anticipated, nor how that Clause should operate.

[...]

If Congress is allowed to define the scope of its power merely by arguing that a provision is "necessary" to avoid the negative consequences that will potentially flow from its own statutory enactments, the Necessary and Proper Clause runs the risk of ceasing to be the "perfectly harmless" part of the Constitution that Hamilton assured us it was, and moves that much closer to becoming the "hideous monster [with] devouring jaws" that he assured us it was not.

The defendants have asserted again and again that the individual mandate is absolutely "necessary" and "essential" for the Act to operate as it was intended by Congress. I accept that it is. Nevertheless, the individual mandate falls outside the boundary of Congress' Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers. By definition, it cannot be "proper."

Legislation often has unintended consequences so I agree with the sentiment here insofar as any decision upholding the mandate on N&P grounds would have to do a good job thinking through some tests or conditions for understanding the word "necessary" in future applications to similar cases. As I said in the last post, however, I don't think it should be absurdly difficult to boil down to basics what separates this application to a law involving health insurance markets from future silly attempts to apply this logic to tea or car markets.

All that aside, the argument here seems to be: "Yes, the mandate is necessary but only because the rest of the law makes it so! Therefore, by [my] definition, it must be improper!"

Is he saying here that the very fact that the rest of the law makes the mandate necessary is itself the very thing that makes the mandate improper? That is, if a provision is necessary for a law to function effectively (i.e. without self-imposed negative consequences), it is by definition improper.

Is it just me, or is that absurd?

Necessary and Proper, again

2011-02-05T13:51:00.003-05:00

Last week, a federal judge in Florida, Roger Vinson, ruled that the individual mandate to carry health insurance in the Affordable Care Act is unconstitutional. But his ruling was considerably more sweeping than that of the judge who concluded the same thing in December because he decided that this made the entire health reform law unconstitutional.

But I'm back at the point of confusion I wrote about in December and this ruling has thrown it into even starker relief. As we all know, the Constitution grants Congress the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

I'm certainly not a lawyer but the interpretation of this provision seems to me to be fairly well-established. As Madison wrote in Federalist 44:

No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included. Had this last method, therefore, been pursued by the convention, every objection now urged against their plan would remain in all its plausibility; and the real inconveniency would be incurred of not removing a pretext which may be seized on critical occasions for drawing into question the essential powers of the Union

Similarly, in 1819 the Marshall Court concluded the following in McCulloch v. Maryland:

We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

And, more to the point I'm going to come to in a moment, Antonin Scalia summed up the current understanding of the Necessary and Proper clause's application to the Commerce Clause just a few years ago:

As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, “it possesses every power needed to make that regulation effective.” 315 U.S., at 118—119. [...]

Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce.

Now let's switch gears for a second. It seems to be the case that both the federal judges who ruled against the ACA and even the plaintiffs who brought the lawsuits to them largely accept the insurance market regulations in the ACA, except for the individual mandate, of course. I quoted from the Virginia judge's ruling in December:

The Commonwealth does not appear to challenge the aggregate effect of the many moving parts of the ACA on interstate commerce. Its lens is narrowly focused on the enforcement mechanism to which it is hinged, the Minimum Essential Coverage Provision.

And, similarly, the ruling out of Florida this week concedes:

In light of United States v. South-Eastern Underwriters, 322 U.S. 533, 64 S. Ct. 1162, 88 L. Ed. 1440 (1944), the "end" of regulating the health care insurance industry (including preventing insurers from excluding or charging higher rates to people with pre-existing conditions) is clearly "legitimate" and "within the scope of the constitution."

As I've pointed out on here before (and opponents of the law have been eager to point out all along), the ACA is a big law. It's a lot of pages. It's a lot of words. It's a lot of policy. The charge from disgruntled liberals that the ACA is merely "health insurance reform, not health care reform" is, I think, misguided. Certainly one can imagine more sweeping, immediate, and fundamental reform frameworks than that offered by the ACA. But that's not the same as implying the ACA addresses only health insurance. Indeed, the law contains ten titles:

TITLE I--QUALITY, AFFORDABLE HEALTH CARE FOR ALL AMERICANS
TITLE II--ROLE OF PUBLIC PROGRAMS
TITLE III--IMPROVING THE QUALITY AND EFFICIENCY OF HEALTH CARE
TITLE IV--PREVENTION OF CHRONIC DISEASE AND IMPROVING PUBLIC HEALTH
TITLE V--HEALTH CARE WORKFORCE
TITLE VI--TRANSPARENCY AND PROGRAM INTEGRITY
TITLE VII--IMPROVING ACCESS TO INNOVATIVE MEDICAL THERAPIES
TITLE VIII--CLASS ACT
TITLE IX--REVENUE PROVISIONS
TITLE X--STRENGTHENING QUALITY, AFFORDABLE HEALTH CARE FOR ALL AMERICANS

The reforms of the private insurance market are contained entirely in Title I. The individual mandate (also, of course, contained in Title I) is in there because of those Title I provisions. No one wants the individual mandate to be in the law, it's not favored as a policy unto itself. Obama the candidate sure didn't like it. It remains virtually the only major, visible component of the law that the majority of Americans dislike; it's not much of a stretch to think that the negative impression of the ACA lingering in the minds of 50-60% of Americans is due in large part to the presence of the individual mandate. Assuming politicians are self-interested and wish to avoid shellackings at the polls, one might think that if they could reliably further their health reform agenda without it, they would.

The mandate's presence in the law isn't aesthetic and it isn't ideological, it's functional. Preventing insurers from turning people away and forbidding them from charging the sick higher premiums gives the healthy among us license to drop out of health insurance pools until we get sick (at which point we can opt back in without any penalties or negative repercussions for our irresponsibility), a phenomenon known as adverse selection. Enabling this free-riding threatens to destabilize health insurance markets. For a taste of this, we need look no further than another piece of the ACA itself. The ACA instituted guaranteed issue rules immediately for one very small segment of the population: children obtaining insurance independently from their parents. Insurers offering child-only policies can no longer turn away kids with pre-existing conditions. The result of this small gesture--which opens the door to adverse selection, even though some tools for fighting it, like charging sick kids more than healthy kids, are still available to insurers--has, in many states, been market destabilization.

So let's get back to Vinson's ruling. In throwing out the individual mandate as unconstitutional, he signals that he accepts it's essential for making the rest of the insurance reforms work:

In other words, the individual mandate is indisputably necessary to the Act's insurance market reforms, which are in turn, indisputably necessary to the purpose of the Act.

He has to accept that if he's going to take the extreme step of concluding that overturning the mandate requires overturning the entire law. And he does just that, suggesting that the individual mandate cannot be severed from the rest of the law ("This conclusion is reached with full appreciation for the 'normal rule' that reviewing courts should ordinarily refrain from invalidating more than the unconstitutional part of a statute, but non-severability is required based on the unique facts of this case and the particular aspects of the Act.").

Now, you might say, even if the mandate can't be severed from the insurance market reforms it was included to protect, i.e. Title I of the ACA, can't it be severed from Titles II-X of the law? I had the same thought and the answer seems to be "presumably." But Vinson doesn't stop at Title I even though the mandate's effect is entirely restricted to directly affecting the provisions of Title I because, in his estimation, if Congress had known that the individual mandate would get thrown out, they might not have enacted any of the provisions in the law, even the parts of the law that have nothing to do with the private insurance market reforms, i.e. all of the parts outside of Title I--at the very least, he can't be expected to sort out the parts they would have enacted anyway from parts they wouldn't ("There are simply too many moving parts in the Act and too many provisions dependent (directly and indirectly) on the individual mandate and other health insurance provisions--which, as noted, were the chief engines that drove the entire legislative effort--for me to try and dissect out the proper from the improper, and the able-to-stand-alone from the unable-to-stand-alone.").

But it seems to me that now we're in an odd place. The insurance market reforms (aside from the individual mandate) are accepted by everyone to be an appropriate exercise of Congress's power under the Commerce Clause. And Vinson accepts that the mandate is "indisputably necessary to the Act's insurance market reforms" because that's the first link in the logical chain he tries to build to justify tossing out the entire law, which he acknowledges is a departure from the "normal rule" that would oblige him to nullify only the individual mandate.

Referring back to the quotes explaining the Necessary and Proper Clause I posted above (particularly Scalia's succinct summation of where it stands in relation to Commerce Clause powers), it seems to me that accepting it's "indisputably necessary" for implementing a Commerce Clause-sanctioned insurance regulatory scheme ought to be enough for it to pass constitutional muster. In fact, it seems to me that, as a matter of logic, any argument that nullifying the mandate must require throwing out the rest of the reform law because the two cannot be functionally disentangled itself implies that the mandate is constitutional under the Necessary and Proper Clause.

Despite accepting the "necessary" half of the Necessary and Proper argument for the individual mandate, Vinson ultimately rejects the N&P argument for the mandate's constitutionality for reasons that appear to me to be more ideological than logical: the mandate "cannot be reconciled with a limited government of enumerated powers. By definition, it cannot be 'proper.'"

The thought process here hinges on the notion that if the individual mandate is allowed through this argument, then effectively the federal government's power becomes limitless. In that sense, it's similar to the argument that if the mandate is constitutional, then the federal government can require you to purchase anything: vegetables, tea, cars, whatever. To argue this point, Vinson draws upon a case decided by the Supreme Court in 1997, Printz v. United States. This case revolved around a challenge to a provision of the Brady gun control law that essentially drafted state officials to handle the background check component of the law until the feds were prepared to take on that responsibility:

Brady Handgun Violence Prevention Act provisions require the Attorney General to establish a national system for instantly checking prospective handgun purchasers' backgrounds, note following 18 U.S.C. § 922 and command the "chief law enforcement officer" (CLEO) of each local jurisdiction to conduct such checks and perform related tasks on an interim basis until the national system becomes operative

In the Supreme Court's decision it held that forcing state officials to act as agents of the federal government to conduct those background checks wasn't "proper" under the N&P clause:

When a "La[w] . . . for carrying into Execution"the Commerce Clause violates the principle of state sovereignty reflected in the various constitutional provisions we mentioned earlier, supra, at 19-20, it is not a "La[w] . . . proper for carrying into Execution the Commerce Clause," and is thus, in the words of The Federalist, "merely [an] ac[t] of usurpation" which "deserve[s] to be treated as such." The Federalist No. 33, at 204 (A. Hamilton). See Lawson & Granger, The "Proper" Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267, 297-326, 330-333 (1993). We in fact answered the dissent's Necessary and Proper Clause argument in New York: "[E]ven where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts. . . . [T]he Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments' regulation of interstate commerce." 505 U.S., at 166 .

In quoting this passage in his ruling, Vinson truncates the phrase "violates the principle of state sovereignty reflected in the various constitutional provisions we mentioned earlier" to "[violates other Constitutional principle]." Clearly he's taking it for granted that the principle of "limited government of enumerated powers" can easily be substituted in here for the principle that states retain sovereignty in our federal system and can't be compelled to do the bidding of federal law. Assuming that notion is beyond reproach, the argument still falls apart if allowing an individual mandate under the N&P clause doesn't actually offer the government near limitless power.

Consider again Scalia's point that a power sanctioned by the N&P Clause "can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective." That sounds about right to me. What that reminds us is that a N&P power (whatever it might be in a given circumstance) is always Robin to some other policy's Batman. It can't exist in isolation. So, for example, if you introduced a piece of legislation that consisted of one sentence instituting an individual mandate to buy insurance, it wouldn't work under this argument. It must be part of a package deal; it has to be included because it's necessary and proper for something else to function effectively. And that something else has to be plainly constitutional under one of the enumerated powers.

For the same reason, accepting this line of argument doesn't afford the federal government the power to require you to, for example, buy tea. In order to pass an individual mandate for the purchase of tea using the argument that the provision is justified under the Necessary and Proper Clause, you'd have to pass it as part of a package. And the rest of that package must 1) be plainly constitutional (say, under the Commerce Clause) and 2) dysfunctional without the tea mandate. Can you think up a regulatory scheme authorized by the Commerce Clause that plainly--without logical leaps, extreme contortions, or other indefensibles--requires the purchase of tea in order to function and achieve its goals? Perhaps I'm short on imagination but I can't.

Insurance regulations that institute guaranteed issue and community rating laws (i.e. prohibitions on turning people away or charging them differently based on health status or medical history) are 1) constitutional under the Commerce Clause and 2) potentially fatally undermined by adverse selection. That's why a remedy--a deterrent to adverse selection--would be allowed under the N&P clause. That remedy would be both necessary and proper for implementing those insurance reforms without risking that market destabilization I mentioned above. But adverse selection is, I believe, a relatively unique phenomenon and one limited to special markets like insurance markets. I think finding an equivalent phenomenon created by a particular regulatory structure in a more traditional market, like the market for tea, would be difficult. And yet without it you can't pass an individual mandate to purchase tea. So I don't buy the argument that accepting the legitimacy of the individual mandate for health insurance in this particular (rather unique) instance necessarily does away with the principle of "limited government of enumerated powers."

So, as I said, I'm back at the point of confusion I've been at all along: since the N&P argument for the constitutionality of the individual mandate in the ACA tracks perfectly with the actual policy reasons it's in the law in the first place (despite its political unpopularity, it's actually necessary to ensure that the insurance market reforms work properly) and doesn't supply the federal government with limitless powers, why is this argument not enough to give the individual mandate the green light? And if for some reason it doesn't fly, why doesn't that failure automatically insulate the rest of the law from the mandate's nullification by severing it?

Why 2014?

2011-02-03T20:37:00.003-05:00

The other day, after the anti-ACA court ruling was handed down, over at the (great) blog The Incidental Economist Austin Frakt wrote:

The brilliant legislative logicians that dreamed up (or forced) a 2014 start date for the exchanges, Medicaid expansion, many of the health insurance market reforms, and, yes, the mandate, will be very nervous. Could they have made it much harder for the court to rule against the law?

Had the implementation been one to two years sooner, a nullification of the law, or part thereof, would be dramatically more disruptive. The pressure would be enormous for something to be done to prevent that possibility. I gather 2014 was a budgetary necessity. How much harder would it have been to buy another year or year and a half? Was that completely out of the question?

The conventional wisdom as to why 2014 is the start date of the coverage expansions in the health reform law is that it's largely a budgetary gimmick: conservatives charge that this is intended to mask the law's deficit impact, liberals generally seem to accept that this is to lower the price tag over the 10-year budget window that the Congressional Budget Office uses in its analyses (note that these are different suggestions).

I'm not sure I buy that fiscal forecast finagling is the reason the timeline is what it is.

Simplifying a scenario or concept can sometimes be helpful for working out its basic principles. A physicist putting Newton's laws to work might deal at first only with idealized point particles for conceptual and calculational simplicity. For identical reasons, students of government might choose to assume that laws--public policies--are born whole in a triumphant, poly-penned signing ceremony at the White House, the culmination of a winding legislative process. But real objects are extended in space, not points. And policies take shape during an implementation process, their final form is not reached instantaneously.

To a large degree, implementation of the Affordable Care Act lies in the hands of states. Certainly that's the case with the big ticket coverage items in the law. The two mechanisms by which millions of people will be gaining health insurance are: 1) expansions of state Medicaid programs, and 2) the construction, by states, of state-run health insurance exchanges.

What does that mean? That means instead of one particular top-down federal solution--a national Medicare-like payer or a single federally-administered health insurance exchange--you're potentially going to see 51 unique exchanges and 51 state-tailored solutions to the strains the expansion will put on their Medicaid program. That means you have to navigate state legislative calendars, state budget and procurement cycles, and state-specific troubleshooting and customization of the ACA. That takes time.

Take insurance exchanges, the new insurance markets that will be created under the ACA (if you want to see what that looks like in a concrete sense, Wisconsin developed a prototype of an exchange web portal that you can play around with). Given that they have to throw the doors open and be live on January 1, 2014 that really means that by the fall of 2013 they have to be in the final stages of implementing all the functionality they'll need; indeed, as you can see from this helpful timeline, exchanges will likely have to actually start selling insurance by the late fall of 2013. This means that thirty months from now, they'll have to have determined which health plans they'll allow to be sold through their exchange and negotiations/contracting with health insurers will have to be in full swing. And by that point, the construction of the infrastructure supporting their exchanges will have to be well underway.

Seems like a long time to get to those end stages, doesn't it? But it's not. A common motto in states is some variation of "2014 is tomorrow" and, indeed, it is.

It's been ten months since the ACA was signed into law in March of 2010. In most states, the exchange-building process remains in its infancy. 2010 was a year for reflection (and, in some states, acceptance). Planning and coordinating bodies were formed in states to assess the health care landscape in the state, analyze the contents of the ACA, and synthesize the two to chart a course for the coming years.

Some of the key questions facing states as they consider the design of their exchanges are laid out in this article from the Denver Post on the process in Colorado:

More than 500,000 Coloradans who lack health insurance will use a new state-run exchange to get generous subsidies and comparison shop for a health plan — that much is a given.

What that consumer website — the centerpiece of national and state health care reform — will look like upon launch in 2014 is the next great task for medical and insurance leaders in Colorado.

Will it be a bare-bones, three-choices- and-good-luck Web page? Utah is going that route.

Or will Colorado take the activist route pioneered by Massachusetts and California, adding mandates for coverage, negotiating directly with insurers and carefully policing rates, complaints and care? Will insurance plans created by the state Medicaid office and Denver Health compete for customers alongside big names such as Kaiser, Anthem, Cigna or Rocky Mountain Health Plans?

And even before that, who creates and operates the exchange that will guide billions of dollars in health spending? A state agency controlled by the governor? A private nonprofit? A quasi-governmental board where legislators, Cabinet secretaries and insurance interests will vie for appointments?

But the very first question to be answered is still being deliberated in many states: should the state build an exchange at all? While all states are required by the ACA to have an exchange, states aren't required to design, construct, and run an exchange. If they decline, the federal government will step in and run one in the state. While many states have recommendations on this question from their planning bodies, the issue is not yet settled in most states.

The only state whose legislature has passed the enabling legislation required to create an exchange at the state level is California. The matter has been complicated by the fact that 2010 was an election year. Indeed, 37 states had gubernatorial elections and the result is that this year we have 23 first-time governors taking office. And gubernatorial turnover ripples through the upper echelons of the state government's health policy leadership.

The point of all this is that as we sit at the beginning of 2011, states have a lot of ground to cover in the next two and a half years. In addition to building exchanges (a significant undertaking in and of itself), they'll need to modify their Medicaid programs to absorb significant numbers of new enrollees. And at the intersection of these two responsibilities is the imperative to revamp their IT systems to handle the new eligibility and enrollment burdens the exchange and Medicaid expansion will place on them. There are additional things for states to focus on in implementing the ACA but we need not go into them here.

In addition to the intricacies and idiosyncrasies of state-level implementation, there is still a federal element to consider. When it comes to exchanges, even though states will (in most cases) be building them, there will still be some sort of federal regulations guiding them. States were asked to submit initial suggestions for these regulations to the feds months ago. I don't know when a draft product will be out but from what I've heard, a final product shouldn't be expected before this fall.

Suppose the year 2014 had been scratched out of the ACA before passage and the year 2012 substituted. Could we make this deadline? I would say almost certainly not, given where we are now and all that remains to be done. The original House legislation had an implementation date of 2013, a full year earlier than the final product that became law. But even that strikes me as potentially overly ambitious (though, remember, the House bill didn't have 51 exchanges being developed by 50 states and D.C. at their own pace, it relied on a national exchange) given that many states are waiting until the final federal regulations on exchanges are released to begin their state legislative process. That means we can probably expect many state legislative debates to wrap up in 2012 and their bills creating exchanges to be passed around that time. Then comes the actual implementation period with about 12-18 months to go. With a 2013 deadline, that would be six months to completely build an exchange.

You might argue that setting a 2013 date would've lit a fire under both the federal and state governments and all of this would be moving at an accelerated pace--the federal regulations, the state legislation, the state implementation process. But I'm not convinced there's any reason to believe that would actually be the case. As I said, state legislative calendars and procurement cycles place obstacles in the path of any would-be speed demons. The politics and the fiscal challenges facing states would still be the same, and these are minefields that must be navigated carefully. Additionally, in fleshing out the details of the ACA on the regulation-writing front, the feds have a lot on their plates right now. And there's plenty of reason to be wary of overly ambitious implementation target dates. Arguably, with the spate of provisions required to take effect in the first 6-9 months of the law's existence (deadlines which were often missed, if not by much), some of the law's early implementation was rushed to generate solid products that could be pointed to by the administration. We want to make sure, particularly for the big, enduring things like exchanges and Medicaid program revisions, that states get this right. And that requires having not only the resources but the time to get it right.

All this is my long-winded way of saying I suspect the 2014 start date isn't really all that unreasonable, given the enormous role the myriad states have in bringing the text of the law (and yet-to-be-written regulations) to life. We might wish it took less time to get from Presidential signature to functional program but the real world is messy.

Keep Implementing

2011-02-01T14:52:00.003-05:00

There's a piece in Robert Caro's lengthy (and excellent) biography of Robert Moses, The Power Broker, where Caro discusses legal challenges to one of Moses' many public works projects, a particular park. As the case spends years winding through the legal system, draining the financial resources of his outgunned opponents, Moses keeps plugging away at the project:

Justice Louis Brandeis brought the legal fight to an end on January 21, 1929, four years after the Biltmore hearing, by refusing to issue a writ of certiorari which would have enabled the Court to hear the case--it was obviously not pressed vigorously in those last stages, as though the case were really over already.

