Obama, Health Reform, Plan B

Interesting article in the Washington Post worth taking a quick view. According to WaPo:

Increasingly, the White House appears to favor having the House pass a version of the measure that cleared the Senate with 60 votes in December. The Senate would then pass changes to the bill to satisfy some demands of House Democrats. That Senate vote would take place under a parliamentary procedure known as reconciliation, which requires 51 votes rather than 60.

It remains unclear whether Democrats have enough votes within their ranks for this strategy to work. At the same time, it is only “one option” the president is considering, a senior White House official said Sunday.

In addition, the Washington Post points out that White House adviser Nancy-Ann DeParle “said on Sunday she thinks Democrats will secure enough ayes on the measure and signaled that the administration could be moving toward trying to pass it along party lines.”

The Wall St. Journal’s Health Blog points out, however, that there may be some difficulty in implementing such a plan:

But the process of keeping enough Democrats in line for even a simple majority is tricky: House members in particular still like their bill better than the Senate version and the changes they seek from the Senate also aren’t a sure thing before the House votes.

The President is expected to unveil his strategy later in the week.

Brown Wins Kennedy’s Senate Seat, Health Reform Plot Thickens

This just in from the Washington Post:

Massachusetts state Sen. Scott Brown was elected to the U.S. Senate on Tuesday, winning a special election over two opponents, the Associated Press projected. Brown — the first Republican senator from the Bay State in 31 years — willgive the GOP 41 seats in the Senate, enhancing the party’s ability to demand changes in legislation.

“Enhancing the party’s ability to demand changes in legislation.” That is certainly one way of saying it. As we live under the yoke of the Senate’s filibuster rule, and the stated aim of soon-to-be (or maybe not so soon) U.S. Senator Brown is to put a halt to the health reform legislation currently poised for informal reconciliation between the two houses of Congress, it is dizzying to think that the life’s work of Senator Ted Kennedy may well be torn asunder by the man who’ll take his seat. It is a biting irony of classical greek proportions.

And I find myself wondering, honestly, “What would Ted Kennedy do?” A consummate politician and a superb tactician, I doubt, considering the stakes, he would be adverse to the Massachusetts Secretary of State’s position:

Secretary of State William F. Galvin, citing state law, says city and town clerks must wait at least 10 days for absentee ballots to arrive before they certify the results of the Jan. 19 election. They then have five more days to file the returns with his office.

Galvin bypassed the provision in 2007 so his fellow Democrats could gain a House vote they needed to override a veto of then-Republican President George W. Bush, but the secretary says U.S. Senate rules would preclude a similar rush today.

Ah! The Senate Rules. As that yoke of the modern filibuster draws nearer round the throat of health care reform, and the phrase “in the nick of time” begins to hang in the air like a concrete goal, these words to the opponents of health care reform seem apt:  Live by the sword….

The Filibuster, Supermajority and the Constitution

Ezra Klein has published an engaging  series of  interviews regarding the filibuster, and the prospects and shape of reform for the Senate’s  much maligned rule of procedure. The prospects for reform don’t look particularly bright. And as we come to reckon with one of the final products of the filibuster floor, the Senate’s health reform bill, we may want to take a moment to consider the filibuster itself– this need for 60 votes.

Klein writes

According to UCLA political scientist Barbara Sinclair, about 8 percent of major bills faced a filibuster in the 1960s. This decade, that jumped to 70 percent. The problem with the minority party continually making the majority party fail, of course, is that it means neither party can ever successfully govern the country.

It should also be noted that unlike today, a filibuster in the early 60’s required the arduous (and, it would seem, daunting) physical task of continued speech and an inability to consider other legislation during the pendency of the filibuster. A set of circumstances which at times brought sleeping cots onto the Senate floor and may have served to limit the filibuster’s use.

The Health Reform bill has served to highlight the dysfunction of the filibuster in modernity. The filibuster is not enshrined in the Constitution, it is merely a rule of the Senate.

The United States Senate requires a supermajority of three-fifths to move to a vote through a cloture motion, which closes debate on a bill or nomination, thus ending a filibuster by a minority of members. In current practice, the mere threat of a filibuster prevents passing almost any measure that has less than three-fifths agreement in the Senate. Since there are 100 members, three-fifths is sixty Senators.

