Not for Polite Company

Edward M. Kennedy

2009-08-29T16:59:00.002-04:00

Today the family Senator Edward "Ted" Moore Kennedy buried him at Arlington National Cemetery after a mass. This followed a procession with the body and it lying at the JFK Library in Dorchester, and a celebration of his life last night.

When I heard the news Wednesday morning, I woke up to the radio. My clock ran a little ahead of time, and since I did not hear a headline, I had to deduce that something happened. Hoping against hope, I eventually heard the line closing the hour's news that Senator Kennedy had died overnight. As I got ready for my day, NPR went in the background, and more than once I teared up.

So many others have reflected on Ted Kennedy. The New York Times Opinionator Blog has a great collection of things people said about him. I probably cannot add much more in value, but since blogging is as much a selfish cathartic act, I will partake in my own reflections.

My contact with Ted Kennedy came from my mother who loved his two older brothers, John and Robert. She particularly held Robert in high regard and remembers his assassination quite well. Ted, marred by Chappaquiddick and his alcohol, always seemed to be a disappointment. Like so many, she constantly thought of his brothers.

Yet, Ted Kennedy rose to meet the challenge and exceeded them. What makes him so unique is that he did all of this in spite of all the problems. Yes, he grew up privileged. However, he did endure the tragedy of seeing three of his brothers killed. He had to deal with John's advisors working against his run for the Massachusetts Senate seat. As Chappaquiddick shows, he had great flaws. Yet, he reached out to people. People living in the Commonwealth of Massachusetts said that he and his wonderful staff would always work hard to help them with the little things. He really did love people, and that showed.

Beyond that, Kennedy was a brilliant legislator. He started in the Senate, and slowly worked his way up. When he lost the nomination in 1980, it may have served him well, for he dedicated himself to the work in the Senate. Kennedy developed his skills in a sort of modern era of great Senators, like Philip Hart. Kennedy always knew how to compromise legislatively without compromising his goals. He and his staff were always willing to help other Senators as well fit into the strange institution and showed a deep desire to work to find common ground for the common good. After all, one of his best friends and legislative partners was conservative Senator Orrin Hatch, with whom he often argued strenuously, but at the end of the day embraced.

The words used to describe Kennedy was the Liberal Lion. He gave voice to the weak and the powerless. He gave us all inspiration as to our abilities in many ways to transcend our petty differences and human failings. In so many ways, he reflected the type of values I held, and taught me a certain way of carrying myself in the world of policy and politics.

Talking with my mother the other day, she conceded that she finally realized now how much Kennedy had done. He was a great speaker, but he was a workhorse. So much of the best of what he did were stories of getting involved in the nitty gritty details of legislation and small feats that touched the lives of individuals. Not just through longevity, but through this practical idealism, Ted helped create for himself a practical legacy that may actually outshine his more famous brothers. Health care? Ted Kennedy is probably there. Education policy? Teddy's fingers are all over it. Civil Rights? Ted Kennedy was a protector of them.

Kennedy perhaps is one of the last great institutional members of the United States Senate still serving. With his passing, really only Senator Robert Byrd, who revolutionized Senate procedures, remains. Byrd himself is sick and deteriorating to the point of slowing down. In that sense then Kennedy's departure leaves a void in the Senate. No longer is there a Senator who serves his constituents but also transcends some larger stage and really enjoys the work of the Senate with no eye towards something more. Perhaps Senator Inouye may fit the bill of an institution, but he has less of the overt known quantity feel than Kennedy or Byrd.

As I sat that morning of his death, the most poignant moment for me came from the speech. It was the 1980 Democratic convention concession speech. Kennedy sounded more like a winner than one conceding. He outlined clearly his personal ideals and vision for America. It is political speech, but it is rousing. The last line in many ways is famous and Kennedy echoed it again during his speech in support of Barack Obama. It echoes the famous statement in Pirkei Avot about not completing the work and not being free to desist. That line caused me to lose it. Yet, it also inspired me once again to honor this man through living a life of justice and good deeds.

So I end with Kennedy's own words. Even without him here in this world, we must rededicate ourselves and realize that "for all those whose cares have been our concern, the work goes on, the cause endures, the hope still lives, and the dream shall never die."

Weird times for the Red Sox

2009-08-29T16:53:00.003-04:00

So, it seems as though I occasionally need to get my Red Sox feelings out. So, today I write about two weird occurances over the last two days.

First was Thursday's game. Who on earth would have thought Nick Green would pitch? Here are some photos of the event. All I have to say is that it brings new meaning to the word journey man infield utility player. Technically, after all, the mound is infield, right . . . . That said, it is amusing, and you kind of have to feel good about the guy. They still lost. But, it made for a great story about a guy, you at least get the sensation is not the greatest player but has a really good work ethic.

Then last night, rain turned the game into a sloppy mess. Mr. Beckett's pitching was not nearly as good and there were some crazy plays like Mr. Varitek getting someone out on his way home. Hopefully, Mr. Beckett will find his pitching again. I try not to panic too much though.

American Exceptionalism and Health Reform

2009-08-23T16:43:00.002-04:00

Normally, I am a big fan of American Exceptionalism. For the most part, it has done our country well, and I would argue it may act as a glue that holds our diverse society together. Unfortunately, it also leads to problems, like a flat out ignoring of important facts. Nothing has brought this to my attention more than in the current health care debate.

Today, on Meet the Press Senator Orrin Hatch (R-UT) claimed that the U.S. has the best health care in the world. (On a completely unrelated note, read Jon Cohn's response to the Hatch interview regarding numbers that would appear on the public plan by CBO. Yes Gregory did catch Hatch.).

However, signs show that this is not the case. Most recently the Robert Wood Johnson Foundation worked with the Urban Institute to publish an issue brief that asks if the U.S. has the best health care in the world. (Tip to Ezra Klein).

Here's a bit of a sample:

An analysis from the Urban Institute looks at the evidence on how quality of care in the United States compares to that in other countries and provides implications for health reform. Authors Elizabeth Docteur and Robert Berenson find that international studies of health care quality do not in and of themselves provide a definitive answer to this question.

What they do show is that the evidence for American superiority in quality of care (or lack thereof) is a mixed bag, with the nation doing relatively well in some areas—such as cancer care—and less well in others—such as mortality from treatable and preventable conditions.

And while evidence base is incomplete and suffers from other limitations, it does not provide support for the oft-repeated claim that the “U.S. health care is the best in the world.” In fact, there is no hard evidence that identifies particular areas in which U.S. health care quality is truly exceptional.

This is also not the first study to find this. Indeed, the brief itself is essentially a review of a lot of literature. Everyone has searched to find inklings that the U.S. has the best health care in the world by some measure. Only a few have found it, and it is usually confined to narrow areas and even so it is not overwhelmingly better. Note too that T.R. Reid in his new book and today's Washington Post makes a similar argument.

But, of course, there is this idea of American Exceptionalism that is so deep-seated into our culture that it makes up part of our situational milieu and reaches into our subconscious as part of our situation. It is the idea that America is exceptional. It is a leader in everything, and the best in everything. That cultural idea has roots to John Winthrop's famous "City on a Hill" idea of Boston and the colonies there serving as a new Jerusalem.

Unfortunately for wonks like me, there is really little that studies like this wonderful Urban Institute thing can do. It affects a deeper part of our situation, and the situation as Jon Hanson has often said, is much stronger than the disposition. Furthermore, I think deep down most Americans do find it troubling that we have a system that has so many individuals uninsured and that costs more than the rest of the world. Yet, we have our exceptionalism, and indeed, we have to believe that the world is just and right. The system justification theory then also kicks into the discussion, and the moves arise in this basic way

We have a system where millions are uninsured and cannot get coverage, and thus suffer needlessly.
We also have a lot of costs.
But the world is just, and we are the U.S., an exceptional country.
There must then be some sort of a reason for this matter.
The reason we have this problem is because people deserve it by not working hard enough and that we must be spending so much and have so much fracture that our system must do something right through innovating.

Now this is likely a poor oversimplification of what is going on, but I think my point is made. Such a sort of illogical conclusion is not something that one can easily get rid of, especially if it is deep-seated.

Unfortunately, health reform seeks to fight this, by pointing to the rest of the world saying we should become like them. That attacks our exceptionalism and that shows that our just world is perhaps not so. This leads then to resistance, and ultimately, a status quo bias.

Evolution and Religion

2009-08-23T16:26:00.002-04:00

Today's NY Times has a great Op-Ed by Robert Wright at the New America Foundation regarding evolution and religion, a large debate that is often very complex and fraught with emotions. It is well worth reading in full. One should note that the piece is difficult and highly nuanced though.

One point Wright makes that is worth noting is that both sides make a fundamental error that is basically the same:

I bring good news! These two warring groups have more in common than they realize. And, no, it isn’t just that they’re both wrong. It’s that they’re wrong for the same reason. Oddly, an underestimation of natural selection’s creative power clouds the vision not just of the intensely religious but also of the militantly atheistic.
If both groups were to truly accept that power, the landscape might look different. Believers could scale back their conception of God’s role in creation, and atheists could accept that some notions of “higher purpose” are compatible with scientific materialism. And the two might learn to get along.

Wright makes an excellent point on how we attribute things. Both science and religion have deep seated and quite inspirational purposes. Science does achieve a very high purpose, understanding the unfolding of the natural world. Part of the reason why I wanted to go into science and actually had some mild success stemmed from that idea (I of course failed because I hated the lab, but that's another story for another time).

Also, there is the question as to what exactly is God's role in creation. That too for a believer like me is complex. God's role is not some literal creation. It may just be setting the algorithms in place. However, I think imprinting altruism into the larger evolutionary framework as an underlying phenomena that natural selection chose (and it appears in other animals) may be what is going on. I do not take creation with any literalness, as it has its textual problems (See Genesis Chapter 1 and 2). However, I do think that it is hinting at something powerful and natural, and that is something about order in the world and the capability of humans to see that order, and a way of inspiring us toward that common good.

Of course, I think Wright's piece will likely get attacks from everyone as disingenuous and wrong. I think both sides have put too much in stake in the so-called war, and each side really wants to just win. Sadly, that may be the evolution our society is taking on a lot of matters.

50 Years of the 50th State

2009-08-21T16:34:00.004-04:00

Today is the 50th Anniversary of Statehood for Hawaii. It is perhaps one of the strangest and most complicated of all states to join the Union for various reasons. I attempt to poorly encapsulate the history of this event.

It goes back to the overthrow of the monarchy, illegally, in the 1890s. Queen Liliuokalani abdicated the thrown and white plantation owners imprisoned her in the palace as they declared a new Republic of Hawaii, with the sole point of joining the Union as a territory. As Robert Remini pointed out (I think) in his book on the House of Representatives, the U.S. was divided even during this time of high imperialism. Eventually Speaker Thomas Brackett Reed, who allowed the House not to become the morass that the Senate is, let the Annexation Bill through during McKinley's time, even though he opposed it. Soon American imperialism outright annexed Hawaii.

Oddly though, there was always a question as to whether Hawaii would become self-governing within the U.S. as a territory expanded or whether we would hold it solely as an imperial possession like the Philippines, with the hopes of one day turning it loose. On the one hand, it did have a lot of non-whites that people thought could not self govern. On the other hand, the Congress did during the annexation incorporate Hawaii, allowing the Constitution to follow the flag, unlike Puerto Rico, Guam, and the Philippines (See Downes v. Bidwell, 182 U.S. 244 (1901)). Interestingly though, there was a period where the Constitution did not follow the flag to Hawaii, but Congress's incorporation around 1903 (I think) solved that problem.

So, what was Hawaii? A colony to be governed from the metropole? Or some sort of entity that we hoped to groom to join the insoluble union of states? The question has never really been sufficiently answered.

In the intervening years, the territory saw some level of self-governance with the legislature, and an appointed but powerful governor. The Homestead Act of 1928 granting certain lands (bad ones at the time) to Native Hawaiians for rent at a very low rate. There was Pearl Harbor and the military bases. Sugar and pineapples drove the economy, but on the dawn of statehood, the new industry, tourism started to take grasp.

After World War II, the United Nations, which the U.S. helped create (something we often forget), created a little list of imperialist trust territories. These territories had to become either independent or incorporated. Hawaii made the list of territories.

The push was on. However, Southerners were no fan of a majority minority state. Meanwhile, back home a great deal of consternation arose among strange bedfellows. The Native Hawaiians saw an illegally taken state. White plantation owners feared of course the minority workers gaining control as they had more numbers.

However, a bill did move, and eventually a plebiscite was held with over 90% of Hawaii residents approving of statehood. Hawaii joined the union on August 21, 1959. It was removed from the UN list. This happened many years one should not too after having the U.S. Constitution follow the flag to Hawaii, and many question if the U.S. really moved out of self interest in holding the territory as a possession. One cannot say for certain what actually led to Statehood itself.

Yet, in some ways, the questions still remain. The State of Hawaii under the Admissions Act had to handle Native Hawaiian Affairs pending some resolution. That resolution still remains. The cloudiness of the territory, and the speed at which it was admitted post-UN Trusteeship, and most importantly the status of self-determination for Native Hawaiians (NB: I am not one myself) continues to raise questions for the future of the state as a whole. Will the Homestead Act survive? What is the future of the Native Hawaiians and their self-determination that the Admission Act itself implies? What will become of the last state to enter our union? Will others too finally follow or be set free?

As readers and friends may know, I have supported the Akaka Bill. My own personal feelings is still that statehood was right, and the only way for a state to leave is for consent of the American people as a whole through their representatives (states seceding on their own was answered in the period 1861-1865 though again Hawaii presents some unique questions since the overthrow and annexation was sort of more recognized internationally as a violation of customary international law). Still these questions dog me as someone who grew up in Hawaii and still cares for it.

Let us celebrate the past 50 years, let us look toward the future, and let us reflect deeply on the troubling questions too that history presents us.

Update: Paul Theroux's take (he once said "Hawaii is not a state of mind; it is a state of grace").

The Life and Death of the Public Option

2009-08-17T16:40:00.002-04:00

A lot of people seem to have their hands up in arms about the recent Administration positions on the Public Option stemming from the Sunday morning babble. However, like so much of the debate, I think this is a matter of more heat than light.

The story really comes from this NY Times article, as well as this Washington Post report.

The Administration, however, has not really changed position all that much. They have consistently supported the public option, but never said it was a line in the sand. They have said this from the beginning.

However, both Jon Cohn and Ezra Klein point out this has been a point that the Administration has sort of held from the beginning.

Can you fault the Administration for not pushing harder on this? Probably yes. Their messaging has been below par on this, and many other health care reform matters (sadly I think the issue as framed and thought of by everyone does not play to Obama's rhetorical strengths. However, as Nate Silver points out in his posts here and here (both of which are worth reading in full) even though popular with most people, it is not popular with the people who decide all of this, a subgroup of 6 who are a subgroup of 100 people who represent states rather than people.

Yet, here's the concern. It is that the desire for the perfect turn into the enemy of the good. The public option is a good thing. Many liberals really want it. I really want it.

However, what do I want more? I want major reform that would eliminate pre-existing conditions as part of health insurance. I want subsidies for lower income individuals. I want better risk pooling in exchanges. I want some start on the cost control matter, whether through an IMAC.

In other words, even without the public option, we could get a lot of these. And what are the stakes otherwise? Well, for starters the Democrats will have dug their own graves in the midterm election and harmed their own President in a very serious way. They will also help contribute to the status quo, and cause greater problems.

Even without the public option most of the reforms I, the blogs on my reading list, and other policy people have advocated for that are contained in the bills make a major, yet not entirely sufficient step toward fixing our system. That is very important, because, I think it actually builds momentum toward fixing it. If health reform fails over what is really a much smaller aspect of the puzzle than many other matters, it becomes off limits for another generation. That is something we just cannot afford on both a moral and even a fiscal level.

Trying to Simplify Health Care

2009-08-17T16:35:00.002-04:00

The various blogs I read have talked about these, so I'm going to do one myself for my friends too.

The first is the fine Washington Post health care cheat sheet. It is a major simplification, but it outlines exactly what is at stake, and seeks to reduce the heat and show the light.

Second is a flowchart, which many have posted before. There was the infamous House Republican Flowchart attacking the bill, and the equally if not more complicated Jon Cohn flowchart of the status quo situation.

However, now comes a flowchart that rules them all. It is again a simplification. The question is what level of granularity you look at with regard to these policies. And this seems to outline best what is at stake. Thanks to our friends at Donkeyliscious (and Nick Beaudrot in particular).

How simple can you make it?

Oh, these Red Sox

2009-08-16T21:12:00.002-04:00

I became a Sox fan in the early 2000s, before 2003 when they almost won the ALCS and before 2004 when they won the World Series (which I really never expected).

I feel like that again. After what happened. People often say it's Fenway, which is a hitter's park. Perhaps too there is the strong psychological factor of the loyal fan base. But, we need to start winning on the road as the Globe points out.

And meanwhile, it is interesting. Our shortstop mess is really complicated as the Globe stated the other day, although I am hopeful as it does give us some flexibility.

Oh well. Time is ticking, but we can pick up some of the pieces.

Hawaii Employees, Brand Name Drugs, and Status Quo Bias

2009-08-16T20:57:00.002-04:00

Today's Honolulu Advertiser has a worthwhile story about the State Employees Drug plans. The article essentially says that for cost savings measures various things have ocurred, many of which have angered state employees.

This highlights though an interesting question, and one that runs deeper within our framework of health care. One of the key ideas is that it requires generic drugs before one can get an exception of coverage for the brand name. You can still use the brand name if available, but you must pay both the generic copay and the price differential. Often the price differential is huge.

Study after study shows that generic drugs are just as effective as brand drugs except in certain cases. Yet, we still continue to use brand name drugs, and people often choose them. What then happens is they pay the higher brand name co-payment, but the cost is hidden, by the insurance picking up the tab.

This is not any way for a rational market to act. I sort of think that the structure of this new plan with regard to this one matter is probably the right move. It would control costs without any quality changes, and if there are problems, one can get an exception.

However, the outrage stems from a sense of the idea that "my doctor has prescribed this, and I have always taken this, why do you force me to change." That is the classic status quo bias. This bias sort of grows in our health care system, because so often it does not put pressure on people to change. Doctors too are notorious for status quo bias, often doing procedures that do not work, partly because that was how they were trained, it is difficult to stay abreast of the literature, and they often do not have any incentives to do otherwise.

Changing people's behavior is what we are trying to achieve here. The greater question that arises is if A is just as effective as B, but A costs 3 times more, why pay for A? Would not a rational market and consumer go towards B? That's sort of what this generic argument is about.

Or put another way, the state's new plan really is looking at the forgotten part of my favorite equation.

C = U x P

That would be the P. However, as I have stated earlier, and as the article itself shows, the resistance to P is much higher. Partly it is this strong status quo bias. Partly too, it disrupts in a deeper way vested interests in the system.

One final note. Liberals too should embrace cost sharing. I link back to our good friend Ezra Klein talking about various schemes in this manner.

Good Night Links

2009-08-14T23:04:00.002-04:00

The NY Times gets down and dirty calling things lies.

And death panels are really linked to the estate tax, or rather the temporary one year of no estate tax and then the sudden revival of it at pre-2003 levels.

Joanne Kennan talks about advanced planning while Jonathan Cohn shows how others thought of the matter.

Ezra Klein interviews Karen Ignani head of America's Health Insurance Plans (AHIP).

Felix Salmon has a fascinating view of regulation of securities and wealth of the country.

Meanwhile, the scene cuts to a to lone dancer and you cry again.

The Breakdown of Civility Again

2009-08-14T22:45:00.003-04:00

It was only a matter of time before health reform went crazy. As Steven Pearlstein said in his column:

Health reform is a test of whether this country can function once again as a civil society -- whether we can trust ourselves to embrace the big, important changes that require everyone to give up something in order to make everyone better off.

Unfortunately we are failing this test badly.

I of course get annoyed when people do not agree with me. That is human nature. But, what is worse is when people do not act civilly.