And, in fact, it was. Moses had never stopped developing the Taylor Estate--as if its acquisition were a fait accompli. By the spring of 1927, he had laid concrete for access roads and parking fields, set out scores of stone fireplaces and picnic tables, erected wooden bathhouses with showers and lockers and finished renovating the mansion and outbuildings, at a total cost of hundreds of thousands of dollars. During the summer of 1927, it had hundreds of thousands of visitors. By the time the higher courts came to rule on the question of whether the Taylor Estate was a park it was a park. What was a judge to do? Tell the state to tear up the roads and tear down the buildings, to destroy what hundreds of thousands of dollars of the public's money had been spent to build? Tell the people who had visited the Taylor Estate that they could visit it no more? In theory, of course, judges should not be influenced by such considerations. But judges are human. And their susceptibility to such considerations was undoubtedly increased by Moses' willingness to attack publicly those of them who ruled against him, as he had done to the "local judge," thereby letting the public know exactly who it was who was closing the park to them.

I was reminded of that by yesterday's ruling in a federal district court that the Affordable Care Act is unconstitutional. Unlike the two federal judges who ruled that the ACA is in fact constitutional and the federal judge in Virginia who ruled a few weeks ago that the individual mandate--but only that provision--is unconstitutional, yesterday's sweeping decision declared that the entire law is unconstitutional. But like the Virginia decision, yesterday's ruling didn't issue an injunction halting implementation of the law--at least, not technically, which is leading to some confusion:

The judge declined to immediately enjoin, or suspend, the law pending appeals, a process that could last two years. But he wrote that the federal government should adhere to his declaratory judgment as the functional equivalent of an injunction. That left confusion about how the ruling might be interpreted in the 26 states that are parties to the legal challenge.

But the administration made it clear that it intends to keep implementing the law. And at least for now, says POLITICO, implementation continues in the states, even in the 26 states that are party to this particular lawsuit.

And, recalling the tactics of Mr. Moses, pressing on with implementation--making reform the status quo--only helps proponents of the ACA. Not because it's more likely to melt the icy hearts of the conservative wing of the Supreme Court (although who knows?) but because after a certain point large pieces of it will become self-sustaining. Just about every state has already been funded to start planning their state health insurance exchanges; the application for the next round of grants--establishment of exchanges!--is open right now. And building a new insurance market seems to be an idea even conservative states are open to. For example, from earlier this month:

AUSTIN – A key House GOP health policy writer has filed legislation to create a state-run health insurance exchange in Texas.

A bill by Rep. John Zerwas, R-Katy, would create a Texas Health Insurance Connector, or simplified insurance market.

[...]

"My opposition to the federal health care reforms is no secret, and I continue to support Attorney General Greg Abbott's efforts to have the law declared unconstitutional," he said.

"But the ‘connector concept' has been around for decades and did not originate with Obamacare," Zerwas said. "Quite frankly, it is something that we should consider on its own merits regardless of the fate of the federal reforms."

Things like extended dependent coverage (up to age 26) have become the status quo, the federal Office of Consumer Information and Insurance Oversight has been established, many states are changing their laws to ensure better oversight of insurance premium hikes, some health care providers have started to redesign themselves in responses to the ACA, and so on. We've spent the better part of a year pushing the boulder up the hill, now it's time to get it over the hump and let it roll down the other side.

That's not to say an actual repeal or overturn of the ACA wouldn't be disastrous. The exchanges are being built with the assumption that federal subsidies will be there to support low-to-middle income people who buy insurance through them. The Medicaid expansions can't happen if federal law goes back to the way it was. The altered incentives, the scalpels and chainsaws I've mentioned before, and all of the little (and big) improvements sprinkled into federal law will disappear.

But the further along implementation goes, the deeper the investment that states are making will go and the more the behaviors of insurers and providers will be reshaped. It might all still be for nothing if the ACA were to vanish but it does raise the odds that something that can't be stopped has been started.

Building the Health Information Highway

2011-01-29T13:56:00.003-05:00

There's a compelling story to be told in which human history is a long quest to master information. Pivotal points, ranging from the development of cuneiform millennia ago to the invention of the printing press mere centuries ago, hinge on leaps in our ability to record, store, and transmit that information. Separate efforts aimed at acquiring information--uniquely human pursuits like philosophy, historical inquiry, and scientific investigation--certainly would have a heroic role to play in that story but here I'm interested in our ability to handle information. With the great developments in this area, ideas, data logs, and historical records could be captured and communicated across vast tracts time and space.

Today we live in a full-blown Information Age, a revolutionary time in which the digitization of information has transformed (and continues to transform) our lives. Amazon announced yesterday that in the last three quarters of last year, it sold more e-books for the Kindle than it did paperback books. I'm thinking of streaming a movie from Netflix later. And what drastic step did the Egyptian government take this weekend in an effort to hold onto political power? Attempting to disrupt the flow of information in and out by cutting off Internet access.

But, even as this technological revolution marches on, it's been decades since information technology forever altered the way organizations process information and companies do business, hasn't it? Surprisingly, perhaps, there's at least one major industry that has largely resisted entering the Information Age and taking advantage of all that the information revolution can offer it. I'm speaking here of the medical field.

Of course medicine does use an impressive array of cutting edge technology; as I'm sure Jim can discuss much more knowledgeably than I can, new equipment and techniques are incorporated into modern medicine all the time. But in one particular area--the use of health information--the potential of the Information Age seemed, until very recently, to have passed medicine by. In particular, I'm referring to electronic health records. Now, you might say, don't most doctors use electronic health records? Paper went out of style a while back, didn't it? Actually, no.

A study published in the New England Journal of Medicine in 2008 found that:

Four percent of physicians reported having an extensive, fully functional electronic-records system, and 13% reported having a basic system.

A similar study of hospitals published in NEJM in 2009 found:

... only 1.5% of U.S. hospitals have a comprehensive electronic-records system (i.e., present in all clinical units), and an additional 7.6% have a basic system (i.e., present in at least one clinical unit).

The surprisingly low prevalence of electronic health records in our health system is one of the reasons George W. Bush created, via executive order, a new office in the Department of Health and Human Services back in 2004 with the mission of fostering the adoption of electronic health records: the Office of the National Coordinator for Health Information Technology (ONC).

But it wasn't until 2009 that the opportunity arose for the government to really give the nation's fledging health information technology (HIT) efforts a big shot in the arm. I'm speaking here of the stimulus package, a law whose very name--the American Recovery and Reinvestment Act of 2009--underscored its goal of investing in the nation's infrastructure. Two distinct pieces of that law (for legislation nerds: Title XIII of Division A and Title IV of Division B) are together known as the HITECH Act. And as Joe Biden might say, the HITECH Act is a BFD.

Why is it a big deal? What's the real difference between recording patient records electronically instead of on paper? Well, first there's the issue of health information exchange (HIE), getting health information from point A to point B. If your records are locked in a filing cabinet in a singe physician's office, what happens when you go to a different facility or even an emergency department? A pain in the ass, that's what. Having your information in hand makes it much more likely a doctor will make better decisions regarding your care. That may mean fewer medical mistakes and fewer redundant or otherwise unnecessary procedures.

But HIE is about more than just ensuring your records quickly get to where they're needed when they're needed. It also opens the doors to reporting for quality improvement and public health purposes. There's a tremendous amount of data locked up in the aggregate of everyone's health records. Suppose in the future we want a much greater shift toward paying doctors for performance. In order to make that work, you'll need some way to quickly and accurately assess that performance. Being able to extract and exchange information right out of health records makes it much more plausible that ideas like paying for performance can work. Improving health care quality means being able to adequately measure that quality and then hone in on areas where improvement is needed. That's significantly easier with electronic health records than with paper records. So if we want to encourage data-driven improvement in the health system (and we do), HIE and the use of electronic health records have a significant role to play.

And beyond the actual exchange of health information (which by itself is potentially huge), there is the added functionality of electronic health records.

A paper health record can't prompt a doctor to adhere to evidence-based protocols, which seem to be effective at preventing errors:

In recent years, the growing use of a “checklist’’ in hospital facilities, modeled after those routinely used by airline pilots before takeoff, has resulted in a significant reduction in patient harm. The British Medical Journal, for example, recently reported that patient deaths in three London hospitals dropped by 15 percent after introducing the practice.

A paper record won't provide automatic reminders about recommended screenings or other preventive procedures.

Paper records can't provide clinical decision tools to help doctors make the right call in choosing tests or even diagnoses, like this pilot program in Minnesota:

Instead of waiting hours or longer for approval by phone, the doctors get an answer instantly. A popup screen invites them to fill in patient symptoms and other information, and the program rates the usefulness of the proposed test, based on guidelines from the American College of Radiology and other medical specialty groups. If another test is an option, that will pop up, too.

Not long after the pilot project started, Bershow said, one colleague came up to him with a surprise admission. "I've been ordering the wrong test," the doctor told him, but didn't realize it until he started using the program.

That's not surprising, Bershow said, given the information overload in medicine.

Paper records won't pop up a warning if a doctor prescribes a medication that's likely to negatively interact with something else a patient is on.

Electronic health records, on the other hand, can do all of these things and more.

So what is the HITECH Act? It's the policy intended to propel us into a future where EHRs are commonplace. And, reflecting its legislative structure, it's got two major parts; it's helpful to think of them as 1) building the roads and 2) buying the cars.

Building the Roads

The first order of business in the HITECH Act was establishing George Bush's Office of the National Coordinator for HIT as a matter of statute and not executive whim. And ONC was given $2 billion and a directive as simple as it was monumental: build us the roads. Well, okay, it was a little more complex than that but that's the gist of it.

By "building the roads" I mean building the infrastructure to really make HIE work: ONC is funding and working with every state to build the infrastructure they need to make HIE work in their state. The "infrastructure" I mean here includes: governance structures so that someone has the responsibility for building consensus and the authority for making state-level policy around HIE; financial strategies to ensure that HIE is sustainable; technical standards and structures to make sure records can get from Doctor's Office A to Doctor's Office B; and updates to state-level policies or laws on health information that reflect the differing natures of electronic and paper records.

Beyond that foundational work, ONC is also funding entities known as Regional Extension Centers, whose purpose is to provide the technical assistance and training that doctors need to use electronic health records effectively. They're essentially a nationwide network of help desks for doctors who adopt EHRs. ONC is also funding new training programs at universities and community colleges to produce the HIT workforce that will be needed to make all of this work. University research departments are also being funded to produce "breakthrough advances" in unresolved issues in health information technology.

The point of all this activity is to ensure that, as a practical matter, when it comes time to exchange health information, the pathways and structures are in place to enable this.

Buying the Cars

Of course, having the highways along which health information will be exchanged doesn't amount to much if very few providers are actually using electronic health records (the "cars" in this analogy). Indeed, there are network effects here that make an active HIE more valuable as more providers take advantage of it. For example, my spiffy new iPhone 4 has FaceTime, meaning it can be used to chat with other similarly-enabled phones. But if no one in my phone book has a phone that can also do this, that feature is essentially worthless to me. It becomes more valuable as more people become able to use it. So the question here is how to encourage providers (e.g. doctors and hospitals) to start using electronic health records.

That's where the government's role as a payer (i.e. an insurer) come in. As the insurer cutting the checks to doctors who accept Medicare or Medicaid patients, the government has the power to pay them. In this case, through the HITECH Act, the government will be making bonus payments to Medicare or Medicaid providers who start using EHRs. The two aren't treated in quite the same way: Medicaid doctors are eligible for larger bonuses than Medicare doctors ($63,750 vs. $44,000) and, eventually, Medicare doctors who don't start using EHRs will be penalized. The penalty isn't all that big; in several years, Medicare doctors who still use paper records instead of EHRs will be paid 97% of what they would normally be paid by the government for Medicare patients.

Of course, there are standards. A doctor couldn't just buy some crappy system, not use it, and collect his free money. They have to buy certified technology and they have to "meaningfully use" their EHRs. The exact definition of what constitutes meaningful use is being developed by HHS in three stages through the administrative rulemaking process. If you want to know what Stage 1 of the definition looks like, it doesn't get clearer than this article (from the head of ONC himself). The definition for Stage 2 should be coming out sometime later this year.

What's Next

At present, we're about a year into the road-building process. The federal-state partnerships to put in place the necessary infrastructure for HIE is intended to last for four years. The car-buying incentive process is just taking off: the first incentive payments started going out this month. Providers, however, don't have to start meaningfully using EHRs right now (although for Medicare providers, the value of the incentive payment decreases with time). Medicare providers can start as late as 2014; the program wraps up in 2016. Medicaid providers can start as late as 2016; that program continues until 2021.

HITECH is of special interest to me but I haven't been able to bring myself to outline its contents and subject matter on here before. I think it's extraordinarily tough to offer a concise intro that doesn't contain too much detail or too little, and also doesn't happen to be mind-numbingly boring or dry (despite the fact that this is actually a very exciting area, I swear). I don't know how successful I've been here at avoiding that but I was motivated to finally lay out the background today after I noticed this headline:

GOP Bill Could Rescind Funding Under Meaningful Use Program

The Spending Reduction Act of 2011, sponsored by Rep. Jim Jordan (R-Ohio), seeks to cut federal spending by $2.5 trillion over the next 10 years.

Under Section 302 of the legislation, more than $27 billion authorized for meaningful use incentive payments likely could be repealed if the measure were enacted, according to Health Data Management.

Section 301 of the bill could affect other programs under the HITECH Act, which includes the authorization of:

* Expanding HIPAA transaction sets;
* Health IT programs at colleges and universities;
* Regional extension centers; and
* Strengthened privacy and security rules.

This section states that any unused funds from the act's $2 billion in discretionary spending allocated to the Office of the National Coordinator for Health IT would be rescinded if the funds are considered "un-obligated balances."

The bill also would prohibit appropriating funds to implement any programs under the federal health care reform law.

It's not going to pass (one hopes) but it's an important reminder of the political climate in which we find ourselves today.

Dis-integration

2011-01-12T11:28:00.004-05:00

Some years ago when I was young and anti-poverty policy was a particular focus of mine, I wrote a paper for a course exploring some strategies for overcoming poverty. The strategies I was exploring weren't primarily focused on lessening inequities in wealth or income; instead, they were more concerned with finding ways to provide the poor with additional social and cultural capital, as deficits in those intangibles can be just as constraining as a lack of financial resources. Even if you can find ways to boost the monetary income of the poor, you still have to find ways to overcome the ghettoization--spatial, social, and cultural--of the poor that I've suggested creates the real gulf between poverty and non-poverty.

One of the tools I examined for helping the poor to forge those social and cultural links is an obvious choice: schools. I discussed the concept of integration:

We do not merely mean a racial integration of public schools, as was attempted in the decades following the Brown v. Board of Education decision. Instead, we prefer a concerted effort to integrate schools by income (something that would achieve racial integration as well, but in a less conscious way). Exposing low-income children to the aspirations and experiences of their middle class peers could have a very positive effect on the learning process, as would increasing their exposure to the level of resources enjoyed by middle class children. Of course, the benefits need not be one-way: both sides of the socioeconomic ladder could benefit from a sharing of perspectives. Income integration of schools has been tried, most notably in Wake County, North Carolina (an area that includes the city of Raleigh and its suburbs).

The New York Times reports that “Since 2000, school officials have used income as a prime factor in assigning students to schools, with the goal of limiting the proportion of low-income students in any school to no more than 40 percent.” The results, particularly for low-income minority children, have been dramatic: "In Wake County, only 40 percent of black students in grades three through eight scored at grade level on state tests a decade ago. Last spring, 80 percent did. Hispanic students have made similar strides. Overall, 91 percent of students in those grades scored at grade level in the spring, up from 79 percent 10 years ago. "

The result of such an integration scheme would be to equalize schools, weaving low-income children into the social fabric as they benefit from the political clout and involvement of their new classmates' parents (who will likely have more luck ensuring the school is provided with adequate resources than low-income parents might).

By all accounts I've seen, Wake County's socioeconomic school integration program has been very successful. Which, of course, means this aggression will not stand, man. Today comes the news that the Tea Party has succeeded in ending this dastardly example of "social engineering." And at the same time they've taken it upon themselves to shit on my thesis that isolating the poor is damaging to them and is instrumental in perpetuating poverty. Have a read:

IN RALEIGH, N.C. The sprawling Wake County School District has long been a rarity. Some of its best, most diverse schools are in the poorest sections of this capital city. And its suburban schools, rather than being exclusive enclaves, include children whose parents cannot afford a house in the neighborhood.

But over the past year, a new majority-Republican school board backed by national tea party conservatives has set the district on a strikingly different course. Pledging to "say no to the social engineers!" it has abolished the policy behind one of the nation's most celebrated integration efforts.

And as the board moves toward a system in which students attend neighborhood schools, some members are embracing the provocative idea that concentrating poor children, who are usually minorities, in a few schools could have merits - logic that critics are blasting as a 21st-century case for segregation.

So that's that.

Necessary and Improper?

2010-12-17T21:34:00.003-05:00

The big news this week was the health care reform law's first defeat in court: the individual mandate to buy health insurance is unconstitutional, says a federal judge in Virginia.

I actually found this ruling to be something of a relief, not for what it did but for what it didn't do. And what it didn't do is rule the entire law unconstitutional. In fact, it didn't even halt its implementation, as the plaintiffs had requested. Until now, I had been worried by the lack of a so-called severability clause in the reform legislation--a provision saying that if part of the law should be struck down as unconstitutional, the rest of the law will still stand. I was afraid that a ruling against the individual mandate might necessarily mean all of the law has to go. But the judge who ruled on Monday severed the individual mandate from the rest of the law which demonstrated--much to my relief--that, hey, they can do that. So even if the individual mandate was ultimately struck down by the Supreme Court, they could at least preserve the rest of the law.

But what's really interesting is the treatment of the Necessary and Proper Clause in this ruling, which has come under criticism in some quarters. The Necessary and Proper Clause, of course, is the elastic banding in the underpants of the Constitution, the provision that says: "The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

What that means is that Congress can indeed do things that aren't explicitly written in the Constitution as long as those things are "necessary and proper" to carrying out one of the enumerated powers. And that isn't just me saying this, here's Madison in Federalist 44:

Had the convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect, the attempt would have involved a complete digest of laws on every subject to which the Constitution relates; accommodated too, not only to the existing state of things, but to all the possible changes which futurity may produce; for in every new application of a general power, the particular powers, which are the means of attaining the object of the general power, must always necessarily vary with that object, and be often properly varied whilst the object remains the same.

Shorter Madison: "We didn't write down every conceivable power needed in pursuance of the enumerated powers, but they're still in there. Use some common fucking sense, people."

One of the arguments the government used in defending its requirement that almost everyone either carry health insurance or pay a penalty was that this individual mandate is necessary and proper for executing its power to regulate health insurance under the Commerce Clause. This is a reference to the reason the individual mandate exists in the first place. The new law seeks to regulate the individual market for health insurance (i.e. the market in which you buy insurance if you're not getting it through your job) by eliminating unpopular practices like charging sick people higher premiums or even rejecting them entirely if they have a pre-existing condition.

But those practices exist for a reason. If 1) no insurer can turn you away for having a health condition when you want to buy insurance, and 2) that same insurer can't "penalize" you for being sicker than average by making you pay more for your insurance policy, there really isn't much reason to buy insurance if you're healthy. If you choose to go uninsured, you're not taking much of a risk if, should you get sick, insurers can't turn you down or charge you more to punish you for your irresponsibility. Take away the reasons a healthy person would pay for health insurance and lots of them are going to decide to drop out and stop paying premiums until they get sick, at which point they can just sign up again without any hassle. It just makes sense for healthy people to free ride in that situation. That will leave the insurance pools disproportionately full of sicker people and thus increasingly expensive. Bad news. Hence the individual mandate. It steps in to serve the function that was previously being served by medical underwriting. So if you want to regulate underwriting out of existence and you don't want premiums to explode, it seems you have to legislate an individual mandate into existence.

So you can argue that an individual mandate is necessary and proper to regulating the insurance market. And here's where it gets a little odd. At one point the ruling says:

The Commonwealth does not appear to challenge the aggregate effect of the many moving parts of the ACA on interstate commerce. Its lens is narrowly focused on the enforcement mechanism to which it is hinged, the Minimum Essential Coverage Provision.

The Commonwealth argues that the Necessary and Proper Clause cannot be employed as a vehicle to enforce an unconstitutional excercise of Commerce Clause power, no matter how well intentioned.

You can see in that first paragraph that Virginia wasn't challenging the federal government's authority to regulate insurance under the Commerce Clause. But then they argue that the Necessary and Proper Clause doesn't apply because, in their minds, it's being "employed as a vehicle to enforce an unconstitutional excercise of Commerce Clause power." Except they've already conceded that the Commerce Clause power being exercised--the regulation of insurance markets to eliminate pre-existing condition exclusions and the like--is constitutional. And since the individual mandate is instituted in furtherance of that power and its aims, one would think the Necessary and Proper Clause would indeed be relevant.