The need for a supermajority is not unknown to the Constitution, but to say it is used sparingly and for matters of great import is not to engage in hyperbole. A quick glance at the Great Document bears this out. The original Constitution contains only five instances which require a supermajority; the Amendments two. A supermajority of two-thirds of both houses of Congress is required for Congress to propose a constitutional amendment and to pass a bill over a presidential veto; two-thirds concurrence of all members of the Senate present is necessary to convict under Impeachment; two-thirds concurrence of all members of the Senate present is requisite to consent to a treaty. The Constitution also requires the concurrence of two-thirds of the Senate to “expel a member.” The Fourteenth Amendment forbids those who formerly held office, either civil or military, and had engaged in “insurrection or rebellion” from holding any office–either civil or military– unless two-thirds of both the House and Senate  acted to “remove such disability.”  The Twenty-Fifth Amendment requires a two-thirds majority of each house to determine that an Acting President “is unable to discharge the powers and duties of his office.”

Constitutional amendment, over-ride a presidential veto, convict under impeachment, expel a member, ratify a treaty, remove a punishment for rebellion, and judge a president incompetent. These are fairly characterized as “exceptional situations,” not the everyday stuff of a legislature doing business. But because of the Senate’s filibuster rules, the need for a supermajority of 60 has become a part of the everyday stuff of a legislature attempting to do business.

Under Article 1, Section 5 [2] “Each House may determine the Rules of its Proceedings….” And the filibuster is very much a rule of the Senate’s proceedings. But at a certain point, the procedural rule can be said to have overtaken the substantive– I would suggest we begin considering whether or not we are at that point.

In U S v. BALLIN, 144 U.S. 1 (1892) the Supreme Court looked at the rule making power of Congress and had this to say

The constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and, within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.

There are at least a few things to consider in this regard. Perhaps foremost is the ability of the Senate to change the filibuster rule (”The power to make rules is not one which once exercised is exhausted.”). Also, it may well be a stretch, but I find it interesting nonetheless: does the present form and practice of the filibuster (a defacto supermajority requirement for the passage of legislation in the Senate) “ignore constitutional restraints or violate fundamental rights?” (i.e., does it, as described in INS v. Chadha, offend the “framers’ decision that the legislative power of the Federal government be exercised in accord with a single, finely wrought and exhaustively considered, procedure.” (See also Powell v. McCormack, where the Supreme Court ruled unconstitutional  a House resolution to not permit the duly elected Adam Clayton Powell, Jr. to take his seat in the House of Representatives (”Moreover, it would effectively nullify the [Constitutional] Convention’s decision to require a two-thirds vote for expulsion.”).

Which is to say, in this matter, does the filibuster, as practiced currently, effectively nullify the simple majoritarian requirement for the passage of legislation in the Senate? Of course, the Constitution lacks an explicit textual commitment to majority rule. But the argument in favor of majority rule is a powerful one, hinged upon that venerable canon of statutory construction, expressio unius est exclusio alterius, ‘the expression of the one is the exclusion of the other.’ Which is to say, that by listing these five supermajority exceptions in the original constitution that I have listed above, the drafters made simple majority in all other cases the default position. To appreciate the power of this argument (and this canon of construction) on need not look any further than the Bill of Rights. Madison balked mightily at the proposal for a Bill of Rights as being “dangerous” because the act of listing certain rights  would, under black letter principle, ‘the expression of the one is the exclusion of the other,’ negate the existence of others. The solution to Madison’s fear– the anti-expressio unius est exclusio alterius– is contained in the Ninth Amendment:

“The enumeration in the Constitution, in certain rights, shall not be construed to deny or disparage others retained by the people.”

The textual analysis regarding majority and supermajority goes something like this: Article II, Section 2 [2] regarding the powers of the President reads

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; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law…. (emphasis added)

The presence of the requirement that two-thirds of the Senators concur in the ratification of a treaty, shows that when the drafters wanted to provide for a supermajority requirement they knew how; that they failed to include the clause requiring a two thirds majority appointment for “Ambassadors… and judges of the supreme Court” is strong evidence that they did not want to as it regards “Ambassadors… and judges of the supreme Court.” Furthermore, had they not provided for a two-thirds supermajority for treaties, one might argue that a supermajority applied to Treaties and Ambassadors and supreme Court judges– as the question may have remained open. But by expressing the requirement in the one instance (”Treaties”), they excluded, or closed the door on, the others (”Ambassadors… and supreme Court judges”).