That's what these town halls have sort of turned into. It's not even the lies, but the sort of pitched rhetoric that has arrived.

The New York Times Opinionator actually aggregated the blog postings on this. There are accusations of "death panels" and people calling Obama Hitler. The comparisons like this do not help anyone.

None of this actually advances any case logically. I know emotions are more powerful, but we do need to realize that yes we have them, yes we are situational and not dispositional, and attempt to overcome that. However, we fail in these regards here.

What is the possible effect, well, in the Opinionator cites Nate Silver saying it does help. David Broder wrote a Washington Post column saying the opposite.

I do not know what that is. However, the sheer breakdown over an important issue that we must address is not good. In fact, as Pearlstein himself says, it really is telling about our society. Have we lost our ability to act like adults? And if we cannot overcome our own self-interest for a common good and have a real dialogue about the shape of this, then can a republic truly function (I mean the U.S. will likely not collapse, but the question arises as to whether our society can address difficult matters)?

Good Night Links

2009-08-13T22:20:00.004-04:00

Leonard Bernstein and the government, from Alex Ross.

Maybe birthers are just reflecting some psychological bias.

Goldman Sach's health care subsidy at $14,777.

The Red Sox need more players who are consistent like this and not like this (though admittedly when on he is great, and I really like his effort). Perhaps this could help. Then again, problems may be more structural than we are willing to admit.

Felix Salmon really gets fed up at Community Banks.

Finally, Jon Cohn's wonderful Colbert Report Performance.

NY Times Op-Ed, and Pushing on everything

2009-08-13T21:42:00.004-04:00

In this morning's New York Times four people wrote an Op-Ed. All are doctors. All are very familiar with the health care debate. They are Atul Gawande of New Yorker McAllen, Texas fame; Mark McClellan, Bush's FDA and CMS head as well as the brother of Bush's press secretary Scott; Elliot Fisher of Dartmouth Atlas; and Donald Berwick in Cambridge, MA at the Institute for Healthcare Improvement.

They point to something very important. They note that our health care system is designed to lead to overutlization that produces no benefit, and may create harm. The piece is worth reading in full, but two paragraphs are excepted here:

So how do they do that? Some have followed the Mayo model, with salaried doctors employed by a unified local system focused on quality of care: these include Temple, where the Scott and White clinic dominates the market, and Sayre, where the Guthrie Clinic does. Other regions, including Richmond and Everett, look more like most American communities, with several medical groups whose physicians are paid on a traditional fee-for-service basis. But they, too, have found ways to protect patients against the damaging incentives of a system that encourages fragmentation of care and the pursuit of revenues over patient needs.

[...]

In their own ways, each of these successful communities tells the same simple story: better, safer, lower-cost care is within reach. Many high-cost regions are just a few hours’ drive from a lower-cost, higher-quality region. And in the more efficient areas, neither the physicians nor the citizens reported feeling that care is “rationed.” Indeed, it’s rational.

The key here is that we want to make things more rational, not less.

And yet, there is another piece too. The market itself does not rationally price things. For example, Boston under the Dartmouth Atlas has high costs and high quality. However, its utilization is low.

A simple equation suffices.

Let C = Total Cost

Let U = Some complicated Utilization Function

Let P = Some complicated Price Function

Then as we all know

C = U x P

However, we always talk about U. What about P?

I am not saying that U is not important. It is pretty important. It is what is driving McAllen. But, P is pretty darn important too. Of course, it may also be thornier and more complicated too.

Eliminating the Deficit and Where to Go

2009-08-13T20:44:00.002-04:00

The Tax Policy Center Blog has two posts on the deficit. The first deals with things within the personal side of the income tax using the official scorekeepers, the Congressional Budget Office (CBO) and the Joint Committee on Taxation (JCT). The second deals with the corporate income tax.

I think both of these are very good posts, and I do think that the deficit itself is a long-term problem, although short term we probably should run a few up. See Brad DeLong's blog post on how the Keynsian view is the evidence-based view.

However, the deficit is a long-term problem, regardless if we decide to add everyone onto insurance.

The notion one should get from the two Tax Policy Center bloggers is that the issue is not so simple. It will require tradeoffs, hard choices, and ultimately, a lot more taxes for everyone, everywhere across the board.

This harps then back to one of my favorite themes. Taxes are not inherently bad. I myself paid them, and yes, while I would have liked more money, I did tend to think that my taxes were low (I'm a weirdo, what can I say). However, it was not that, it was a pride I took as a citizen of rather decent means near the median income for a family of four (which I think is around $40,000-$50,000) to help pay for the government, which I did not always agree with what they did (read wars) but still supported it as a patriotic duty.

Unfortunately that is gone. The sense of me first as I have often said spells fiscal doom.

So what can be done. Well, it seems from the estimates in the blog posts, you may have to push down on many points, and some of these points just do not make sense for what they yield and actually run against fairness. The main example is the administrations whacky idea to eliminate deductions for certain multinationals, which actually does help level the playing field it seems and would create an administrative nightmare to close. Others like carried interest tax may not actually raise a lot of money and have a complex implementation, but it at least serves some level of fairness.

But, like so many complicated problems, there is no magic bullet to the fiscal crisis. You cannot end earmarks, which is fewer than 1% of the budget. The bureaucracy is not as bloated as we like to believe, and even then, the money is not there. Medicare and Medicaid requires structural reform in delivery. And then there's the entire tax code that needs to push in all of these areas and perhaps get even more creative, like a national VAT.

Misinformation on health care

2009-08-13T20:34:00.002-04:00

Our problem with the health care debate of course is a matter of huge misinformation. I am getting annoyed about this too. Indeed, it seems as though we Americans have managed to hold contradictory positions.

Take for example Nate Silver's graphic here.

It just does not make sense. It makes almost as much sense as the claims of "keep your government hands off my Medicare," which happens to be a big single payer system.

Now Silver's post that I stole said image from talks about misinformation about Canada and the UK. Again we hold somewhat impossible positions together. Republicans talk on and on about the whole notion of rationing care, but they rail against deficits (need I remind people that this party had a huge poorly designed entitlement expansion and they also created tax cuts that were irresponsible).

We Americans seem to want to have our cake and eat it too. We want lower taxes, but do not cut my funding for x, y, and z. We want to have everyone covered and we seemingly hate the insurance companies, but God forbid we let the government do anything.

Then again, holding such contradictory positions may just be a result of our wiring in our brains and our situation. Indeed, to go off on a tangent, the sex scandals of the moralists show this, as The Situationist explains.

Our situations then have taught us that largess from the government is desirable, and that we deserve that largess, or we just ignore that it comes from the government. Our situation teaches us that government is evil and cannot do anything right, and taxes are horrific (we compare them to death all the time). Reactance to the situation actually leads to some of these positions that are logically impossible to reach viability.

I do not know how any of this helps, but I just felt as though I had to say something.

What Work Product is Protected

2009-08-13T20:26:00.002-04:00

Today the United States v. Textron en blanc decision came down, reversing the earlier decision saying that the spreadsheets with tax information were work product.

In some sense I expected such a result. Textron originally at the 1st Circuit had a 2-1 decision calling it work product, but the dissenting judge is apparently very well known and well regarded. He in fact pushed for the rehearing.

What this brings up is a more powerful tool for the government to use in its conflict against tax shelters. However, could this have an adverse effect in keeping tax lawyers in the dark? What will the results of today's decision be? Time will tell.

For more information go to Paul Carron's blog.

August Blues

2009-08-09T14:50:00.002-04:00

I will not lie when I say things are looking bleak all around me.

First, the Sox have had a disastrous post-All Star break period.

Second, there is my obsession with health reform too.

So what do you do?

You try to keep things positive. It is helpful when others do it too.

Massarotti does something with his post about Terry Francona. I feel as though, regardless of how the season turns out, Francona still shows himself as a paragon of leadership.

Len Nichols at New America does something similar for health reform. He points to hope that compromises will emerge, and that we will have something comprehensive and bipartisan (although he cares more, rightly, about comprehensive rather than bipartisan).

As I have written before, sometimes redemption comes only after a long period of darkness.

An Interesting Take from the Right

2009-08-09T12:01:00.010-04:00

I will freely admit that I am a moderate leftist. I tend to want compromise, consensus, and reasoned debate with passion, but not the insanity that we are seeing now. I fear the breakdown of civility and civil society.

David Frum, long time Republican strategist, has given a take on health reform. In a post on the New Majority site, he asks "What if we Win the Healthcare Fight?"

He writes in the bulk of his post:

The problem is that if we do that… we’ll still have the present healthcare system. Meaning that we’ll have (1) flat-lining wages, (2) exploding Medicaid and Medicare costs and thus immense pressure for future tax increases, (3) small businesses and self-employed individuals priced out of the insurance market, and (4) a lot of uninsured or underinsured people imposing costs on hospitals and local governments.

We’ll have entrenched and perpetuated some of the most irrational features of a hugely costly and under-performing system, at the expense of entrepreneurs and risk-takers, exactly the people the Republican party exists to champion.

Not a good outcome.

Even worse will be the way this fight is won: basically by convincing older Americans already covered by a government health program, Medicare, that Obama’s reform plans will reduce their coverage. In other words, we’ll have sent a powerful message to the entire political system to avoid at all hazards any tinkering with Medicare except to make it more generous for the already covered.

If we win, we’ll trumpet the success as a great triumph for liberty and individualism. Really though it will be a triumph for inertia. To the extent that anybody in the conservative world still aspires to any kind of future reform and improvement of America’s ossified government, that should be a very ashy victory indeed.

It is interesting to note that Frum himself is sort of a pragmatist, though a hard-nosed strategist. Brad DeLong, whom I got the posting from, oddly enough, is a little more acerbic in his response.

However, more than anything else, it has the ring of Pearlstein's column I linked to the other day. Both writers essentially say, that should healthcare reform fail, it is not only the Waterloo of Obama, but a Waterloo for this country as to whether we can really institute sensible reforms in the first place.

I think the fact that such discussion comes from both sides is important. Also key to note is that while Frum does not support a public option, he really does support a great deal of the thrust of health reform, including the all important regulated marketplace of exchanges. He has his list of reforms conservatives should support.

As a more liberal pragmatist see a chance to compromise here, and a lot of common ground. The question is to whether passions on both sides are willing to give up some of the heated debate, and distortion tactics, and focus on these common ground areas that we have, which will make major changes to health care.

End Of Life Distortions

2009-08-09T11:19:00.004-04:00

One of the crazy aspects of the health care debate is that people are now arguing that we are going to create "death panels" to kill off seniors and euthanize people at the end of life. I find such, and this is a harsh word for me to use, lies quite troubling.

First off, as an Op-Ed points out, there is nothing to euthanize people in the bill. What the bill instead does is reimburse doctors to discuss with patients end of life decision making, in terms of advanced care directives, various do not resuscitate orders and the like. These are far from euthanizing.

The attacks on comparative effectiveness also is wrong. The goal is to set reimbursement and coverage decisions more effectively. We should not spend money on treatments of questionable value clinically and economically. That said, people could pay a differential in price or whatnot on their own. The basic care though that does work would fall under coverage.

Joanne Kenan has a great post a while back to sort of delves into the issue of end of life care, the most expensive, and often the most painful sort of care. Harold Pollack responds to the comparative effectiveness claims. Both these people know more than I do.

Instead of that, I want to tell a story. It involves Granny. My grandmother had diabetes. Through the excellent care of her doctors, she lived a much longer and fuller life than anyone had expected.

However, one day she went into the hospital with lung and heart problems. She recovered, and they sent her home. A few days later she reentered the hospital with the same problems. Her condition deteriorated. Over the course of the next weeks she went in and out, and we were rapidly spending time there. She was dying of heart and lung failure.

Her cardiologist finally took my mother, my grandmother's caregiver, aside. On his own he told her that every time we brought her back to the hospital, they would revive her. But, she would not get better. He described the condition as putting someone's head under water, and then when they revive her pulling her up for air for a few seconds, before forcing it back under water. He then gave us resources for hospice and palliative care.

We chose hospice. Statistics say that this choice probably means that my grandmother's life was not significantly shortened by this. It does show that patient and family quality of life though is much higher, and perhaps it is slightly cheaper.

On the cost side, it was cheaper, but that was never a consideration. I of course cannot say whether it was the same length. What I can say is that hospice care allowed my grandmother the opportunity to die rather peacefully at home. It gave my family a break from the stress of running to the hospital, and allowed us to emotionally plan for the end. Overall, we were happy with the care, and my mother, the caregiver, since then has insisted on me doing the same for her.

This is just my story, and it came from a middle schooler's perspective and was highly influenced by my mother's own pieces of information. But, it still stands out brightly in my memory. Perhaps, it is why these distortions on the end of life issue really make me mad.

Graph on HIspanics and Sotomayor Votes

2009-08-08T09:26:00.001-04:00

Nate Silver has this great posting. It comes with this graph

Silver analyzes the strange correlation that seemingly goes against conventional wisdom. Those with larger Latino populations voted against Sotomayor. A lot of it has to do with who are those are. Many are very conservative or in leadership. Some are considering running for governor. The people who voted yes come from oddly non-Latino areas and the only substantially Latino yes Republicans is Mel Martinez, who is retiring and disappearing soon.

Again, I love statistics and graphs, but as always just looking at a graph like this as Silver points out, is not enough. What may happen beyond is also unknown.

Facts on Health Reform

2009-08-07T18:57:00.001-04:00

My friend Joanne Kenan has a great post on these facts. You should visit it here.

Steven Pearlstein's Excellent Column

2009-08-07T14:40:00.007-04:00

Pearlstein is generally not prone to angry outbursts. He is a good columnist for the Washington Post. However, he has had enough of what has gone on. And he uses his column as a vehicle.

This month, health care reform is the issue talked about in town halls. However, these discussions are interrupted by astro-turf (fake grass roots) activists. They have disrupted these events and even, supposedly, threatened Members of Congress.

Pearlstein essentially decides to use his column as an attack. He opens by saying:

As a columnist who regularly dishes out sharp criticism, I try not to question the motives of people with whom I don't agree. Today, I'm going to step over that line.

The recent attacks by Republican leaders and their ideological fellow-travelers on the effort to reform the health-care system have been so misleading, so disingenuous, that they could only spring from a cynical effort to gain partisan political advantage. By poisoning the political well, they've given up any pretense of being the loyal opposition. They've become political terrorists, willing to say or do anything to prevent the country from reaching a consensus on one of its most serious domestic problems.

The column then goes through the facts and attempts to dispel them. The idea that there is no choice? Wrong. The hypocrisy of complaining about costs, but refusing any of the normal ideas of either decreasing utilization and/or unit price? Exposed.

But, I would argue that the most important paragraphs are Pearlstein's last ones. The words are particularly damning:

Health reform is a test of whether this country can function once again as a civil society -- whether we can trust ourselves to embrace the big, important changes that require everyone to give up something in order to make everyone better off. Republican leaders are eager to see us fail that test. We need to show them that no matter how many lies they tell or how many scare tactics they concoct, Americans will come together and get this done.

If health reform is to be anyone's Waterloo, let it be theirs.

The rhetoric and the development of this debate, and so much of our public policy is troubling. As I have stated before, the way has turned into a screaming match. Reasonable people have become unreasonable. Everyone is in it for himself. It is me and greed.

However, such narrow-minded individualism cannot work. It must be tempered by community and shared sacrifice. No society ever functioned in that manner. A democracy functions best when ideas are discussed with passion but rational bases, sort of a modification of the old marketplace of ideas. We talk; we compromise; we reach consensus. We do not scream. We recognize the opposing views and take it into consideration and seek to still occupy the same space. We do not drown each other out.

Should this debate end because of these disruptions, it says a lot about American Society. I fear too that we will also be unable to address other disasterous problems looming on the horizon or that we have not even conceived of yet.

Massachusetts Reforms Work!

2009-08-05T15:45:00.010-04:00

Today, the Boston Globe has an editorial that seeks to rebut many of the claims about Massachusetts and set the facts straight. Instead of it being some parade of horribles, the Globe writes instead that:

The facts - according to the Massachusetts Taxpayers Foundation - are quite different. Its report this spring put the cost to the state taxpayer at about $88 million a year, less than four-tenths of 1 percent of the state budget of $27 billion. Yes, the state recently had to cut benefits for legal immigrants, and safety-net hospital Boston Medical Center has sued for higher state aid. But that is because the recession has cut state revenues, not because universal healthcare is a boondoggle. The main reason costs to the state have been well within expectations? More than half of all the previously uninsured got coverage by buying into their employers’ plans, not by opting for one of the state-subsidized plans.
...
Whether out of ignorance or convenience, all three bashers have it wrong. Unlike the Big Dig, health reform came in on time and under budget. It will be proportionately more expensive nationally to provide coverage for the uninsured than it has been here simply because the state began the task with a much lower rate of uninsured, 7 percent, compared with the US rate of 17 percent. But a national plan that relies, as Massachusetts’ does, on both government-subsidized insurance and a mandate on employers to offer insurance or pay a penalty (in Massachusetts’ case, a very small penalty) should be able to cover nearly everyone without busting the budget.

It is important to note too that the state has started trying to tackle the more complicated matter of cost containment. Now that everyone has a stake in the game, controlling costs may actually have more political power. The QCC has recommended changing how we pay for health care. There are also cost containment hearings run by the Division of Health Care Finance and Policy (DHCFP) where the Attorney General's Office (AGO) plays a role along with other stake holders to identify cost drivers and recommend policy to bend the curve.

Not everything will work, but perhaps now everyone, every citizen in Massachusetts, has a stake in making the system work, and that influences cost.

I just wish Beacon Hill would guide the discussions of health care on Capitol Hill and across the country.

P.S. Ezra Klein makes pretty much the same argument, I discovered after writing this. And, NPR has more coverage on the payment reform proposed by the QCC.

Ghostwriting and Medical Journal Transparency

2009-08-05T11:04:00.005-04:00

Today's NY Times article on Ghostwriting is concerning.

Essentially, the problem here is that Medical Science has seen a corruption. Review articles are often the way scientists in any field stay abrest of information. There are always communications of new breakthroughs, but reviews aggregate information (like this blog) and add some analysis.

Signing off on an article written by an industry takes pushing drugs to a new level. It distorts science. Furthermore, we no longer know what we can trust and what we cannot. Doctors are now completely lost.

I do not necessarily think PhRMA is the source of all evil. Their drugs are often useful. But, practices that distort basic knoweldge is quite egregious.

Paul Testa also provides a great analysis at New America's New Health Dialogue.

Corporate Rate Reduction

2009-08-05T10:45:00.007-04:00

Professor Daniel Halperin has posted a working paper regarding corporate tax rates at the Tax Policy Center (full disclosure: I did help him with some of the research).

The abstract reads:

Since the statutory marginal U.S. income tax rate on corporate income is higher than the marginal rate imposed by all of our trading partners except Japan, there have been a number of proposals to reduce the U.S. marginal corporate rate. At the same time, it seems likely that the top individual rate will be increased. However, a differential between marginal corporate and individual rates could reduce the overall rate of tax on corporate distributions and enable higher-income taxpayers to shelter their income from services or investments. This paper suggests that we can mitigate these problems if the lower corporate rate is denied to income from services or passive investments and if there is always a second tax on distributed income. The latter requires reducing the step-up in basis at death and the deduction for charitable contributions by the amount of undistributed earnings to prevent taxpayers from permanently escaping tax on earnings retained in the corporation. Nonetheless lower corporate rates allow reinvested corporate profits to earn a permanent higher rate of return. Setting the combined individual and corporate rates on corporate distributions higher than the top individual rate offsets this advantage and also reduces the risk that corporations will be used to shelter income.

Halperin lays out the matter quite nicely. Corporate rate reduction can lead toward some strange arbitrage matters that a lawyer thinks about. While this matter has become the cats meow for economists, few think of how the code is structured.

Reducing the rate requires us then to think about these effects to prevent shell corporations for tax shelter purposes. The idea of looking ont only at the actual corporate income tax rate, but looking at distributiosn as well and comparing that to the individual rate makes sense. I do hope a few more policy makers read this article.