But get this bit of the ruling, where the judge is mulling whether or not to sever the individual mandate from the rest of the law:

Having found a portion of the Act to be invalid, the Section 1501 requirement to maintain minimum essential health care coverage, the Court's next task is to determine whether this Section is severable from the balance of the enactment. Predictably, the Secretary counsels severability, and the Commonwealth urges wholesale invalidation. The Commonwealth's position flows in part from the Secretary's frequent contention that Section 1501 is the linchpin of the entire health care regimen underlying the ACA.

Get that? The anti-reform plaintiffs argued that the whole law should be struck down if the individual mandate is unconstitutional because, of course, they accept that it's a "linchpin of the entire health care regimen." But this is a bit of a Catch-22 for them. As I already noted, they didn't actually challenge the "entire health care regimen." In their laser-like focus on taking down the mandate, they implicitly accepted that the insurance regulations in the law are constitutional. But if they're arguing that the mandate is the "linchpin" needed to make those insurance regulations work, they're making the "necessary and proper" argument. However, if they accept that argument, then the mandate should be valid. Bad news for them. If, on the other hand, they reject that argument (as they did), then there's no reason the individual mandate shouldn't be severable from the rest of the law. Also a bit of a defeat for them.

It's tough to see how they could get everything they want, in a logically consistent fashion, using these arguments.

Et tu, fuel gauge?

2010-12-14T15:29:00.005-05:00

Driving an hour to and an hour from work every day has caused me to become borderline obsessed with the fuel efficiency of my car. A few weeks ago I flipped through the manual, found the capacity of my gas tank, drove to and from work until it was nearly out of gas, filled it up again, and compared how much gas was left to how many miles I had driven (for the more science-y guys here, is that rigorous enough? I wasn't sure if I was leaving something out). Through all that I got a rough picture of the miles-per-gallon on my car: about 30 on a good day, not amazing considering it's a Honda Civic driving mostly on the highway; not horrible when you weigh in on the car's age ('93, with more problems than I have money to fix). It may be an unfair comparison, but just for fun the 2010 Prius or the Civic Hybrid got about 40-50 just on city driving. Sounds pretty nice right now...

However, through all that I was still worried that I wasn't being thorough enough. Maybe the gas station pump shuts the gas off before the tank is full, maybe there's more gas left than I think when the needle reaches E (or less than I think when it says full), maybe the air pressure in the tires isn't exactly where it needs to be, etc. Well, seems like a few of my concerns were justified when I stumbled on to this today. Even though everything else on our cars has been computerized and improved over the years, it seems that people like the illusion and comfort of knowing that our tanks have a little extra fuel in them than what the gauge tells us despite the fact that it messes with just how fuel efficient your car really is (kind of like the illusion of more safety on airplanes by adding more and more inefficient security). Things apparently get even more confusing if you top off at the gas station, something I don't do but according to the article can add almost another full gallon of gasoline. All-in-all it's not that big of a deal, but I always wondered why they didn't just put a digital number there that tells you how much gas is left. I guess nobody likes to hear the truth.

I don't know if this actually ends up improving my car's fuel efficiency or not. I just don't know what to think knowing that my fuel gauge is lying to me. I thought we were cool, gas tank...

The YouTube Funnies

2010-12-11T13:57:00.000-05:00

TJ and I spend a lot of time hunting down a certain kind of art and it's time we shared some of it with you guys, assuming you're not already familiar with it. YouTube has enabled some talented folks to distribute a new class of amateur video that, when done well, can really leave you breathless. And your sides aching. As I am wont to do, I'll try and fit these videos within a loose classification scheme. They tend to fall into one of three broad categories: Recuts, Overdubs, and Splices.

Recuts

Recuts reshape what's already there, crafting a new story out of the ingredients of the old one. The new story is itself likely to be pretty funny but often the true hilarity comes primarily from the contrast with the source material. I started writing this post a long time ago and inserted here the absolute, hands down best example in existence, a Jaws recut called "Nobody Cares About Quint" in which the Orca crew's indifferent reactions to Quint's violent death are on display. I think TJ will vouch for the fact that this video was simply amazing. I'm leaving the embed in here even though, as you can see, it's been taken down. Maybe someday it will come back.

In the meantime, you can see what I'm talking about with the Stars Wars sex scene, Tarkin not taking shit, and this terrible miscalculation by Han Solo. And yes, quite a bit of this new art form revolves around Star Wars (though, again, the Jaws series is was the greatest I've ever seen).

Overdubs

Overdubs leave the action of a movie scene unaltered but radically alter the character of it with some fun sound editing. These are a way of inserting another film into an existing scene without altering the action of the existing scene in any way (no recut necessary). The juxtaposition of old action with new dialogue can be great fun. Probably the best example around today is Dude Vader:

Other Vader overdubs, like Darth Schwarzenegger, also exist since he's an easy target, given that you can't see his lips moving. The classic HAL Pacino also falls into this category, as does Reservoir Turtles. And of course, the Ninja Lebowski series qualifies:

And a few more choice picks for you to peruse: Agent ~~Sagan~~ Smith almost breaking Morpheus, Han Solo vs. Greedo Quintana, and C-3PO Strikes Back.

Lastly, as a general rule, overdubs that use original dialogue (i.e. instead of just inserting sound from another movie) are usually not very good. The most notable exception is the overdubbed (and sometimes recut) series of G.I. Joe public service announcements, known for such classics as Porkchop Sandwiches!

Splices

Splices take two different (often radically so) movies and find a way to make them interact in a way that not only sort of makes sense but is hilarious. Exhibits A and B are two Back to the Future-themed splices:

Another favorite is the splice of Batman and Titanic.

Some splices use different movies from the same actor(s) to give them that feel of authenticity. You can see that in Han Solo's Blaster and in Batman's unlikely alliance with the Green Goblin.

Some intrepid souls even try to splice live action and cartoon, as in Speed vs. The Magic School Bus.

Cross-Cutting Categories

There are also a few sub-classes of YouTube Funnies. While these aren't anything we haven't covered, these don't easily fit under just one of the above three categories because they tend to wander between them (they choose not to respect my careful classification scheme). These include:

Alternate Endings

Alternate endings, of course, take the movies we love and resolve them in an entirely new way. Some alternate endings are recuts, like this one:

Other alternate endings are splices, like this Matrix-Crocodile Dundee scene:

There are probably hundreds of alternate movie endings on YouTube (although many of them aren't very good). Most notable is the series of Indiana Jones alternate endings (like this one) and the many, many Star Wars alternate endings (like this one), though again the quality varies. As a general (though not absolute) rule of thumb, if an alternate ending is longer than two or three minutes, the payoff probably isn't enough to warrant spending the time watching it.

Fake Trailers

These are exactly what the name suggests: trailers for movies that, tragically, don't exist.

They can be silly splices like A Hard Day's Night of the Living Dead:

Or they can be recut overdubs like Must Love Jaws:

I'm probably killing the bandwidth so I'll stop there. I have to say, I'd really love to develop some video editing skills so I can start making some YouTube Funnies of my own. But we'll see.

If I've left out anything noteworthy or you've got more you want to share, put some links in the comments.

Perpetual Union

2010-12-09T22:12:00.005-05:00

Can you break the unbreakable? Truncate the infinite? End the perpetual?

I ask because I want to briefly wade into history (I'm pretty confident I'll be revealing some serious ignorance in this one). Some time ago, our Confederate friends believed that states could choose to leave the Union and, apparently, some states' rights folks still think this. The Civil War, then, apparently decided only that if your state wants to leave, it better be packing more firepower than the states that want it to stay.

We know that the Articles of Confederation was the first real governing document for the United States. But if you read the Articles, you'll notice repeated references to itself as the "Articles of Confederation and perpetual Union." In fact, the Articles stressed no less than six times that the union it was establishing between the states was to be perpetual.

I'm compelled to raise the questions in this post because one day while looking at the wiki page on the Constitution, I saw this:

On September 17, 1787, the Constitution was completed, followed by a speech given by Benjamin Franklin, who urged unanimity, although the Convention decided that only nine states were needed to ratify. The Convention submitted the Constitution to the Congress of the Confederation, where it received approval according to Article 13 of the Articles of Confederation.[10]

I didn't remember that bit about receiving approval from the Congress of the Confederation from history class (should I? perhaps this is an embarrassing admission) and the reference they give for that assertion is the National Archives page on the Constitution; it wasn't immediately obvious during a brief browse where on the site that factoid could be found.

But, assuming it's true, it seems to raise an interesting philosophical question. Though the Constitution didn't require unanimity for ratification and the Articles did require unanimity for the adoption of amendments (as you can see from Article 13 below), it's worth noting that the Constitution did ultimately receive unanimous ratification so at least in practice that discrepancy is without consequence.

Article XIII. Every State shall abide by the determination of the united States in congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this confederation shall be inviolably observed by every State, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united States, and be afterwards confirmed by the legislatures of every State.

The first question that occurs to me is pretty straightforward. If the Constitution was indeed adopted in accordance with Article 13 of the Articles of Confederation (right down to actually being submitted to the Congress of the Confederation), then is it indeed what it was originally supposed to be: an amendment to the Articles of Confederation? Perhaps I was zoning out during this bit of American history but I had always thought that the Constitution was written only after the Framers decided that amending the Articles was a lost cause and an entirely new document, written outside the context of the Articles, was needed. But if the Constitution is itself only a legitimately passed amendment to the Articles--granted, an entire overhaul but one done within the context and conceptual framework of the original document--then it is part of an unbroken chain that started with the writing of the original Articles.

And that leads to my second question. Is the "perpetual union" bit not still in full force? I ask because the Articles contained a very odd thing: An Infinity. A perpetual union is one that will exist for all time and presumably cannot be undone. The only way, then, to overcome that would be to deny the legitimacy of the Articles and supplant them with something entirely different. Which is what I had always thought is what happened.

But if the Constitution is technically just an amendment to the Articles, then it still acknowledges the legitimacy of the original document; again, this hinges on whether its passage was actually done in compliance with amendment rules set forth in Article 13 of the Articles but for the purposes of this post I'm assuming that's true. And since that document contained An Infinity, I would think that even a complete re-write couldn't scrub that Infinity out of existence. That is, it seems to me that under the original Articles, you couldn't have an amendment passed under Article 13 that said "oh, about that perpetual union thing? nevermind." The reason being that you can't create An Infinity and then later decide that you want to cap it, even retroactively. If the original document is valid and it creates An Infinity, then I would think that Infinity will persist for as long as the validity of the document is recognized. Even the full power of the document can't undo what it has done. You can't close Pandora's Box.

And if that's true then even under the current Constitution its parent's commitment to a perpetual union of states must still be in effect. Because you can't uncreate The Infinity contained within the Articles without rejecting the Articles, which the Constitution doesn't seem to have done (again, assuming its ratification was done with the assumption of the Articles' validity, i.e. as an amendment to the Articles). The reason being, quite simply, that if you could end something with a simple amendment, then it couldn't have been perpetual in the first place. Similarly, if you could simply cap the infinite whenever you felt like it, it couldn't have really been infinite to begin with. "Perpetual" means a very specific thing and, I think, implicit in that definition is that nothing at all can end it. And if the Constitution is cut from the same cloth as its predecessor, then even though the words "perpetual union" are no longer in the governing document they must still be operative anyway.

Does any of this make sense? Am I way off base here?

Escherian Finances

2010-12-08T17:57:00.003-05:00

Not too long ago, Republicans were complaining that billions were being taken out of Medicare to pay for a new entitlement (subsidies for low income people buying insurance in new health insurance exchanges).

Today we learn that Senate Republicans and Democrats have agreed on a novel way to deal with the perennial problem of finding money to prevent Medicare physician reimbursements from going down next year: by taking billions out of that new entitlement and funneling it back into Medicare.

I went with the Escher "Drawing Hands" analogy because it comes with a nice visual but truly the first reference that came to mind was Milo Minderbinder's economics. That said, in its strange way, this all does make sense.

On Pissing Contests

2010-12-07T22:03:00.005-05:00

I'm a Time Warner subscriber and it seems like every few weeks they run a commercial (or, occasionally, send an email) exhorting me to lend my voice and help them stand up to some particular channel offerer. At the moment, it seems they're having trouble with at least two companies that offer some particular set of channels and, if an arrangement can't be worked out, subscribers (like me!) face a blackout of those channels. Here's part of their explanation about what's happening with one of those companies right now:

We are currently negotiating with the parent company of those channels, ______. And if we don’t reach a new agreement before December 15, ______ is threatening to stop allowing Time Warner Cable to continue carrying its stations. We’re working hard to reach an agreement that will prevent any interruptions in these channels, and are optimistic that we can do so. [...]

We’re talking about it because the single largest expense we have in delivering you video service is the price we must pay to the companies that own the programming. And customers have told us they don’t understand why the price they pay each month continues to rise. We want to give you the information that helps you make informed decisions about programming. Time Warner Cable buys programming from hundreds of different companies that run TV stations and cable networks. The contracts to buy that programming come up for renewal from time to time, with dozens up for renegotiation every year. Most are negotiated in private between the companies, without event. But sometimes some of those negotiations become public.

So I pay a monthly fee to this particular company (Time Warner), which then has to negotiate contracts with various companies that are actually providing the thing I want: TV channels. This sounds just like something else... (he said thoughtfully, stroking his beard and staring off into the distance).

Indeed, the superficial similarity I'm noting is to the dance that your health insurance company does with health care providers. And just as, sometimes, Time Warner's negotiations with the companies offering TV content spill into the public sphere, sometimes the negotiations between health insurers and health care providers become ugly public pissing matches. There was a story out of North Texas just last week about Blue Cross Blue Shield and a provider network called Texas Health Resources airing their dirty laundry in public. It seems if Texas Health Resources doesn't get the contract it wants from Blue Cross, its hospitals will charge patients/Blue Cross the much higher out-of-network fees (blackout!) and the hapless doctors caught in the crossfire "have sent letters to their patients encouraging them to contact Blue Cross" ("If you think it’s unfair for your local stations to black out your programs from Time Warner Cable customers while demanding significant increases that will eventually impact the price you pay for cable, let them know!" says Time Warner).

Instead of cooperating, the region's largest insurer and hospital system are taking jabs at each other.

Blue Cross says Texas Health is demanding an additional $120 million over three years to cover cost increases. The insurer has declined to say how much it is currently paying Texas Health.

The insurer says it contributes $178 million to Texas Health's annual profits. It also says the hospital system makes a 30 percent profit margin from Blue Cross members.

"This kind of runaway spending on medical care is one of the main causes of higher health insurance premiums for our members," Blue Cross said in a recent letter to members.

For its part, Texas Health says Blue Cross wants to pay its millions upfront in a lump sum. Instead, Texas Health wants its money reimbursed traditionally, after a claim is filed. The hospital system also points to the insurer's accumulated wealth.

"Blue Cross Blue Shield of Texas is sitting with about $7 billion in reserves. And they don't provide any patient care," said Wendell Watson, spokesman for Texas Health. "In fact for many of their customers – the self-insured ones – they don't do much more than manage the paperwork on claims."

Both are nonprofit companies. Texas Health had $2 billion in assets at the end of 2008, according to its latest financial reports.

The power struggle between insurers and hospitals has intensified in recent years as hospital consolidations created mega-health systems. These companies, emboldened with leverage, began going head-to-head with insurance companies for better rates.

"As we've grown we've gained a larger network of providers that provide care in a variety of settings," said Barclay Berdan, Texas Health's vice president for system alignment. "We get some economies of scale because of that."

Blue Cross' vice president for network management, Shannon Stansbury, said the company negotiates with smaller health providers across the state every day. Blue Cross has contracts with more than 400 hospitals in the state. [...]

Same shit, different channel.

Z

2010-12-04T17:50:00.003-05:00

It's tough to find much redeeming content in Thursday's Cavs-Heat game but I think my favorite part was seeing Z's reception when the Heat starting line-up was being announced. Deafening boos were momentarily replaced by thunderous applause.

Sucks that Z chose the Heat but at least he said goodbye with a nice Sunday ad in the Plain Dealer and not a nationally televised middle finger to the city.

Dear Cleveland,

When I came to this country 14 years ago, I was a young man who barely spoke the language and had no idea what to expect of this great country.

As I look back on those early days, I realize how lucky I was to have grown up in a place like Cleveland. All of you have taught me the importance of family and friends; of pulling together to get things done; of loving your country.

I’ve never felt as proud as when I’ve pulled on the wine and gold and stepped onto the court.

I’ve tried my best to return that support by playing as hard as I could each and every game.

The decision to play for Miami was not an easy one to make for either myself or my family.

But as I enter the last few years of my career, I felt I owed it to myself and my family to chase my dream of winning an NBA championship.

I hope you understand.

I also hope you realize that Cleveland will always be home to me.

With love and appreciation,

Zydrunas “Z” Ilgauskas

Godspeed, Z. Lose, retire, and come home.

On "Costs"

2010-12-03T21:38:00.003-05:00

Back to musing about health care. The issue of rising costs comes up again and again whenever health care is the topic of discussion. But the word "costs" is, confusingly, often used to mean two fairly different things (often simultaneously) so it's worth thinking about the difference. They are:

1. Costs are the prices we pay for procedures or devices. They're a measure of how expensive the units of health care we're buying are.
2. Costs reflect total (national) spending on health care. This is the aggregate amount (>$2 trillion) we're spending every year, or the percent of GDP we put toward health care services. This number, however, depends both on how much individual units of health care cost and how many of those units we buy (volume).

To illustrate the difference, I'll use a mundane example from my weekly routine. I live in an urban area and don't own a car. As such, I shop in a nearby urban grocery store. If I had a car, I could shop slightly further from home at one of the larger grocery chains prevalent in this area.

Given that when I do my weekly grocery shopping I do so on foot, there is a natural limit to how many groceries I can buy. Even if I wanted to buy more than 3 or 4 bags of groceries (not that I do), I wouldn't be able to carry them all home. At the same time, it's worth noting that as a small, independent grocery store, the prices at my grocery store are in fact a bit higher than the prices across town at the larger chain grocery stores.

So let's consider two scenarios. The first is my current routine, in which the amount of groceries I can buy at one time is limited but the prices of individual items is higher than the alternative. In the second scenario I have a car and can load up my trunk as full of groceries as I please. As such, I start shopping at one of the larger chains or even a Costco and give in to the urge to buy in (greater) bulk. What's the cost of my groceries? Or, as a separate question, what are my groceries costing me? If I wanted to answer the first question, I'd probably check my receipt to see item-by-item what everything costs. On that kind of per-unit analysis, the bigger stories with lower unit prices will look better than my independent grocer. But if you ask what groceries are costing me, say per year, I might be spending more money if I'm shopping at the chain stores, simply because I can (and thus am tempted to) buy more every time I go shopping. When I'm not limited to buying only what I can carry home, I might buy lots of extraneous goodies.

The point here, of course, is that while these are very different questions, when it comes to health care people tend to conflate "how much does this cost" (unit price) with "how much is this costing me" (unit prices x volume). I myself am guilty of not specifying what I'm talking about and bouncing between meanings in different posts. As such, alarm over health care costs sometimes manifests itself as disbelief at an outrageous bill for a given procedure, and sometimes as alarm bells sounded over an uptick in national spending and increases in the fraction of our national income we're directing into the health care market.

When I wrote The Case Against Providers back in the summer, I was talking mostly about the component of the cost issue that stems from providers bargaining up the reimbursements (prices) they get for procedures from payers. The Demi-Decade of Coverage, on the other hand, discussed some of the long-term cost containment potential of the reform law and that touches more on the "how much is this costing me" issue. And that's because the tools offered by the Affordable Care Act--the scalpels and chainsaws I mentioned--are aimed largely at reducing unnecessary volume: comparative effectiveness research, payment reforms, more efficient and effective delivery models, efforts to reduce medical errors, and the like are all aimed at streamlining the health care system and make it better at doing what it does (read: achieve good results without flushing huge amounts of money down the toilet for no reason). What the scalpels and chainsaws "cut" for the most part is unnecessary volume. By and large, however, those reforms don't lower the unit costs of procedures. That doesn't mean they're not important steps to slowing our national cost growth, since total spending will equal the prices of our procedures multiplied by the volume of them we consume very year. But still, room for improvement.

This disparity between the two conceptions of "cost" was the subject of a Washington Post article in October entitled "The price problem that health-care reform failed to cure." In it the author argues:

The 2010 law does little to address this. Its many cost-control provisions are geared toward reducing the amount of care we consume, not the price we pay. The law encourages doctors and hospitals to join "accountable care organizations" that have financial incentives to limit unnecessary care; it beefs up "comparative effectiveness research" to weed out inefficient treatments; and it will eventually tax the most expensive insurance plans to restrain consumers' superfluous use of health care.

Such measures could reduce redundant tests, emergency room visits and hospital readmissions, which would help control the costs of Medicare, where the government sets rates. But they are less likely to lower prices outside Medicare and stem the growth of private insurance rates.

The author astutely points out something I've noted before: the robust public option that was proposed in early incarnations of the health care bill (but ultimately was dropped) was targeted at bringing down the actual prices of procedures charged by providers. This is something liberal supporters and conservative opponents alike failed to recognize, with the two camps wrangling over whether this would put the fear of God into insurers or drive them out of business with nary a word about providers.