Similarly, the various (but few) provisions scattered throughout the Constitution  show that the drafters knew how to create a supermajority requirement when they wanted to, and by virtue of simply being, these supermajority requirements show themselves to be exceptions to the unstated rule. In this case, the unstated rule being that a simple majority is necessary for the passage of legislation.

In addition, it should be noted that the Constitution gives a vote to the Vice-President only in instances where the Senate is “equally divided.” The presumption of course is that in doing so it will allow the Vice-President to break the tie and, by a one vote majority, allow for the legislation to either pass or fail. Importantly,  an “equally divided” Senate is rendered meaningless in the light of  a supermajority requirement.

The argument in favor of the 60 vote requirement to invoke cloture and end a flilibuster largely rests upon the premise that the Constitution grants to the Senate plenary power under Article 1, Section 5 [2] “Each House may determine the Rules of its Proceedings….” That within that clause lay the ability to proscribe the numerical meaning of the requirements for Senate procedure. But what happens when the rule of procedure swallows the law?

One might also ask if there is a constitutional argument that can be made if one can point to the concrete harm in a particular bill effectuated? Not effectuated? (But See Raines v. Byrd (1997) for the standing difficulties for Federal Senators bringing a claim against diminishment of Congressional power wrought by the Presidential line item veto, dismissed on standing grounds by the Supreme Court and characterized as “a type of institutional injury which damages all Members of Congress equally.” But, importantly, especially considering the disparate financial impact on states regarding Medicaid funding in the Senate bill, See Clinton v. New York (1998), where the state of New York did have standing and successfully challenged the same presidential line item veto after the use of the same resulted in the loss of $955 million to New York for the payment of expenses related to the medical care for the indigent).

The balance of power in Congress between large and small states was hotly contested at the Constitutional Convention. The compromise, in which members of the House of Representatives would be apportioned through population and members of the Senate would be limited to a flat two members per state, could certainly be characterized, like the process of legislation itself, as being a “single, finely wrought and exhaustively considered, procedure.” So much so in fact that the compromise which gave birth to the form of the Senate and its particularized distribution of power is, in a sense, a distinct creature within the Constitution. An anomaly, if you will. When Alabama attempted to implement such a plan in 1964, patterned closely after the Federal Legislature, for the configuration of its State Legislature, it was deemed unconstitutional as repugnant to the Equal Protection clause. The Court in Reynolds v. Sims, 379 U.S. 870 (1964) stated:

“We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.”

The Court distinguished the federal construct of the Senate as “ingrained in our Constitution as part of the law of the land” and “conceived out of compromise and concession indispensable to the establishment of our federal republic. Arising from unique historical circumstances….”

In the Free Exercise religion case,  Employment Division v.  Smith, 497 U.S. 872 (1990), Justice Scalia speaks of the increased weight and power of “hybrid” rights–rights in which the Free Exercise clause is coupled with other constitutional protections “such as freedom of speech or  the press.” What then is the result of a Constitutional scheme that outside of the Constitution is actually repugnant to a fundamental right?   Considering the offensiveness of the scheme to the Equal Protection Clause, at least when applied to putative state action to effectuate such a scheme, one wonders if a tighter leash isn’t appropriate? Perhaps somewhat akin to the strict adherence we require of “granfathered” zoning usages? This may be a bit afield, but so also may be a Senate rule which de facto requires a supermajority to pass legislation.

It is also worth noting that the Constitution jealously protects a state’s stake in the power of a Federal Senate seat. It protects the legislative power of states in the federal government by forbidding the creation of new states “formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.” (Article IV, Section 3, Clause 1).

The fear addressed being that a state such as New York could create within it’s borders– or with the help of a bordering state– “New York. West,” thereby increasing its number of Senators by 2 (and if the population of the newly created state was less than 30,000, a House member as well). In doing so, a state such as New York could thereby increase its own senatorial power and diminish the senatorial power of the other states. The Senate, particularly, is a zero sum game. But the clause in Article IV, importantly, essentially prohibits the diminishment of a state’s Congressional power–especially senatorial power–by forbidding an action which would do so– unless Congress, both the Senate and House, agree. One could argue that the filibuster as practiced accomplishes a similar diminishment of  senatorial power–but does so without the consent of the House (or, for that matter, the State Legislators).

And the point is this:

“According to UCLA political scientist Barbara Sinclair, about 8 percent of major bills faced a filibuster in the 1960s. This decade, that jumped to 70 percent.”