Financial Product Safety and Banks

2009-08-05T09:03:00.007-04:00

I recently posted a lovely reference that Elizabeth Warren had regarding a Consumer Financial Protection Administration (CFPA). The goal would create an agency whose sole purpose was to regulate the safety of financial products. The idea is something I have supported. A mortgage or credit card can actually do more damage to your home or health than a toaster, and yet, we regulate the toaster more tightly.

However, community banks are in strong opposition to this. Felix Salmon actually discussed why they should not have such concerns. Quoting his post:

Small community banks are good at boring, simple banking — think the Bailey Building & Loan. That kind of activity should pass a CFPA audit without
breaking a sweat. Conversely, a CFPA audit is akin to a tax on size and complexity — the more opaque a bank and its products, the harder it will be to persuade the CFPA that what it’s doing is good for consumers.

Small community banks compete with predatory lenders, and in extremis are forced into the gutter with them. The CFPA, by severely curtailing predatory activity, moves the battleground back onto the community lenders’ own turf. More generally, the CFPA will turn formerly-unregulated lenders into regulated financial institutions, which will help level the competitive playing field.

The CFPA is rightly prejudiced against yield spread premiums and other hidden ways of gouging consumers, such as putting prime customers into subprime loans. Small community banks don’t engage in such shenanigans. Meanwhile, community banks are really good at old-fashioned know-your-customer underwriting, which the big financial institutions find more or less impossible.

Now, James Kwak that sort of complexifies the first point. He states that community banks did get involved in some of these dangerous products. That said, they do have boring products for the most part, and would likely not have a problem.

The real concern most people have cited is the matter of regulatory capture. The small banks fear that the agency will become captured like many other agencies and thus favor the interests of the big banks they are supposed to police. Capture is a major concern, and it is often difficult to avoid. Large businesses have greater resources to spend. Large businesses are often better connected. Large businesses usually provide the information on the market to the regulator. Caputre is inherenlty hard to avoid, but a well-designed agency, as both Kwak and Salmon point to, definitely could help.

The other concern too arises from compliance costs. If the regulations are too difficult to meet, banks with just boring products could have trouble meeting the new requirements. It takes administrative resources to comply with these matters. This issue is often linked toward capture, as compliance costs are often used by larger players to keep out the smaller ones.

However, agian, design and careful oversight by Congress and people at large, plus an initial agent who understands these issues and sets up an institutional culture that balances these matters would help. Again, this is not some sort of weird luxury here. I do think that this needs to be done. We have to consider these concerns, but small banks should really join on the train here.

One State, Two States, Red States, Blue States

2009-08-03T20:58:00.003-04:00

The Blogosphere has suddenly awakened with the sound of a Ross Douthat column. Mind you this message appeared in other conservative publications before, and now hits the mainstream media with this column, provoking my side, the liberals and progressives, into a a series of comments.

Douthat explains that when looking during this crisis we should look to red states, and holds Texas as the exemplar. Texas has weathered the economic crisis much better than blue states he argues, holding up California as the other end.

Normally, I think Douthat actually does say worthwhile things, and he writes a well-reasoned column. However, his facts are wrong.

First, Texas is a major oil producing state. Economies based on energy, while they to saw a downturn, have tended to weather this crisis well. California where the housing bubble burst soon after the tech bubble earlier in the decade burst definitely has those problems. New York of course is the center of the financial industry, and that has caused it some problems. Even Massachusetts, which actually has not seen the worst of it, has taken a hit because of the base of its economy in financial products and health care, though the latter really does cushion some of the blow. Likely if Texas had no oil, it would probably feel a bit more like its southern resource poor neighbors.

Second, there is little correlation between red states that voted for McCain and blue states that voted for Obama and various economic factors. That really does not help us out then in terms of trends. Texas, after all, is not the only low tax state, unregulated state. Others exist, mainly in the South.

Third, Texas does provide fewer services. The result, greater inequality, and quite high rates of poverty. You are more likely to be poor in Texas, and you are less likely to get any help. As the link also shows, Texas also is not the top state in terms of growth. I think such a combination then shows a picture that is less than rosy. Growth is not as hot as the conservatives would like you to think. However, inequality is quite big. If you are poor, do not expect any health care. Work three jobs? You still get no help.

Fourth, Texas for all the talk about its low tax life and the fact it has never seen a budget crisis, did actually see a budget crisis. Yes, it had no income tax. But, it did have property and sales taxes. A couple of years ago, if I remember correctly, there was a gaping hole in the budget, and surprisingly no one wanted to raise taxes. However, this went to education, and so legislators and Governor Rick Perry, who hates taxes and even tried to return federal stimulus money, crafted a plan to . . . raise taxes. Except, it did it by imposing a new tax, a franchise tax. It fit the old maxim of "don't tax you, don't tax me, tax the man behind the tree."

On the franchise tax, many tax policy people kind of liked it, including myself. It was a base broadening effort. However, one should remember that the tax arose because Texas needed revenue, or else it faced dire circumstances. Luckily franchises and certain types of partnerships did not pay tax, so they just asked them to pay their fair share, and thus kept the merchants happy without a sales tax increase. However, the effect was the same, the tax burden in Texas rose. That burden could continue to rise too.

Finally, California does spend significantly more on services. However, it too has a lot of business. As many of the links point out, it has an average tax burden. The fundamental problem of course is that California has a lot of spending that does not go to true programs, but rather weird little siphons as a result of propositions. It is unable to levy property taxes, that would actually help spread the burden out a bit more. While both states have weak governors, Texas's weird legislature actually has a history of moving things quickly. And it does not have the same weird 2/3 rules that California has.

So, what does this say about Texas? Well, I think it says that the idea is at least more complicated than many would like to believe.

Compact Aid in Health Reform

2009-08-02T17:17:00.003-04:00

Compact Migrants, who are essentially like Legal Permanent Residents (LPRs) in status, will now receive federal funding for Medicaid. On the ground, at least, this has no change for the benefit package. What it does do is require the Federal Government, who entered into the treaty with the Pacific Island nations, to share the burden.

Again, it is a simple matter of policy, if we want the Compact for our military purposes as a forward stationing in the Pacific, we must give up something, and this overall, I think is a small price to pay.

Honolulu's Transit Matter

2009-08-02T09:46:00.002-04:00

Honolulu seems well on its way to develop a rail transit system, even though tax revenues have fallen in light of the recession. The issue seems to always cause a deep amount of tsuris (pain and suffering) and angry comments. However, I think that new data supports the development of the system.

First off, anyone who has traveled to Honolulu knows that fast growing suburbs on the Western and Central parts of the island have only one road into and out of downtown, and that is the H-1 Interstate. The only way of course to expand the highway or build an alternate requires the use of eminent domain, and that is rife with its own political problems.

A study by the Economist, however, finds that the cost of parking in Downtown Honolulu exceeds that of most major American cities. Honolulu even exceeds places like Madrid and Paris. Given that people in Hawaii also pay significantly more for gasoline, have to sit on the H-1 for much longer than any comparable metropolitan area of its size, and pay significantly more for parking, transit makes sense. It will not reduce traffic, but it gives people an alternative in terms of both movement and price.

Polls, Statistics, and Stories

2009-08-02T09:23:00.003-04:00

Polls have shown plummeting numbers for the popularity of President Obama, the economic situation, and the various health care proposals out there. Many have started to sound alarm at this matter. However, numbers may not tell the whole story.

Dan Balz last week had a story that examined behind the poll numbers. What is interesting is that a swell of positive feelings seems to appear when you dig deeper. The polls do not tell the whole story.

I am a quantitative person, but it is important as always to recognize the limits of statistics, polls, models, and other matters, because so much of the richness of human decisions and life lie in stories themselves that we cannot just boil down to simple numbers in easy to analyze questions.

Senate Procedural Redux

2009-07-31T09:52:00.003-04:00

An interesting matter here that comes from The Hill, stating that some of the liberal Democrats are getting antsy about the current situation in the Senate. I quote below:

In an apparent warning to Senate Finance Committee Chairman Max Baucus
(D-Mont.), some liberal Democrats have suggested a secret-ballot vote every two
years on whether or not to strip committee chairmen of their gavels.

Baucus, who is more conservative than most of the Democratic
Conference, has frustrated many of his liberal colleagues by negotiating for
weeks with Republicans over healthcare reform without producing a bill or even
much detail about the policies he is considering.
“Every two years the caucus
could have a secret ballot on whether a chairman should continue, yes or no,”
said Sen. Tom Harkin (D-Iowa), the chairman of the Senate Agriculture Committee.
“If the ‘no’s win, [the chairman’s] out.

“I’ve heard it talked about before,” he added.

This procedural reform actually does not seem so radical. In fact, the House has this, and ocassionally exercises that even within the Democratic Caucus. This is how Rep. Henry Waxamn (D-CA-30) became Chair of the all powerful Committee of Energy and Commerce. I personally wanted old chair John Dingell to win (D-MI-15), but Waxman's performanc has more than pleased me.

Furthermore, at least on the House side, for now, the Democrats have kept in place the term limits on Committee Chairs which the Republicans instituted in 1994. I think again that such a move works well.

The Senate of course is a much weirder beast, and part of it too may arise from the old story of it serving as a cooling saucer. First, the Senate represents not people but the states. Looking back on the history of the insitution itself, the idea was that it is anti-democratic. State Legislatures used to elect Senators. We run treaties I think through the Senate because: a) the framers did not want the people to deal with foreign policy and b) we wanted a consensus of these sovereign entities called states to assent to something. I do not think this is a good idea, but it really underlies why the Senate operates to this day as a peculiar institution.

However, the Senate should make such reforms because Senators just serve longer, because they live longer. Also, it starts to centralize an institution that works in a highly decentralized manner. As pointed out earlier, leadership in the Senate is much weaker than in the House. However, 100 people or even a 40 member caucus can act in highly disparate ways. You then have a total coordination problem, which is something I think we see, at least on the Democratic side. Giving leadership and the caucus some check on Chairmanships would defintiely help in this regard. One should note that Republicans have not shied away from doing this. The former Republican Senior Senator from Pennsylvania, Arlen Specter, almost lost his gavel on the Judiciary Committee, because of his views on abortion.

The larger looming issue that could make a major change is the weird cloture procedures. I have essentially outlined that in a previous post. Prior to Robert Byrd's majority leadership, the Senate acted even slower than now. It required a 2/3 vote for cloture. With the growing realignment of parties, that made things difficult. So cloture changed to 3/5. However, you still have some of these matters that complicate everything.

Of course, cloture seems anti-Democratic, becuase it is. However, I want to restructure some aspects of it since cloture does seem like a weird Kabuki dance. One of the ideas behind cloture is to give more time for debate. I think that perhaps clotures should revise itself as follows. Perhaps a full cloture should act like a previous question motion in the House. Full cloture could end debate right then and there after it ripens and goes for a vote. However, should that fail, but the Senate in a majority choose to end debate, you could let that drag on for some long period of time that is finite with underlying amendments all requiring germaneness. Finally, if cloture utterly fails (less than 50) then you have the old fashioned filibuster, but that means the bill would have failed.

Also, perhaps ideas for certain motions, like the motion to proceed to consideration should not be debatable, and amendments have a more specified amount of time, like the 5 minute rule in the House. It could act as a 3 legislative day rule in the Senate.

I do not know. However, I think these things are worth thinking about in both an abstract but perhaps workable manner.

And I leave with Floyd Riddick's statement again, "the rules of the Senate are perfect, and if they change every one of them, the rules of the Senate will be perfect."

Happy Birthday, Medicare

2009-07-30T22:15:00.002-04:00

Medicare turns 44 today. The program provided health care to America's elderly, and represented a major change in health care. Oddly, these are the people opponents of health reform prey on, because they say that the government will take things away from them.

Nate Silver at 538.com discusses how Republican opponents are so out of touch on health care. The tension has gotten me annoyed too over the past few days.

They say Medicare has destroyed medicine. It pays too little and costs the government too much and leads to rationing. Almost all of these matters are false. Medicare rates, while not generous can and do effectively handle reimbursements if one is willing to handle a lower margin, but institutions have done okay on that, and still continue to take a hefty load of Medicare patients. Rationing just does not happen. In fact, one of the problems is that it is a fee-for-service with a set rate of coinsurance for anything. It does not matter if the expensive is as effective, worse, or only marginally better than the much cheaper alternative, it tends to reimburse at the same rate. The point of cost is a problem, but if you are against a rational rationing system then you have the current irrational system I just described, and these lead to poorer outcomes.

Yet, Medicare is also wildly popular as Silver points out. It works well for consumers. Doctors and providers grumble often, but it is also not worse than not having any patients at all above the age of 65.

So what is going on here? I think it's a bit of double speak. Then again, if you look at the last quote of this Washington Post story on Jim DeMint, you see that many people just forget how valuable and important the government is. As the man says in the end "keep your government hands off my Medicare." Sadly, such disinformation like the Republicans discussion on Medicare, can work when the populace has such views.

Insurance matters

2009-07-30T22:04:00.003-04:00

Felix Salmon links to a bunch of other analyses of how health insurance and a lot of other insurance has high counter-party risk, and thus leads to rescissions. Essentially, the insurance company looks for pre-existing conditions and see if you lied about that on your application. Thus at the moment that you actually do need an expensive service, it takes it all away and refuses to pay.

These matters of insurance do not strike me as rare, and while horrific, make some level of business sense. However, when looking too at the contracting process of insurance, no one can adjust terms of the contract to avoid this, unless that person is not a person, but rather a large entity like an employer that can spread out risk. Employer-based policies then help to reduce this risk. However, that means someone like me, with chronic conditions, must stay in employer sponsored health care.

This then only strengthens Ezra Klein's obsession with exchanges. That creates a new risk pool and a regulated market. Instead of creating a situation where the insurance company produces a standard form (and these rescissions do fall under adhesive form contracts that any first-year student can tell you about and clearly does not make sense because you expect health insurance to help cover these catastrophes), you create a market that does not allow companies to do this. However, to allow them to have a profit, you pool the risk nationally in this large market. The Massachusetts Connector, in fact, meets this criteria and this goal.

I think a move like this would give people more choice, and likely meet closer to what their intentions when entering into a health insurance contract. That is probably a good thing.

The Self-Referral Horror, or How my Profession Screwed up Health Care

2009-07-30T21:30:00.003-04:00

I study the law, as evinced by some of my other posts that do not have anything to do with health care. However, an interesting Slate piece caught my eye. In it, it stated that doctors at one time did not do self-referrals, but as a result of the case Goldfarb v. Virginia State Bar, 421 U.S. 733 (1975) that changed. The case held that lawyers who charged the State Bar Association's suggested rate of 1% of the home price for deed matters with home purchase were involved in price fixing, since no one could get a price below that 1%.

This came to apply to health care in the following way. Doctors had professional ethics that prevented them from getting any income except through seeing patients and treating them. However, as the case showed, any sort of thing that a court could interpret as price fixing fell suspect. Here then, the concern was that cordoning physicians off from other sources in such a strict manner could lead to price fixing, which it kind of does, and as a result that, plus some of the market deregulation of the Reagan era helped create a greater incentive for self-referral. The article captures this much better than I do.

A weird area of regulatory law then arose. Rep. Pete Stark, who has fought against such self-referral, has helped pass legislation that limits physician ownership of certain thing like labs. However, the so-called Stark 1 and Stark 2 laws created a complex regulatory scheme, and it has gaping holes that do not just arise out of complexity. It prevents self-referral for the $200 lab test. It does not prevent self-referral though to a hospital that you own a stake in that specializes in orthopedic surgery, which costs $20,000, and on which the margin is greater (I made up these numbers, but the sense of the wide difference in magnitude is the key).

When we talk about capitation and all these other matters, I do not think that just imposing some sort of here's some cash this month is necessarily the only way to go, and indeed, it could act as a blunt tool. We also need to look at some of these practices of self-referral. Indeed, the now famous Atul Gawande piece mentions such practices regarding hospitals in McAllen, Texas.

Yet, the hopes for a Stark 3 that pushes for a regulatory framework that ends the most egregious of these matters (or even amends the Sherman Anti-Trust Act in this regard) is not something that will go forward. Doctors have earned huge profits here through self-referral and do not want to see it end. Unfortunately if we do not address this matter, something that really is an egregious cost-driver, how can you even push for larger more complex action?

More Compact Fun

2009-07-29T23:21:00.002-04:00

According to a News Report that I have managed to lose a link to, the migrants under the Compact of Free Association have now lost a lot of their state funded Medicaid benefits.

Like every other state, Hawaii is facing a budget shortfall. Many services will have cuts, and state workers face furloughs or layoffs. However, the Compact Migrants' situation is unique.

First, unlike others, Hawaii leaves no money on the table dropping them. These migrants are treated like any other immigrant group. They do not qualify for a federal match (called FMAP) in Medicaid. As a result QUEST (the Medicaid Managed Care Program in Hawaii) must pay for all expenses.

While there is some weird political trouble with any "immigration" issue, as I have stated before, the compact migrants are unique. Essentially they are like legal permanent residents (LPRs), and can freely enter the country, work, and avail themselves of social services. They pay taxes too.

However, unlike any other group, including LPRs, which they are most analogous too, the federal government does not pay for compact migrants' services. Under welfare reform, and part of the conservative loves of block grants that are too small, they give states a block grant, which fails to cover these services.

Oddly enough, these same people who refuse to pay for the migrants also demanded the treaty in the first place, to use these Pacific Islands as Pacific forward basing locations. These hawks also tend to act as deficit hawks of the worst kind, not looking for solutions to balance the budget, but cutting it in a haphazard way. Essentially they said, you give us something valuable and we will let you come here, but you really get nothing if you come to the U.S. except to escape your island sinking into the ocean because of climate change.

So that's that. It's kind of sad watching this happen. Sadly too, I do not think anyone talks about them in this healthcare debate.

The Beginnings of Redemption?

2009-07-29T23:09:00.002-04:00

So today started off grim. I woke up thinking that nothing would happen, and was in a foul mood because the Jewish Calendar had the 9th of Av, which commemorates the destruction of the Temple, and of course, there's a long fast (the only other long fast is Yom Kippur). Ruth Marcus's column this morning made me pine for someone reasonable, and it seemed as the news made it seem like the U.S. would exist in a health care galus (exile, pronounced Ashekenazic, because galut just does not sound right).

Then word this afternoon came out that a deal appeared. Apparently, the Blue Dogs and the Chairman Waxman came to a deal with some minor concessions. One was pushing the vote back until after August. Another served to get negotiating power for the public plan from year one. Finally, they also had some cuts in subsidies and other matters. Ezra Klein nicely summarizes it.

Word also came out too in the same Klein posting of Finance getting closer to a deal. Of course, one staffer reported that they are nowhere near a deal yet, however, I also think part of that is managing pressure and expectations. However, the Senate should start to feel the heat of the House sort of moving along. The Senate's touting of the CBO score and whatnot may have actually helped the House negotiators too. Essentially, something broke the loggerjam.

I still do not know if we will truly see a "beginning of redemption" (it is stated in a Midrash that the Messiah will be born in T'sha B'Av/the 9th of Av), but I am hoping that the seeds of redemption (which would not be complete if we passed the House bill, but rather requires a multi-year retooling) could sprout.

Jon Cohn has another analysis.

Hawaii, Employer Mandates, and Taxing ESI through Premium Excise Taxes

2009-07-29T22:42:00.004-04:00

The other day I mentioned about Hawaii's employer mandate. Now I offer a study from the Federal Reserve Bank of San Francisco that states that it probably does not affect employer choices.

Next, there is an article in the Washington Post warning people not to make too much of the taxation of employer sponsored insurance. There are the classic arguments in there that how can something we hate, like going to the doctor, actually lead to runaway costs? The real matter is that it is subsidized, and instead of going in and desiring something just as effective, we want something with all the bells and whistles. Rather than caring about the cost differential, we instead push for the most expensive things or look toward places that are perceived to have higher quality, but just cost more. Boston serves as a great case where community hospitals that are lower cost have just as much quality as the name-brand academic medical centers, but things go there, and since the insurance covers it the same, then too bad.