And make no mistake, the prices of the medical services we buy from providers in this country can be substantial (relative to our counterparts in the rest of the developed world). The International Federal of Health Plans' Annual Comparative Price Report came out a week or two ago and it's full of charts like this one:

The average price for something here is generally more than almost anywhere else but not by a ridiculous amount; it's the huge variation in prices we experience/allow here--where prices are often a jealously guarded trade secret and vary depending on who's buying (the same hospital can charge two different insurance companies different prices for the same procedure in every state except Maryland)--that allows some of what we spend to stretch into the stratosphere.

And while I expressed optimism that the reform law provides the tools to get serious about cost containment--particularly after the first "demi-decade"--the actual prices of services are something we still have to address. And to leave this post with a cliffhanger, I'll note that in some future post I'm going to mention one possible tool for doing that.

The Jon Stewart Enigma

2010-11-13T11:05:00.010-05:00

I'm not sure I know what to make of Jon Stewart anymore.

His message of restoring "sanity," which I took to mean restoring civility and fact-based argumentation, resonated with me and clearly hit a chord with plenty of others. And anyone who has watched his show and followed some of his extracurriculars knows Jon as something of a media critic. His most famous moment was the day he went on CNN's Crossfire in 2004, ostensibly to promote America: The Book, and tore into what he viewed as the triviality and partisanship of the way the program was run ("You're hurting America," he told them):

At the time, and to some extent still today, I agreed with his underlying message that Crossfire utterly failed in getting its guests off their prepared talking points and thus arguably there was no "real" dialogue. Certainly I agree that it would be nice if people--important people, no less--could sit and have a genuine discussion. And to some extent Crossfire's hosts were guilty of not holding the feet of politicians who appeared on the show to the fire, as the hosts themselves traded partisan barbs. But the reality, it seems to me, is that even if you have a relatively adversarial host who explicitly calls out a politician for sticking to talking points like a broken record, it doesn't matter.

For example, on election night a few weeks ago, Chris Matthews checked in on uberpartisan Republican Congresswoman Michelle Bachmann, who had just been re-elected. In a previous appearance on Matthews' show Hardball, Bachmann had suggested that someone (the media?) ought to investigate Congressional Democrats for anti-Americanism, an idea that many thought came dangerously close to outright McCarthyism. So when Matthews talked to Bachmann on election night, he came right out and asked her if she intended to launch investigations into anti-Americanism now that Republicans had taken control of the House. Her canned answers were completely unrelated to his questions, to the point that it didn't feel like an interview at all. Which led to this amusing question from Matthews:

But back to the point. When Jon Stewart and Stephen Colbert held the Rally to Restore Sanity and/or Fear a few weeks ago, the response from many left-leaning media personalities wasn't particularly positive. The hosts of MSNBC's primetime shows bristled at being compared to their counterparts at Fox News, viewing the juxtaposition as a false equivalence. And Bill Maher used part of the "New Rules" segment of his HBO show to say what I think many people were feeling about the rally:

Stung by the criticism from the left, Jon asked for some time last week to sit down and explain himself in an interview with MSNBC's Rachel Maddow. The uncut interview (50 minutes long) can be viewed here: The Interview. It's worth watching if you have the time because it's both interesting and surprising.

He says a lot of things in this interview that make very little sense to me. And some that outright contradict each other. As an example, Maddow and Stewart discuss an issue that has sprung back into the spotlight with the publication of Bush's new book: did the former President authorize torture, sometimes phrased as "is Bush a war criminal?" This is back in the news because in his book Bush explicitly admits to personally and enthusiastically authorizing waterboarding:

In George W. Bush's new memoir, Decision Points, the former president explains that the CIA approached him about the possibility of waterboarding Khalid Sheikh Mohammed, the al-Qaeda operative often called "the architect of 9/11." In his memoir, Bush writes that his response was "Damn right." This seems to be a straightforward admission that Bush approved the use of waterboarding on a detainee--even though this technique is widely regarded as inhumane, and its use is thought by many to violate the United Nations Convention Against Torture, of which the United States is a signatory. (In media outside the U.S., waterboarding is almost always referred to as torture.)

I'm actually not sure why this is being viewed as a revelation; everyone knew that the U.S. has waterboarded detainees. I suppose we didn't know for sure that Bush had personally signed off on it? Well, if we didn't know before, we know now. And so the issue seems to have become very simple: is waterboarding torture? If yes, then a crime was committed here. The current Attorney General has said that waterboarding is torture, it does seem to be a fact that the U.S. charged at least one WWII-era Japanese officer as a war criminal for waterboarding someone, a great many experts inside and outside the U.S. seem to feel it constitutes torture, and prior to 2002 the prevailing opinion in America seemed to be that waterboarding is torture. So with that background established, I've clipped the relevant portion of the interview:

The first thing that sort of made me do a double-take was Jon's statement to Rachel "You've said Bush is a war criminal. Now that may be technically true...". He starts off by conceding her point but chastises her for having the audacity to make it because it "feels like a conversation stopper." I fully agree with him that such a statement sounds incendiary. But this is where I think Jon's message gets a bit hazy. Does restoring sanity and civility mean ignoring the truth content of a statement? A statement like "Obama is a Marxist" doesn't satisfy the definitions of sanity and civility because it's nonsensical: there is no valid argument you can make in support of that statement. Put simply, you have to either 1) be unfamiliar with the tenets of Marxism or 2) be unfamiliar with the policies Obama has pursued or is pursuing to believe it. Either way, making that statement constitutes a massive breach of what one might consider to be the requirements of civilized discourse. It's not the style, it's the substance that sinks it.

In the case of "Bush is a war criminal," you have to believe three things: 1) Bush authorized waterboarding, 2) waterboarding is a form of torture, and 3) torture constitutes a war crime. The first one is not in doubt, since the man wrote a book boasting about that very thing. Regarding the third, I'm certainly not a lawyer so I'm not sure what domestic federal law says on the subject, but as signatories to things like the Geneva Conventions and the United Nations Convention Against Torture, I believe the U.S. (and, ultimately, the world community) has made its feelings clear on this issue. So it really hinges on the second point, which as I've indicated has lots of evidence in its corner that waterboarding is indeed a form of torture. And, just as an aside, if you're having trouble remembering exactly what it is that the former President signed off on:

Interrogators pumped detainees full of so much water that the CIA turned to a special saline solution to minimize the risk of death, the documents show. The agency used a gurney "specially designed" to tilt backwards at a perfect angle to maximize the water entering the prisoner's nose and mouth, intensifying the sense of choking – and to be lifted upright quickly in the event that a prisoner stopped breathing.

The documents also lay out, in chilling detail, exactly what should occur in each two-hour waterboarding "session." Interrogators were instructed to start pouring water right after a detainee exhaled, to ensure he inhaled water, not air, in his next breath. They could use their hands to "dam the runoff" and prevent water from spilling out of a detainee's mouth. They were allowed six separate 40-second "applications" of liquid in each two-hour session – and could dump water over a detainee's nose and mouth for a total of 12 minutes a day. Finally, to keep detainees alive even if they inhaled their own vomit during a session – a not-uncommon side effect of waterboarding – the prisoners were kept on a liquid diet. The agency recommended Ensure Plus.

So while Jon's right that the charge is incendiary, accusations that Bush is a war criminal don't seem to be based on false premises, nor are the arguments particularly weak. And while this seems to have emerged as a partisan issue, I don't think the fundamentals of the debate itself are partisan. Certainly the current President took a very Gerald Ford-ian approach of letting bygones be bygones. Did the last guy do something illegal? Eh, better not to ask the question, let's move on.

But let's get back to Jon's point. And I'm torn because I'm sympathetic to his "you're not helping" views. He seems to have in mind groups like Code Pink, which engage in silly publicity stunts to make their point. Certainly I agree that getting thrown out of a Congressional committee room by shouting about Bush's potential war crimes is a waste of time. In college, I was frequently annoyed by the antics of liberal student groups. When a group trying to force the university to divest any holdings that might somehow make it into Darfur crashed a university Board of Trustees meeting I took a Stewartian "you're not helping" point of view. Efforts to bar Coke products from campus in order to make some point about labor conditions in South America seemed pointless to me. Causes for the sake of causes never appealed to me, nor have antics for the sake of antics. So in that sense, Jon is right about the importance of style and certainly the effort to restore sanity entails stylistic changes to the way arguments are presented.

But this is exactly where many on the left took issue with him (and you can see this in Bill Maher's clip above). He conflates statements that are incendiary on the basis of their substance (e.g. that Obama is a socialist or Marxist or whatever) and pushed by a wide range of leaders in modern conservative/Republican thought (including political leaders), with arguments that are not incendiary--in the sense of "we don't have an argument here but are just trying to egg on the other side"--on the substance (e.g. by authorizing an apparent torture technique, Bush may well have committed war crimes) and have been suggested by all manner of sober legal scholars and relatively civil voices on the left (like Maddow). And he does this because a handful of groups on the left have chosen to make the point in an obnoxious way. And whether or not he wants to admit it, Jon is pushing a very serious false equivalence with that kind of thinking.

And he brushes off the accusation against the former President--after suggesting it "may technically be true"--by saying that, to him, a war criminal is Pol Pot or the guys convicted in the Nuremburg Trials. In other words, a war criminal isn't someone who knowingly and purposefully engages in actions that violate the established rules of war, it's someone who commits genocide. I can't get behind that, Jon. He suggests that if we're going to go down that road, we might have to ask whether Obama is some kind of war criminal for continuing the Bush-era policies of "extraordinary rendition," i.e. knowingly shipping prisoners off to more torture-friendly countries. And while I think there's a much less straight line case for actual criminality there, by all means let's talk about it. It seems a bit disingenuous to push the idea that we're in trouble because "tribal" politics colors everyone's perceptions, and then make that kind of argument in support his case--"well, we can't pursue that thread because then we'd have to consider the possibility that Obama has done something wrong." Sorry, Jon, that's not an argument against going down that road. Not to someone who can see--as you claim to want people to do--beyond red and blue.

I realize I've spent an inordinate amount of time on that one issue. There's a lot more in there that I find a bit off, such as his holier-than-thou attitude on his own role in the media. When I say Jon's a "media critic," I mean he's a very specific kind of media critic: a critic of cable news. Fox News, CNN, and MSNBC are frequently the target of his ire but I don't believe he ever criticizes network news or newspapers. In general, he goes after shows based on commentary--what I think are the TV equivalent of newspaper columnists or editorialists. And that's fine, those people deserve to be skewered. But we shouldn't confuse them with "the news." Bill O'Reilly is not the news. Keith Olbermann is not the news. They report stories, sure, but they do so with their characteristically ideological bent. Bill O'Reilly actually puts up his thoughts on the screen in bullet points, a practice lampooned by Colbert in The Word.

No one tunes into these people expecting a straight news broadcast any more than they tune into The Daily Show for a straight news broadcast. They tune in for the show's particular bent. In the case of The Daily Show, we watch because Jon makes fun of the news, he puts his unique comedic spin on it. Liberals watch Olbermann for his liberal bent and O'Reilly for his conservative bent. Everyone knows what they're getting: a certain kind of commentary on the news. In that sense, The Daily Show is no different than that which it mocks. It's just that the mockery itself is the bent its viewers want to see.

Here's Jon (somewhat incoherently, I think) trying to argue that his show is special and he has "leeway" that others lack:

I don't buy it, in part because I'm not sure what he's trying to argue. None of them are "on the field" in the sense he seems to be using it, which roughly seems to be "actively working as an arm of a party." I don't even think Fox News generally meets that definition, though some of the folks over there came awfully close in the first half of 2009 with the way they promoted Tea Party meet-ups. They all clearly have preferences (this includes Jon) and they all approach the news with a point of view that they wear on their sleeves. But again, that's not a bug, that's a feature: that's why people tune in. It's not "what happened today?" it's "how is ___ going to handle what happened today?" People getting some of their primary news from those programs is undoubtedly happening but that's not the fundamental point.

What becomes clear at a certain point of this interview is that Jon takes issue with what he views as a motive-driven narrative: viewing the actions of politicians through the lens of what you perceive their motives to be. Thus the criticism of Bush as a possible war criminal becomes invalid because many adherents to that view are undoubtedly fitting it into their core belief that Bush is a bad or evil man. And while I don't think there's any way to get rid of that kind of thinking, I don't think it's particularly relevant here. It doesn't matter if Bush's motives were relatively pure, as he suggests they were: everything he did, he did to protect American citizens. Invading Iraq, authorizing waterboarding, tapping phones, and so on. But to pretend that opposition to those policies is somehow invalid because the dissent has in some instances been overly shrill or rooted in an odd belief that Bush is some kind of second coming of Hitler is disingenuous. And by that I mean that the claim that these policies are bad for American has merit, regardless of whether the person making that argument believes it simply because he believes in his heart that Bush is a bad man. You can believe he was wrong, even criminally so, and still accept his claim that his motives were pure.

Let me illustrate this with a contrast. I have a good friend who, during the 2008 election season, took issue with some of candidate Obama's policy preferences because of some deep-seated suspicion of the years Obama spent overseas as a child. In the same vein, I've seen opposition to the Affordable Care Act that's rooted in the fact that in 2003 Obama told a room of union folks that he's a proponent of single-payer. These are part of a larger pattern that I would characterize thusly: Obama is different somehow, he's some kind of "other," either due to one's suspicion about the church he went to, or his "real" religious beliefs, or his years overseas, or his racial background, or the way these intersect with his alleged closet socialist or even Marxist beliefs. And because one believes that in his heart Obama has an unacceptable world view (be it in terms of religion, or economics, or culture, or all of the above), every policy he supports must be viewed through that prism, regardless of the independent merits or failings of the policy itself. Thus it's irrelevant that a dispassionate look at the ACA--er, "ObamaCare"--would confirm that its design does not lead anywhere close to single-payer health care (indeed, as I've pointed out, the design itself came from 1990s era Republicans)--since we "know" that Obama wants to take over every aspect of your life, it stands to reason that a health care law he supported must pave the way to whatever your worst nightmare happens to be.

In the war criminal example, believing that Bush is inherently a bad man with bad motives isn't necessary to make the argument, it will simply reinforce the conclusions that I believe a dispassionate analysis yields: these policies are not a good idea and quite possibly criminal. But when it comes to Obama, a deep-seated paranoia about the man himself is necessary to buy the arguments being presented because the facts themselves don't lead to those conclusions. These are not equivalent situations, no matter how hard Jon wants to strive to appear "fair." So when he makes these arguments, as well as arguments that it's just a "belief" that Saddam Hussein wasn't actually creating weapons of mass destruction, he leaves me scratching my head. Perhaps I'm missing the point he's trying to make because, as I said at the start, I don't know what to make of the guy anymore. Civility does not mean--as it does in the non-partisan, non-opinionated media that Jon doesn't attack--presenting bullshit as being on par with rational, fact-based analysis. If the failing of cable news personalities is that they have too much of a point of view, the failing of the dispassionate media is that it doesn't have enough of one. Instead we have news articles telling us that critics say X, while the White House or whoever responds with Y. Well, that's nice but it doesn't leave the average citizen with any means by which to evaluate the truth of X or Y. And thus they're forced to rely on partisan affiliations or their gut or chicken bones to pick a side. I don't know how to reconcile my own view that some statements, some points of view are just laughably devoid of facts or content--a view I feel is implicitly shared by The Daily Show in much of their tongue-in-cheek humor--with Jon's statements here.

And that's part of the enigma of Jon Stewart: what is he trying to do? What point is he trying to make? If it's just satire, I have to admit I think Colbert's show has been light years ahead of The Daily Show for years (virtually since Stephen left). If, as Wiki says, "In satire, vices, follies, abuses, and shortcomings are held up to ridicule, ideally with the intent of shaming individuals, and society itself, into improvement" then Colbert, by doing each and every show in character, as a false persona representing an amalgam of right-wing blowhards, takes the cake here. His humor is more biting, the heights of ridiculousness he reaches using conservative arguments and tactics are well beyond anything The Daily Show does these days, and just in terms of entertainment value Colbert has always been a better performer than Jon himself (Colbert's roots in Second City's brand of improv comedy serve him much better in this respect than Jon's background in stand-up serve him). In terms of sheer hilarious comedy with biting points to make about society, Colbert wins.

The Daily Show, I think, has to be viewed more as another version of that which it claims to parody: news shows with a point of view. Their point of view is expressed through comedy, but then many times so is Rachel Maddow's (in fact, in the interview she laments that now her attempts to use comedy to talk about politics come across now as a poor rendition of Jon Stewart's shtick). Despite Jon's protestations in this interview that even his own term for his show--fake news--isn't correct and that he's really just attempting to pull of his own version off a Jerry Seinfeld routine, it seems clear that his goal is to comment on the news in his unique style, which as a comedian obviously revolves around humor. This differs a bit from Colbert, I think, who is so dedicated to his satirical craft that he not only spoke at the 2006 White House Correspondents dinner in character to make fun of both the media and the President (to his face) but actually testified in front of a Congressional committee in character a few weeks ago. Again, if it's a question of which one is the kid blowing spitballs at the powerful for the sheer fun and comedy of it all, Colbert wins hands down (particularly when one reflects on the interviews--with a few exceptions--Jon has done with the people he lambasts).

Anyway, I found that interview perplexing. Take from it what you will.

edit// I realize I wanted to make some point about the history of partisan newspapers and the like in America to push back on Jon's implicit suggestion that the Era of Good Feelings lasted up until a few years ago when red-and-blue maps and nasty partisanship re-emerged from the dustbin of history. But maybe TJ or one of you can somehow relate those kinds of things to the topic at hand.

The Three-Body Problem

2010-11-11T13:17:00.004-05:00

Historically the three-body problem was a very prominent (and difficult) challenge in physics: calculating the paths taken by three bodies interacting with each other gravitationally. Since each body is affecting the other two and those effects in turn influence how the other two bodies interact with each other and the first body, it's tricky.

But I'm using the phrase a little differently here. A week and a half ago I brought up the gubernatorial race in Maine, effectively a three-way race. And I posted this graph showing the shifting dynamics of the race in its closing days:

By the very end of the race the independent candidate, Eliot Cutler, had surged into a very close third behind Democrat Libby Mitchell and was clearly on the upswing. How did things turn out on election day? As Wiki attests:

That's right, it almost turned into the biggest upset of this gubernatorial election cycle. For most of election night, Cutler was leading as the election returns trickled in. So what happened?

My best guess is that the polls themselves altered the outcome of the race. Regardless of what triggered Cutler's momentum in the closing weeks, it was clear that he had it. It was also clear the Libby Mitchell was not going to be the next governor of Maine. And the fact is that Cutler, despite the Maine Democratic Party's idiotic decision to run negative ads against him in the final days of the campaign, was acceptable to most of the Democrats and other center-and-left-leaning residents of Maine. I mentioned his background in the other post so I won't repeat it here.

So it stands to reason that the average Democrat/non-right-leaning voter saw Libby Mitchell treading water--or even sinking--as the campaign wrapped up and, mortified by the thought of Tea Partier Paul LePage becoming governor, decided to vote strategically: withdraw support from Mitchell and throw it to Cutler, who was trending upwards. That's the kind of swing that takes a guy from third place to (almost) first. There are undoubtedly also voters like me--people who didn't intend to vote but impulsively decided on election day to take advantage of Maine's same day registration laws and turn out to vote for Cutler (who was my first choice even before I decided to vote).

In the end, the candidate formerly running 2nd in the polls--Democrat Mitchell--didn't finish first or second in any county in the state. That suggests those late interactions between her, Cutler, and certain voters' revulsion at the thought of a LePage victory had a significant impact on the race. In the end LePage eked out a victory, a victory I suspect wouldn't have happened if the remaining Mitchell voters had known how close Cutler would run with him. But dem's da breaks.

As for what the state can look forward to: ... Though Massachusetts gets credit for being reform-minded, Maine actually enacted comprehensive health reform in 2003. The state created the Dirigo Health program to expand coverage to the uninsured. And while the program has faced its ups and downs and is certainly in need of some work, Maine now has the fourth-lowest uninsurance rate in the country. But if Republicans are good for one thing, it's unmaking that which has been made.

Tarren Bragdon, a co-chairman of Mr. LePage’s transition team, said the new governor would probably also scale back the social safety net to focus on the “truly needy” in programs like food stamps, Medicaid and cash assistance, and look to remake the state’s health system.

That system, known as “Dirigo,” (Maine’s motto, which means “I lead“ in Latin), was enacted several years ago in an effort to provide universal health care coverage for residents.

“Dirigo,“ Mr. Bragdon said, “will be Diri-gone.”

And all because 38% of voters wanted this guy to be governor.

What should I do?

2010-11-05T23:17:00.002-04:00

The original:

The response:

The spoof (from last week's South Park):

Mysterion Rises
Tags: SOUTH
PARK Eric Cartman,Mysterion,more...

Turns Out I Lied

2010-11-02T18:30:00.000-04:00

I voted today.

Contingency

2010-11-02T16:59:00.002-04:00

History is full of instances that at the time, and when viewed alone, seem to be innocent enough but end up dramatically changing the course of events when you look beyond that isolated moment. Often we stray into the somewhat treacherous realm of "What If" history while considering these events, where one can draw just about any conclusion they want if they stack the historic dominoes the right way. While it's interesting to consider how things could have changed in a different situation, I'm not arguing that historic figures should have had a clear view of what the end result of their choices would be. Rather, in most cases I argue the exact opposite: that we generally can not possibly know what the long term results of present actions will be until after the fact (sometimes not until decades or even centuries later), and even then it is a confused and muddled picture that we may never be able to grasp completely.

