Stupak Caucus Folding?

So reports The Hill:

Democratic leaders have been able to pick off members of the anti-abortion-rights bloc Rep. Bart Stupak (D-Mich.) claimed to have, the congressman said Friday.

[...]

[T]he Michigan Democrat, who claimed he had carried with him a dozen votes against the healthcare bill, suggested that his bloc of votes may be cracking, providing Democratic leaders with valuable votes for their pending healthcare measures.

"At this point, there is no doubt that they’ve been able to peel off one or two of my twelve," he said. "The others are having both of their arms twisted, and we’re all getting pounded by our traditional Democratic supporters, like unions.”

Nancy Pelosi may yet be able to attract the 216 votes necessary to pass healthcare reform through the House and send it along to the President. The 30 million Americans without coverage today who would have health insurance as a result of this legislation -- including the 15 million who will be added to the rolls of government plans like Medicaid and CHIP -- may actually be on track to leave the ranks of the uninsured.

Adding 15 Million to the Rolls of Medicaid, CHIP

Ezra Klein is getting pessimistic about the chances healthcare reform will pass based on comments by White House Chief of Staff Rahm Emanuel, and I don't think he's wrong to be.

But at the risk of beating a dead horse, I really think it's worth considering what is being given up by giving up on healthcare reform: The prospect of advancing the cause of universal healthcare.

The Senate bill is not a perfect bill -- but it is a bill that does a lot of good. Looking at just the toplines, the bill will ensure that 30 million more people have health insurance than currently do today. In doing so, the bill would also decrease the deficit by more than a trillion dollars over the next two decades.

Many have chided the Senate bill for not including a public option. This of course overlooks the fact that the House was unable to round up even a simple majority for the type of robust public option -- one with rates tied to Medicare -- that could actually help reduce costs. Nevertheless, this is a fair criticism.

That said, this criticism does miss a key aspect of the Senate healthcare bill: Half of those 30 million newly covered under the legislation would be enrolled in a government program. Here's the relevant portion of the CBO score (.pdf):

By 2019, CBO and JCT estimate, the number of nonelderly people who are uninsured would be reduced by about 31 million, leaving about 23 million nonelderly residents uninsured (about one-third of whom would be unauthorized immigrants). Under the legislation, the share of legal nonelderly residents with insurance coverage would rise from about 83 percent currently to about 94 percent. Approximately 26 million people would purchase their own coverage through the new insurance exchanges, and there would be roughly 15 million more enrollees in Medicaid and CHIP than is projected under current law. [Emphasis added]

Enrolling 15 million more Americans in a government healthcare program, as well as enabling an additional net 16 million to access health insurance -- in the process increasing "the share of legal nonelderly residence with insurance coverage from about 83 percent currently to about 84 percent," while also reducing the deficit by more than $1 trillion -- still seems like a worthwhile achievement, even if not a perfect one. And considering that the alternative appears to be doing nothing, or close to it, I'm not sure that it doesn't make sense for the House to pass the Senate bill.

What's the Point?

The last few weeks we have seen FireDogLake gearing up in an effort to challenge and ultimately weaken Democratic incumbents who supported healthcare reform. This effort has included running surveys in swing and even quite red districts now represented by left-of-center moderate Democrats who stuck out their necks to advance the cause of near-universal healthcare reform, with one poll arguably forcing into retirement one such Democratic Congressman.

Now FDL is going after a bona fide progressive champion, Earl Blumenauer (for whom I did some consulting a few years ago). Blumenauer's apparent fault: Not pledging continuing to pledge* to kill the Senate bill, which would cover 30 million Americans who currently do not have health insurance. No matter, of course, that Blumenauer has been one of the leading progressives in the House for more than a decade, fighting for livable communities, clean energy, and other smart policies that all too often get short shrift on Capitol Hill, voting against measures ranging from the PATRIOT Act to the Iraq War. No matter that he spoke out on the need to reinforce the levies in New Orleans for fear that they might be breached during a hurricane -- in a speech delivered months before Hurricane Katrina hit -- that he had the prescience to submit legislation restricting primate sales long before the chimpanzee attack that seriously wounded a woman last year, and that he was one of the few in Congress willing to speak out and organize against the Tom DeLay-led effort to thrust the federal government in the middle of Terri Schiavo's end-of-life decisions. No, not pledging continuing to pledge* to kill the Senate bill is enough to place a target on the back of a member of Congress.

This all really has me wondering, what's the point? What are we doing in politics? Has the purpose of our involvement over the years been to prove an ideological point, to show how resolute we are in our beliefs? Or rather, has the point been to make tangible steps towards the betterment of the lives of those who so desperately need it?

Lest you think I am setting up a straw man argument, that this is not a binary set of choices, think about where we stand today. If the House is unwilling or unable to accept the legislation already passed by the Senate -- and that appears to be the case at present, though the situation remains, to a great extent, up in the air -- a significant portion of those 30 million who would be coverage will still have to go without health insurance (half, according to a reports, if the House and Senate can agree on a pared down bill; all if they can't).

And it's not like reform will be easier to come by in a later Congress with fewer Democrats. After Harry Truman tried and failed to enact universal healthcare legislation, it took another generation until Congress seriously moved again on a similar measure. Even then, Congress was unable to enact universal healthcare legislation, opting instead to cover senior citizens and the extremely poor. Though Congress debated legislation during the 1970s, it took another generation until such an effort moved forward again under the Clinton administration. Now, more than 15 years after the failure of the Congress and President Clinton to move forward on healthcare reform, we again stand at the precipice. Can we really afford to wait another decade or longer?