That said, cost-sharing under a rich comparative effectiveness scheme could help sort of pierce this disconnect. That is, if you want the more expensive service, you have to pay a larger share or some sort of a differential, unless you can meet some burden of necessity. This is just a rambling idea.

Perhaps a better rebuttal to the reporting article is a column by David Leonhardt in the NY Times, stating that ESI is the core of the problem, and is the only real revenue source that grows as health care costs grow.

The fact of the matter is, that at the end of the day, the ESI exclusion of I.R.C. § 105 is just not good. It creates weird distortions.

Now as for ending it, politically the sell is difficult. One route to fixing it is instead of taxing the actual insurance itself is to institute a premium excise tax. Some of the liberal community like this idea, because it targets the hated insurance companies, and stands a chance at passing. Needless to say, one should never discount political arguments.

However, ever the tax person, I worry first that it does get passed onto people, just indirectly. First off, it is regressive. Even if you have a large exclusion, as the reports indicate, everything is at a flat rate above it. This is a two-bracket system rather than the I.R.C.'s structure of 4 brackets. There is nothing to say then that the costs could not just pass through to consumers evenly throughout the insurance group, leading to something regressive.

Of course, this could act as the old Pete Stark statement about a regressive tax for progressive ends, which health reform would serve. However, I have another concern about the administrability of such a proposal. Has anyone thought again about the valuation matters here? How do you determine which plans are worth that much? Since it is an excise tax, perhaps valuation is less of an issue, however, you have to ask how the IRS would collect such data as to how much tax to charge a company in this regard. Again, you have the IRS implementing something that could have administrability challenges, but unlike caps on ESI straight-forward are actually regressive.

A great analysis of the equity portion of this proposal comes from Len Burman at the Tax Policy Center.

Michael Steinberg's Passing

2009-07-27T22:59:00.002-04:00

I got word reading Alex Ross's blog that Michael Steinberg passed away over the weekend.

Steinberg's program notes continued to appear in the programs of the Boston Symphony Orchestra (BSO) for many years after he left this venerable town. He had the skills that I envied: the ability to write for a generalist audience at a very high level about music. He remained connected to the musical world throughout his life, always seeking to educate people about the joy of listening. I purchased his program notes on Symphonies, Concerti, and Choral Masterworks in book form, and have always found them handy when I listen.

The L.A. Times has a great remembrance of a truly remarkable writer and music world inhabitant.

Blue Dog Problem

2009-07-27T22:39:00.003-04:00

The real question on some of the blogs is how much of a problem are the Blue Dogs. Jon Cohn seems to think that while they pose some complexity, they are not a problem. Should Pelosi decide to move forward she can do so easily.

Joanne Kenan subscribes to the advice of Al Hunt, saying what previous posts here and other bloggers like Nate Silver, Ezra Klein, Cohn himself, and Yglesias have all said, in some sense the Blue Dogs are running against the prevailing wind.

What is most interesting is that Kenan does seem to think too that this could lead to a better bill. Undoubtedly so. The Blue Dog "resistance" while annoying to me, has led toward including something regarding an independent commission with binding recommendations on Medicare payment policy. Such ideas that they put forward in this regard may actually help us bend the curve, and may actually give the President what he wants.

In the end, the Blue Dogs, while not someone you want to get too angry, may be more bark than bite. What may need to happen again is to see some signs of life out of the Senate. Should they have a complete inability to do things, Pelosi may decide not to anger them further and force them into a tough vote. Then again the results of not pushing forward could have disastrous outcomes for the party, and those Blue Dogs in particular.

Morality Play

2009-07-27T22:12:00.002-04:00

Religion seems to get involved with health care, and I do not mean abortion. New America Foundation's New Health Dialogue reports that faith-based groups are going out to make the moral case for health reform.

Ezra Klein also points to how the opponents of health reform had in the past avoided morality, but now proponents too seem to avoid the moral issue. We talk instead of the need to cover people and prevent them from getting sick or dying in the terms of cost-benefit analysis, bending the curve, and quality adjusted life years (QALY).

This is not to say that QALY and other matters are not important. However, when it comes to health care we particularly have some problems addressing our moral problems. Perhaps it is a sense of system justification. We avoid talking about the moral failure of people who are uninsured or driven to bankruptcy because of underinsurance because we would rather think that they "deserved" it when they clearly do not. We feel uncomfortable with such immoral structures that we thus ignore and avoid speaking about it.

In many ways too, our lack of any moral element leads to a strangely stilted discussion, where our budgets become stand ins for morality and the politics that advance that. It is like one famous legal paper said about the death penalty. Once the Court made it a constitutional matter, it left the realm of the moral and became a legal standard. To this day the debate on the death penalty is shrouded in the words of deterrence, effectiveness, constitutionality, and budgets.

Our economic and budgetary outlook often does obscure those matters we do not like to discuss like morality. And, as the American Prospect blog states, cost-benefit analysis (CBA) and CBO scores shroud our political judgments in the cloak of scientific/wonkish objectiveness, when such a matter does not exist. Where are the legal realists when you need them?

What to make of this

2009-07-27T22:03:00.003-04:00

So, yesterday as I read the Washington Post website, I noticed this AP Story praising Hawaii, which under the Pre-Paid Health Care act has an exemption from the Employee Retirement Income Security Act (ERISA) of 1974, Pub. L. 93-406. Overall, I have always been happy that Hawaii has sought to expand access.

However, I would like to point out some other issues. First, the employer mandate has strict as Hawaii's likely would not work nationally. Businesses often complain about the various situations regarding this expense, but in some other way there is a cultural desire to hold the center. Furthermore, there are other more problematic issues with ESI, which I and others have pointed out.

Secondly, Hawaii has some interesting risk pools. Their BCBS does have a huge amount of the market share, however, it does differ from other BCBS systems, because of how it operates. HMSA is a weird duck in the normal insurance market. The other large group is Kaiser Permanente, which many have cited for high quality care.

So Hawaii has some other factors that make it unique. I wish we could just export these ideas wholesale, but it's far more complicated and nuanced.

One other weird Hawaii fact is that even if you did start including ESI in income, Hawaii residents actually will see smaller tax increases than comparable individuals in other states. Again, this points to lower costs in the system.

How much Change in Health Care?

2009-07-26T21:29:00.002-04:00

Obama came to Washington promising change. The notion of change however is always abstract. Now the question arises, how much change do you want in health care?

The Washington Post today has two opinions from two worthwhile writers. The first is Dan Balz, the dean of the press corps. In his article, Balz balances a notion that Obama overstepped his bounds, but also makes note that even if he chose a more modest route, that would not mean success. Delay can kill proposals, and even delaying health reform until after 2010 or until a second term could mean nothing would happen there too. Balz points to the delicate balance of having an ambitious agenda, but also understanding the limits.

Those limits are what come into focus in Ezra Klein's piece in the Outlook section. Here he argues that what Obama is seeking to do is far more limited than a remake of the system. It lies in the tension in the polls. People want health reform, but they want to keep their coverage. In some sense, there is a weird status quo bias that we seem to have. However, as a result, the change that people want, which is more choice, actually does not come. Most people still keep their employer sponsored insurance (ESI), and they cannot change it if they are in a large employer. They are stuck. Such is the schizophrenia of trying to walk the line that Balz points to, which is utterly necessary.

Finally, there is the New York Times "Week in Review" piece by David Leonhardt. Here the crux of his point is that the very people we tend to trust, doctors, are also split on this matter. Here again, radical change would lead toward a panel that would look at comparative effectiveness data and look also at costs when making reimbursement decisions. The so-called IMAC proposal would lead to a better sense of cost control. However, many people are wary of the government entering into the doctor-patient relationship, even if doctors may order procedures, because they may be good for the patient, but these procedures also happen to pay very well. Here too we see something odd going on, doctors are fighting doctors, with the procedure heavy specialties like surgeons or radiology going against the more primary care type doctors like family practitioners or OB-GYNs.

So, where does this leave us. I think what each of these articles reveals is the total schizophrenia in our public opinion when it comes to health reform. We want things to stay the same in some sense but have expansions of coverage. We want to lower the costs, but we also want the way our doctors work to remain in place. It is as if we the public do not have a clear crystalized view of what we want.

It is scary. Indeed, change unlike what Mr. Obama said is something we feel ambivalent about or even dislike. We are creatures of habit. Our minds have evolved to handle certain circumstances and radical change of complex systems that involve many moving parts and long-term probabilistic thinking, which is what is health care (and for that matter a lot of our problems are about). On some hand, I think people logically know that we cannot continue in our system as it is. Yet, never underestimate fear of the unknown.

So, thus lies our schizophrenia. It is in some sense situational. We do not act like rational dispositional actors. Instead the situation around us, and our own internal situations, dictate what is going on.

This is not to say that I am pessimistic about reform. I still think it will come, and I think we will have important but modest change. Unfortunately, if we do not do this, we will have disaster down the road.

Religion and Women

2009-07-26T15:39:00.002-04:00

This past week, Jimmy Carter lost his religion. In an Op-Ed placed in an Australian paper, Carter states that he is leaving the Southern Baptist Convention because of how it treats women. NPR also had a story on the fallout that examines the issue within the convention.

Let me just respond. I am Jewish, and while I have discussed in the past about my weird take on mitzvot, I often tend to hang around people who are practice-wise more religious than me. However, many of the people in my communities are either committed egalitarians or if they inhabit a more traditional halachick (spelling?) space, are involved in some level of feminism through groups like the Jewish Orthodox Feminist Alliance (JOFA).

In each of these groups they try to make women count. Traditionally, in the halacha women are mentioned in the same legal category as slaves and minors. A few of my teachers at Pardes have said that they personally feel that the legal category of women in that sense no longer exists. Civilly women can own property and provide for themselves. Women are not lorded over by husband. Yet, even if they think this, they understand that development comes slowly in practice, and careful calibrations are often necessary.

However, Carter does have a point. Too often we have used our scriptures, regardless of our faiths, to oppress women. Why does this sexism persist and exist? Again, I do not know. In many ways, I think such sexism sometimes grows stronger because of modernity. The chipping away of male power that the modern age has created leads to greater fears of women taking control and entering the sphere of men.

Yet, as Carter mentions, it is not good. Women have a lot to offer. They add their perspectives as human beings to these conversations. They are about half the population. Educated women lead to children who are better off. In so many ways they just enrich our lives if they are actually able to pursue things (this is not to say that they could not choose to stay at home, and perhaps a man like me may also consider the same).

This post is rambling, but I think what is necessary for us to see is the interpretation of texts leading to sexism, and how reinterpreting them could also lead to freedom.

Larry Summers and the Crisis at Harvard

2009-07-26T15:26:00.004-04:00

I am stealing liberally from Felix Salmon's recent post on his blog. Here we hear greater details of what Larry did, and what happens next.

While the President of Harvard is traditionally a very weak position. The only great power is that she can turn down people up for tenure, even if Departments and Faculties approve of such an individual. However, Larry Summers sought to indirectly increase the power of the President. Such was his involvement in the Allston campaign, as well as other matters. What appears here is Summers intervening in the financial matters.

Drew Faust in some sense has returned to a more modest role of President and central administration. She is a rather colorless figure who writes great books on the Civil War, and supports the arts, something Summers failed to do. However, the University is in crisis and needs strong leadership.

The largest problem arises in the Faculty of Arts and Sciences (FAS). Already the infighting has started. Science Faculty are annoyed that they do not have their labs in Allston. Humanities faculty members, sort of the largest group against Summers who in many ways showed disdain for them, want to have greater say over the direction of the University. The students have lost hot breakfast and will likely see more cutbacks in the fabled House system that creates smaller communities.

What really needs to happen is that the faculty itself must change with the changing situation. Their life of relative comfort will not stay the same. They may have to see freezes in their incomes as well. Faust and FAS Dean Smith should help facilitate and solve a collective action problem. And perhaps, the University might need to undergo a more radical corporate change.

Personally I am not in the administration. I am just a person who has had ties to the venerable institution (too many) and would not want to see it fail. For all the hatred that the University inspired, it has done good as well. This institution is probably one of the few in the U.S. that is admired around the world. Its collapse would likely weaken soft power.

CBO and IMAC

2009-07-25T19:10:00.004-04:00

So, I just got the news, and clearly this kind of news does not break through the normal media channels, because it is kind of wonk-tastic. The tip goes to Ezra Klein, who has a great analysis.

The CBO has released a report discussing IMAC. OMB responded and there seems to be a fight brewing.

I love CBO, and I almost always defend them. However, in this instance, it has gotten weird, because CBO admits that it cannot plug in numbers, and yet seeks to do that. In some sense too it may be driven by a Congress trying to balance numbers.

Oddly too, the Administration's heartburn over the proposal, which I still think is good even if one must better examine the details of how you implement it, may also arise from the fact that now it might have to do the unthinkable, tax ESI. CBO itself has stated that they can more concretely calculate these numbers and has hinted that it would be favorable.

However, the Obama attacked this idea on the trail, although one should realize that McCain's plan did not have all the other safety features that the current bills or any other proposals have in place, which makes a great deal of difference. Unions would blow up at the idea (wrongly so, in my opinion). The administration would have to raise taxes on a group that it promised not to raise taxes on. So the politics gets more dicey.

I think in the end Orszag comes out right in this matter, but Congress must take the CBO's estimates. But, in a perverse way, this could lead to some inclusion of ESI in income.

Update: Jon Cohn has an excellent viewpoint too on this matter.

Where do we go?

2009-07-25T18:43:00.003-04:00

Again, I want to remain positive. The fallout on Friday of the Energy and Commerce Committee creates some concern as to where we will go in health reform.

There are problems. It does create a prisoner's dilemma between the House and Senate. The problem is collective action. Even if they can talk, no one wants to take the first step and put herself out their for attack.

Perhaps it is time for the Blue Dogs to show their cards too (according to Steven Pearlstein) and outline specific proposals in greater detail and in public. Chairman Waxman should also avoid getting angry at them, which is something he rarely does but may feel more likely to do because of the great pressure.

Yes, it seems depressing, but again, I still remain guardedly optimistic that something will result. It is likely not to reach anything near what the liberals want, but it is also will start us down the path, incrementally, of restructuring our system.

The MedPAC/IMAC Proposal

2009-07-25T17:52:00.005-04:00

Many have written about the IMAC proposal. Overall, I support the idea. One of the key reasons is that Congress itself has never shown itself willing to make hard choices. Ezra Klein's piece highlights this matter, as did the Ruth Marcus column posted a while back.

The reason why Congress has pushed back stems from the fact that they do get the ability to micromanage these things in a political manner. In some ways it is like defense earmarks on steroids, because instead of targeting a project, you have to fundamentally affect the payment structure of the entire Medicare (and thus all other health insurance) programs. That leads to a system that creates problematic incentives.

However, like so much of what I talk about, the devil is in the details. The question is how do you design the institution. Right now, the Medicare Payment Advisory Comm ) ission (MedPAC, which is the body that the Independent Medicare Advisory Commission (IMAC) is based on, falls under the auspices of Congress. It does not create binding policy but just makes recommendations that are rarely followed, as the example in Klein's post shows you.

Senator Jay Rockefeller wants to create an IMAC that is closest to the Federal Reserve. Essentially the Congress would completely delegate to an entity that is completely independent of any branch, much like the Federal Reserve is. This of course though may overly insulate it from the political process, and could lead to future gutting by Congress itself.

The President and Peter Orszag have a more refined proposal. This idea follows from the highly successful Base Realignment and Closure Commission (BRAC). BRAC worked by having a panel create a base closure recommendation. The President approved of it. Congress could pass a joint resolution of disapproval, but it could not fundamentally change the recommendation.

The big concern, and one that I personally have with my administrative law hat is the idea of executive power. Under INS v. Chadah, after all, a joint resolution passed by both chambers is like a regular bill. It has presentment requirements, meaning, the President must sign it. However, note the problem here. Even if the Congress by a majority rejects the recommendations, the President, who remember supported the recommendation, would likely veto it. That requires an override vote, and that takes 2/3.

Now perhaps it is likely good to further limit the politics of Congress in this manner, but one should always beware about a new institution, as some liberal Democrats are. The structure does matter. The view of the White House actually represents a major increase in executive power. Furthermore, IMAC would be much smaller than MedPAC, consist only of physicians, and have Commissioners likely appointed by the President (with Senate confirmation). This gives the President greater control over the policy than anyone else.

As someone who deeply loves the legislature itself, while bemoaning some of its inability to do certain activities, I support IMAC, but I think it is important to change the structure. IMAC should remain as an independent agency with delegated authority. Congress should have greater say in appointing commissioners, and five is probably too small. IMAC should draw on other health care sectors too. And something should arise to create a level of procedural consensus at the IMAC level before anything reaches the President or the Congress.

I have also thought of an interesting matter of how to structure the procedure beyond IMAC itself. Instead of having the President make the first say, give the proposals to Congress to vote on as a bill. Require that it have fast track procedures, and limit its amendments to completely budget neutral matters as determined by IMAC and CBO jointly. This would likely limit amendments. If Congress does fail to act, then and only then do you trigger the BRAC type process where the President either approves or disapproves. That way, you give Congress a first crack.

I understand Congress's concern, but David Broder does state that we are actually used to a lot of institutions that limit political power and are highly anti-democratic beyond even the structure of the Senate that progressives love to attack. Agencies themselves are not so democratic, and neither are the Federal Courts.

Of course, I am not really an Administrative Law expert. But, ideas like this are important, and these details are probably sadly lost in the discussion of this issue.

Financial Products Safety and choice

2009-07-23T22:42:00.003-04:00

We have safety for our homes. We know our toaster will not burn down our house. Yes, likely we may have to pay more, but we at least know these things within a reasonable range. If we want, we can access some information about these things.

But, what about financial instruments?

Many people have raised the specter that if we regulate, if we try to ensure that your mortgage does not "burn down your house" or your credit cards do not utterly destroy you, we will stifle financial innovation.

However, Elizabeth Warren, who started this idea, tends to disagree.

If we do what she says though, credit card companies could not longer create great deals. If we do what she says, people would not be able to own a home with subprime mortgages.

To that she offers something about how innovative products can still occur. Essentially with the FDA regulating drugs, more actual companies wanted to invest. The idea too of creating an agency with the focus on consumer safety solely and granting power there also makes a great deal of sense and prevents the weird stovepiping (separating things out) we see now.

But, one thing I want to get to is the matter of choice. Right now you get a credit card. Warren wants information that you can read and understand. The industry says it is bad for innovation and bad for your choice. However, how does one choose when information is in very small font and very complex. I consider myself of somewhat average intelligence, and I struggle too.

Secondly, even if you do make it clear, without some other regulatory standards, things can fail. We often have a problem cognitively with discount rates. Again, I have the same problems myself. Things in the future that are probabilistic we do not have a great grasp on. After all, I hunt mammoths.

Finally, choice is always discussed of as an unbridled good. However, many of us would not choose a super risk product (well unless you are Larry Summers investing the Harvard endowment). Also, as many who know the Jam Study can respond, more choice actually paralyzes people. It is now considered a well-documented psychological phenomena.

What this boils down to is that a regulatory agency like this, as weird and for all the problems agencies can have, is likely necessary. Indeed too, limiting choice, may have a paradoxical effect of allowing us to actually choose.

Last Night's Press Conference

2009-07-23T09:17:00.008-04:00

Matt Yglesias hates the Washington Post, sort of. I love it. I find it far more interesting to read than the NY Times, because often I feel the political coverage is better, and indeed some of the editorials are ridiculous. It's nice to know what the other side is thinking.

But, when it comes to covering the health care debate, they are doing a great job. With wonderful opinion columnists and a great team of reporters, they are doing things fairly right.

With that in mind, let me tell you about a Press Conference that I only read about.