I loved “Mr. Smith Goes to Washington” as much as the next fellow; but this isn’t that. And although I’m not saying that the filibuster, as presently configured, is unconstitutional, I am saying that we may seriously wish to begin looking to the Constitution to formulate answers regarding the modern problem of the filibuster. The Constitution is not a suicide pact, but the Senate rules may be.

“You’re Going to Die”: the “Paranoid” Style of Reform Opposition

An AP story on Wednesday quoted Tom Coburn, a Republican Senator and former obstetrician, addressing the reform bill’s Medicare cost-containment provisions, and delivering a message to seniors:  “I have a message for you: you’re going to die sooner.”  Some Democrats, such as Senator Pat Murphy, are clearly frustrated that Republican Senators, having opposed many recent Medicare improvement measures (see MIPPA 2008, which expanded primary care and suspended a scheduled cut in physician reimbursement), now cast themselves as the pro-Medicare party.  And standing with Coburn was Senator McCain, whose ‘08 presidential campaign argued for health reform financed in part with savings from Medicare and Medicaid.

The health reform bills contain interlocking provisions concerning coverage, finance, and delivery reform.  I doubt that any two thoughtful people would agree on every aspect of the current bill.  Comments of two sorts seem in order under these circumstances  (and hopefully are reflected in the posts on this site):  specific comments providing reasoned support or opposition to particular provisions and/or proposing amendments thereto, or general and reasoned comments supporting or opposing the overall package.  Coburn’s comment fits most nearly into the second category, but “reasoned” it ain’t.  It made me think of the classic Richard Hofstadter essay, The Paranoid Style in American Politics. (H/t to CBC’s Ideas, broadcast on November 28, podcast available here.)  Hofstadter, a Pulitzer Prize-winning Columbia University historian and commentator on American anti-intellectualism, wrote in his 1964 essay of the dark tradition in American politics of outrageous argumentation calculated to see “how much political leverage can be got out of the animosities and passions of a small minority.”  He was clear that he was not using “paranoid” in a clinical sense, but instead as a label to evoke a “sense of heated exaggeration, suspiciousness, and conspiratorial fantasy.”

Hofstadter was clear that the “paranoid style” was not used only by one movement, or even by only one slice of the American political spectrum.  He argued that examples could be found on the left and the right, and on both sides of many major issues.  It is not Coburn’s position that harkens to Hofstadter’s characterization of irresponsible speakers.  Rather, it is the style of his speech.  Hofstadter explained it this way:

Of course this term is pejorative, and it is meant to be; the paranoid style has a greater affinity for bad causes than good. But nothing really prevents a sound program or demand from being advocated in the paranoid style. Style has more to do with the way in which ideas are believed than with the truth or falsity of their content.

American history is filled with examples of political spokespersons resorting to this sort of extreme speech:

In the history of the United States one finds it, for example, in the anti-Masonic movement, the nativist and anti-Catholic movement, in certain spokesmen of abolitionism who regarded the United States as being in the grip of a slaveholders’ conspiracy, in many alarmists about the Mormons, in some Greenback and Populist writers who constructed a great conspiracy of international bankers, in the exposure of a munitions makers’ conspiracy of World War I, in the popular left-wing press, in the contemporary American right wing, and on both sides of the race controversy today, among White Citizens’ Councils and Black Muslims.

Joining all of these examples together are several factors: extreme overstatement; the use of specific “facts” as the basis for factually unsupportable positions; and the apparent intent to inflame rather than reason.  There are of course, examples of such political speech today on the right and left.  It is no longer surprising — although regrettable — to hear simplistic and hateful comments from “entertainers” and “commentators” on cable news and talk radio programs.

But Colburn is not an entertainer.  He is in a leadership position in the United States Senate.  He might speak factually — rhetorical flourishes and all — about aspects of the bill with which he disagrees.  He might forcefully explain why he believes Americans should decide that we’d be better off without this version of health reform.  Instead, he has taken himself out of the discourse, and has used “factual” arguments for the purpose of misleading and inflaming.  He has, in short, removed himself from reasoned debate and embraced the demagoguery decried by Hofstadter.  Americans deserve better from our Senators.

Bartels’s Unequal Democracy and the Gang of Six

If there’s one thing our elite press corps loves, it’s centrism. They cling to a romantic ideal of bipartisanship–even when they’re discussing necessarily ideological endeavors like health care reform. Thus it comes as no surprise when the NYT’s Herzensohn & Pear can think of no more critical angle on the gang of six “centrist” Senators now at the center of the health reform debate than the fattening snacks that fuel their deliberations.