This is far from the first time that there has been disagreement over how best to forward progressive policy initiatives. One need not even think that far back to the candidacy of Ralph Nader, when promises were made that if the left cost Democrats enough votes to block the party's nominee from the Presidency, the liberals would be emboldened and thus progressive policy would be made easier to enact in the future. We all know how well those promises worked out -- a War in Iraq, a conservative activist Supreme Court, a Great Recession.

Simply put, I cannot see how killing healthcare reform today -- and, no, not just the Senate bill (which has its positives along with its negatives), but any meaningful healthcare reform -- will make it easier to pass a better bill in the future. And I can't fathom how attacking Democrats willing to risk their jobs to try to cover 30 million more Americans will do anything to forward the cause of universal healthcare.

There's more...

Would a GOP Win in MA-Sen Kill Healthcare Reform?

Josh Marshall thinks so:

And here's the thing to keep in mind. If Scott Brown were to pull off an upset that would end Health Care Reform, pulling Dems back to 59 seats and preventing final passage of the bill.

Not saying this is a likely scenario. But the stakes are staggering.

This projection is based on new polling released this morning by Rasmussen Reports showing Democrat Martha Coakley leading Republican Scott Brown by a surprisingly narrow 50 percent to 41 percent margin in the Massachusetts special Senate election to be held January 19.

Leaving aside Democratic complaints about Rasmussen polling and even the fact that this poll was only in the field a single day (and virtually every pollster other than Rasmussen won't release single-day numbers due to the inherent methodological concerns), is it really the case that a Brown win would kill healthcare reform?

Short answer: Not necessarily. While a Brown win would little doubt provide evidence of momentum behind the Republicans, thus inhibiting the path towards passing healthcare reform on a political level, it would not block the Democrats from being able to enact the legislation without having to once again get 60 votes in the Senate (which they would no longer have without GOP support should Brown win). Were the House to pass the exact version of healthcare reform already passed through the Senate, that bill would go to the President's desk to be signed. No need for another cloture vote in the Senate. No killing the bill just by changing the make up of the Senate.

The "Legal" Challenge to the Nebraska Deal

Republicans in a number of states are clearly getting antsy at the deal struck to provide increased Medicaid dollars to the state of Nebraska, lining up Attorneys General from a number of states to "probe" the constitutionality of the deal. Yet it's pretty clear what this is: a political stunt rather than a genuine substantive challenge.

First, look at the timing of this. Texas' Republican Attorney General Greg Abbott, whose prominent role in this "probe" neatly coincides with his filing for reelection on Tuesday, told the Associated Press that the AGs "probably won't act until after the bill passes" (emphasis added). That word "probably" is quite conspicuous, suggesting that Abbott and others possibly have legal recourse before a bill passes (leaving aside the question of whether they would have standing to challenge after the passage of the bill, or whether they could win on the merits in such a suit). I am aware of no provision in the United States Constitution that empowers anyone to file suit to enjoin Congress from legislating, nor can I fathom the Supreme Court or any other court usurping legislative power, all of which are "vested in a Congress of the United States" under Article I, § 1 of the Constitution.

Second, look at the issue of standing, whether or not the plaintiff is sufficiently connected to the alleged harm. The AP notes that this group is looking for a citizen to challenge this provision, suggesting a concession that the AGs themselves would not have standing even after a bill passes. Yet it's not even clear that a citizen would have standing to challenge the deal. The Supreme Court has consistently held that taxpayers have extremely limited standing in challenging what they view to be improper allocation of their tax dollars.

Third, look at the hedging in the language of another of the leaders in this effort, South Carolina's Republican Attorney General Henry McMaster: "Whether in the court of law or in the court of public opinion, we must bring an end to this culture of corruption." That about says it all. If this "probe" was about a legal challenge, the question would be over the constitutionality of the deal, not about a resort to political rhetoric -- a play to the "court of public opinion." Political rhetoric doesn't sway judges. Even Politico(!) found this noteworthy, writing, "it was hard to overlook the distinctly nonlegalistic approach various attorneys generals took Wednesday toward the provision."

Fourth, look at the complete lack of explanation of the supposed constitutional deficiency of the deal. I have read at least a half dozen articles on this "probe" and haven't seen a single constitutional provision that the deal purportedly or even potentially violates. Not one. Indeed, I have racked my brain for hours trying to come up with some plausible explanation, and have discussed this with a number of people with legal backgrounds, and still have difficulty coming up with even a single rationale for this "probe." Different states get different amounts of money from the federal government, a practice that has never to my knowledge been overturned on the basis of these differences. Congress has similarly passed state-specific legislation, which also to my knowledge never been overturned for being state-specific. Maybe there's a different explanation, but I haven't seen it. Nor, for that matter, has the conservative legal blog The Volokh Conspiracy, which is also "unsure of the basis upon which such things could be challenged as unconstitutional."

Fifth, look at the motives of the politicians involved. I already noted above the coincidence that is the announcement of this "probe" and the announcement that Texas AG Abbott will run for reelection. There are a number of other coincidences, such as the fact that many of these AGs are either already running for Governor or gearing up for future runs. These might all just be coincidences. Or they might not.

Look, my mind is open here. I'm interested in reading constitutional law. That's one of the reasons why I am in law school. I would love to read a compelling and creative argument as to why, legally speaking, this Nebraska deal isn't kosher. But I haven't read one yet, and not for lack of searching. That's pretty telling, at least from my vantage.

There's more...

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