First, Dan Balz has an excellent take on the optics, from someone whom I consider less in my quasi-liberal echo chamber. He writes

The president will need a sustained public campaign of rhetoric and persuasion to prevent public opinion from sliding farther in the coming weeks and perhaps months of this battle. He will continue to make the public case for health care reform Thursday when he travels to the Cleveland Clinic. As he's done on most days the past two weeks, he will be looking for ways to use the bully pulpit to counteract the growing assertiveness of his Republican critics that no reform is better than what Congress may be brewing.

But he will need to do more as well to push the process forward in Congress. Right now, it's not clear where he is placing his real bets. Is it with the Senate Finance Committee bill that is not yet fully formed but that holds out the possibility of some semblance of bipartisanship? Or will it be with a Democrats-only strategy that forces a bill through with a bare majority, using in the Senate the reconciliation process that would amount to a declaration of war with the Republicans?

Obama wants success above everything else. But he has now begun to put down some more explicit markers about what constitutes success. The question is whether, through public advocacy and legislative diplomacy, he can now pull off a victory that has eluded so many other presidents.

Balz does a good job laying out how difficult this process is. The President can only do so much, but now he has started and must continue to lay down markers, while balancing carefully some tricky political waters in Congress.

That said, it was not the press conference that was exciting, but rather an interview with Fred Hiatt of the Washington Post earlier in the day. First, you should read the whole interview. Anyone who wants to understand where Obama is coming from would actually find this more illuminating than the presser last night.

That said, as Jon Cohn states, some things are still on the table, and not dead. First, the President thinks some sort of independent body with some ability to enact Medicare change is still on the table. Second, the President is open to the inclusion of employer sponsored insurance (ESI) under I.R.C. § 61 (and eliminating parts of I.R.C. § 105) also known as the exclusion from income. I have talked about this matter before, and will bring it up again in a separate post.

Another good analysis comes from Merideth Hughes at New America. She shows how much is already in the House bill that could help improve our value, and how the last two major CBO changes could help.

The post also has two excellent stories from yesterday and this morning. The first is about the individual mandate. More and more people support it. Such mandates are necessary for creating a broad risk pool that make health insurance exchanges work. These mandates also have a lovely tinge of personal responsibility attached to it.

The second is how business is divided. While the Chamber of Commerce rails against the employer mandates, large companies have started to support them, and even local chambers are split on the matter.

With a sense of caution, with the AMA behind such legislation, with businesses divided what remains to be done on health care? Well, now comes selling it to the people. Last night's press conference, as Joanne Kenan points out, was one of those moments. But, Obama did not get those ideas from himself. He got them from David Leonhardt of the New York Times, and Steven Perlstein at The Washington Post. I have linked to these columns too and they are worth a read.

Yes, there may be some softening of opinion as a Kaiser Health Tracking poll shows, but overall it is still seen as popular. Overall the public is behind it, and Obama must just reassure the people and help Congress feel safer on the matter (such large reform is NEVER safe). Indeed, the safer route may be to just vote for it if you are a threatened Democrat. As Nate Silver shows, you are screwed if the President's platform fails, because you have now shown yourself and your party to be ineffective. If it works out though, and you passed it, you have something at least to hang your hat on.

Finally too there is always the concern about the timeout announced by Harry Reid. I agree with Nate Silver's other posting too, that there really are too many positive factors going forward. I may be overly confident and positive, but I really think that this is the case with all these other signs I cited/linked to in my own piece here.

The question is that if the public cannot support something like this now, I wonder if we can ever achieve something worthwhile on the issue.

A new Siddur

2009-07-21T21:46:00.004-04:00

I gave in and recently got the new Koren-Sacks siddur. I will willingly admit that this was an impulse buy.

Many have written about the siddur. However, really davening with it is incredible. The font is great. It is clear. The translation is nice (I am not a Hebrew scholar, but have some functional ability with the language). The commentary is great by a scholar that I find thoughtful, Rabbi Jonathan Sacks, Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth.

So, what does this mean for the hated Artscroll? Well, Artscroll will still continue. It is established and a well-known, if offensive product. It has a wide range of products too, beyond that, some of which are useful (if you know their bent and can dig a bit deeper).

However, what this does is add competition into the market of Orthodox/Traditional Siddurim. It offers the buyer choices. While I often state that choice is something that we do not often have, here we have a market of fairly well defined goods, a set liturgical book with instructions, translation, and commentary in English. The advent of choice, actually could only help this market.

While I do not want the traditional siddurim market to turn into a veritable cola aisle (with so many choices that it becomes paralyzing), I do think a limited set of wortwhile options is good. And so, I welcome this siddur not only because it is aesthetically appealing, less offensive to me, and wonderfully put together, but because it really does offer a choice.

And note, I am not even that traditional.

ACOs and Capitation: the devil is in the details

2009-07-21T21:24:00.002-04:00

I am actually thrilled at the announcement last week that Massachusetts will move toward a capitated system, meaning that it would pay patients on a per patient basis if they meet certain quality goals instead of on a fee for service (FFS) model. The center of this is what is called an accountable care organization (ACO). These are integrated centers that would guide patients to reaching these quality goals and reap efficiency savings if they come under budget.

Joanne Kenan at New America has a great explanation of ACOs and why they are great. In fact, ACOs may be something that stops the Cost Connundrum that Atul Gawande mentioned.

However, I say that these are frightening. These are products that have never been done before. That does not mean we should not go ahead and do them. But, it requires a realization that even if they "fail" you cannot just throw it out and return to FFS, but look to tweak the system.

Also, there is a significant question as to exactly how capitation will work. For example, in Massachusetts, where most of the action exists, you have academic medical centers (AMCs). AMCs have higher costs associated with medical education. You have to adjust for risk too. A riskier patient should lead to a larger budget.

Ideally, you would risk adjust, and put in some sort of cost for an AMC on the medical education, but nothing that would affect their margins. Ideally you would do this to encourage people to get care at the Community Hospitals, which for many procedures are just fine, if not better than the big AMCs (MGH, Brigham and Women's, Beth Israel Deaconess, Tufts Medical Center) that dominate the city. And, if people choose to go there, perhaps you should institute more cost-sharing.

But, there is a concern that that will not happen. Clearly something is wrong with the Massachusetts market, as the Boston Globe showed last year. The question is whether these gorillas will use market power to skew captiation in their favor to increase their margins at the expense of everyone else? Could we actually reduce competition in the provider marketplace with this? Also, how do you deal with the risk of say catastrophic events like a swine flu?

All of these kinds of things are not reasons to go against capitation, and they are not reasons not to move forward. But, they are causes for concern that policy-makers must consider. They are areas that will need tweaking. Like any other game changer, you can make a big first step, but that is all it is a first step. There are no such things as big bangs in such a complicated area of policy like health care.

Precommittal and Health Care

2009-07-21T21:12:00.002-04:00

So usually we associate pork with defense spending and bridges to nowhere. But the worst is the sort of pork arises from the inability for Congress to stand up and make important policy decisions on something very expensive, and that is health care.

Yet, pork lost today in the United States Senate. The Senate voted down the F-22, a fighter that really is not so helpful. I am a very pro-defense person. But, I would rather spend money and political capital on making it easier to do intelligence work (including fixing our wiretapping statutes to clarify and make it easier to view, but that's for another day) than on a fighter jet that is useful only against the Chinese, and that we have a lot of already.

The F-22, like so many weapons systems, is built in almost every state in the union, making it very hard to strip out. Yet, stripped out it was, because who knows.

Ruth Marcus says that the same though has to happen in Medicare. Congress must make decisions that are tough that essentially harms jobs and wealth in their states and districts. But, there is a way to do this, and that is the idea of an independent agency (and really it must be independent of the branches but get some sort of consent from the other branches). This is the IMAC idea.

Marcus is positive that perhaps, in light of this, Congress may see the light. I hope she is right.

Health Care in trouble?

2009-07-20T21:55:00.003-04:00

Look, I would be lying if I did not say that I was not concerned about the prospects of health reform. I would generally call myself a deficit hawk too. I actually opposed the Bush tax cuts, because of deficit reasons. I have talked many a time about controlling health care costs.

Am I annoyed that the bill does not do more to control costs? Yes, to some extent. However, I also think that unless we get more involved as a society in health care, until everyone realizes the consequence of doing nothing, we will not get any effective cost containment.

The lack of coverage in this country is pitiful. The fact that we have a completely fragmented system means that it is sort of harder to control the effectiveness. It also is hard to collect the data we need, because those claims data are "proprietary." We fly in a zone of no information.

What reform poses to do is decrease this fragmentation greatly. It gives us all more skin in the game. Now we can sort of sit pretty as everything else falls around us not knowing that we will soon fall into the abyss ourselves. Now, we move into the same boat and we have to care about the other. We sink or swim together.

The bill does not do enough to bend the curve. But, even more unconscionable, people want to slow it down to kill it (because given today's Washington Post we see the polls starting to turn the other way, and political capital waning). That's at least what Peter Orszag said on the TV shows this weekend.

The delay and kill is a classic strategy. You wait and merely attack and delay until the President's numbers soften, or you are able to gin up enough opposition to a bill. Ezra Klein points out that the operatives on the other side encouraged this, and speak in vague terms what they want. We want cost control, but we want higher reimbursement rates. We do not want a public plan, because it allows the government to negotiate. But, we want cost control. We do not want though anything on the table that would take these powers out of Congress where we can steer reimbursements in weird way, and continue the dysfunctional system.

The Republicans have decided to turn this into the Administration's Waterloo. Yet, the question must be asked, what the hell are the Republicans' plans? Health Savings Accounts and high deductible plans? The RAND study shows that people forgo cost-effective care as well as expensive care equally, leading to overall worse outcomes. Dana Millbank has a more amusing take on this.

Democrats too though have some blame. They are going to have to take tough votes, as Jon Cohn points out. Some of what will arise will not be politically popular. But, if you can get the aggregate together in a big bill, you would do well. And one is well advised to look at Nate Silver's blog posting, which states that there is a survival motivation. He also points out there is a lot more out there to work through.

Yet, as Silver points out, there are still glimmers of hope. Over the weekend, I heard Rep. Mike Ross at least start something constructive, supporting the Independent Medicare Advisory Committee (IMAC) Proposal (you will have to listen to the story). IMAC would essentially shield the Congress from the power to make decisions. The goal would be to send it out to an agency that would make Medicare decisions outside of Congress and the President. The President would sign off, and if the Congress did not like it, it would vote against the proposal in a joint resolution (this is a complex idea that deserves a post in its own right later). Or perhaps Orszag does it better.

In other good news too, today, Olympia Snowe pointed out that she may support a public option, and she signed that letter asking to slow down last week. Grant it, the words are not thrilling. However, Snowe probably does not want to slow down to kill. She likely wants to get further into the details (as does Ron Wyden).

Finally, it is worth taking a look at where we stand. As New America pointed out last week after CBO's reports, it looks good. Klein shows us that these are expected problems in the legislative process, and people on the Hill who work on this still remain optimistic.

And finally, it is important to remember the cost of this bill. Yes, it is expensive, but let us put things in context. My good friend and excellent reporter Joanne Kenen talks about it in the context of the overall economy, and links to some great sources. We also have to look at the costs, both economically and otherwise, of an uninsured population that swells to 50 million.

Random Rants about Bonuses

2009-07-20T21:32:00.003-04:00

So when I started this blog, I wanted to raise discourse. I promised not to be angry.

Now I break that promise, and I deeply apologize.

The ceremonious event is the Goldman Sachs bonus fiasco. Last week, Goldman reported record profits. They also then paid their employees bonuses of $700,000 a piece. Now, I understand that the top marginal rates that these people have reduce it, let's overshoot to 50%. That still is $350,000 a piece take home.

Both Ezra Klein and Matt Taibb i point to what is going on, with Taibbi, closer to the anger. They essentially point out that Goldman Sachs returned to profitability only on through taxpayer dollars. They helped to create the mess we are in, and now they are being rewarded.

It is worth noting that according to IRS data average and median income (indeed adjusted gross income, or AGI) for a family of four hovers around $45,000 a year. So this is a fair amount of money that they are taking from us. It may be the largest upward transfer of wealth I know of.

Klein also points to the counterfactuals. I agree with him too, that the counterfactual scenario is difficult.

For me though, my anger comes from betrayal in many ways. I supported the stimulus and the bailouts, because I realized that these were institutions that were too big to fail. I knew that we needed liquidity.

However, they never came through on that. They hoarded. They managed to further concentrate, so they are now even bigger and more indispensable. They never restored liquidity. And now they pay the bonuses.

The betrayal comes because I once attacked my more progressive friends who screamed against bailing out the banks and the "rich." I supported this, because I saw the intervention of the government as necessary. I responded with horror that Members of Congress I knew initially voted against the bailout to my friends who all supported it in the financial world.

And what do I get? Nothing. I, and our policy-makers, whom I do think were acting in good faith, instead get this betrayal. The anger is yes based on class matters. But, it is even more the broken trust.

Too Many Patents?

2009-07-20T08:59:00.002-04:00

First, I decided to take a bit of a break over the weekend.

What follows is a posting from a friend of mine, named PatentPanda, about some issues in patent law and policy.

I try to keep a good collection of friends with various expertise, and I am thrilled to have PatentPanda writing.

I'm thrilled to be the first guest post on Not for Polite Company. I'm a patent attorney in D.C., where I lead the emerging business practice of a small firm, and am excited to be writing about the mess with software patents (the opinions are my own). Basically, they are too many of them.

There are a lot of folks who really don't like software patents. Some, like google and microsoft, come to their opinions from a financial perspective. Quite simply, their defensive efforts (litigation, damages, due diligence) cost more than they earn by offensively, e.g. licensing out their patents or the competitive advantage that they receive from employing patented technology. This is as it is supposed to be. A bold statement, I know.

To appreciate the problem with too many patents, it's worth first taking a moment to look at what the patent system is supposed to accomplish. The constitution talks about securing rights to inventors to promote science. Securing the rights against who? Presumably competitors. Without patents, a technical person would need to invent something and then sell it. With patents, the technical person need only invent something, and can be paid once someone else has sold it. Just as the advent of the corporation lets people specialize in things like "human resources," patents remove the need to be good at both inventing and business.

Before we go further, I should note that the patent world exists in two halves: electrical and life sciences. "Electrical" encompasses not only electronics, but software, business methods, and even general mechanical stuff. Life sciences is the kind of thing where having a Ph.D. is really helpful: chemistry, biology, DNA, etc. The following stuff is applicable for electrical stuff, but is often completely wrong for life sciences.

Patents are an important barrier to entry. For a large software company, their value is relatively low. Say you want to write a competitor to Windows. You, not google. The sheer scale of such a project, much less launching it, is so huge that only very large players can hope to compete. More importantly, a small company can't take down Microsoft without doing something entirely new and better. So Microsoft gets relatively little protection from patents.
If you are a small company, it's not that hard for a big company (e.g. Microsoft or Google) to put you out of business by moving into your space. Whatever resources you command, they can muster. There are a few exceptions, and patent protection is often way up on that list. For a small company, patent protection can be vital.

Each of these approaches is driving the huge number of software patents. IBM began the picket fence approach, and Microsoft copied (shock, I know) by hiring away Marshall Phelps, who set up the program at IBM. When a small company would tell IBM that IBM was infringing a patent, IBM's response was often something to the effect of "here's 2000 claims, we're sure that you're infringing something."

This evolved, as capitalistic things tend to do. The patent portfolios of big companies continue to swell, and continue to cover lots of little things in an effort to make sure that they have some protection everywhere; they always have something to trade. The small companies have learned not to bother big companies until the small companies are not doing anything (and thus don't care how many patents the big company has). Not doing anything generally takes one of two forms: either the company tried doing something, failed and now has only the patents left, or never did anything but license the patents in the first place.

Patent portfolios have grown because patents are so powerful. There are significant damages, and even more fear inducing, injunctions. There are very few things that could shut down Windows, and a patent is on that list. This leverage is a key driver in the growth of patents, and the reason why there are more software patents than other types. Unlike mechanical inventions, digital ideas can be replicated nearly effortlessly, leading to the possibility of fabulous riches within several years of starting the company.

So now there are a lot of small companies generating software patents, and the big companies are generating lots of software patents, and both are working on scale far larger than either mechanical or pharmaceutical outfits. This raises everyone's transaction costs.
More patents makes it harder to tell if a new product that you are launching infringes a patent. If patents were rare, you could go poke around, and have your attorney review the half dozen important ones in your field. Due diligences for software often scope out thousands of patents to be considered before doing a deal. Now patent lawsuits against large software products are almost an inevitability.

The fear is that folks will have to spend more time dealing with patents than code, which would be bad.

The AMA Endorses, Some Cold Water, but other signs of Movement

2009-07-16T19:19:00.004-04:00

My good friend, Joanne Kenan at the New America Foundation writes about the AMA's endorsement. You should read the letter and her analysis. It is quite amazing.

Why does this matter? While the AMA represents a dwindling number of physicians, it is still the largest group. But, what is even more important, they have been opposed to health reform proposals like the House bill. This is the group the created the specter of socialized medicine. The AMA has lost members because it has grown conservative.

Now it did an about face. What caused it? Well, the bill gets rid of a payment method called the Sustainable Growth Rate (SGR). The SGR essentially required an across the board reimbursement cut when health care spending growth outpaced GDP growth. This has happened, and Congress has intervened to stop it. As Jon Cohn points out though, when you are sowing the seeds for future payment reform, keeping it in place just does not make sense.

The cold water comes from the CBO scores and testimony. I completely agree that the bill does not help to bend the curve. It does provide access and coverage. However, bending the curve is the ultimate goal. By investing in new ways to reimburse in Medicare and promoting more comparative effectiveness research (and thereby building on the stimulus act).

However, as Ezra Klein points out, hypocrisy is ripe. The basic tenant of the opposition to the bill is that it is too expensive. But when you try to ask them to control costs by actually using comparative effectiveness that includes things like cost effectiveness research as well, they flip out, saying you ration. Rural areas freak out if you try to save money by structuring things on a Medicare plus a certain percent basis, because they think Medicare reimburses them too low comparatively (sort of true). Every interest group comes in and has its needs, and it turns into a feeding frenzy.

Add in the idea floated by the Administration of precommittal, which is requiring Congress to accept a recommendation on an up or down vote, is something that is an anathema as well. Many of these very people criticizing these costs hate the idea.

Klein has the right idea when he says those who criticize should:

a) Support, as the CBO says you should, the eradication of the tax exclusion that protects employer-based health-care insurance;
b) Support, as Lewin and Commonwealth say you should, a public insurance option that can bargain at Medicare's rates;
c) Support, as the Office of Management and Budget and every health-care wonk in town says you should, one of the various policies floating around to give MedPAC authority to continually reform and modernize Medicare;
d) Support some form of aggressive cost-sharing that would make people extremely angry because it will save money by reducing their access to health-care services;
e) Support comparative effectiveness review that can judge not only the effectiveness but also the cost-effectiveness of various treatments, and give the federal government authority to use that data when deciding reimbursement rates.

A problem of course comes with the tax matter, which I have discussed at length. So I will just point to the Opinionator, which did a better job of aggregating than me!

Finally, there are other signs of hope. Remember Harry and Louise? They were the ads that torpedoed Clinton's bill (or at least are considered partly responsible). Now they have returned. But, now they are pro-reform. They are sponsored by PhRMA and Families USA, a strange mix, but clearly showing a level of consensus.

Another last sign of hope? Jon Cohn reports that the Politico has a scoop that the Senate Finance Committee is coming out with their bill. I hope it is strong (and I hope it has better tax policy than the House).

There are obstacles. The road is not easy, but if we get something, it is looking more positive that it will be only a first step. But, what a step it would be!

A few final thoughts on all the Health Reform things

2009-07-15T21:34:00.008-04:00

First, I want to harken back to one of my previous posts. The bills I do not think address a key matter, and that is migrants under the Compact of Free Association (COFA). The Compact allows us to use certain Pacific islands for military purposes (many of which were U.S. trust territories, and which we used for military bases and nuclear tests back in the day). As a result, citizens of these countries can migrate freely into the U.S. It is as if they are granted automatic permanent residency status.