Those with a more skeptical constitution might note that the Gang of Six represent less than 3% of the US population — a rather slender thread of popular support for whatever solution these striving solons support. Yet they don’t even appear to be acting in their own constituents’ interests. It turns out that a majority of the gang of six–Senators Baucus, Snowe, Conrad, and Grassley–hail from states with extraordinarily concentrated health insurance markets. As Catherine Arnst of Businessweek reports, “such market concentration has become a potent argument for supporters of a public insurer,” which would especially benefit consumers in those states. Yet that’s exactly what the Gang of Six has immediately taken off the table in reform talks:

Already, the group of six has tossed aside the idea of a government-run insurance plan that would compete with private insurers, which the president supports but Republicans said was a deal-breaker. Instead, they are proposing a network of private, nonprofit cooperatives.

Those nonprofit cooperatives are not likely to have much of an effect on spiraling health care costs.

The sudden popularity of this non-solution is one more indication that Larry M. Bartels’s book Unequal Democracy: The Political Economy of the New Gilded Age is essential reading for understanding today’s politics. Bartels predicted a possible “debilitating feedback cycle linking the economic and political realms: increasing economic inequality may produce increasing inequality in political responsiveness, which in turn produces public policies that are increasingly detrimental to the interests of poor citizens, which in turn produces even greater economic inequality, and so on” (286). As the poor uninsured in states like Maine, Montana, and North Dakota see real relief slipping away, they are about as likely to become disaffected and drop out of the political process as they are to hold their senators to account. It’s hard to worry about voting and politics when you’re worried that aches and pains are endangering your job.

And Then There Were 60. Al Franken to Senate, Giving Democrats a Filibuster-Proof Majority.

Al Franken has won. So says the Minnesota Supreme Court, and his opponent, Republican Norm Coleman, who has conceded.

This, thanks to the November elections and the more recent defection of Arlen Specter, leaves Democrats with a filibuster-proof majority in the Senate. According to CBS,  “Franken said he had spoken to Senate Majority Leader Harry Reid, who said Franken will be on the Health, Education, Aging, Indian Affairs, Labor and Pension and Judiciary Committees.”

If not correct in his timing (and who knows as to longevity) Mr. Franken was at least somewhat prescient in regard to himself in his early Saturday Night Live skits:

Thank you, Jane. Well, the “me” decade is almost over, and good riddance, and far as I’m concerned. The 70’s were simply 10 years of people thinking of nothing but themselves. No wonder we were unable to get together and solve any of the many serious problems facing our nation…. That’s right. I believe we’re entering what I like to call the Al Franken Decade. Oh, for me, Al Franken, the 80’s will be pretty much the same as the 70’s. I’ll still be thinking of me, Al Franken. But for you, you’ll be thinking more about how things affect me, Al Franken. When you see a news report, you’ll be thinking, “I wonder what Al Franken thinks about this thing?”

It has been a long time since a President of the United States has enjoyed the power of his party alone to invoke cloture–the process by which a filibuster may be ended. And it is a power of considerable magnitude.

According to the Congressional Research Service, “Filibusters and Cloture in the Senate,”

The ability of Senators to engage in filibusters has a profound and pervasive effect on how the Senate conducts its business on the floor. In the face of a threatened filibuster, for example, the majority leader may decide not to call a bill up for floor consideration, or to defer calling it up if there are other, equally important bills that the Senate can consider and pass without undue delay. Similarly, the prospect of a filibuster can persuade a bill’s proponents to accept changes in the bill that they do not support, but that are necessary to prevent an actual filibuster. (p. 2)

For those of you unfamiliar with the cloture process, the following may be of some use.

Senate Rule XXII… known as the “cloture rule,” enables Senators to end a filibuster on any debatable matter the Senate is considering. Sixteen Senators initiate this process by presenting a motion to end the debate. The Senate does not vote on this cloture motion until the second day after the motion is made. Then it usually requires the votes of at least three-fifths of all Senators (normally 60 votes) to invoke cloture….The primary effect of invoking cloture on a question is to impose a maximum of 30 additional hours for considering that question. This 30-hour period for consideration encompasses all time consumed by roll call votes, quorum calls, and other actions, as well as the time used for debate. (Id.)

Which is to say that given a unified Democratic Senate, under Rule XXII,  the threat of a Republican filibuster would now only be the threat of a thirty hour delay.