There are few spheres of history more rife with contingency than military history, and the fact that debates still rage on the consequences of certain actions shows that it is impossible to determine even hundreds of years later how much of history changes with a few different flips of the coin. Battles and even entire wars can be won or lost by a single decision or random event, whether it's made by the commanding officer, a conscript on the battlefield, or nature itself. One war that has contingency bursting from the seams is the American Revolution and there are entire books on some of the lucky breaks the Americans got during the war. And while most of these lucky breaks have fairly reasonable explanations for them, there are a few that are interesting to consider how close things really were. The most famous is probably Washington's retreat from Brooklyn Heights on August 29th-30th, 1776. Completely surrounded with the East River to their backs, Washington decided that to live to fight another day was better than a last stand and he organized for boats to ferry what was left of his army across the river. The winds stayed perfect for preventing the British ships from sailing up the river to cut off the retreat and General Howe oddly told his men to hold off the final attack and dig in, both of which bought the Americans some time. But the clincher was probably the heavy fog that settled along Long Island which prevented British sentries from seeing the American withdrawal and hitting them while they were vulnerable. The retreat succeeded and Washington slipped away with the remainder of his army to continue the fight.

Another fateful choice came later in the war, this time from the British navy. In 1781 the usually aggressive Admiral Rodney of the British Navy decided, for a multitude of reasons, not to engage a French convoy led by Admiral de Grasse, the same Admiral that was on his way to seal General Cornwallis in at Yorktown (and, interestingly, the same Admiral who was soundly thrashed by Rodney at the Battle of the Saintes one year later). The author Barbara Tuchman argues in The First Salute that in this case the British were actually aware of the possible result of their actions and yet failed to prevent it. Whether or not they fully grasped the contingency involved is impossible for me to say, but it does illustrate how one decision can have a large influence on world history.

There are plenty more I would like to include here, but I'll only choose one to expand on. Charles Guiteau was an American "lawyer" who obtained his law license under questionable circumstances at best, which later in life helped give rise to political aspirations. He spent some time in a New York jail, was nearly committed to an insane asylum but escaped to a neighboring state, and apparently narrowly avoided death in a steam boat collision in 1881. After hounding the White House for months and being politely refused for a political appointment he had absolutely no qualifications for, Guiteau decided to shoot President James A. Garfield as his plan to cure the Republican Party of its "problems" (mainly him not receiving his appointment). If any one of those circumstances had changed for the opposite, perhaps Garfield would have fulfilled his term and drastically changed the list of presidents? Regardless of how the eventual domino effect plays out, had he been removed from the picture at any one of those earlier moments it is unlikely that someone else as insane as Guiteau would have come along to assassinate President Garfield.

Whether or not history would have changed with any of these events and to what extent is impossible to say and indeed irrelevant to my point. The point is that any chance occurrence that happens today can have a butterfly effect tomorrow. It is both exciting and terrifying to think about what happens based on our actions each day. Perhaps you throw out that old sandwich which causes you to not die of food poisoning and eventually go on to cure cancer? Maybe your party losing in a disastrous midterm election *ahem* causes it to rethink its strategy and win big two years from now? Or the opposite? We know just as much about the results of our actions as Admiral Rodney did by choosing not to pursue de Grasse in 1781. I can't wait to see how it pans out.

Why We Have Two Parties

2010-11-01T00:25:00.002-04:00

Lots of three-way races this year and, with those, lots of reminders as to why elections are usually a red vs. blue affair and not a ménage à trois. The one closest to me is happening in Maine where a Tea Party Republican is sailing to victory. Technically this is a five-way race but two of the gubernatorial candidates are non-factors. The leaves Paul LePage, the Republican; Libby Mitchell, current President of the Maine Senate and a longtime politician in the state; and the Independent, Eliot Cutler. Cutler, however, served in the Carter administration (wiki describes him as the "principal White House official for energy" during those years) and worked for Edmund Muskie. So you've effectively got two Democrats running in this race.

And when two like-minded people both decide to run instead of consolidating under one banner and party apparatus, they tend to split the vote of like-minded voters. And in those circumstances, a candidate the majority of the electorate doesn't want in office can sneak through. As you can see from FiveThirtyEight's forecast for the Maine gubernatorial race, the Independent Cutler has surged in recent weeks while the Democrat Mitchell has slipped into a bit of a freefall. The result is that they've converged in the mid-to-high 20s and the Republican LePage is sitting pretty and heading for a win with only 41.7% of the vote.

Shitty situation. But, for the record, were I voting, I'd be voting for the independent, Eliot Cutler.

Massachusetts has more doctors than your state

2010-10-28T21:46:00.008-04:00

Massachusetts, it seems, is in the midst of a severe primary care shortage:

Half of primary care practices in Massachusetts are closed to new patients and wait times for appointments continue to be long, according to a new survey released today by a statewide physicians' association.

The Massachusetts Medical Society, which has been polling doctors, hospital executives, and medical educators for nine years, reports that primary care doctors are in short supply for the fifth year in a row, citing pressure from the state’s 2006 law mandating near-universal insurance coverage. Other doctors are not immune. All told, 10 of 18 specialties also have shortages and all of the state’s community hospitals say they are having a hard time filing vacancies.

But a visit to the Kaiser Family Foundation's tremendously awesome statehealthfacts.og resource reveals that, at least in raw numbers, Massachusetts doesn't seem to be in bad shape. Relatively speaking. If we look at "Nonfederal Primary Care Physicians per 1,000 Population" we see that in 2008 Massachusetts had the highest number of primary care physicians (PCPs) per 1,000 people of any state (it tied with Vermont).* Massachusetts and Vermont both had 1.8 PCPs per 1,000 people.

"But," you say indignantly, "Massachusetts has near-universal coverage! You can't just compare it to every other state like that!" And that's true. Assuming people without insurance are very unlikely to see a PCP, it seems Massachusetts probably has more primary care patients per 1,000 people than other states, too. But suppose we were to take the uninsured segment of each state's population and cut them out of the equation. That is, let's just look at the number of PCPs per 1,000 insured people. That should knock Massachusetts down a few pegs, right?

And it does. Almost. When we adjust for all the states' insurance rates, we find that Massachusetts is no longer tied for first place. It's now tied for second (with 1.9 PCPs per 1,000 insured people). Still not too shabby. How do we explain this apparent discrepancy between the numbers and the reality? How can Massachusetts have more doctors per capita than (almost) anybody but still be facing such a severe shortage?

I'm drawn to the explanation suggested in "Physician Workforce Crisis? Wrong Diagnosis, Wrong Prescription." The authors argue that not only is the shortage not a problem of numbers, more doctors would actually worsen our problems:

We believe that the perception of a physician shortage, both nationally and in Massachusetts, is just one symptom of the underlying problems in our health care system. The current delivery and payment systems often make it more “efficient” for primary care physicians to see patients they already know (diminishing others’ access to primary care) and for all physicians to narrow their scope of practice (increasing referrals to specialists) and to admit patients to the hospital (where hospitalists manage their care). Data showing that physicians in high-supply regions are more likely to report difficulty gaining both hospital admissions and specialist referrals are consistent with this hypothesis. In the absence of reform of the delivery system, additional growth will lead to further fragmentation of care that will exacerbate the problem of access and worsen the apparent scarcity it is intended to remedy.

Rather than treat the symptoms, we should focus on the underlying disease — a largely disorganized and fragmented delivery system characterized by lack of coordination, incomplete patient information, poor communication, uneven quality, and rising costs. Pilot projects intended to address these problems are under way in both the private and public sectors, with growing interest in primary care–based medical homes, enhanced care coordination, programs for chronic-disease management, and payment reform.

Food for thought.

*Not counting the District of Columbia as a state--D.C. is far and away the winner in this category.

Eat lead, slackers!

2010-10-23T20:21:00.003-04:00

The latest latest CNN/Time poll has Ted Strickland up 1 point. This after having been down 10-11 in other polls in the not-too-distant past. I should note that this is the only poll that's shown him up recently.

But it's possible that after sustaining a very long, extended barrage from his opponents, Governor Ted is fighting back. Here's a dramatization:

Go get 'em, Ted!

Some Numbers

2010-10-21T23:59:00.003-04:00

Well, the demagogue from Michigan held me personally responsible for causing 10.1 percent of our work force to be unemployed. But 7.4 percent of them were unemployed when we got here. By my figures, we're only responsible for 2.7 percent.

-- Ronald Reagan, October 14, 1982

It's October. A first-term president warily stares down the approaching midterm elections, cognizant of the fact that his party is heading for losses. The unemployment rate is persistently high and the economy is in poor shape. The year, of course, is 1982.

Some folks feel the need to suggest that Obama's economic performance, particularly when it comes to the unemployment rate, doesn't compare favorably to Reagan's. Yet at this point in his presidency, Reagan was facing a 10.4% unemployment rate. And it was rising, on its way to hitting 10.8% in November and December of 1982. The month he took office it had been 7.5%.

By comparison, when Obama took office the unemployment rate was already higher, 7.7%. But last month and the month before that it hovered at 9.6%. If we use Reagan's logic from the opening quote, that means Obama "owns" a 1.9% increase in the unemployment rate. Not too bad, considering.

But this misses the real story. Just looking at the instantaneous unemployment rate when Reagan or Obama walked into office--7.5 and 7.7 percent respectively--doesn't give us an idea of the magnitude of the problem. What we really need to consider here is the derivative: how fast was unemployment changing?

And while this fact seems to have been rather quickly forgotten, the economy really was in free fall 21 months ago; we were hemorrhaging jobs at an alarming rate. Take it from this February 2009 CNN article:

The latest job loss is the worst since December 1974, and brings job losses to 1.8 million in just the last three months, or half of the 3.6 million jobs that have been lost since the beginning of 2008.

The loss since November is the biggest 3-month drop since immediately after the end of World War II, when the defense industry was shutting down for conversion to civilian production.

Got that? We hadn't lost so many jobs that quickly for a sustained period of time since we demobilized the war machine after V-E and V-J day. Let that sink in for a second.

You can see the monthly unemployment rates going all the way back to Truman here. Since it often helps to make a point visually, I stuck some numbers into an Excel chart: the unemployment rates under Obama and Reagan in their first two years in office. However, to give that perspective on how that rate was changing when they showed up, I've also included the numbers for the 12 months before they came into office (i.e. 1980 for Reagan and 2008 for Obama). Go ahead, click it.

You can see that for Reagan the unemployment rate was mostly hovering around that mid-7% range when he took office, whereas for Obama the unemployment rate was riding a rocket to the moon. But not too long after Obama's Hundred Days ended the unemployment rate began to level out and eventually came down a bit. Today it hovers in the mid-9% range. This understates the pain, as that number doesn't tell us how many people have gotten discouraged and given up looking for work or who are stuck working part-time when they really want to be working full-time. But it certainly beats an unemployment rate of 14% or 18%.

I don't mean to suggest the current situation is acceptable; it isn't. Obviously that unemployment rate needs to come down. But it helps to stop once in a while and remember that things were downright terrifying at the start of 2009 and at the time the possibility of Great Depression II didn't seem all that remote. And despite the vast differences between the economic situation today and that of the early 1980s, remember that the unemployment rate right now is a full 0.8 points lower than it was in October 1982 and, as far as I can tell, it's not on its way up. So based only on the first two years of their first terms, I'd have to say Obama outperformed Reagan, getting a (comparatively) better outcome despite facing a decidedly worse situation.

Federalism and the Other Elastic Clause

2010-10-16T10:48:00.002-04:00

Like many people, sometimes I'm conflicted on federalism. That is, I find it difficult to sort out an entirely consistent picture of the role I see for the states and the federal government. I was dismayed when Missouri voters passed Proposition C earlier this year, effectively instituting a state law that insulated them from the federal mandate to carry health insurance. "The Supremacy Clause is clear," I said indignantly, "this is purely symbolic because states don't have the authority to overturn federal laws." I reject the notion that states can nullify federal law.

And yet I'm secretly rooting for California's Proposition 19 this year, the state's ballot initiative to legalize marijuana. And what's the difference? Is it simply that I don't like federal drug laws--particularly with regard to marijuana--but favor health care reform? Perhaps. Everyone's a hypocrite sometimes. This hypocrisy occurred to me today when I found myself disappointed that the Attorney General announced his intent to crack down on pot if Prop 19 passes:

SAN FRANCISCO — The U.S. government will "vigorously enforce" federal laws against marijuana even if voters next month make California the first state to legalize pot, Attorney General Eric Holder says.

Holder's warning, contained in a letter to ex-federal drug enforcement chiefs, was his most direct statement yet against Proposition 19, and it sets up another showdown with California over marijuana if the measure passes.

Let me return briefly to the example I brought up in "Happy (Belated) Constitution Day": Thomas Jefferson and his Democratic-Republicans approving the Louisiana Purchase, an action not explicitly authorized in the Constitution. An allegedly strict constructionist made a funny argument to me in favor of Jefferson's decision. Jefferson's decision was plainly constitutional, I was told, because the Louisiana Purchase was the result of a treaty with France. And since the Constitution does grant the federal government the treaty power, there is no issue here. In practice, land acquisitions are often part of treaties, after all. Of course, this is true; Article II, Section 2 does tell us the President has that power:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;

But it seems to me that there's something odd about this. Accepting it requires acknowledging that enumerated powers of the government come with various, potentially wide-ranging, implied powers that are not explicitly written down. And this is a very Hamiltonian sort of view--he used it to win the argument that a National Bank (not explicitly authorized in the Constitution) was constitutionally acceptable, a position Jefferson and Madison didn't share. One might think that conceding that the Constitution allows for actions not enumerated in it completely undermines the strict constructionist position. After all, the philosophy that the Constitution allows for actions not explicitly inked on the page is what loose construction is all about.

But let's step back to Proposition 19. Drug policy isn't my forte so I found myself wondering wherefrom Congress derived its authority to regulate and outlaw drugs. Now, usually I'm fairly sympathetic to federal power. But it's well-known that the Prohibition on alcohol required the Eighteenth Amendment to the Constitution so I was curious as to how Congress was able to prohibit other drugs without something similar. Naturally, I started with a trip to the Wikipedia article on the Controlled Substances Act to get my bearings on the subject. And I was surprised to find the justification for that law:

The Congressional findings in 21 U.S.C. §§ 801(7), 801a(2), and 801a(3) state that a major purpose of the CSA is to "enable the United States to meet all of its obligations" under international treaties - specifically, the 1961 Single Convention on Narcotic Drugs and the 1971 Convention on Psychotropic Substances. The CSA bears many resemblances to these Conventions. Both the CSA and the treaties set out a system for classifying controlled substances in several Schedules in accordance with the binding scientific and medical findings of a public health authority.

The feds can regulate drugs because we agreed to in a treaty? Now that's fascinating. Very reminiscent of the argument that Jefferson could double the size of the United States because a treaty was the vehicle for doing so.

But wait a minute. Does this imply that the federal government can do absolutely anything as long as its actions are in pursuance of treaty obligations? For example, the U.S. is a signatory to the Universal Declaration of Human Rights. This isn't a treaty. But suppose some administration took that language and stuck it into a "treaty" with, say, Canada. Both nations pledge to each other that they'll abide by those principles. Of course, treaties require approval by 2/3 of the Senate so adopting that faux treaty would be only slightly easier than simply passing a constitutional amendment. But this is a thought experiment so let's suppose that this U.S.-Canada treaty is ratified by the Senate and compliance with the Universal Declaration of Human Rights becomes a cornerstone of our relationship with Canada. That means, for example, our treaty obligations would require us to match policy action to words like these:

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

Presumably the federal government would then have carte blanche to regulate and/or provide health care in any way it chose, no (constitutional) questions asked. All because the treaty power is written into the Constitution. If strict constructionists buy that, then isn't the treaty power essentially an infinitely elastic clause (much more so than the actual Elastic Clause)?

For the most part, treaties don't seem to be used this way (perhaps in no small part due to the Senate supermajority approval stipulation) but that sure opens some doors, doesn't it? Anyway, anyone want to help me reconcile my revulsion to state nullification of the health reform law with my secret affection for California's attempt to locally overturn federal prohibitions on pot?

Life, Philosophy, and Policy

2010-10-13T20:57:00.002-04:00

A while back (in Unpersons) I mentioned an approach to the abortion question that, while maybe not a consensus among folks on the left, at least seems to be fairly common, if not always articulated: namely, that the question of whether or not abortion is acceptable hinges on questions of social personhood and not biological life.

In some ways this is a deeply philosophical point and when it comes to public life perfect intellectual consistency usually isn't the order of the day. Consider the Children's Health Insurance Program (CHIP), government-financed health insurance primarily for kids who don't quality for Medicaid. Both Medicaid and CHIP have special (higher) eligibility thresholds for pregnant woman. Since 2002 states have also been allowed to exercise a so-called "unborn child option" that allows them to consider a fetus as a "targeted low-income child" for CHIP coverage. Currently, 15 states do this: Arkansas, California, Illinois, Louisiana, Massachusetts, Michigan, Minnesota, Nebraska, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, Washington, and Wisconsin.

Of course, it's not really possible to disentangle providing care to a pregnant woman from providing it to an unborn child so what exactly you call it is sort of academic. Is it a special benefit for a pregnant woman (a vulnerable member of society) or is it a benefit for an unborn child, implicitly acknowledging that fetus as a member of society? Whatever. But it does have philosophical ramifications because, at least ostensibly, that defines how you're thinking about it. And it would seem that designating a fetus--what I previously called an unperson--as a child, a person eligible for social benefits is a firm pronouncement that the unborn are not just biological lives but persons. And persons, presumably, are subject to societal protection, not just from ill health (thanks, CHIP!) but from termination.

So why have these states decided to exercise the unborn child option? Is it a bold philosophical statement about the ontological status of the unborn? In general, no, probably not. You see, unborn children don't have a citizenship status. Thus if you choose to provide care to them, you can do so without worrying about the citizenship or residency requirements that characterize public assistance programs. And, like I said, in a practical sense you can't really disentangle providing care to a pregnant woman from providing it to an unborn child. So states can use the unborn child option to provide CHIP health care benefits (in this case, prenatal care) to otherwise ineligible pregnant illegal immigrants* by (*wink*) targeting it at their unborn child.

So an ostensibly key piece of the philosophical puzzle here turns out to be a policy tool to get around some practical political constraints. Pragmatism might arguably have desirable outcomes but it doesn't do much for producing a cohesive philosophical view of the universe.

*These woman would be eligible for emergency coverage of labor and delivery but not the full package of prenatal care before that.

Happy 2nd Birthday, Speakeasy

2010-09-25T01:08:00.002-04:00

It's been two whole years since the Speakeasy's inaugural post explaining the concept (and, sort of, the name). We've covered a lot of ground in the 137 posts since but there's a lot more ground to cover. So let's keep it alive.

Raise your mugs to the Speakeasy!

Happy (Belated) Constitution Day

2010-09-21T20:04:00.002-04:00

I don't want to step on our resident historian's toes but I'd like to make a brief(-ish) historical note in honor of Constitution Day. And since I missed the actual Constitution Day due to a logic board failure, this note is a bit late.

Sometimes people seem to get in their heads the idea that politics and opportunism developed sometime after the Founders were all dead or that the basic philosophical questions that divide us today--the proper role of government and best interpretation of the Constitution--weren't key points of controversy for the founding generation. But of course it didn't and indeed they were.

Five years or so after the Federalist No. 9 and the Federalist No. 10 warned of the dangers of domestic faction, the First Party System in American history arose. The nascent political parties comprising it were led by, ironically, the authors of those two documents. The Federalists embraced a strong federal government and a fairly broad interpretation of the Constitution's general welfare clause. They followed the lead of their founder, Alexander Hamilton, who wrote in his famous Report on Manufactures:

The National Legislature has express authority "To lay and Collect taxes, duties, imposts and excises, to pay the debts and provide for the Common defence and general welfare" [...] These three qualifications excepted, the power to raise money is plenary, and indefinite; and the objects to which it may be appropriated are no less comprehensive, than the payment of the public debts and the providing for the common defence and "general Welfare." The terms "general Welfare" were doubtless intended to signify more than was expressed or imported in those which Preceded; otherwise numerous exigencies incident to the affairs of a Nation would have been left without a provision. The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union, to appropriate its revenues shou'd have been restricted within narrower limits than the "General Welfare" and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.

It is therefore of necessity left to the discretion of the National Legislature, to pronounce, upon the objects, which concern the general Welfare, and for which under that description, an appropriation of money is requisite and proper.

This is one of the authors of the Federalist papers (and a signer of the Constitution) writing here. One would think if opinions of long-dead men are key here, Hamilton's would carry at least as much weight as Thomas Jefferson's (Jefferson, of course, was not a signer of the Constitution and wasn't present in Independence Hall during that momentous summer of 1787). Nevertheless, modern-day proponents of a strict construction of the Constitution often quote Jefferson to make their point.