However, as part of welfare reform in the 1990s, they cannot receive federal aid. Instead, to cover things up, there is a block grant that is woefully insufficient. These are often sick individuals, and those from bombed out areas often can have radiation related disorders. However, states often bear the brunt of this, and yes, my old state, Hawaii, has a disproportionate amount of these individuals.

I am hopeful that as markup occurs on this bill that pushes towards including Compact Migrants in the more federalized Medicaid program, and includes them in the exchanges and subsidies.

Second, I wanted to show off some graphics/flowcharts. Thanks to Ezra Klein.

(NB: You will probably need to open the post to really see the graphics in their full glory).

Shockingly the Republicans have had some scare tactics. Here's the chart of the House Democrats plans:

It does look a bit scary.

However, Jon Cohn and company made a lovely graph as well. It represents our current system.

It is even more messed up and scary.

But more frightening is House Republican's graph:

What the hell do they want? Consumer directed health care? The RAND Insurance Experiment discredited that, saying people stopped using the cheaper services, and saw detrimental effects to their health.

All told, these charts represent some fundamental truth. Health care is big and scary. And it will always be messy. The question is does all the messiness produce outcomes we want.

And the Senate moves too

2009-07-15T21:08:00.002-04:00

Meanwhile, in a foreign land known as the North Side of the Capitol, the United States Senate, wracked with obsessive ideas of a "wise Latina" showed it may be doing something far more important. Crafting a bill.

Today, on a party line vote, the Senate Committee on Health, Education, Labor, and Pensions (HELP) approved their version of health reform. Jon Cohn writes his summary of what happened, as does Ezra Klein. Klein helpfully points out that while the vote is party line, it did incorporate some Republican ideas (does anyone remember the individual mandate as a conservative idea as I do). Furthermore, they even accepted an amendment requiring Members of Congress and their staffs to join onto the public option. I would have been fine with that, and enjoyed having a weird stake in my own insurance back when I worked on the Hill.

As New American points out, the momentum builds. All eyes turn to the Senate Committee on Finance, where the tax provisions and the Medicare and Medicaid matters all arise. Indeed, if the bill even had one sentence on tax, under Senate rules it would go there. HELP produced an incomplete bill.

But, with the House pushing its bill over the next week in markups, Senate Finance has pressure now. I have not had something so hopeful in a while.

While I decided to watch the All-Star Game, the House moved

2009-07-15T20:12:00.005-04:00

So last night I had a party for the All-Star Game that sadly did not draw people. I can understand. However, as a result, I did not blog. Hence, I missed a lot of action.

Yesterday, the House Tri-Committee released their bill. The group is called such, because of the Committees shepparding the bill. They are the House Committee on Energy and Commerce, the Committee on Education and Labor, and the Committee on Ways and Means. Ways and Means is there, because there are revenue measures, and Medicare is part of their jurisdiction as well. Education and Labor also gets involved because of the Employment Income Retirement Security Act (ERISA) changes. Energy and Commerce is the main point committee on health care matters.

The amazing thing is the coordination of what is involved. These are three committees that in the past have jealously guarded their jurisdiction. Perhaps Chairman Waxman has been helpful. One of the things actually about the Clinton reform is the fractuousness of the committees. If these committees can hold on their markups, then we will be very well off.

Here, is what the House Bill does (from the New America Foundation's Blog):

A National Health Insurance exchange that would allow individuals and small businesses to shop around for quality, affordable coverage in a transparent, convenient way.
A public health insurance plan that would be available to all Americans. The plan's payments to medical providers would be based on Medicare rates, but the bill also promises to expand Medicaid and "modernize and improve" Medicare. (Sidebar, Ezra Klein mentions the Medicaid movement as a step in the right direction)
Insurance companies could no longer deny coverage because of pre-existing conditions. Everyone would be required to have health insurance, but those who could not afford it would be able to access a sliding scale of "affordability credits" to help cover the cost.
Financing would come from a federal surtax on the upper income -- up to 5.4 percent on the income of taxpayers making more than $1 million a year -- as well as hundreds of billions of dollars in cuts in projected Medicare and Medicaid spending.
A focus on prevention and wellness, including the expansion of community health centers and the implementation of community-based wellness programs.
Employers who do not offer coverage would be required to pay 8 percent of each uninsured worker's salary, with exemptions for smaller firms built into the legislation.

It seems quite good, and has most of what I want. I really like the exchange provisions. The credits and rationalization of Medicaid is great.

On the tax side, I am incredibly wary. It's politically the right move. However, it may not work out as well as people think. Howard Gleckman at the Urban-Brookings Tax Policy Center has blogged about some of the problems. There are two major problems that he points to, both of which are valid from an administrability stand point.

Pushing marginal rates back up to the 50% level, really does weird things and encourages bad behavior. We return to the late 1970s and early 1980s mess.
This is a very small slice of the population with a special tax added onto it. Instead of it being broader based, which is much better, and instead of closing loopholes, it adds them.

You can read the two Gleckman pieces here and here.

For more on the House bill, I would recommend the following posts. Ezra Klein discusses the bill well, as does Jon Cohn.

I am spending the next few days enjoying myself with these pieces of information.

The full bill text (do not try to read in one sitting)

A summary by the Tri-Committees.

What often does get read by people, the Section-by-Section analysis.

And finally a link to all the materials. I have chosen Ways and Means, because of my love affair with that committee.

Health Reform News

2009-07-13T19:46:00.003-04:00

Oh yes. There is something else on Congress's agenda besides a Supreme Court nominee. Health reform. Remember that?

So why do we need to do this reform? Well, I think my friend Joanne Kennan, has a great post on today's New America Foundation Blog, which links to someone else. She notes that not only is Congress divided, so are physicians themselves (and the AMA really does not speak for them much any more). The link is to Bob Doherty's Blog post.

And train wreck we are already seeing. Once again people are losing jobs, and losing their main source of insurance. New America also talks about the rise in emergency room care. This is a fundamentally dangerous situation. Why? Well, take a look. It reflects part of the problem with employer care. First off, it is a problem because when you need insurance, because you cannot pay for things, because you lost your job, it's not there. Second, it is absurd to think about health care as an employee benefit, as Ezra Klein points out.

Emergency room care too as the New America posting shows it is expensive. It creates weird subsidization in hospitals raising the costs for everyone else. It provides care that does not actually help improve overall health.

And what happens if you have emergency only care and cannot pay for things? Well, Matt Ygelsias, in his much more inflamatory style lays it out nicely:

Now in the current American status quo you might be able to sign up for Medicaid (socialism!) or else go to the ER and get some unpaid-for health care once your condition deteriorates enough. But it is worth being clear that the free market solution to someone being poor and sick is for them to die. If you’re too poor for HBO, you go without watchingTrue Blood. If you’re too poor for a MacBook Pro, you make due without one. And if you’re too poor for statins you get a heart attack. And if you’re too poor to get your heart attack treated you die. Whether or not anyone in the United States actually wants to implement such a system isn’t clear to me, but that would be what a free market health care system looked like—like free markets in other things.

So, we have a broken system.

But, there is hope. Some initiatives are showing us a way forward. In my last cite to them tonight, New America points out the Keystone Project, which involved creating a checklist, is showing more and more great results. And it is saving money too.

We need reform to cover people. We need it to funnel them into care. And we need it to really help promote things like the Keystone Project. Coverage is tough, but it has to happen, and it probably should go first, because it is the only way for us all to have a stake in the game.

Sotomayor Day 1

2009-07-13T19:42:00.002-04:00

So I do not have much to say. I think the Senators have drawn their lines along ideological grounds. It is completely what I expected, but it's a media frenzy that we all "enjoy."

The fact of the matter is, that in the age of borking, these hearings often become full of sound and fury and signifying nothing. Everyone is careful. No one chooses someone out of the mainstream. And the only people who really care are the most polarized groups of individuals. Of course that creates horrific distortions.

I actually do not think that we will see another Ginsburg like confirmation, with votes for confirmation in the 90s. Yes. Sotomayor will get confirmed. However, the divisive vote will show how, even in the age of Obama, our divisions remain.

Weirdness in Japan

2009-07-13T19:34:00.002-04:00

Today I saw something shocking. It appears that 民衆等 or better known as the Liberal Democratic Party (LDP) of Japan is in deep trouble. The party appeared in the post-war period, and is like the Holy Roman Empire (it's neither Liberal nor Democratic, and it is barely a party too because there is a lack of coherence).

However, now as the NY Times reports, Prime Minister Taro Aso is facing calls for him to step down. The LDP lost control of the Tokyo Municipal Government. So the Prime Minister called for new elections, which they will likely lose.

Of course the replacement is not much better. Or rather it does not really have the institutional capacities in place to really run a government. It seems as though Japanese politics right now is in a state of disarray.

We should not gloat. Our own political system in California has reached such a crisis, and California presages the nation. In Washington too, we have processes intentionally designed to move slowly. We have politics more polarized than ever. Who knows what is next.

So that's the name of the game. Oh, and the robots are now being laid off in Japan too.

Quality Reports and a fun map

2009-07-12T20:40:00.002-04:00

The New America Foundation's Health Blog recently talked about Baylor, and a new Center for Medicare and Medicaid Services (CMS) report shows how good it is. You can read the blog post here.

But even more fun is USA Today's map of quality based on the CMS numbers. You can see that here. It is so much fun to play around with, and to look at what are the best places to end up if you have congestive heart failure or a heart attack.

Polite Company: Baseball and the All-Star Game

2009-07-12T20:25:00.003-04:00

Two All-Star game updates. First one is about a player on my beloved Red Sox. Dustin Pedroia's wife went into labor this past Monday July 6, the night I went to see the game. That is very early for a baby due later in August. He has decided not to play the All-Star Game, as reported. Dan Shaughnessy has a great take on what happened and how this side of the game has evolved.

Secondly, Phillies player, and Hawaii boy, Shane Victorino has gotten the nod for the NL side in the Mid-Summer Classic. He is only the second Hawaii person to play (Sid Fernandez was the first). People in Hawaii are rightly ecstatic.

That said, I am still an AL guy.

Oh yeah, health reform is still going on too

2009-07-12T20:13:00.003-04:00

Two stories on health reform.

First Dan Balz gives his take from the Washington Post. Balz is perhaps considered the dean of the Washington political establishment, and has continued to follow every major political issue. His take is great. He writes:

What is needed now in the estimate of reform proponents is a big dose of presidential leadership. Administration officials said over the weekend that they expect Obama and other officials to be visible and active on health care this week, even though the major event on the agenda is the opening of the confirmation hearings for Judge Sonia Sotomayor, the president's nominee for the Supreme Court.

The absence of the ailing Sen. Edward M. Kennedy (D-Mass.), a consummate legislator and dealmaker, is being felt particularly in the Senate. Obama's energies and persuasive powers will be needed to help produce consensus in the Finance Committee -- and to corral rambunctious Democrats on both sides of the Hill.
No one expects Obama to declare in dictatorial terms what shape the legislation must take, but lawmakers are now looking for much clearer guidance from the White House on the tough issues remaining. As one nervous administration ally said, "The president's involvement and engagement almost exclusively on health care the next two weeks is essential."

The clock is ticking. I am still personally optimistic, but the President will need to get on it.

The other comes from Julie Rovner on other aspects of health reform that we just do not talk about. I will say, I support the public option, but as I have often said, so much gets spilled on that matter. How on earth did we miss a Long-Term Care (LTC) option? What about the moves to end sex discrimination in insurance pricing? These are all fascinating matters that sadly fall under the radar, and could prove beneficial toward creating a better system for us all.

Judges and Umpires

2009-07-12T19:47:00.002-04:00

I do like baseball. I also like the law. So the umpire judge analogy always has some ring for me. However, it is a problem, and it has its limits. The New York Times today has an article examining this.

I do think that the difference of deliberation is important. It is also important to note how even something so clear as the strike zone, so clear as an opinion itself, is open to interpretation. Understanding the limits and power of interpretation, and understanding how that process works is important. I think, in some regards, we should be more honest about our interpretive processes here.

Anyhow, tomorrow the circus full of sound and fury and signifying nothing, the confirmation hearings of Sonia Sotomayor, begin.

And Investigating Torture

2009-07-12T10:07:00.003-04:00

It seems as though DOJ is moving that way, according to the NY Times and the Washington Post. I think a lot of this arises out of not only further investigation of this matter, but the seeming other problems that have arisen late last week and over the weekend.

We shall see how this turns out.

What is the CIA Doing

2009-07-12T09:53:00.002-04:00

So, on Friday a big report came out. Now word comes from Leon Panetta, Director of Central Intelligence, that Dick Cheney concealed a CIA program, which we do not even know.

While I am a liberal, I am not overly critical of the intelligence agencies. I would say that compared to many of my friends my response to a lot of the revelations regarding wiretapping were annoyance but holding out hope for statutory reform (real statutory reform, which has not happened). I understand the need to have detention.

But, this has gone too far. Lying to Congress may have occurred too. This is all very scary. It seems as though things are not operating, not only not within the bounds of the law, but in a sort of haphazard way. Much of this just does not make much sense as someone operating any agency.

It is the latter part that seems to be most problematic. Personally, what I think is has happened is that the White House itself tried to control too much, and wanted to hide everything. I personally do not feel that everyone, or even the majority of the CIA was some sort of horrific evil. What I do think happened though, is that the mix of a unitary executive theory, a penchant for secrecy, and just the normal mission of the intelligence community led to a perfect storm of craziness.

I know I am not entirely coherent here, but I do worry not only that the law was broken, but that the intelligence agencies may become demoralized and unable to perform their missions effectively.

For Polite Consumption: Baseball Computer Analysis

2009-07-10T18:58:00.002-04:00

A great article appeared in the NY Times Sports section about using computer analysis for baseball to determine the dark art of fielding. I am excited. I sort of love statistics. Sadly, I have not yet read Moneyball.

Still, this could yield wonderful results.

Wiretapping

2009-07-10T18:40:00.002-04:00

Finally a report came out today regarding the wiretapping. I think the NY Times Article that also links to the report is very revealing.

First, it finds the utility of the wiretapping program less than helpful. This is something worthwhile to note, for it means that the extralegal matters did not work so well.

Secondly, it also finds that the legal reviews were often short-circuited. One weird result is that it got the Foreign Intelligence Surveillance Court (FISC) annoyed, and that created problems, which could have further spurred more problems for DOJ.

I think, first off, that this may change the ground on the surveillance matter. Clearly, this is a much bigger win for the civil libertarians than it is for the moderates like myself in this debate.

However, I also think it underscores something else. The law in this area is incredibly complex. It is a mess. While we often debate in the legal world rules and standards and move between the two, sometimes we do need clarity even if there is a standard in place. We need a balancing test. Even if clearly vapid, it at least sets a framework to conceptualize matters.

The problem with our intelligence situation is that it's all over the place. There is the Foreign Intelligence Surveillance Act, for sure, but there is also Title III of the Omnibus Safe Street and Crime Control Act (the Title III often mentioned in the critically acclaimed series "The Wire"). What needs to happen is a reworking of the statutory framework to clarify these matters. Contravening the law, or even running close to afoul of it is much easier when you have a mess and no proper balancing tests in place to conceptualize things.

Positive or Negative

2009-07-09T20:42:00.002-04:00

Health reform is the big news, and I need to separate various trains of thoughts into separate posts.

One question I am dealing with is whether to feel positive or negative about the reform efforts. I have posted twice with some gloom. There is after all the sense of tax the man behind the tree. There are others who really support this by limiting itemized deductions. However, having a phase-out of deductions to finance health care reform makes the code actually more complicated. Instead, just get rid of a few (of course to really make it pay you would probably need to get rid of some of the popular ones, like mortgage interest).

Overall, a lot of the people have doom and gloom predictions. Jonathan Cohn at the New Republic's Blog links to both Ezra Klein and Karen Tummulty on this matter. They all have this sense of this revenue raising problem. The Yglesias post is what I am responding to above, in an oblique way.

However, over at the New America Foundation, there are still signs of hope. Perhaps it is because they are centrists. The point out though that the initial CBO score was scary, but that things got much better in that regard. They show the concessions gained from the industry, which in some sense is starting to realize that everything is unsustainable. But, if things really do not work out this time, with all of the industry behind it, with people sort of annoyed, etc. then I do not think we will ever see it work until we really do hit a crisis.

So where do I stand? Well, I think we need to make hard choices, and I do not think anyone is helping with the rhetoric. First, taxes are going to increase, even without health reform. We have to do it, because it is unsustainable now. We are thus going to have to raise it even further if we institute major health reform. But, we need to link it to a larger notion of sacrifice. What do we believe as a people and as a nation? What do we want as a goal?

I often talk to law friends about what is the most important aspect of law or policy. Many talk about defense, others talk about contracts. I always come back to taxes and budgets. No matter what we do, they reflect our priorities. And I just worry that on this issue, our lack of willingness to sacrifice to start on the road to something better may kill everything.

Taxes and Internet Commerce

2009-07-09T20:28:00.003-04:00

I think I probably posted this matter back when Hawaii considered joining this bill. There is a good piece on it at the Tax Policy Center Blog though.

Now it seems that amazon.com and other Internet retailers are playing hardball here.

The goal is to create a compact of sorts that allows states to tax items you purchased online elsewhere and have these major retailers collect the taxes themselves.

First, let me point out, this is not taxing the Internet. The Internet should be free people should relax here. What is happening is that we are allowing states to exercise a power they already had, and just increasing compliance.

Technically, when you buy something from out of state, you are required to pay sales tax for the state you use the item in. This is best illustrated using Massachusetts and New Hampshire. New Hampshire has no sales tax (only real property taxes, but that problem is for another day). So, say you buy a car there. You pay no consumption tax (sales tax) on it there. You think great, and drive it back to Massachusetts, where you live, in the most opinionated zip code in the world, 02138. You are going to use the car here, so you should pay tax on it. Indeed the Massachusetts Department of Revenue and the RMV here will go after you when you register your car if you failed to pay any such tax (and you do need records of your sale).

But, say you do this for a candy bar, or a bottle of cheap Two Buck Chuck. Well, now there is no mechanism to check, but when you file your Massachusetts return you should report.

Essentially, almost every state has some sales tax (there are a few prominent exceptions that come to mind, NH and OR), even very red ones. All of these states are bleeding revenue as commerce moves online. Traditional retailers too are placed at an unfair advantage. They must collect these taxes.

In the end, I think the sort of silliness of let the Internet be free though will win here. And we will create a new inadvertent tax shelter on a consumption tax no less.

The Employer Sponsored Exclusion

2009-07-09T20:13:00.003-04:00

Today, Len Burman, a personal hero of mine and the head of the joint Urban-Brookings tax policy center, wrote a an Op-Ed in today's Washington Post. In it, he attacks an orthodox view of the unions in the health reform debate, we need to tax employer sponsored insurance.

Burman's argument in summary form is that currently, we do not count insurance as income, even though, under the principles of taxation, it is that. It is compensation for work done. However, through the grace of Congress (my words, not his) there is an exemption from the broad view of any accession to wealth however defined for employer sponsored insurance (ESI).

The problem with this exemption that seems so generous to employees (and employers get a deduction) is that it is regressive. Usually the exclusion is valuable only if your employer offers insurance. Also, you it is worth more to you the higher your income goes. If you add a premium conversion plan, where the employee pays part of the premium, you actually then have even more distortion, as the employees share is a deduction.

Administrability is of course the problem. There is this move for the cap that Burman mentions, but how exactly do you come up with the right cap value? How do you value the insurance someone receives, a question conveniently excluded? This is something I personally am interested in examining further.

But, for all its problems, we probably should tax these benefits. Burman's key point is that workers would likely on the aggregate be better off if employers were not paying so much for health insurance, knew how much it cost, and got instead a lower amount of cash wages ($100 of cash is worth more than $100 of health insurance to people).

Hence, today, I am very happy with Burman, and his wonderful editorial.

Read Ezra Klein's take too.