That, for Democrats, it would seem, is a commanding position.

In Chapter XXII of Niccolo Machiavelli’s “Discourses on the First Ten Books of Titus Livius,” 1531, he has this to say about such positions

And here we may note that he who wishes to be obeyed must know how to command; and those give proof of knowing this who properly estimate their own strength with reference to that of those who have to obey, and who commands only when he finds them to bear a proper proportion to each other, and who abstains from commanding when that proportion is wanting.

It would seem as though the proportion is no longer wanting. As we pointed out yesterday, Republicans are calling, if not pleading, for bipartisan health care reform. Under the circumstances, it is not surprising that they should do so. However, the question now is whether Democrats will be sufficiently cognizant of both Rule and Chapter XXII.

BaucusCare and ConradCare

If any more evidence were needed for Sandy Levinson’s point that “it is impossible to describe the Senate as a remotely majoritarian institution,” today’s health reform debate provides it. Key Senate solons appear steadfastly opposed to a public option. It’s a replay of 1994, when Thomas Geoghegan lamented that the “forty senators from the twenty smallest states represent[ed] a population base of 10 percent” and stood as an insuperable barrier to real reform.

As Paul Krugman observes today, “relatively conservative [Senate] Democrats still cling to the old dream of becoming kingmakers, of recreating the bipartisan center that used to run America.” They may be at the center of the political spectrum in their states, but they’re ignoring the views of the “eighty-three percent of Americans [who favor] ‘creating a new public health insurance plan that anyone can purchase.’”

If there was only popular support behind the public option, perhaps the Senate would be properly serving some function of “political conservation.” However, a growing consensus of health law and policy experts sees the need for a public option as well. Tim Greaney has been making the case compellingly; here’s his latest installment:

In America, health care “delivery” (we should abandon the misnomer ‘system’) is a fragmented hodgepodge of autonomous doctors, hospitals, facility owners, and vendors of technology, pharmaceuticals and equipment. Their lack of interconnectedness and coordination is at the core of most of the quality and cost problems Congress is now confronting. Add to that the fact that “consumer” decisions are filtered through a triple layer of agency (i.e. their employers, doctors, health plans). Moreover, as a result of lax antitrust enforcement and providers’ relentless efforts to gain “leverage”, many hospital and physician markets are now tight oligopolies or de facto monopolies. And one more: information on quality, outcomes and cost is scarce, and in some cases, unobtainable. . . .

Which brings us to the public plan option. Does it correct the myriad market failures and assure an efficient health delivery system emerges? Not by itself. However, if we are going to rely on the market interplay between insurers and providers in many hundreds of markets around the country (like politics, most health services and health insurance are local), then we need some assurance that each market will have vigorous intermediaries negotiating for consumers. . . .

There is no quick and easy way to change health care delivery arrangements that are deeply embedded in institutions and habits. The radical course, I would think, would be to subsidize a vast expansion of health insurance without putting in place institutions capable of improving a badly broken system.

The leading “expert” argument against the public option now is money–or, to be more precise, the arcane scoring system employed by CBO to weigh every conceivable cost of most publicly oriented health reform against a selective account of its benefits to the federal bottom line. Let’s leave aside for the moment the general political bias of cost-benefit analysis, the specifically dubious calculation of “survivors’ costs,” and other contestable accounting methods. The bottom line here from a budget perspective is, as Nathan Cortez puts it, “The Less You Change, The More It Costs.” If you really want to see health care costs balloon out of control, follow the Baucus path toward subsidizing private insurers (along with a a fig-leaf “co-op”) to continue their present practices.

To understand those practices, I highly recommend Joseph White’s article Markets and Medical Care: The United States, 1993-2005. (This article should be to public intellectuals what Atul Gawande’s The Cost Conundrum has been for the informed public generally.) White exhaustively describes the role of the market in organizing health delivery over the time period, and concludes that one of its most important effects was to speed the consolidation of insurers and provider groups. Rather than leading to a clash of these titans, market forces led them to join forces against employers and consumers generally:

One might wonder why consolidation among insurers did not allow them to resist the providers’ demand for increased payments. The simple answer is that there were two concentrated parts of the market and one fragmented part. The insurers had to choose between fighting a full-pitched battle with the providers or exploiting their own market power vis-a-vis employers. Raising premiums to employers was a lot easier.

BaucusCare and ConradCare as they stand now are a recipe for advancing that dynamic well into the future.