Jefferson, along with "Father of the Constitution" and co-Publius James Madison, led the other major political party, the Democratic-Republicans, who took a much more restrictive view of the general welfare clause. Today, strict construction-types sometimes seize on his writings--like his description, in a letter to Albert Gallatin, of the central philosophical differences on Constitutional interpretation--to bolster their position:

Whereas, our tenet ever was, and, indeed, it is almost the only land-mark which now divides the federalists from the republicans, that Congress had not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated;

But did Jefferson really believe that funds raised through taxation could only be spent on items specifically enumerated in the Constitution? Students of history will remember that, in 1803, Jefferson was famously put in the odd position of committing a large amount of money in pursuit of an action not explicitly authorized by the Constitution. Napoleon, looking to unload some real estate, made one of Jefferson's consiglieres an offer he couldn't refuse: $15 million for the vast tract of land that would become known as the Louisiana Purchase. And while Jefferson himself was reportedly deeply troubled by the Constitutionality of this decision, the purchase certainly triggered a lively debate in Congress. Did Jefferson find unlikely allies in the loose constructionist Federalist Party and uncomfortable foes among the ranks of his own strict constructionist Democratic-Republicans? Not quite. A variation of the public administration maxim known as Miles's law--"where you stand depends on where you sit"--came into play, as it often does in politics.

The Federalists, their power dwindling at this point and eager to throw roadblocks in front of the Democratic-Republicans, argued against the Louisiana Purchase on constitutional grounds (such naked opportunism!). What did Jefferson's Democratic-Republicans present as a counterargument to justify their purchase? Amazingly, the general welfare clause! Here's a leading Democratic-Republican in the House of Representatives, Caesar Rodney, making the case:

A recurrence to the Constitution will show that it is predicated on the principle of the United States acquiring territory, either by war, treaty, or purchase. There was one part of that instrument within whose capricious grasp all these modes of acquisition were embraced. By the Constitution Congress have power to "lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States." To provide for the general welfare! The import of these terms is very comprehensive indeed. If this general delegation of authority be not at variance with other particular powers specially granted, nor restricted by them; if it be not in any degree comprehended in those subsequently delegated, I cannot perceive why, within the fair meaning of this general provision is not include the power of increasing our territory, if necessary for the general welfare or common defence.

Four years later that devoted soldier for the party became Jefferson's attorney general. He retained the post for most of Madison's first term. The point here is that even among the founding generation--even within the party of the patron saints of strict construction--a decidedly loose interpretation of the general welfare clause was employed when it was politically expedient to do so.

Today, 223 years after the Constitution was signed, we face the same questions and the same naked political maneuvering. Is the Constitution "alive" in some sense and thus adaptable to changing circumstances? Or is it, for lack of a better antipodal adjective, a dead document, equipped only to govern a late 18th century agrarian society and allowing no interpretation that would enable application of its basic structure to a post-industrial society? And should it concern us that so many people who seem to hold the latter view may well be strolling through the halls of Congress in a four months?

Dulling the Blade

2010-09-21T19:57:00.002-04:00

To make an obvious point about the cost-cutting scalpels and chainsaws mentioned in that last post: the idea of trying them out and seeing which ones work is contingent upon us not deliberately dulling their blades. Which some would like to do:

At its core, the GOP plan will focus on spending and whittling away the health-care law, the Democrats' landmark achievement, which extends insurance to 32 million Americans. House Republicans say a full repeal would pick up a few Democratic votes, but acknowledge the effort would fail in the Senate.

Instead, they plan other means to chip away at it, by trying to choke off appropriations funding for key pieces, since House approval is required to pass such spending.

Republican congressional aides and advisers say their focus would including blocking funding to hire new Internal Revenue Service agents, who are needed to enforce the law's tax increases. They also would consider barring spending for a new board that approves Medicare payment cuts as well as on research that compares the effectiveness of medical procedures.

The Demi-Decade of Coverage or: The Scalpel and the Chainsaw

2010-09-10T18:56:00.010-04:00

Once again we have some confusion over this health reform law. The culprit now is a paper written by a group of economists and actuaries working at CMS, the agency that oversees Medicare and the federal portion of Medicaid. I'm not entirely sure why their conclusions are being viewed by some as big news, as their core message doesn't differ substantially from an estimate of the law's effects released by the Chief Actuary at CMS in April. The headline here is that in February (pre-reform law) these folks released an estimate of national health care spending--i.e. all the money, public and private, being spent on health care in our economy--through 2019. That was based on then-current law, which didn't yet include the health reform law. On Thursday they released an update to that paper that takes into account the reform law. By their calculations, we as a nation will be spending a little bit more in 2019 when you factor in the reform law:

Relative to our February 2010 projections under prior law, average annual growth in national health spending over the projection period is estimated to be 0.2 percentage point higher than our previous estimate. The health care share of gross domestic product (GDP) is expected to be 0.3 percentage point higher in 2019.

The problem, some have argued, is that reform is supposed to be reducing costs and spending on heath care, not pushing spending up, if only by a small amount. To borrow an exceedingly overused expression from health policy circles, reform ought to "bend the cost curve" downwards, meaning it should stop the runaway health spending that's characterized our economy for decades. At the very beginning of the legislative debate over health reform last year, Gallup released a poll examining public attitudes. As you might imagine, the relative importance of a person's concern about health costs or expanding coverage (i.e. cutting down the number of uninsured) depended on whether or not they had insurance:

Most people do have insurance and you can see that most of them are more worried about their costs than helping the uninsured, which makes sense (though they also tend to fear losing their own coverage).

So we're back at a common complaint: "this law does nothing to control costs, it focuses entirely on coverage." As this is a pretty important allegation, it's worth thinking about in detail. But we need to take a policy-philosophical detour first.

Below you'll see a crudely constructed figure showing what's sometimes called the health policy triumvirate: cost, quality, and access. These are the three key factors that define our health care system. In physics, there's something call the "no-hair theorem" that tells us black holes are completely described by only three physical characteristics: mass, electric charge, and angular momentum. I'll go out on a limb and suggest a health care system is like a black hole in some ways (particularly when it comes to money). We might as well propose an analogue of the no-hair theorem for health care systems: three characteristics--cost, quality, and access--will characterize your system completely.

You can see that, at the risk of possibly violating that principle, I've gone a step further in that graphic--I've started making secondary colors (you know, figuratively). The way the various tips of the triangle interact are themselves noteworthy. If you've got a high-quality health system with widespread access to its facilities, you've probably got pretty good population health, i.e. people in your nation are, on average, pretty healthy. If you have a high-quality system at a relatively low cost, you're getting good value for your health care dollar. The U.S. notoriously has very good care, though still comparable to other advanced nations along many metrics, but pays much more than anyone else to get it. So it's possible to have great care but get relatively little value for your health care dollar. And finally, if you've got a low-cost system in which access to its facilities is widespread, you've got what I'll call equity. It's possible to cut costs by cutting access but that doesn't make for a very equitable system.

Historically, the conventional wisdom about the cost-quality-access triangle has boiled down to two words: "pick two." You can cover everyone in a high-quality system, but it will be prohibitively expensive. Or you can have a low-cost, high-quality system but it won't be very equitable--not everyone gets to play. Or you can have a system with universal access at a low-cost but the care won't be any good.

Somewhere along the line that paradigm has shifted. I haven't been around long enough to know when that began but I do know the date the paradigm shift was enshrined in law: March 23, 2010. The philosophy underlying the health reform law is that we can have it all. Some, no doubt, would dismiss that as naive and mere wishful thinking. But it's a powerful thought.

Contrast that with the thinking underlying H.R. 4038, the "replace" in the Republican repeal-and-replace proposal. I don't want to sell it short--there is, after all, a decent amount of stuff in there--but for me it basically boils down to two things: 1) deregulation and 2) high-risk pools. The form of the deregulation is specific to health insurance and it's something we've looked at on here before: selling insurance across state lines (they literally just lifted the language for that section of their bill out of Shadegg's Health Choice Act). A complaint you'll often hear from the right is that we have too many mandates, insurers are required to provide too many benefits. At the same time, you'll sometimes hear that if only insurance were less expensive, coverage would increase because more people could afford to buy it.

But the limits of that possibility become clear when you realize that the plan is to lower costs by limiting access. What's the underlying principle here? Namely, that less is less: if we find a way to make it easier for insurers to jettison expensive customers and shed benefits (i.e. cover less), insurance will get cheaper. Get rid of consumer protections, sell potentially inferior products, and the products get cheaper. It's not wrong--the CBO score of their bill did find that it will lower average premiums in the individual and small group market. But it won't cover any more people; even with the high-risk pools they include to help the uninsurable gain access to coverage their bill leaves the percentage of the population without heath insurance unchanged. And I suspect it wouldn't be particularly beneficial to population health. But as I said, it's not wrong--that is a way to cut costs, I'm just not attracted to it philosophically. And, at a pragmatic level, I believe there are better options for getting better results. We need not take the Khan Noonien Singh approach, dismissing the uninsured with a helpless shrug and leaving them marooned for all eternity in the center of a dead planet, buried alive.

Most people agree that when it comes to our health care system we have too much: too much fraud, too much unnecessary treatment, too much inefficiency, too many preventable expenses. And that means we're going to have to cut if we're going to contain costs. So let's jump into the two broad philosophies of cost containment--what I'll call the Scalpel and the the Chainsaw--and then we can finally get to the punchline: how health reform promises to contain costs.

The Chainsaw

The Chainsaw is a blunt instrument. It accepts only that we've got to cut and it concedes that it's going to be bloody and imprecise. And, just maybe, employing the Chainsaw won't be good for the health of people in its path. Folks on the right tend to favor the Chainsaw when it comes to reeling in costs. We touched on this a bit above but let's look at exemplary statements from prominent conservatives and bloggers, ~~Statler and Waldorf~~ economist Gary Becker and econo-judge Richard Posner.

Several months ago, Becker argued:

The most important needed reform is an increase the fraction of total medical costs that come from out-of pocket expenses in the form of large deductibles and significant co-payments. [...]

The US health care market is over-regulated rather than under-regulated. One example is that families in one state are generally not allowed to buy their health insurance from companies located in other states. Another example is the mandates that states impose on insurance companies, such as coverage of the costs of normal birth deliveries. Such coverage has little to do with insurance against unexpected health costs, whereas coverage of extraordinary delivery costs is a desirable protection against unexpected health care risks.

That second bit is the argument Republicans make: we need fewer consumer protections and less comprehensive insurance. The former is interesting, philosophically, because it assumes people just want extra care because it's cheap--or, rather, that pricing people out of care is the best way to allocate it. Or as blogmate Posner suggests, it's like going to a buffet!

A second demand-related cost effect will result from the fact that insurance,(even with deductibles and copayments, drives a wedge between the cost of a service and its price, and so increases demand. (It’s like a restaurant with a buffet: the marginal cost of eating all you want is zero.) Persons who are uninsured are deterred from consuming medical services in quantity— because of cost (they are billed for such services at very high prices and may be forced into bankruptcy if unable to pay), because of difficulty of obtaining quality service from charity hospitals or other “free” providers, or simply because, though they can “afford” insurance, they prefer to gamble on remaining healthy. These persons, when they become insured, will increase their utilization of medical services, because those services will now be cheaper to them.

I kid, of course, they're making valid points here. But I fundamentally disagree with the premise. Certainly there is an enormous amount of unnecessary care provided in our system (Thomson Reuters pegs the number at $250-$325 billion annually--that's up to 13% of all the money we spend on health care in a year). And I agree that in the absence of higher cost-sharing (an incarnation of the Chainsaw), people will tend to consume more care than they would if they were in the Chainsaw's path. But health care isn't equivalent to mashed potatoes in a buffet line. Gorging at a buffet is enjoyable, for a time anyway, and has no immediate costs (you have to wait until a bit after dinner to encounter the costs of your excess). Receiving care has many costs, be they in terms of time, anxiety, discomfort, and so on. If someone asked me if I'd rather spend an all-expenses-paid evening in a hospital or at a buffet, there'd be no contest. One is pleasurable; one is horrifying.

The reality is that people don't seek excess care because they just love soaking up additional health care resources and low cost-sharing allows them to indulge that default urge; rather, they don't know any better. Which if how you get incoherent responses like these in polls:

Let that sink in for a moment. Roughly half the respondents in this poll recognize that overtreatment--unnecessary care--is a problem in our system (though only 16% responded that they personally had gotten a test or treatment that was probably unnecessary). Simultaneously, 67% believe undertreatment is a serious problem. I suppose you could try and spin that as a recognition or expression of concern about inequality--perhaps some respondents believed lots of people are being overtreated and lots of other people, on some lower tier, are being undertreated. But it seems more likely to me that this is an indication that we, the consumers, don't know what unnecessary care is, we wouldn't recognize it if it was pounding on our chest and defibrillating us. We fear that someday we'll be denied the treatment we need (only 14% of people actually thought this had already happened to them), even as we recognize that other people are probably getting care they don't need. We don't want unnecessary care in the same way we want that unnecessary third helping of prime rib at the buffet, we simply don't know it's unnecessary.

Which is exactly why price signals alone, coupled with individual budget decisions, aren't the best way to cut through this mess. The health care system/market is not even close to being transparent, science-based, and patient-centered enough to allow people to make informed decisions about the best balance between their pocketbooks and their personal health. But the Chainsaw approach doesn't particularly care. More cost-sharing means we've placed a financial barrier in people's way that will discourage them from utilizing care--the Chainsaw lops off that spending and in the aggregate cost growth slows. But note that this individual decision isn't rooted in evidence-based, medical decision making. It's a blunt instrument that invariably cuts more closely the further down the income ladder you travel.

The Chainsaw isn't ideal for equity or population health concerns, but it probably will put the brakes on rising costs. And two of the primary long-term cost controls in the new reform law are forms of the Chainsaw: the excise tax on high-cost group insurance plans and the creation of an Independent Payment Advisory Board for Medicare. The excise tax goes into effect in 2018 and the threshold at which it kicks in will grow with the rate of inflation; however, since medical costs tend to rise faster than that, more and more plans will be affected by it with time. The idea is that it will cause employers to keep plan costs down (i.e. buy less expensive insurance plans) to avoid the tax and shift some of the costs to employees, something that's increasingly happening right now. The IPAB will be empowered to find ways to cut costs from Medicare, most likely by changing reimbursement rates. Luckily, these will be combined with cost control attempts with a bit more finesse.

The Scalpel

While the Chainsaw approach cuts costs in the goriest and most undiscerning manner possible ("less! less! damn the population health consequences!"), the Scalpel approach relies on more delicate instruments. Therein lies the fundamental philosophical shift that reform is institutionalizing: we can meet our cost containment goals by providing smarter and better care. Reform is partnering with efforts that began in last year's economic stimulus package to fundamentally shift our approach to health care. Right now it is too much like a buffet: a disconnected, uncoordinated smorgasboard of ~~treatment~~ dining possibilities with various people scattered around giving conflicting advice, often based as much on personal tastes as anything else. But imagine instead a smarter alternative: a restaurant in which a team of expert foodies is available to you for each course of the meal, each relying on a well-established, Kid-Tested-Mother-Approved™ evidence base for the best food for your particular appetites, and with the efforts of each food expert ultimately coordinated by one server who remains your go-to guy throughout the process. You might call that the ~~patient-centered medical home~~ customer-centered culinary home.

But I digress. And the food analogy becomes incoherent remarkably quickly. Let's go back to the stimulus, because the nexus between the stimulus and the health reform law is hugely important (disclosure: I'm biased--that nexus is primarily where I live now, professionally). The stimulus made two health-related investments that stand to be very significant in the long-run: 1) comparative effectiveness research, and 2) health information exchange. The former refers to building a strong, scientific evidence base to guide clinical decision-making and help us understand what works best for who in which circumstances (notably, one-size-fits-all doesn't necessarily work, which is why understanding of this "treatment response heterogeneity" is important). The latter refers to not only storing health data electronically--on electronic health records--but having the means to transmit and use that data. I'll be writing about that in detail at some point because it's near and dear to my heart. But the moral here is that the stimulus set on us on the path toward embracing data-driven health system improvement. More science, less art. After all, medical knowledge with predictive power is an impressive thing to witness:

The reform law doubles down on comparative effectiveness research, creating a Patient-Centered Outcomes Research Institute to fund and consolidate this research, and it gets specific on ways to improve the way health care is delivered. It tackles the primary incentive in our system for unnecessary care--a payment structure that pays per service, prioritizing quantity over quality--by experimenting with payment schemes that reward quality and limit hospital readmissions. It supports relatively new models of coordinated care, known as medical homes and accountable care organizations. Bundled payment initiatives will further being launched to encourage providers to coordinate care and deliver it in a cost effective manner.

The essential thing to understand here is that while there are dozens of initiatives in the law aimed at determining what works to lower costs and improve quality, they are experiments. That is, they're generally pilot (demonstration) projects operating on some limited scale (e.g. in a handful of states), though, to be clear, there are some things in there that aren't merely demonstrations. These changes, demonstrations or not, occur within the programs over which the government has primary authority: Medicare and Medicaid. But, excitingly, the reform law establishes a Center for Medicare and Medicaid Innovation that will be empowered to rapidly roll out successful experiments on a wider scale within Medicare and Medicaid (the assumption is that successful models will also spread to use in the private sector). We don't know exactly which mechanisms are going to work best, which is why the law takes an FDR-esque philosophy: "It is common sense to take a method and try it; if it fails, admit it frankly and try another. But above all, try something."

The shift here--and this goes back to the point I was making about the increasing emphasis on data-driven improvement--stands to be pretty fundamental: we're stumbling toward a future in which health is priced as an output good. Right now, we generally don't pay for health, we pay for procedures; if they don't work and you end up needing yet another procedure, so much the better for the provider accepting your payments (that's one of the volume-based incentives that drives up unnecessary care). One would think that this sort of shift is a necessary pre-condition for treating the health care market as a well-functioning market, as conservatives like Messrs Becker and Posner might like. But before that can work, we need some big changes in place. We need to start pricing health as an output good, we need transparent indicators (like reliable and accurate quality reporting) to aid shoppers, and we need readily available information on clinical effectiveness to better inform doctor and patient-as-customer alike when it comes to making medical decisions.

And those changes require laying down the appropriate infrastructure. If we're going to pay providers based on what works, we need to know what "working" is, we need the means to evaluate whether the criteria for that (whatever they may be) have been met, and we need doctors themselves to know what's most likely to work for a given patient in a given situation. And that requires an incredible capacity for processing information, whether that be collecting quality indicators from physicians via electronic health records or evaluating the comparative effectiveness of various treatments. But we're about to set off down that path. Exciting. But this law is the beginning of the journey, not the end. We'll need to continually tinker with it, building on its successes and frankly evaluating its failures, tweaking it, adding to it. Vigilance is the price of long-term cost containment.

The Demi-Decade of Coverage and the Long March Toward Cost Containment

And so, at long last, we arrive at the heart of the matter: are my premiums going to go down, are costs contained? As I intimated above, the reform law is extremely ambitious. It goes after the trifecta on the notion that cost, quality, and access can all be addressed without the need to sacrifice one. Access--which here I'm somewhat imprecisely using as a synonym for insurance coverage--is often the odd man out in our country but it's also the low-hanging fruit. Coverage is easier to address than are cost and quality, particularly when the primary strategy for reigning in long-term costs is based on improving the quality of our woefully inefficient system. And in the first decade of the reform law's existence--or, really, the first roughly half-decade, since the law doesn't fully kick in fully until 2014 and we tend to only think as far as 2019--will address coverage in a big way. This period is what I'd call the Demi-Decade of Coverage, because its most visible achievement will be insuring another 30-odd million people, fully ten percent of the American population. There will still be uninsured folks at the end of the decade--some by choice--but substantially fewer than there are today.

Meanwhile, the tinkering will begin. The Chainsaw of the excise tax will begin revving up at the end of the decade (2018) and the Scalpels of various payment and delivery system reforms aimed at constructing a smarter, leaner, more coordinated health system will make their first incisions over the next few years. It will take time for these programs to operate and be evaluated for effectiveness. The stimulus programs for encouraging adoption and meaningful use of electronic health records (i.e. health information) won't wrap up until 2021. All of this means that we can't really expect real cost curve bending to happen until the second decade of the law's existence (the 2020s). The primary cost control items operating over the next few years will be the insurance market reforms--which get all the press anyway--like the construction of the health insurance exchanges mentioned in my last post, which bring transparency and cost competition into state marketplaces. But those gains will be somewhat offset by the influx of newly insured people and the increasing quality of insurance plans available in the marketplace (read: benefit mandates). Which is exactly what the paper from the CMS actuaries that I opened this post with is saying:

For 2015–19, national health spending is now projected to increase 6.7 percent per year, on average—slightly less than the 6.8 percent average annual growth rate projected in February 2010. However, the year-by-year pattern of growth is anticipated to be different (Exhibit 5). Enrollment shifts associated with the Affordable Care Act coverage expansions are projected to continue, contributing to continuing relatively faster spending growth rates through 2016. Thereafter, spending growth is projected to decelerate more substantially as a result of Affordable Care Act–mandated reductions to Medicare provider payment updates and the excise tax on high-cost insurance plans starting in 2018.

The Demi-Decade of Coverage won't see total national spending change substantially, which is actually pretty impressive given the number of people who will be entering the system. Premiums will continue to rise faster than inflation year after year. It won't look like we've done much, except provide care to more people, which in some corners is considered laudable all by itself. But the Scalpels will be behind the scenes, finding the most precise ways to cut. And then the Chainsaw will begin at the end of the decade, giving even more urgency to the mission of the Scalpels--finding ways to ensure that the cuts the Chainsaw will force are targeted, smart, and don't harm population health. Frankly, I'm excited about these two very different cutting tools working together. I love the idea of the Scalpels and I believe that in the long run a number of them will be found to work pretty well, transforming our system into something much better in the process. But I also like that the threat of a buzzing Chainsaw will be lighting a fire under the Scalpels' asses.