Evolution, God, and Mistakes

2009-07-08T22:10:00.003-04:00

A post the other day on TiernyLab caught my eye involving evolution. It mentioned of course that there are certain errors that arise, which one can only explain via evolution.

Many people do not know this and often approach me. I believe in God. I take the creation story seriously. However, I also think the theory of evolution is the right way to go. It explains all of biology well.

Take not only this error matter, but look at the whole diversity of species, and the process of population changes. Evolution is the best way to explain all aspects of biology in a coherent fashion. Without it, we grope in the dark. Scientists have attempted to disprove the theory. Yet, they have failed. It has not only been proven, it has shown, like a good scientific theory like the law of gravity (which is called a law only because it is expressed in such mathematical terms), but it has this predictive power and serves as a coherent explanation.

Nothing comes close. Even in a post-Kuhnian world of the Structures of the Scientific Revolution the problem arises only when there are large data points that do not fit the paradigm. Contrary to that, new evidence frequently fits the paradigm. Unlike Newtonian Mechanics and the ether evolution works.

So now what about the fact that Genesis is there. As I have stated to many others, and many have pointed out to me, the first two chapters are read in conflict. Yes there was some editing to make things sort of work out, but I think it is a mistake in and of itself there. Now the easy cop out for someone who finds the evidence for evolution strong is to just say, oh JEPD and the like. But, still, there is a redactor, R, who edited the volume. Whomever she is, she likely was not an idiot (okay, so it was more likely a he that did it, but I can always dream, right).

Regardless of God writing it God's self or a Redactor, there seems to be conflict within the text, and neither is so stupid to just put that there without some resolution. We cannot then take it literally. If not, what does it say?

As almost every one of my teachers has taught, it is much more about the world itself and humanity. It is about the dual nature of people. Soloveitchik himself points out between the Adam of Chapter 1, strong willed and able to create, to the Adam of Chapter 2, yearning for reaching out to others. There are numerous other ways to view it. It is about the strength of a person, infinite in potential in the image of God. Yet, Chapter 2 shows we are finite and of dust.

What I think creation then is getting to is complexities of being human. God has no interest in telling us the details of God's creation process. What it wants to reveal is that the world is ordered and that man has some sort of ability to discern that order. However, even more it wants to reveal how human nature itself is weird and messy. Through the infinite-finite distinction it wants to teach us compassion and the importance of each individual on a broader ground. By using one set of people, it wants to show us a sort of fundamental equivalency of each of us, even though there are differences.

That is how I reconcile this matter at night. I would love to hear how others do it.

The R Word

2009-07-08T21:53:00.002-04:00

Right now, the big spooky word in health reform and cost control debate is the R word, rationing. Indeed, the Wall Street Journal had an editorial as such.

I have railed against this designation many times. First off, yes the British do have lower cancer survival rates than the rest of Europe. But, even in those countries there is some level of rationing as well. Countries set global budgets. They do make decisions along effectiveness lines to decide how things are reimbursed or not, but perhaps not with the same force as NICE. Overall, the quality and costs of the British system if you measure other matters besides one data point shows it as very high performing. Something that is lost when you look at just these survival rates (and only for certain cancers).

The other problem here is that the U.S. does not really have high quality. We have the worst of all possible worlds. Our outcomes are poor, our quality low, and our costs higher. Again part of this has to do with our obsession with gizmos and drugs rather than preventative care and other matters. We like to have interventions and surgeries instead of wait and see (See my post on Leonhard's article right below).

This post from the New America Foundation's blog, lays out the major problems with the study. Instead of looking at just one quality measure, they look to surveys that measure aggregates (WHO numbers, Commonwealth Foundation). They also look at how our costs are out of control.

Finally, our system does ration things. If you have good insurance, because either you have money or you have some great union negotiated agreement, then you can have whatever you like. On the other hand, should you fall out, you cannot get anything. The rationing is not based on the notions of how much we value things or a willingness to pay. It is almost entirely an ability to pay disjointed from the other. We ration by denying care to those who need it. We do ration. We just would rather not call it that and think we live in a land of oranges and dances.

Prostate Cancer and Comparative Effectiveness

2009-07-08T21:32:00.002-04:00

David Leonhardt has an excellent article in this morning's NY Times. It involves prostate cancer and paying for treatment.

Imagine that there is an invasive course of action that is rife with problems. It's more aggressive, but it costs more. It can also lead to horrific side effects. And you do not know if its much better.

That is sort of the state of play in prostate cancer. I think that what Leonhardt is saying is that we will always be making these tough choices. But, if we do not ever make them, then we only end up hurting ourselves.

Other countries and health care

2009-07-07T21:56:00.003-04:00

An interesting piece from the Sunday Boston Globe. Essentially it says something that we have known all along, or rather at least I as a health policy person have known for a while, the U.S. health care system is not the best in the world with high cost.

The article highlights not only how some of these other "evil socialist" systems may be cheaper, but in many ways how they are better. Yes, their costs too are growing too quickly. But, they spend far less of their GDP and their outcomes are similar, if not better. Even when we control for our penchant for obesity in this country, for some reason our outcomes are not nearly as good as we think.

What we have in this country is high technology, highly specialized health care. It is the health care of procedures, gizmos, gadgets, and pills. Instead of focusing on things that could help us in other ways, like looking at education or less reliance on cars, or even things within the health care system, like primary care matters and wellness, we look at the "fun" stuff. We seem to have a sort of cognitive problem here in our health care.

If we focused on keeping people health, the new consensus shows, we can likely reduce costs. And reducing our costs without destroying quality is a major goal. Perhaps we do also need to create incentives to reduce these costs. Whether they are pay for performance quality and efficiency bonuses, or if they are more sticks, like a mechanism that limits growth by cutting pay, we cannot continue in this route. Our system is not helping us be healthy. And it is destroying our fiscal future.

Robert S. McNamara, Complexity and Hubris

2009-07-07T21:26:00.004-04:00

The death yesterday of McNamara has of course in many ways reopened wounds. There is a lot of vitriol. To some extent it is rightly deserved. For better or for worse, Vietnam was "McNamara's War," and it was a horrific event.

Yet, to paint him merely as some ghoul sort of underestimates the complexity there, and it risks to some extent forgetting the lessons of who this man was. Here was the wiz kid, who helped Ford and made important changes to DoD. Here was a man who used statistics and various other scientific methods of analysis.

He was a committed public servant, who served and in public hid his disagreements. I too know of this very strange situation. And if you do come out later, as he did, and repudiate all you did without having done anything public in the past, your credibility is weak.

McNamara sought redemption. He went through a tortured route. He attempted to say sorry without actually saying sorry.

McNamara has been compared to Rumsfeld, the only Sec Def who is likely worse than he was. However, I find it hard to imagine Rumsfeld and Cheney repenting for what they do. Indeed, all accounts stated that even internally (leaks seem to be easier to get these days) they believed in what they did wholesale.

This man represents a focus on statistics devoid of context. In some sense it is the "science" outdoing the "story," the sort of soft characteristics on the ground. It is the hubris of thinking that you can control and know everything. One of the other odd parallels I think of is between this set of best and brightest, exemplified by McNamara, and the best and the brightest that created our economic mess. While nothing is the same, there are parallels.

Finally this man's horrific record frightens me as well. I am a wonk. I love statistics and models. I often try to turn everything into a science. In some sense I am this man. I am sort of following his footsteps in some way. I just hope that I too can learn his lessons.

NB: David Broder's piece on when to quit. It is something for all of us to remember

Politicians and the Insanity

2009-07-05T09:04:00.003-04:00

Scott Simon of NPR had an interesting commentary yesterday about politicians. Everyone seems to think that Simon is an apologist for politicians, but I think he is getting at something deeper.

To some extent, it does take a certain type of character with ambition and a certain hubris to enter into the game. I have watched many a politician up close. They often seem outgoing, but they are often lonely. Their family in some sense almost separate from them.

Simon sort of hits it on the nail, and we are uncomfortable with the result. We tend to want our politicians to be pure, and love to conceptualize them as crooks. However, like so much in life, there is much nuance between the extremes, and I think that causes reactance and makes us uncomfortable.

A short post about Sarah Palin

2009-07-05T08:49:00.002-04:00

I kind of do not know what to say. Analysis closer to the ground, more in the beltway, and far more intelligent than I am have already started examining what is going on starting Friday. As of this morning Ruth Marcus has an excellent column in the Washington Post, and there are great notes from Nate Silver and Ezra Klein.

I am a slightly left of center guy, but I will have to say that Palin sort of irked me. The thing that I never got was exactly who she was and where she stood. This recent situation has not really helped all that much. Her odd actions, I think, led to some of the problems for her party last year.

That said, unlike some of my more liberal friends, I do not hate Palin. I sort of just find her weird, if frightening. I sort of find her incredibly unpredictable, and I think Friday's events just further pushed that idea. See Nate Silver's blog post on why liberals hate Palin.

Goodnight Posts

2009-07-02T23:50:00.007-04:00

David Broder discusses race and the Court.

E.J. Dionne mentions climate change politic s.

Nicholas Kristoff discusses our inability to process risk effectively.

Johnson and Johnson chief states that we need comparative effectiveness.

Joanne Kennan looks at medical malpractice. She notes something that is an old statement, perception is reality.

Our screwed up system of geriatric care.

Jack Goldsmith hopes to secure us from cyberthreats. I like his take, but I wish him luck.

And my quote: from the New America Foundation's health blog:

"CBO scores are like Harry Potter books for policy wonks. Everyone makes a big fuss and works themselves up into a frenzy, only to do it all over again when the next one comes out."

Finally, an explanation for everyone on health care

2009-07-02T23:42:00.001-04:00

James Kotecki explains it all in a short three minute video.

Medicare Payments to Hospitals

2009-07-02T22:52:00.002-04:00

The comment is often that Medicare does not reimburse hospitals for cost. The question is, what on earth is the "cost" of medical care. No one really knows. I do not know. Yet, for some reason, I do think Medicare could reimburse for cost, and it would not need to increase its reimbursement rates.

Essentially the matter is that hospitals are inefficient. Some hospitals have very high Medicare caseloads that almost surpass their caseloads of non-Medicare patients, and likely the private insurers are not helping them "make up." Instead, as Glenn Hackbarth, Chairman of the Medicare Payment Advisory Committee (MedPAC) states on pp. 5-8 of his March 17, 2009 testimony before the House Committee on Ways and Means, Subcommittee on Health (mind you his testimony to other Medicare Committees was functionally the same), hospitals are horrifically inefficient, and many hospitals with more Medicare payments seem to perform fine, thank you.

So, it depends on how you define cost (much like how you define cost and benefit in cost-benefit analysis is important). Unfortunately, cost in healthcare is a big black hole.

For the full report in all its glory, visit http://www.medpac.gov/documents/Mar09_EntireReport.pdf, and read § 2A.

Also, as a wonk, I have to link to this wonderful post from the New America Foundation's Blog. Yes, CBO Reports are like Harry Potter. Perhaps they are even better.

Our Problem with Taxes

2009-07-02T22:42:00.002-04:00

I think I already ranted about taxes. Now comes another disheartening posting. Over at TaxVox, the Blog of the Tax Policy Center (a joint Urban-Brookings venture), Howard Gleckman writes that the old adage of Senator Russell Long (yes the son of Huey Long), "Don't tax you, don't tax thee, tax the fella behind the tree," rears its ugly head again in health reform.

When you ask the American public about taxing Employer Sponsored Insurance (ESI) everyone flips out into a negative. Everyone instead wants the rich to pay more (a problem that I pointed out in a previous post on this blog). Never mind the fact that the ESI exemption from income is a) inefficient (it is a subsidy and thus it is a government health care system) and b) inequitable because it is regressive (vertical equity) and puts similarly situated taxpayers income-wise in very different situations (horizontal equity). All it has going for it is its administrability.

Well, what about broad based taxes? Gleckman points to the fact that the numbers plummet there. It focuses all about taxing the rich. However, we are already raising the top marginal rates (or proposing to raise them) to 39.5% (or something near 40% without going over it). We want to phase out certain itemized deductions for higher earners. We want to create strange inabilities for our corporations to write off their own taxes that they earn overseas and pay other countries because they are taxed on worldwide income, but other countries have a territorial system so they only pay taxes to the country that where they do business. And a VAT on top of an income tax would likely freak out more people.

Sadly, I think this represents a sense of free lunch. For so long the U.S. borrowed its way to fund huge spending priorities from the fancy weapons systems, to student loans, to health care, while all the while trying to slash taxes. Now we are facing an important move that I would say works out on both a) equity and b) efficiency to start covering everyone. It is going to cost money. It is expensive. So we need everyone to chip in. Unfortunately, taxes, instead of seen as something mildly annoying but filled with a sense of virtue, have grown evil. I think we are just too wrapped up in ourselves (I include myself in this "me" culture).

The Flag

2009-07-02T22:36:00.002-04:00

Timothy Egan at the New York Times has a delightful blog post about the flag. I love the U.S. Flag, and it is still to me a wonderful symbol, full of hope, and also full of the baggage of our history. We have not always lived up to our standards, but we strive to ever make real the goal to create a "more perfect union." Just some thoughts as Independence Day approaches.

The System Itself

2009-07-02T22:15:00.003-04:00

So, much more posts about the system itself, and perhaps trying to unpack some history here about our lovely and strange structure. Ezra Klein today writes about the problems with the system itself.

As my crazy post a few days ago pointed out too, the Senate is anti-majoritarian. There are also problems with the Committee system, as Ezra pointed out on agriculture, and Matt Yglesias pointed out later in his blog. Yglesias is right, the Committees do serve as veto points. They are sorely understaffed. They create poor results.

In some sense, they both harken back, progressives as they are, to the Progressive Era. Back then, the legislatures were seen as too beholden to special interest. When anything positive did come out that moved us forward, the Courts blocked it. See e.g. Lochner. So they had a crazy idea. They created these entities called administrative agencies. They would seek to rise above politics. They would have legislative powers and enforcement. It essentially created a fourth branch that would not have guidance from politics, but instead free to make policy. Congress would delegate to these agencies by writing broad mandates, and act they would.

It seems to me that everything old is new again in this regard. There are some significant concerns about these tampering. First, given that most agencies fall under the Executive Branch, and are not so-called independent agencies these days, it moves towards concentrating power in the Executive. Perhaps one would argue that this could be a good thing, because the Executive is the only one accountable to everyone in the country, and Congress with its committees is unable to act. See generally Kagan, Elana, Presidential Administration, 114 Harvard Law Review 2245 (2001) (trying to eliminate agency ossification through expanding the President's control over agencies, but making it explicitly accountable and transparent, and hence differing from the Bush Administration).

Unfortunately, as many have argued with this notion, while the President is elected, he is removed from the people. Indeed, the only institution that is linked to the people is part of Congress, the U.S. House of Representatives. Today, Senators are directly elected. However, as anyone who lived through Hayes-Tilden in the 1800s can tell you, and those who saw the Bush-Gore election play out, the President is still not an entirely democratic institution.

Furthermore, these agencies are supposed to make sound policy. But, then again, what is sound policy? At the end of the day it is a value judgement. For example, I want to create a regulation that says you should prefer to live in a house where you have a 1% greater chance of getting cancer. However, as a result of eliminating that chemical we choose another one where you have a 30% chance of horrific diarrhea (I had to be gross). The agency would have people throwing their hands up angry, because the "c-word" (and I do not mean the really nasty one that I hate) cause people to miscalculate risk, and freak out.

One of the bones of contention I have is the sort of general Congress hatred, and the evisceration of the branch. First off, Congress was always hated more than everyone else. However, the Framers did think highly of it. Note that it is Article I of the Constitution. It is the most explicit in its powers. Unfortunately, Congress must be involved in the end with the details of legislation, as it is there job. Even delegating to agencies often requires Congress to act, and sometimes just the action of delegating can lead to the veto point activation.

In the end Yglesias has a fascinating idea of committee appointments for special ad hoc ways of getting legislation through. One concern of course is the matter of who appoints it. If it is leadership, it could serve as favors for a certain set of campaign contributions and whatnot, or seek to bolster weaker members. Furthermore, I doubt that if you appointed an ad hoc Committee to fix up our messed up food system, that somehow you would not have a whole lot of agriculture interests in there. Leadership who appoints also knows who butters their bread, and a lot of those people's votes are needed for them to keep their position.

One day I will talk in greater depth about the weirdness that is the U.S. Senate, but that requires a bit of history. What I just hope to do here is to critique. I am so ingrained in the system I cannot do positive policy. As a weak legal realist, situationist, and critical theorist though, the goal is not always to come to solution, but to critique what is out there, and perhaps douse water on people's flames as a Debbie Downer (wow too many metaphors). Finally, perhaps, in some odd way, this sort of strange dysfunction is what the Framer's themselves intended. And having a whole lot of veto points and preventing large scale change from happening often sucks, but it does give you certainty, and that has huge value.

Don't Ask Don't Tell and the Military Culture

2009-07-01T19:18:00.003-04:00

I know I am a hypocrite. It is who I am. I live in tension as I view it.

So, I had to respond to Richard Cohen's column in the Washington Post the other day. As a quick response, DADT does create some sort of horror. Yes, integrating the military back in Truman's day was difficult. However, the gulf between America, which overall supported the military, and today was much narrower.

The military culture today is professionalized. And it has grown more insular. Just look at where most military members come from. They are from the South. They are heavily Republican and Evangelical. They look nothing like America itself.

Thus, the gains made in acceptance of LGBT individuals in many other areas (although the T part probably still has a ways to go) is nowhere near as widespread in the military.

That said, perhaps we should get rid of the law. But, we should be fully cognizant of the distinct culture that has grown in the military.

Wittes and Goldsmith

2009-07-01T19:13:00.003-04:00

Ben Wittes at Brookings and Jack Goldsmith at Harvard Law School wrote an Op-Ed in the post on Monday. Essentially the outline two ways regarding national security policy.

The first is Bush. It is entirely focused on the executive. It does not include Congress, because that route is messy and gets bogged down in politics. Congress could also hamper the Executive.

The second is Franklin Roosevelt. It seeks to bring Congress along and work with them in outlining these matters. Yes, politics is messy, but the goal is to reach consensus that people buy into. It perhaps even seeks to restrain the executive, because sometimes some outside oversight is necessary. We do not want meddling, but we want some control.

Sadly, one part of the administration's policy they argue, and I sort of agree with, is that we have gone more Bush and FDR. Then again, I know again, Congress is the most hated branch of the government.

The Question of Mitzvot

2009-07-01T18:56:00.002-04:00

Frequently as a Jew, I am asked by other Jews if I am shomer mitzvot. Inevitably I say no. This comes from an Orthodox Centric viewpoint, which is itself problematic. However, I sort of want to unpack this notion in a different way. What is the measure of the shomer factor.

Many in the community consider two sets of mitzvot as a sort of paramount. Shabbat, which I discussed in an earlier post, and Kashrut, the dietary laws. There are other sorts of weird things that are obsessed over, like fasting on all the fast days and other matters. We tend to get bogged down on a set of complex laws (which do not get me wrong, I enjoy studying them, and I often find them useful).

However, there clearly seems to be a hierarchy of mitzvot. Usually when we ask the question if someone is shomer mitzvot, we never imply those mitzvot of how do you treat your fellow human. How do you balance the particular and the universal in your human relations? How do you go about leading a moral life?

Part of this stems, I suspect, from a certain finitude and concreteness. While there are always debates, it is much easier to think about electricity on the holy sabbath than thinking about justice for people (ask any real lawyer about bright-line rules that devolve into squishy standards). These questions are inevitably difficult. No one too completely lives up to it.

Also, we are taught at least not to measure mitzvot against each other. Each one is unique. However, there does seem to exist a strong tension in the other direction as well. These mitzvot regarding how we treat others, whether we recognize the infinite potential in people while also balancing the sort of limited nature of humans, is also highly important as well, and perhaps even more important according to a lot of various Jewish thinkers. In fact, no matter how you slice it, either as a leitmotif or as a distinct separate mitzvah every time, there must be something to the highly frequently used phrases about caring widows, orphans, and strangers.

Perhaps I am wrong, but I remember in my readings of the works of Eliezer Berkovitz that these other mitzvot of ritual served as a sort of mediation between man and God, but also served as a sense of training for other things. If I can think so much about how this food got to my plate, then I can think about complex issues and hopefully look beyond the screen to question other matters of production. Likewise, I can think on shabbat how people have limited freedoms and cannot always take a day of rest.

In many sense, it is the sense of commandedness in a moral sense that drew me to Judaism, and the complex way in which it deals with these matters, tying people between fallible dust, and infinite in God's image, and seeking to find balance between the universal and the particular. I by no means meet these mitzvot completely either. However, I do seek to reach it (this of course creates some weird cognitive dissonance when I seek to apply cost benefit analysis or talk about comparative effectiveness)

This is perhaps why I find some of the tropes within the Jewish community, particularly some sectors of the religious community so troubling. For example, the matter of Rubashkins and the treatment of workers and even animals runs against many of these notions. I apologize for my bluntness and rudeness here, but I do find it horrifying that people who think highly of themselves religiously could support something like this.

The ethical mitzvot as I call them are more difficult. They are harder. And yet, in some sense they represent the ideals. I sort of hope that more people think more deeply and act on such ideas.

The Top 100 of Comparative Effectiveness

2009-07-01T18:35:00.003-04:00

I just got word that today the Institute of Medicine, which is part of the National Academies of Sciences, just released their report regarding comparative effectiveness. The New America Foundation's New Health Dialogue Blog has a post on the matter.

For the uninitiated, comparative effectiveness is essentially taking a set of different procedures that serve similar purposes, and seeing which works better. In the ideal world from my perspective, it would also do an offhanded cost analysis as well. For example, while procedure A may be more effective than procedure B by about 5%. However, if A costs about 15% more, we should probably consider a set of different things, either having greater cost sharing on the patient or not reimbursing for it.

Of course, the strong hand of the experts will likely never come down like that, because we have an unusual level of trust in our doctors, and tend to dislike the government (reactance!). The key then is disseminating the information as best we can, I guess. The report does say:

"Compare the effectiveness of dissemination and translation techniques to facilitate the use of CER by patients, clinicians, payers, and others."

One way though to bring in the strong hand of the government is through the Medicare Payment Advisory Committee, known as MedPAC. Obama himself has sort of discussed this matter. However, one critic of the public plan also criticized part of this proposal. Much of the argument is that it is an anti-democratic notion.

I would point out that the delegation of powers to Administrative Agencies too is highly undemocratic. I am sure that MedPAC does, and will have to do some sort of notice and comment period themselves. Indeed the Base Realignment and Closure Commission (BRAC) did require the same sort of thing. However, it created a statutory change through the legislature. One could imagine MedPAC drafting resolution through some precommital rules, and then if legislators wish to change matters, they could. However, such changes should seek to stick to budget neutrality, and it would require the House not to have the ability to waive the matter, and it could have the Senate apply its 60-vote rule.

The bigger concern about all of this, and especially tying things to CER, is the 1990s Agency for Healthcare Research and Quality fiasco. Back then, AHRQ suggested that certain back surgeries were unnecessary. It led essentially to Congress cutting CER, which AHRQ does a small amount of. One concern about any governmental group that does CER, and which MedPAC would rely on and work with would have to rely on Congressional Appropriations. I know this is a small matter, but it is a problem.

That said, I am hopeful about this move itself. And I am excited about the report.

Some interesting bedtime posts

2009-06-30T23:36:00.003-04:00

I think the story says it all. Central Pacific Bank disaster.

Wal-Mart and employer mandates in health care reform.

The world as I know it has officially gone insane. And the Sox blew a 9 run lead, losing to Baltimore 10-11.

Disappointment on Taxes

2009-06-30T21:53:00.003-04:00

So many people ask me what is the biggest disappointment about the administration. Is it health reform? No. I am not thrilled with what Senate Finance is moving, because the exchanges may be too weak, but I still have hope. Gay rights? No. I still think the country is against it overall, though changing. Time may not be ripe. National Security? No. I am not thrilled, but I also am moderate here.

No, the issue that gets me riled up is taxation. Both Ezra Klein and Matthew Yglesias have excellent posts on the matter. And today, former Deputy Treasury Secretary Roger Altman wrote an Op-Ed in the Wall Street Journal regarding this matter.

Yglesias makes the key point. Obama played into the notion that we need to reduce taxes, or playing the games of "Don't tax you; don't tax me; tax the man behind the tree (or corporations across the sea regarding the new corporate tax matter)." The promise not to raise taxes on the middle class is ludicrous. Even if we kept things the way as it is, or even eliminated earmarks, you would need more revenue just to service the debt and handle growing entitlements. Anyone who thinks Medicare is something fun to tamper with, well, needs to look at the health reform debate and throw in angry old people, who incidentally, vote, as well as baby boomers who are near retirement and still a large part of the population.

We must raise taxes. We need to fix the mess that is the code. In 2005 President Bush convened a panel to create a report along those lines. Nothing happened. The report was circular filed. The panel created a very thoughtful and politically worthwhile report. Of course, there were problems, but it tried something and failed.

Others have tax reform proposals. Some are disingenuous. Anyone who thinks we can replace the federal income tax with a sales tax at 15% is smoking something illegal, because that produces even less revenue than now. Michael Graetz has a worthwhile proposal that is somewhat savvy and administrable in his most recent book 100 Million Unnecessary Returns where we shift to a less progressive VAT/consumption tax base, but put a much steeper income tax at the top. That said, people still would need a tax increase.

Part of the problem is that we risk moving ever closer to the pre-1986 tax code. Once upon a time, the top marginal rate was pushing 90%. You thought tax arbitrage is bad now, I shudder to think of what returning to that situation would be like. The corporate tax increase proposed comes with nothing for corporations too like lowering rates. Lowering rates is tough.

Also trying to determine economic efficiency, while worthwhile, is utterly debatable. We can bring in experts to no end on that regard on both sides. When you do something like change tax treatment of things, some results you can see. But many results are unintended and manifest only later.

Regardless of what you think, we must move beyond this idea of the middle classes also wanting to skirt taxes. Once upon a time, it may surprise you, before the insane top marginal rates of 90% in the late 60s and 70s, people saw the tax code as a relatively good thing. We have lost that partly because of the mess the code made. However, I also posit that part of it is our distrust of government and a growing individualization of American culture. It is much harder to tell someone focused on me to think of a larger societal goods (and I am not just talking about welfare and health care, but education and roads too).

Ultimately, make no mistake, this is one issue that the conservatives are winning. As Graetz writes in another book, co-authored by Ian Shapiro, Death by a Thousand Cuts: The Fight Over Taxing Inherited Wealth, the estate tax is merely the opening salvo in a fight to undo our tax system and reduce it to a regressive tax that fails to fund anything. "Their goal is simple. It is death by a thousand cuts. What is the proposal for the other side?"

60 Vote Senate. Great! Right?

2009-06-30T20:54:00.002-04:00

Well, perhaps not. People have spilled a lot of ink, or bits, on this matter. The ever amazing (and clearly more professional) blogger, Ezra Klein, has a good political take. However, I love the Senate, sort of, and I particularly love the rules and traditions of the Senate. So, I will take the opportunity to show 60 votes does not mean anything will get done.

Most people have this view that 60 votes means that a filibuster can be broken. That is absolutely correct. However, this does not mean that the Senate will move any faster.

The Senate rarely uses its own rules. Usually what happens is that they call up bills under complex unanimous consent agreements. These agreements specify how long debate lasts on a bill, and what amendments are in order. The analogous item in the House is the Special Order of Business Resolution/Special Rule. However, there is a significant difference. A Special Rule comes out of the Rules Committee, which the majority party controls under a 2x + 1 manner (where x is the number of minority party members). The Special Rule can pass with only an hour of debate, because you can close with a Previous Question Motion, which in the House is not a debatable motion and if approved by a simple majority ends debate and forces a vote on the Special Rule. The Rule then can pass by a simple majority.

As the name implies though, the Senate operates on unanimous consent. Should any one Senator object to the terms of considering the bill she can just whisk to the floor when a special phone, called the Hotline, rings and say, "I object." So how then can the world's most deliberative body consider a bill? Well with lots of deliberation.

In order for a bill then to move, the leader must then move to consider a bill. However, that motion is debatable. That means it can be subjected to a filibuster. As such, what will happen then is that cloture, where you need the 60 votes has to occur. However, you cannot just invoke cloture. The process is far more complicated.

For the Senate to invoke cloture, 16 Senators must sign a petition. The rules state that the vote cannot occur until two days later. That means if cloture is filed on a Monday, it does not ripen until Wednesday. Then a vote occurs. 3/5 of those Senators duly chosen and sworn (i.e. 60 Senators) then vote on the question, "Is it the sense of the Senate that debate shall be drawn to a close?"

The vote then happens. Things are done, right? Well, not exactly. There is still 30 more hours of debate in place. Usually after the Senate invokes cloture, a unanimous consent agreement waives this. However, if not, then you debate whether you want to proceed to consideration of a bill for 30 hours. Then you take the vote on the motion to proceed. At this point about a week has gone by just considering whether the Senate will consider the bill.

Now you consider the bill. But, the bill itself is debatable. That means you can filibuster by bill. You can filibuster by amendment too, as each motion to amend is debatable (one day I will speak of one of my favorite charts ever). The majority leader can avoid this amendment matter by various means. However, there are plenty of opportunities to gum the matter up. That said too, a major bill, like health reform, is far more subject to just having more general debate.

Of course the Senate could avoid this with a unanimous consent agreement, but why do that when you can gum things up and make the majority take hard votes, and you can pummel them for being unable to do anything in an effective matter.

So you will spend another week invoking cloture on the underlying bill. If that passes, there is still 30 hours of debate (cloture procedure stays the same). Now, though all debate and new or pending amendments must be germane (rare for the Senate).

So what does all of this mean? Essentially it means 60 votes is not as great as it seems from a procedural standpoint. Furthermore, the Senate, unlike the House, is much harder to keep together, because of the ability to object to unanimous consent. The majority leader then could find his own party causing obstructions too, because if one of them does not agree cloture is that much more likely to fail.

One way to get around that is to create more omnibus pieces of legislation to move through with various disparate issues. However, that weakens the committee process and makes things generally more messy. It gets especially weird in conference sometimes with the House. Transparency people hate that too. And often large bills come with drafting errors that courts obsess over in the future (just ask anyone litigating a Superfund case).

Perhaps good will come of this situation. However, as a procedure person, I shudder over a 60 Vote Senate and what people on both sides seem to think. It could just create a different type of mess. Then again, all aspects of the government was designed to move at a glacial pace.

For more cloture information, consult Riddick's Senate Procedure.

More Ricci, More SCOTUS

2009-06-30T20:44:00.003-04:00

First, Dana Milbank has a cute and sappy article in the Post this morning about Souter's retirement and the letters. You can find the letters at SCOTUSBlog.

I have one more point to make about Ricci and the ever complicated issue of race. The court somehow managed to create the worst of all possible worlds. The opinion calls into question a very weird test that I doubt most non-lawyers do not understand, the disparate impact test, but upholds it where there is vague "substantial evidence."

I think everyone will be angry with this result. Employers will still tread carefully, fearing lawsuit and conservatives will get annoyed. Liberals will rightly fear that there is a roll back of an important aspect of civil rights.

Furthermore, I think it is important to see what the test gets at, and I am writing this more for my friends who are not lawyers and who may even disagree with me on the issue. However, the disparate impact test was, until yesterday, fairly well enshrined. It said that even if a test appears neutral, you have to look a little further to see if it does have a disparate impact based on race. Why should that care? Because racism in some sense is less open than it used to be. Instead, you need to look beyond the matter and see if you can find some evidence to deduce these motives through some sort of impact.

Now there are defenses. The person in question must show that there is either no other way to achieve the goals that does not cause such an impact. It essentially requires a showing that other means were exhausted. This is not some crazy idea, especially if we move into a world of hidden racism.

And, like I said yesterday, most maddening is that the Court calls this into question without producing a new test.

Linda Greenhouse addresses the issue quite nicely in an Op-Ed today.

As for a broader look of the term, read Tom Goldstein's summary at SCOTUSBlog.

End of the Term for SCOTUS

2009-06-29T20:57:00.005-04:00

Today the Court had its final day before it recesses for the summer. It was also Justice Souter's last day on the Court.

As expected the Court ruled in Ricci v. DeStefano, and overturned the Second Circuit. Two great analyses as always comes from both Lyle Denniston and Tom Goldstein.

Again, I do not have a whole lot more to add to the professionals. One of the problems as Denniston points out in his analysis is that future litigation is needed to sort out the many questions left open. Many see this as either a great defeat or a great win (depending on which side of the fence you are on), but the opinion is narrow and without much guidance. While I am a minimalist myself, I am aware of the problems of such a philosophy.

On the confirmation fight, already the right has shouted that this shows that Sotomayor is not fit to serve on the Court. The opinion, as Goldstein points, carefully avoids doing anything of the like. The Justices have decided not to create a possibly most awkward situation ever in conference should the Senate confirm Sotomayor.

More importantly though, as many have pointed in the fact, Sotomayor actually has fewer reversals than Samuel Alito did as an Appeals Court judge. Rather than analyze the number of opinions overturned, perhaps the process should focus instead on her opinions and her judicial philosophy. There is a great deal of data there.

However, given the world of sound-bite politics, I do not expect much in this regard, sadly. As a result, the American people will not really get a chance to examine Sotomayor carefully. Instead we will just have yet another silly distraction, much like the comments earlier were.

And Maybe we Do Learn

2009-06-29T20:57:00.002-04:00

However, perhaps we do learn some other lessons. Stories, which helped torpedo the estate tax, may help boost health reform.

Somewhat Situational views on Health Reform

2009-06-29T20:34:00.002-04:00

Ezra Klein, as always has two fascinating posts. The first involves health insurance exchanges, something that I think he is right to focus on. Without them we do not really have a market. Read his post, as I think he explains it much better, and there is little point to reinvent the wheel here as an amateur.

The other post Klein has today involves some of the hypocrisy on the Republican side. Here I think linking to another story in the news may shed some light on understanding what goes on here.

Recently, of course, we saw Mark Sanford, a very conservative Republican, admit to an affair. He is in a long line of these problematic politicians. However, perhaps there is more going on here.

The Situationist Blog has an interesting post about the matter. In it, they argue that the situation and our underlying psychological framework may serve as a better explanation for what is going on here.

So why bring up sex scandal in the world of health reform? I think in some sense the Republicans are managing to play off our own situational factors here.

While polls have stated that most Americans want to have a public option in the health debate, there is a great deal of worry that insurance companies will disappear. These companies are seen, like many corporations, as perhaps nasty, but on a deeper level giving us choice. Furthermore, the public plan, when framed correctly can cause problems. Ingrained in us is a sense of reactance, a sort of horror and recoil, toward the idea of regulation and government. Summed up simply free markets = free people, and therefore markets are good, regulation and government are bad.

Part of what the Republicans seek to do is play off of this. These hypocrisies arise too in many other areas of the corporate world. Both the food industry (a discussion in a post coming up soon) and the beauty industry often have conflicting messages, but, this hypocrisy actually is necessary for understanding the matter. See Adam Benforado, Jon Hanson, & David Yosifon, Broken Scales: Obesity and Justice in America, 53 Emory L.J. 1645, 1711-21 (2004).

While I agree with Klein as to how these people are ridiculous, I would urge those who support comprehensive reform with good exchanges and a public option, like me, to consider how the opposition seeks to manipulate the situation and speak to deeper issues here. It does not matter in the end that things conflict. What matters more is how it speaks to people.

And something completely different

2009-06-29T20:20:00.003-04:00

I went out of town this weekend, and something is wrong with the my New Yorker delivery. I finally got the most recent issue today. Normally I would have turned to the political articles. However, what particularly thrilled me about this week was the fact that my favorite writer (not to be confused with my favorite article found here) Alex Ross wrote an article. Sadly you need to subscribe to read the article. However, a link to his blog here points you to a greater explanation and to some of the additional web features that accompany the article.

The article discusses the chamber music festival in Vermont started by Rudolf Serkin in Ross's wonderful and lyrical prose. Today Michiko Uhida and Richard Goode run the retreat. Since the article is inaccessible, there are two quotes I take out of it that I find particularly moving.

"And I reflected on the fact that even the most exalted music-making comes from an accumulation of everyday labor, inseparable from human relationships."

"In a wider sense, Marlboro represents the migration of tradition across centuries and continents: a Japanese-born woman passing along her understanding of Mozart and Schoenberg to new generations of American kids. Marlboro is an enchanting place, but in the end, there is nothing especially remarkable about it. The remarkable thing is the power of music to put down roots wherever it goes."

If you can, get your hands on the article.

The 40 year Struggle

2009-06-28T18:38:00.002-04:00

Today is June 28, 2009. This marks the 40th Anniversary of the Stonewall Riots, which essentially created the gay rights movement. The issue has come far, but has much more to go.

However, let us also spend the day celebrating the achievements of the last generation. Today, many more children grow up in a more caring environment and do not have to hide their homosexuality. We should remember the past, while recommitting ourselves to the work that lies ahead. As it is written in Pirkei Avot about the study of Torah, "It is not incumbent upon you to complete the task. But, you are not free to desist from it." Such words have a powerful effect in almost any large endeavor, and this struggle is among them.

Not for Polite Company

Edward M. Kennedy

Weird times for the Red Sox

American Exceptionalism and Health Reform

Evolution and Religion

50 Years of the 50th State

The Life and Death of the Public Option

Trying to Simplify Health Care

Oh, these Red Sox

Hawaii Employees, Brand Name Drugs, and Status Quo Bias

Good Night Links

The Breakdown of Civility Again

Good Night Links

NY Times Op-Ed, and Pushing on everything

Eliminating the Deficit and Where to Go

Misinformation on health care

What Work Product is Protected

August Blues

An Interesting Take from the Right

End Of Life Distortions

Graph on HIspanics and Sotomayor Votes

Facts on Health Reform

Steven Pearlstein's Excellent Column

Massachusetts Reforms Work!

More Problems for the LDP

Ghostwriting and Medical Journal Transparency

Corporate Rate Reduction

Financial Product Safety and Banks

One State, Two States, Red States, Blue States

Compact Aid in Health Reform

Honolulu's Transit Matter

Polls, Statistics, and Stories

Senate Procedural Redux

Happy Birthday, Medicare

Insurance matters

The Self-Referral Horror, or How my Profession Screwed up Health Care

More Compact Fun

The Beginnings of Redemption?

Hawaii, Employer Mandates, and Taxing ESI through Premium Excise Taxes

Michael Steinberg's Passing

Blue Dog Problem

Morality Play

What to make of this

How much Change in Health Care?

Religion and Women

Larry Summers and the Crisis at Harvard

CBO and IMAC

Where do we go?

The MedPAC/IMAC Proposal

Financial Products Safety and choice

Last Night's Press Conference

A new Siddur

ACOs and Capitation: the devil is in the details

Precommittal and Health Care

Health Care in trouble?

Random Rants about Bonuses

Too Many Patents?

The AMA Endorses, Some Cold Water, but other signs of Movement

A few final thoughts on all the Health Reform things

And the Senate moves too

While I decided to watch the All-Star Game, the House moved

Health Reform News

Sotomayor Day 1

Weirdness in Japan

Quality Reports and a fun map

Polite Company: Baseball and the All-Star Game

Oh yeah, health reform is still going on too

Judges and Umpires

And Investigating Torture

What is the CIA Doing

For Polite Consumption: Baseball Computer Analysis

Wiretapping

Positive or Negative

Taxes and Internet Commerce

The Employer Sponsored Exclusion

Evolution, God, and Mistakes

The R Word

Prostate Cancer and Comparative Effectiveness

Other countries and health care

Robert S. McNamara, Complexity and Hubris