But in the end, we'll have to have patient. Going for the trifecta is inherently a long-term process. We could lower insurance costs tomorrow by throwing as many sick people out of insurance pools as we can but I don't think that fits with the vision of what our health care system should--and can--be that many of us have. Too much Chainsaw, not enough Scalpel. So hang in there, the journey's just beginning. And if you've actually read all the way down to this point, I know you do have patience. This much-too-long post is now mercifully at an end.

A long Heritage of hackery...and exchanges

2010-09-09T21:04:00.008-04:00

At the heart of the new health reforms is a structure known as a heath insurance exchange. Or rather, between 50 and 100 of them, since each state will be constructing at least one and possibly two. You can read more about what this is here in a wonderful background piece from GWU's Health Reform GPS ("navigating implementation") project. Exchanges are essentially new, transparent, regulated (i.e. level playing fields) insurance markets.

Health insurance exchanges are designed to help individuals and small employer groups be better positioned to purchase high quality health insurance by creating “organized markets” that simplify the job of selecting and enrolling in coverage and securing performance information about available products. [...]

Health insurance exchanges are designed to overcome a basic problem, namely the lack of a robust, organized market for the purchase of health insurance by individuals and small business. In the absence of an organized market, the price of coverage rises because of the additional costs incurred in marketing to and supporting thousands of small customers. In addition, the lack of an exchange means the absence of an organized group of individuals and small business purchasers across whom the cost of coverage can be spread.

Having been tried before in various places, these aren't an entirely new concept. Some attempts, like the Commonwealth Connector in Massachusetts, seem to be working pretty well. Other attempts, like those made in California, Texas, and North Carolina in the past, have failed for various reasons. States have between now and January 1, 2014 to design their exchanges; the failures of some previous efforts underscores the importance of getting that design right.

Switching gears for a moment, you've got to love the Heritage Foundation. Recently they lauded some health reform experiments Utah has been conducting in this piece: Consumer Power: 5 Lessons from Utah’s Heath Care Reform. Of course, being ~~hacks~~ who they are, they had to get in a gratuitous shot at the federal reform law:

The new federal health legislation is deeply unpopular, highly disruptive, unaffordable, and subject to extensive and growing litigation. As a result, it might be repealed or substantially altered by a future Congress.

Contrast that with the glowing review they give to Utah's reforms:

Utah’s specific model could yield positive results in other states, but states should adapt Utah’s broader approach to their own individual markets and conditions. Utah’s reform agenda provides a blueprint to empower health care consumers through conservative principles of free enterprise and consumerism. Utah’s experience provides general lessons for every state about how to establish an affordable quality health care system.

But what element lies at the center of the reforms in Utah? As you can probably guess from the context of this post, it's a health insurance exchange. In fact, they just took their pilot program statewide a little over a week ago:

Employees of participating Utah businesses can now use the exchange to "shop" for health insurance policies that best fit their individual needs, similar to arming employees with a debit card of sorts, to use for health insurance. If an employee desires a more expensive plan than what the employer covers, the employee would then make up the difference themselves. The defined contribution component, according to Utah's Office of Consumer Health Services spokesman Matt Spencer, is the cornerstone of the exchange system.

Rather than have one or two options that are pre-selected by their employers, workers can choose from more than 60 different plans from four of Utah's largest insurance companies: Humana, Regence, Select Health and United Healthcare.

By state statute, all plans offered through the Utah Health Exchange must meet federal standards for employer-sponsored coverage, which ensures all plans offered provide quality coverage from responsible carriers. It is also expected that the element of consumer choice — employees selecting their plans directly from carriers — will put downward pressure on prices and upward pressure on coverage quality.

They especially like the "defined contributions" aspect of Utah's exchange. That means instead of having an employer choose a plan or small menu of plans for its employees (as my employer does), the employer instead makes a set contribution toward the employee's plan, which the employee is free to choose from any plan offered in the exchange. Under that design, employers still contribute to their employees' plans but the employees have much greater choice and thus the market itself experiences much more competition between plans. I can see why Heritage likes it.

How does this jibe with the federally mandated health insurance exchanges? Well, it depends. Federal guidance is still forthcoming but as this great look at the policy issues surrounding the exchanges can attest, these new exchanges may well operate by exactly the same rules as Utah's exchange:

The ACA sets out in some detail the size of the employers that may participate in the exchange but is less clear as to how exactly employer participation would work. A “SHOP exchange” is identified but not described in the legislation. It could possibly be intended as an exchange in which small employers themselves purchase group plans for their employees. This would seem to be consistent with section 1312(f)(2), which defines a qualified employer as an employer “that elects to make all full-time employees of such employer eligible for 1 or more qualified health plans offered in the small group market through an Exchange.”

Elsewhere, however, the ACA seems to countenance an arrangement under which small employers play a more passive role, simply contributing to the premiums used by their employees to purchase insurance as individuals. For example, the law states: “A qualified employer may provide support for coverage of employees under a qualified health plan by selecting any level of coverage under 1302(d) [bronze, silver, gold, or platinum] to be made available to employees through an Exchange.”143 The provision goes on to say that employees may choose any plan within the tier of coverage chosen by the employer.

If things go as described in the second paragraph, the exchanges in every state will work just like Utah's new exchange. And then we can eagerly await a Heritage piece praising the federal health reform law. Or perhaps scrubbing their website of any positive mentions of Utah's reforms. Reversing (and attacking) their positions once Democrats adopt them wouldn't exactly be new for them.

While in 2009 Heritage was dying to explain to you Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional, what they neglect to mention is that the dreaded individual mandate was their idea.

In 1990, at a time when Democrats leaned toward an employer mandate, Heritage presented an alternative, in line with the conservative catch-phrase "individual responsibility":

The second central element-in the Heritage proposal is a two-way commitment between government and citizen. Under this social contract, the federal government would agree to make it financially possible, through refundable tax benefits or in some cases by providing access to public-sector health programs, for every American family to purchase at least a basic package of medical care, including catastrophic insurance. In return, government would require, by law every head of household to acquire at least a basic health plan for his or her family.Thus there would be mandated coverage under the Heritage proposal, but the mandate would apply to the family head, who is the appropriate person to shoulder the primary responsibility for the family's health needs, rather than employers, who are not. By no longer restricting tax relief for medical care to employer-provided plans, and by restructuring tax assistance to help those Americans most in need, the Heritage proposal significantly would improve the American health system.

And in case you're wondering, this isn't just an idea they toyed with twenty years ago and then dropped. As recently as 2003, the individual mandate appeared in proposals offered by Heritage staffers to Congress:

The current social contract should be replaced with a more rational one. In a civilized and rich country like the United States, it is reasonable for society to accept an obligation to ensure that all residents have affordable access to at least basic health care - much as we accept the same obligation to assure a reasonable level of housing, education and nutrition.

But as part of that contract, it is also reasonable to expect residents of the society who can do so to contribute an appropriate amount to their own health care. This translates into a requirement on individuals to enroll themselves and their dependents in at least a basic health plan - one that at the minimum should protect the rest of society from large and unexpected medical costs incurred by the family. And as any social contract, there would also be an obligation on society. To the extent that the family cannot reasonably afford reasonable basic coverage, the rest of society, via government, should take responsibility for financing that minimum coverage.

The obligations on individuals does not have to be a "hard" mandate, in the sense that failure to obtain coverage would be illegal. It could be a "soft" mandate, meaning that failure to obtain coverage could result in the loss of tax benefits and other government entitlements. In addition, if federal tax benefits or other assistance accompanied the requirement, states and localities could receive the value of the assistance forgone by the person failing to obtain coverage, in order to compensate providers who deliver services to the uninsured family.

Let's hope the "general lessons for every state about how to establish an affordable quality health care system" learned from Utah indeed spread to the health insurance exchanges in every state, facilitated by a Democratic health reform law. I can't think of a better way to make Heritage despise them.

Seinfeldian Economic Policy

2010-09-06T22:55:00.002-04:00

In the renewed scramble to propose, if not actually pass, some new measures to boost the economy, today we've got a $50 billion infrastructure investment and this one (which reminds me of some classic television):

Obama to Propose Plant and Equipment Tax Write-Off

WASHINGTON (Reuters) - President Barack Obama will propose on Wednesday that businesses be allowed to write off all their new investments in plant and equipment through 2011, an administration official said on Monday.

The plan, aimed at jump-starting job growth, would cut business taxes by some $200 billion over two years, the official said.

How's That Health Reform Implementation Going?

2010-08-28T09:18:00.006-04:00

TJ's comment to his post the other day reminded me that we haven't really discussed implementation of the new health reform law yet. There were a number of posts in the run-up to its passage last March but I suppose at some point we should talk about what's happened since then and what happens next. But it would take days to recount all we've witnessed! So, settle in.

There are lots of graphics out there to illustrate how public policy gets made and put into action. I rather like this one:

Many years were spent forming most of the ideas that went into the reform legislation and almost 9 months was spent hammering it into a shape that could pass through Congress (the first of the reform bills was introduced in Congress at the beginning of the summer of 2009 and Obama signed the final law last spring). We are, happily, out of the main part of the formulation phase. We've now proceeded into the realization phase with implementation in full swing. I believe most observers would agree that implementation is the hardest stage on that chart--taking the policy as passed by Congress and making it work on the ground, out in the states is going to be tough. Unintended consequences are going to crop up, mistakes are going to be made, some implementation decisions are going to turn out to have been the wrong ones. So while this is the most challenging and exciting part of the whole process, it's also the one most easily attacked. TJ had asked about the griping that's been going on and we're going to go through that as we look at each piece of the law that's been implemented so far. (What I do, by the way, mostly falls under dissemination with the aim of furthering implementation. But most of it is only incidentally related to reform.)

But first I think it's important to note that, though lost in the sharply defined color scheme of that chart, the distinctions between different stages of phases of the policy process are generally a little murky. The implementation phase we're in right now actually involves quite a bit of policy formulation: in this case, it's called administrative rulemaking.

Legislation is often vague. It knows, in general, what it wants but the nitpicky details are left to someone else: experts in the the executive branch. Let's take an example. I'm sure you know that the legislation allows dependents to stay on their parents' insurance up to the age of 26, so people aren't (as I was and I'm sure some of you were) thrown off their parents' insurance shortly after graduating from college. But what does the law actually say about who counts as a "dependent" (a definition one would think is pretty important to this particular provision)? Nothing:

`(a) In General- A group health plan and a health insurance issuer offering group or individual health insurance coverage that provides dependent coverage of children shall continue to make such coverage available for an adult child (who is not married) until the child turns 26 years of age. Nothing in this section shall require a health plan or a health insurance issuer described in the preceding sentence to make coverage available for a child of a child receiving dependent coverage.

`(b) Regulations- The Secretary shall promulgate regulations to define the dependents to which coverage shall be made available under subsection (a).

The legislation is full of "the Secretary shall"s. Who is the Secretary? It can vary depending on which part of the law we're talking about but for most things it refers to the Secretary of Health and Human Services, Kathleen Sebelius. Sebelius, formerly the governor of Kansas (and daughter of Ohio's 62nd governor, John Gilligan), isn't actually going to sit down and write the definition herself. "The Secretary shall" is just another way of saying "somebody at HHS shall" because this task falls to experts employed by the Department of Heath and Human Services: that's right, bureaucrats!

This is a theme we'll keep coming back to: definitions are hugely important and, as we'll see, it's not just HHS that's formulating them right now. When you control the definition, you can dictate the outcome of the policy you're implementing. And the shape of the dreaded unintended consequence will depend in large part on what the definitions and regulations turn out to be.

The shaping of regulations generally follow a certain formula. First, the relevant agency (for the purposes of this law, usually a subdivision of HHS) writes a proposed rule. This is then publicly posted for some period of time--usually 60 days--and public comments are accepted. That's right, you can weigh in on these proposed rules if you so desire. Once the comment period closes, the agency will review all of the comments, make revisions to the proposed rule as needed, and then release a final rule that then has the weight of law (sometimes they start off by releasing an "interim final rule" which goes into effect and has the weight of law immediately; these rules still have a comment period and are revised, they just happen to be in effect while they're being commented on and revised). If you find all of this as fascinating as Hermes and I do, I encourage you to take a look at the Reg Map, which summarizes the process with a handy graphic.

So let's jump into the specifics of implementing this law. As you can imagine, states and feds alike are very, very busy at this point. Though the biggest parts of the law don't kick in until 2014, lots of things are happening between now and then (not to mention that states need to get prepared for the big ticket 2014 items). You can see many of those things on this timeline. We'll walk through some of the things that have happened so far and look at what certain folks have bitched about with regard to them.

What has happened so far?

Before we get into the meat of this, I'll note one thing: state Medicaid programs (i.e. the government health insurance program for the poor) will be expanding to cover lots more people starting in 2014. States have the option to start expanding now if they so choose. Connecticut is the only state I know that's done so this year. So that's one thing. On to the required stuff.

HealthCare.gov. We'll start with my favorite, HealthCare.gov. The law directs HHS to get a website up and running that allows shoppers to see all the health insurance options to them in every state. This will connect you to a high-risk pool if you're eligible, or Medicaid, or show you all of the private insurance options available to you. Right now it lists all the plans available in your area but it's a work in progress--comparative price information is supposed to be added to it by October so you can see side by side what each insurer will charge you for a policy. The website has much more than that, however. It has all sorts of information on the law itself (the timeline I linked to above is from there) and federal health care improvement efforts in general. And it keeps improving. This week they released a widget that allows you to embed the insurance search feature anywhere on the web you want:

http://www.healthcare.gov/widget/healthcare_widget.html

Give it a go. I don't actually think I've heard much griping about this website (a step toward making a more transparent marketplace for health insurance), other than that some conservatives don't think it's necessary. But that's a bit of a half-hearted criticism.

The Pre-existing Condition Insurance Plan. Quite a few people aren't able to buy insurance because they have a pre-existing condition or an otherwise blemished medical history. Some states have historically tried to deal with this population by forming special, heavily subsidized insurance pools for these high-risk populations. Under the reform law, every state is receiving funding to set up high-risk pools which means that states which didn't have high-risk pools (like Ohio) now have one for the first time. States had a choice of whether they wanted to run their state's pool or have the Department of Health and Human Services run it for them. Around 20 states are letting HHS run their high-risk pools and, in those states, applications for the pool started going out at the beginning of July. The states running their own pools were often a little behind schedule; for example Ohio's high-risk pool started accepting applications at the beginning of August. But the bottom line is that these pools are now up and running and formerly uninsurable people are starting to get coverage through them.

Are there gripes to go along with this? Oh my, yes. First, it's important to understand that these pools are temporary. They exist only through the end of 2013. On January 1, 2014 every state will have a new health insurance exchange in which every participating plan will be required to offer coverage to anyone who applies, without any variation of the premium based on medical history. At that point, "uninsurable" people with pre-existing conditions will be able to buy the exact same coverage--at the exact same price--as you and me. In the original health care bills introduced last summer, that was it. Nothing happened between now and the opening of the exchanges (which was in 2013 in the House bill and 2014 in the Senate bill; a version of the latter eventually became law). In order to ease the suffering between now and then (the suffering of both the uninsurable and the Democrats in the two elections that occur before the law goes into full effect), the high-risk pools were funded to exist from last month through the end of 2013.

The problem is that they were given $5 billion to last through 2013. Several experts have suggested that if these pools are to last that long, they should've been given at least three times as much money. As such, the pools have to try and conserve money. At a practical level that means two things: 1) insurance through them isn't cheap (though insurance through a high-risk pool never is), and 2) some people are probably going to have to be turned away. Those were the predictions anyway. Now that the pools are up-and-running (albeit only for a very short time), it looks like (1) might be taking care of (2). New plans for the uninsured are off to a slow start:

About 3,600 people have applied and about 1,200 have been approved so far in state plans that started in the beginning of July, according to data from the states and federal government. Officials say the new plans, although a better deal than anything comparable on the private market, still may be unaffordable for many people. Eligibility requirements are another possible barrier. And states have had little time to publicize the plans.

It’s too soon to gauge the program’s impact. The plans won’t be up and running in all the states until September. But some officials are surprised.

"It’s early, but thus far interest in the program is lower than we expected," said Michael Keough, executive director of the North Carolina Health Insurance Risk Pool, which started July 1. As of Tuesday, 314 people had applied and 158 had been approved.

GettingUSCovered, Colorado’s program, has received 204 applications; 108 people are enrolled. It’s a “very low number given that there are hundreds of thousands of uninsured in the state,” said Suzanne Bragg-Gamble, the executive director.

Are the criticisms justified? Well, ideally the programs would have more money to work with so the coverage could be more affordable and cover more people. They are, however, only a stopgap (and one that originally wasn't even in the laws) to hold us over until the main attraction arrives in 2014 so it's hard to be too down on these programs. But it's not easy to take seriously the people pre-emptively declaring the program a failure, at least if they're Republicans. They forget that in this law, high-risk pools are not a long-term solution for the problem of the uninsured. Yet in the Republican repeal-and-replace law, they are the solution: high-risk pools are set up in perpetuity to deal with the uninsured. Fun fact: the Republican bill would allocate $3 billion to the high-risk pools through the end of 2013, or 40% less than the actual law allocates to them over the same time period (though funding does ramp up a little bit later on in the Republican bill; obviously in the real law these pools won't exist later on because they won't be necessary).

The other gripe leveled at the high-risk pools is that when New Mexico and Pennsylvania were writing their proposals, it looked like both states would potentially allow elective abortions to be funded through their pools. Since the pools are being funded with federal money, this is a big problem. Federal funding--your taxes!--should never go to pay for such morally reprehensible things (on an unrelated note, taxpayers who question the morality of using taxpayer money to kill Afghans are shit out of luck). Of course, this turned out to be a non-story as HHS worked quickly to roll out its regulations, which clarified that elective abortions wouldn't be covered in the federal high-risk pools.

Early retiree reinsurance program. The law also creates a program to help support the health costs of retirees who are older than 55 but not yet old enough for Medicare (i.e. they're under 65). They started collecting applications for it in July. Like the high-risk pools, this is just intended to last through the end of 2013. And, also like the high-risk pools, the primary gripe is that it didn't get allocated enough money and the funds won't last through 2013. We'll have to see.

Tax credits to small businesses. Businesses with less than 25 employees and average wages less than $50,000 are eligible for tax credits to help them pay for some of the costs of offering their employees health insurance (up to 35% of the employer's costs, in fact). The idea is that small businesses employing relatively low-wage workers often don't offer health insurance, so this will help them to do so.

The criticism from some has been that it doesn't target enough businesses (no word on if the people leveling this criticism are the same ones who think the law is too expensive). And here's where we get into dueling figures from business associations. A study commissioned by Small Business Majority (pro-reform) contained good news for small businesses:

Key findings

● More than 4 million (4,015,300) small businesses will be eligible to receive a tax credit for the purchase of employee health insurance in 2010. That’s 83.7 percent of all small businesses in the country (see Table 1 on page 3 of the PDF).
● In 11 states, more than 90 percent of small businesses will be eligible to receive a tax credit in 2010. These states are Arkansas (94.2 percent), Montana (94.0 percent), Nebraska (93.8 percent), South Dakota (93.6 percent), Mississippi (93.2 percent), Indiana (92.9 percent), North Dakota (91.9 percent), Missouri (91.8 percent), Iowa (90.8 percent), West Virginia (90.3 percent), and Maine (90.1 percent) (see Table 1 on page 3 of the PDF).
● Approximately 1,198,700 American small businesses will be eligible to receive the maximum tax credit in 2010 (see Table 2 on page 4 of the PDF).

But the National Federation of Independent Business (not so hot on this law) says the number of eligible small businesses is actually much lower (that link has side by side comparisons of the NFIB and SMB estimates of what percentage of small businesses in each state qualify). Why the disparity? Well, NFIB has a funny (very restrictive) definition of "eligibility." They astutely point out that a small business that satisfies all of the criteria but doesn't offer health care won't be eligible for the tax credit to cover part of its health care expenses. They thus move such a business into the ineligibility column.

But, as I said, one of the aims of the tax credit is to get small businesses that don't offer coverage now, whether due to costs or some other reason, to start. So a huge chunk of the target businesses are just dropped out of NFIB's calculations because they don't offer coverage today. That's a bit like saying a high school senior is "ineligible" for a Stafford Loan because he isn't in college today. Well, sure, I suppose that's technically true. But he will be eligible for a federal student loan the moment he decides to go to college--and you could say that, in part, such loans are intended to help him make the decision to attend college. If you were to use NFIB's understanding of eligibility, the federal student loan program is a complete disaster because every graduating high school senior is ineligible for participation. Makes you wonder how anyone ever manages to afford college...

NFIB also focuses on the requirement that the employer pay at least half of the cost of the employee's health plan in order to qualify for the tax credit. Businesses that don't do so today are considered ineligible for the tax credit. But, again, one of the goals of the tax credit is to alter employers' behavior and give them a reason to shoulder more of the burden of the company's health plan. If you're a small business owner who's otherwise eligible for the tax credit but you only pay 45% of your company plan's health costs today and let your employees pay 55%, are you really not going to increase your share to 50% (or more) in order to have the government pick up 35% of your tab? Small Business Majority would count such a business owner as eligible for the tax credit (even though he has to alter his behavior/practices to claim it), while the National Federation of Independent Business would not. Personally, I think NFIB is trying to pull a fast one with these numbers by playing dumb. Because their argument is dumb.

Gradual closure of the Medicare donut hole. Medicare started paying for prescription drugs a few years ago. But it does a funny thing. If you have medication expenses, you'll pay your deductible and then up to $2,700 Medicare will pay 75% of your medication bill. But then between $2,700-$6,154 they pay nothing. If your expenses go higher than that, they'll meet you on the other side: for expenses above $6,154 they'll pay 95% of your medication costs. But there's a big chunk in the middle where the elderly are on their own. This law will slowly close that hole over the next decade. They started in June by mailing out $250 rebate checks to Medicare recipients who are in the donut hole. That's not much compared to the $3,400 hole but it's something.

The criticism from some has been political: mailing checks to old people in an election year is an attempt to "buy" the election. I wouldn't go quite that far but certainly the Democrats are targeting the elderly, who remain the demographic most suspicious of the reform law. Medicare even put together an ad with Andy Griffith trumpeting the benefits of the new law, which I find kind of funny. Are old people really so stereotypical that all it takes to sway them is the assurances of Matlock?

Premium oversight. A common charge made against this law was that it would (and now the charge is that is already has) send health insurance premiums skyrocketing. But an insurer can't just raise premiums for no reason, or in anticipation of someday having a reason. The law requires insurers to justify "unreasonable premium increases" to the state and the feds (this is one of those key terms that will have to defined by HHS through a rulemaking process). Insurers can be excluded from the health insurance exchanges--i.e. the new individual marketplace in which everyone receiving a federal subsidy to buy health insurance will be--"based on a pattern or practice of excessive or unjustified premium increases."

Various states already have some kind of premium oversight system in place: 26 states and Washington, D.C. can actually reject proposed rate hikes from insurers. Other states at least require advance notice and review, even if they can't actually stop the premium increases. The law offers grants to states to beef up their premium oversight structures in order to keep an eye out for "unreasonable premium increases" (whatever the definition of those turns out to be). HHS awarded the first of these grants to 45 states and D.C. just over a week ago:

States have proposed to use this funding in a variety of ways.

● Additional Legislative Authority: 15 States and the District of Columbia will pursue additional legislative authority to create a more robust program for reviewing or requiring advanced approval of proposed health insurance premium increases to ensure that they are reasonable;
● Expand the Scope of Health Insurance Premium Review: 21 States and the District of Columbia will expand the scope of their current health insurance review, for example by reviewing and requiring pre-approval of rate increases for additional health insurance products in their State.
● Improve the Health Insurance Premium Review Process: All 46 State grantees will require insurance companies to report more extensive information through a new, standardized process to better evaluate proposed premium increases and increase transparency across the marketplace;
● Make More Information Publicly Available: 42 States and the District of Columbia will increase the transparency of the health insurance premium review process and provide easy-to-understand, consumer friendly information to the public about changes to their premiums; and
● Develop and Upgrade Technology: All State grantees will develop and upgrade existing technology to streamline data sharing and put information in the hands of consumers more quickly.

You can get the state-by-state specifics of what states already do and what they're going to do with this grant here (there's that HealthCare.gov again!). I'm not familiar with any gripes about this, other than the standard "big government takeover" thing, generally from people who also complain about unreasonable premium increases.

What's About to Happen?

Lots of provisions are about to kick in for plan years starting after September 23 of this year. That means whenever your health insurance plan renews after that date, the provisions are in effect for it.

Extension of dependent coverage. This is the bit about staying on your parents' plan until you're 26. I don't think the rules for this provision we talked about above are out yet. The gripe is that this makes a mockery of the notion of personal responsibility and extends adolescence into one's late twenties. Note that the Republican repeal-and-replace bill has the same provision.

Free preventive care. After September, certain kinds of preventive care must be free at the point of care (i.e no co-pay). These are evidence-based preventive measures: things with high ratings ('A' or 'B') from the United States Preventive Services Task Force and immunizations recommended by the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention.

The gripes on this one are that this is not cost effective and will raise costs and increase utilization. This is true, premiums are estimated to rise about 1% because of this feature.

Ending rescissions. Rescissions are when an insurance company comes us with a clever reason to cancel coverage and get rid of a potentially expensive individual. This will not be allowed starting in September. I don't believe anyone opposes this (even the Republican repeal-and-replace law ends rescissions).

Eliminating lifetime benefit caps, regulating annual benefit caps. Starting in September, plans can't set a lifetime limit to what they'll spend on you, nor can they put unreasonable caps on annual benefits. Like several of the things we've discussed so far, these are bipartisan ideas and are included in the Republican repeal-and-replace bill.

But the gripes are plentiful on this one. Health plans offered by colleges may be threatened by this provision (and a few other provisions, like the medical loss ratio requirements discussed below), as may limited-benefit "mini-med" plans sometimes offered to low-wage workers.

Coverage for kids with pre-existing conditions. Adults with pre-existing conditions can't be turned away by insurers starting in 2014; until then, they'll have to make due with the high-risk pools. Kids (really, anyone under the age of 19), on the other hand, were protected by so-called "guaranteed issue" rules starting this year. Or at least they were supposed to be. In an embarrassing turn of events, it turned out that the staff lawyers who wrote the text of the bill made a little error so that law, if taken literally, only requires insurers to cover pre-existing conditions for kids they're covering. That's not a real guaranteed issue rule, as it doesn't require them to accept children with pre-existing conditions who are applying for insurance; legally, it seemed, they could still turn children away (until 2014). HHS worked to resolve this, partly through regulations, and largely got agreements from insurers to play ball.

Still, some insurers in Florida announced a month ago they wouldn't be issuing new coverage to kids--any kids. That's a bad unintended consequence (gripe! gripe!). Within a week HHS had issued guidance clarifying that insurers are free to set up open enrollment periods (i.e. issuing new policies for only one month a year and not allowing people to get new policies any time they like). Insurers announced they'd resume the sale of child-only policies.

There are other, slightly smaller provisions rolling out this year and next but there's one more major one I want to hit on:

Medical loss ratios. Under the new law, health insurers will have to spend at least a certain percentage of the money they take in through insurance premiums on actual care (this will be starting next year). This percentage--known as medical loss because premium money that goes toward providing care is considered a loss in the insurance world--will be 85% for the large group market and 80% for the small group and individual markets. If insurers spend less than that percentage of premium revenue on care, they have to send the difference back to their customers through a rebate.

But definitions are everything. HHS ultimately gets to decide, through the rulemaking process, on what counts as care but they're directed to take advice from the National Association of Insurance Commissioners, who are doing the heavy lifting on sorting this one out. Just over a week ago, NAIC approved a definition for what sorts of things will count as medical care. They came out with drafts of the actual forms insurers would have to fill out--known as blanks--to show they're meeting the law's requirements. I think it's actually too soon for anyone to have gotten many gripes in.

Anyway, that should give you a good idea of how implementation has been rolling out. In addition to the more immediate things we've been considering here, states are starting to get going on planning for the big items down the road (namely, the construction of health insurance exchanges and the expansion of their Medicaid programs). Tough stuff but they're working on it.

How not to look up a bill

2010-08-26T18:50:00.002-04:00

You may remember that at the beginning of this month the House and Senate passed a $26 billion bill to 1) prop up state Medicaid programs ($16 billion) and 2) shore up state education budgets to prevent teacher layoffs ($10 billion).

At the time, I noticed a silly mistake around the internets that, while annoying, offers a teachable moment. Information is readily available in this day and age but it's important to know how to interpret it once you've found it. The mistake I'm talking about is exemplified by this entry on this site:

P.L. 111-226, The XXXXXX Act of XXXX

H.R. 1586 would impose an additional tax on bonuses received from certain TARP recipients.

H.R. 1586 is the bill number of the bill that I mentioned above--the aid to states for education and Medicaid (now signed by the President and thus a public law: P.L. 111-126). You might notice right away that those things have nothing to do with TARP (the financial bailout bill from 2008). But some folks, trying to look up this Medicaid/education bill they'd heard about, went to sites like that and thought that somehow the Democrats had pulled a fast one: this was all just a ruse to tax bonuses! Actually, no. These are the wrong trousers, Gromit!

It's possible to look up the right bill and still get the wrong bill. As you undoubtedly know, bills that get introduced in either chamber of Congress get a unique number: H.R. ## for House bills, S. ## for Senate bills. The numbers start over at the beginning of each session of Congress--i.e. every 2 years--but if you look up a specific bill number, you're unlikely to stumble across that bill from a previous Congress unless you're really trying to. So what happened?

First, always go to the authoritative source for the text of Congressional bills: the Library of Congress's THOMAS (Thomas, like the ~~groundhog~~ third President). There are others that are decent--OpenCongress is making a nice attempt at getting a community thing going--but this is the one you know is bulletproof. Now, if you went to THOMAS and looked up this education and Medicaid funding bill by typing its unique number, H.R. 1586, into the search field, you'd find that it comes in seven versions, all from the current Congressional session:

1 . To impose an additional tax on bonuses received from certain TARP recipients. (Introduced in House - IH)[H.R.1586.IH][PDF]
2 . FAA Air Transportation Modernization and Safety Improvement Act (Engrossed Amendment Senate - EAS)[H.R.1586.EAS][PDF]
3 . To impose an additional tax on bonuses received from certain TARP recipients. (Engrossed in House [Passed House] - EH)[H.R.1586.EH][PDF]
4 . XXXXXXAct ofXXXX (Engrossed Amendment Senate - EAS)[H.R.1586.EAS2][PDF]
5 . Aviation Safety and Investment Act of 2010 (Engrossed Amendment House - EAH)[H.R.1586.EAH][PDF]
6 . To impose an additional tax on bonuses received from certain TARP recipients. (Placed on Calendar Senate - PCS)[H.R.1586.PCS][PDF]
7 . XXXXXXAct ofXXXX (Enrolled Bill [Final as Passed Both House and Senate] - ENR)[H.R.1586.ENR][PDF]

Now, usually when you see a list like that on THOMAS, those versions are in chronological order. That's not quite true of this list. So let's trace the life of this particular bill.

This one started out as the "H.R. 1586--To impose an additional tax on bonuses received from certain TARP recipients," introduced in the House on March 18, 2009. That's the first item on the list (the ".IH" means it was introduced in the House but didn't pass in that form). The next day it passed the House with the text listed at number 3 in the list (the ".EH" means it was engrossed in the House, i.e. passed out of that chamber and sent to the Senate), which is also the text of version 6--the bill placed on the calendar of the Senate (".PSC"). There it sat, a bill taxing the TARP bonus money that passed the House in March 2009.

Fast forward a year. The Senate "took up" the legislation, by which I mean they pulled the text of the bill the House had sent them out of the drawer, blew the dust off, and stuck in--via an amendment--the text of a completely unrelated bill they wanted to pass, entitled " FAA Air Transportation Modernization and Safety Improvement Act." What's the deal there? Why not just write a new bill--"S. ##"--instead of usurping H.R. 1586? Well, if you look at this version of the text of the bill, you'll notice one of the titles is "TITLE VIII--AIRPORT AND AIRWAY TRUST FUND PROVISIONS AND RELATED TAXES." Article 1, Section VII tells us that "All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills." So when the Senate wants to start the ball rolling on legislation that will raise revenue, they'll often take a bill that's passed the House, completely scrap its text and replace it with an amendment containing the full text of their own new bill. So the revenue-raising bill starts with "H.R. ##" as required by the Constitution but the Senate still gets to introduce a revenue bill with a wink and a nod. This is why the health care bill that became law in March was numbered H.R. 3590 even though it was actually the Senate's health care bill (and thus one might naively have thought it should have been numbered S. ##).

So this transportation bill, number 2 in the list, was engrossed in the Senate and sent back to the House on March 22, 2010. The House then amended the Senate amendment to produce yet another iteration of the bill--now called the " Aviation Safety and Investment Act of 2010"--which it passed and sent back to the Senate on March 25, 2010. Since both chambers have to pass the same piece of legislation before it goes to the President, it can ping pong back and forth like this for a while.

This one, however, didn't. It sat in the Senate until the beginning of this month, at which point yet another amendment ("SENATE AMENDMENT TO HOUSE AMENDMENT TO SENATE AMENDMENT") was used to strip out all the text and put in a completely new bill. This is the one they didn't bother titling that extends Medicaid and education funds to states. That's number 4 on the list, " XXXXXXAct ofXXXX." The Senate passed this, at which point it went to the House which passed it unaltered (that's number 7 on the list: "Enrolled Bill [Final as Passed Both House and Senate]").

This bill--the sixth or seventh iteration of H.R. 1586 and the third completely different bill bearing that number--is what the House came back to Washington to pass earlier this month. They did so and the President signed it. But this isn't the TARP bonuses bill and it isn't the Aviation Safety bill. The text of those bills was each thrown out as this thing ping ponged back and forth between the two chambers until, finally, they both agreed to the same text.

Kind of reminds you of the Ship of Theseus, doesn't it? If you dismantle a bill piece by piece and replace it with something else, is it still the same bill? That's one for the philosophers but it certainly does keep the same bill number. So don't get confused.

2010-08-19T16:13:00.002-04:00

A recent poll showed that approximately 1 in 5 Americans believe President Obama is a Muslim. I don't usually agree with the phrase "history repeats itself", but having studied 19th century American history this is a little too eerily familiar. We've certainly come a long way as a people from fearing Catholic plots to overthrow the government, Zionist movements to control the world, and freed African Americans running away with white women (for any of you 1 in 5 out there who by some long shot read this, I'll explain because I am sure it is necessary: that was sarcasm).

More on Paths

2010-08-16T23:07:00.005-04:00

I introduced the notion of the Path in "A bit more introspection." This is an idea that, in some form, influences areas of physics, philosophy, policy, and — sometimes — more personal issues. This is going to be a bit of a meandering post that winds through all of those things.

I’ll start, as I sometimes do, with physics. I mentioned in "A bit of introspection" that I have a certain fascination with variational principles, the most famous of which is the principle of least action. This is a physical principle that allows us to figure out what the motion of a particle—its path through space and time—is going to look like. If you want to do something like that using Newton’s laws (e.g. Force = mass x acceleration) you’d look at all the forces on the particle at any given time and see that “oh, it’s getting nudged this way, and then it’s going to get nudged that way…” and so on. It can get a bit clumsy and you have to add up all kinds of forces—you have to deal with vectors and things can get very messy depending on your coordinate system.

The principle of least action gives you another way to figure out how a particle’s going to move and this way turns out to be completely equivalent to doing things Newton’s way. But the calculation is very different. Instead of figuring out the net results of all the pushes and pulls acting on the particle, we instead focus on the path. We take the starting point and the ending point of the particle’s path and we find that the real path it takes between those two points is the path for which a certain quantity that we know how to calculate—“action”—is the smallest. If you think about it, conceptually that seems like a big difference. As Richard Feynman put it in his Lectures on Physics:

There is quite a difference in the characteristic of a law which says a certain integral from one place to another is a minimum—which tells something about the whole path—and of a law which says that as you go along, there is a force that makes it accelerate. The second way tells how you inch your way along the path, and the other is a grand statement about the whole path.

One of the philosophical points raised in response to this, historically, was that it seemed to introduce teleology into the universe. Telos (“the end term of a goal-directed process”) assumes a certain underlying purpose, some kind of meaningful connection between a beginning and an associated end. If our physical calculations involve knowing a certain starting and ending point for a particle to determine the path it will take between them, does that mean the particle “knows” where it will end up when it starts out? As Wikipedia notes in the “apparent teleology” section of its page on least action :

In particular, the fixing of the final state appears to give the action principle a teleological character which has been controversial historically. This apparent teleology is eliminated in the quantum mechanical version of the action principle.

The quantum mechanical version they mention—invented by Feynman—is called the path integral formulation and resolves the question by essentially postulating that the particle takes all possible paths to all possible endpoints and things just sort of average out to reflect the classical picture of a set path between set points:

Classical action principles are puzzling because of their seemingly teleological quality: given a set of initial and final conditions one is able to find a unique path connecting them, as if the system somehow knows where it's going to end up and how it's going to get there. The path integral explains why this works in terms of quantum superposition. The system doesn't have to know in advance where it's going or what path it'll take: the path integral simply calculates the probability amplitude for any given process, and the path goes everywhere. After a long enough time, interference effects guarantee that only the contributions from the stationary points of the action give histories with appreciable probabilities.

That may explain the source of the apparent teleology but I’m not convinced it eliminates it. But teleology as a concept isn’t limited to this physical example, it (or the lack thereof) also has implications for society as a whole. Teleology plays a key role in Alasdair MacIntyre's arguments in his book After Virtue.

MacIntyre, in exploring questions of ethics and the virtues, points to the centrality of telos to the Aristotelian conception of ethics and morality. Man has a proper end toward which the path of his life winds and only by living a virtuous life can man satisfy that telos and reach that intended end. But the concept is even broader than that. Far from simply informing ethical choices and shaping a person’s actions, telos actually defines one’s social role (and all interactions between the individual and society) and one’s personal identity. Consider this bit from the book in which MacIntyre discusses the concept of ancient heroic societies (the sort you read about in the Illiad or Beowulf):

What I hope this account makes clear already is the way in which any adequate account of the virtues in heroic society would be impossible which divorced them from their context in its social structure, just as no adequate account of the social structure of heroic society would be possible which did not include an account of the heroic virtues...For the given rules which assign men their place in the social order and with it their identity also prescribe what they owe and what is owed them and how they are to be treated and regarded if they fail and how they are to treat and regard others if those others fail.

Without such a place in the social order, a man would not only be incapable of receiving recognition and response from others, not only would others not know, but he would not himself know who he was. It is precisely because of this that heroic societies commonly have a well-defined status to which any stranger who arrives in the society from outside can be assigned.

In such a society, whether they actually ever existed or not, a person has a set role to play. They have an end toward which they are striving (recognized and decided not just by them but by everyone) and, as such, their social and personal lives have purpose (and, I daresay, some sort of meaning). Ethical principles by which to live one’s life—the virtues—thus emerge from this teleology-oriented cosmology fairly naturally. Ethics and morality are those principles that will best enable the individual to fulfill his social role and arrive at the destination intended for him.

In our own post-Enlightenment Western society, the emphasis is on the supremacy of the individual. Individuals do not derive their identify from society, they carry it with them into society, which is itself an emergent structure that arises from the myriad interactions of countless individuals. No one is fulfilling a telos that determines his position or role in society, no one really has any particular reason (beyond a personal preference) to live by a given set of ethical or moral principles, and many of us face a recurring—and sometimes debilitating—sense of purposelessness. To the extent that our intense focus on individuality prompts us to attempt to define ourselves, our reality, our values, etc (i.e. to the extent we don’t get these definitions from religious, cultural, or familial cues), it robs us of the possibility of some external driver shaping our paths with some endgame—some telos—in mind.

And so we fit into society awkwardly, with an oft-shifting and meaningless role that invites and requires few ethical principles to sustain it and anchor our metaphysical selves. We stagger haphazardly through the wilderness instead of following a path. There is no destination, there is no purpose, there is no path. This is the state in which our listless society finds itself today. Or at least, this is the philosophical view of existence that has come with with our self-centric cosmologies, whether we intended for it to or not. But as I mentioned in "A bit more introspection," my philosophical/physical understanding of the nature of time suggests to me that our lives are not being written but in fact are written, with a defined end point out there waiting for us. Yet this doesn’t necessarily suggest purpose and an end goal (although I don’t think it can be said to preclude that possibility either). Rather, it’s a statement about limitations. If tomorrow has already happened, I can no more deviate from the path I took through it than I can deviate from the path I took through yesterday. What happened yesterday has happened and what happens tomorrow will happen and I experience events at least as much as I shape them.

This notion of limitations brings us to another manifestation of paths: the policy (or, more generally, social scientific) concept of path dependence. Where you can go is constrained by where you’ve been. That’s why, for example, the current political and policy climate is generally assumed to preclude an abrupt shift to a single-payer health care system. Certainly this is the way Obama has approached the question:

“If you’re starting from scratch,” he says, “then a single-payer system”—a government-managed system like Canada’s, which disconnects health insurance from employment—“would probably make sense. But we’ve got all these legacy systems in place, and managing the transition, as well as adjusting the culture to a different system, would be difficult to pull off. So we may need a system that’s not so disruptive that people feel like suddenly what they’ve known for most of their lives is thrown by the wayside.”

All this serves as an exclamation point on the suggestion that the past and future of the path can’t be viewed in isolation but must be viewed as a seamless whole. Or, to borrow the phrase Feynman used in discussing least action principles, we should be prepared to make “a grand statement about the whole path.” If we try and take that whole-path perspective, we might stumble over some interesting thoughts about the physical universe, the social universe, political developments, and even our own lives. But as the Oracle once said, everything that has a beginning has an end. And since I'm getting tired, I think this post has just about fulfilled its telos. May we all be so fortunate.

Unregistered

2010-08-14T14:31:00.002-04:00

First national election in which I'm of age but have no desire to vote. Wake me up when November ends.