Sinclair's next chapter?

Based on Matt Bai's NYT cover story last week, the Budget Control Act is a likely contender for a case study in the next edition of Unorthodox Lawmaking. After taking several months to research and allow the whole affair to rest for a while on the public mind, Bai released the most in-depth chronology to date of the secretive dealings that shaped last summer's debt deal. He tries to reconcile each side's official press releases and statements with contradictory anecdotes from over 35 confidential sources. (In a follow-up interview, Bai discussed his methodology, sources, and personal perspectives on the matter.) The result is a detailed timeline of events in the context of competing political motivations and unorthodox legislative procedure. We're left with the sense that we'll never know the full story, but it's still an interesting case study of the evolving legislative process:

"...the failed attempt at a grand bargain wasn’t necessarily an unmitigated disaster. The ugly, months-long process of trying to avoid a meltdown over the debt ceiling may have further embittered a lot of ordinary Americans, but it also forced policy makers on both sides to wrestle with their own capacity for compromise. For weeks, in both the White House and in the speaker’s office, the most influential aides in the country burrowed into spreadsheets and considered, in unusually specific terms, what kinds of budget cuts and revenue numbers they could live with."

An interesting opinion article from the NYTimes on the "the Virtues of the Super PAC"
The author argues, "Whereas a campaign finance system in which it only takes a few rich supporters to make a candidate competitive is a system that may ultimately be more open, not less, to outsiders and insurgents and populists of all stripes." Could be, but raises the question; what if the few rich supporters back mainstream candidates in the future?

Domestic Policy II

HR 3 dies...then, HR 1836 and the magic of reconciliation
In 2003, HR 2
Expiration ... and extension

The situation in January 2008:

Response:  HR 5140 -- largely unorthodox lawmaking

Then came the crash

An estimate that came back to bite:

In 2009, Congress passes HR 1, the American Recovery and Reinvestment Act of 2009, aka "the stimulus" From Sinclair: "The 2009 bill traversed a somewhat more orthodox course, at least on the surface."

Why did Collins, Specter, and Snowe vote for it?

Boehner was unhappy about the conference report:





 Other kinds of issues: the issue-attention cycle

Recycling ideas between parties not uncommon

As a follow-up to our class discussion about the modern health care debate originating with Nixon, a Hill article reminds us that a key proposal in the environmental debate, cap-and-trade, also was a Republican idea.

Obama brought it up briefly in a speech, saying, “The first president to talk about cap-and-trade was George H.W. Bush. Now you've got the other party essentially saying we shouldn’t even be thinking about environmental protection. ‘Let's gut the EPA.’”

Obama wasn't so much talking about cap-and-trade itself as he was using it as evidence of a recent GOP shift to the right, but his comment still highlights the ability of policy proposals to shift between parties depending on the political context.

Kevin McCarthy at the Ath

I wanted to point out that Kevin McCarthy will be speaking at an Ath lunch on Thursday, April 12th, and reservations are still open. I thought many of you would be interested, so I've included the Fortnightly description of his talk below.

Leadership in Government: Remarks from Congressman Kevin McCarthy

KEVIN MCCARTHY

THURSDAY, APRIL 12, 2012
LUNCHEON 11:30 a.m.; LECTURE 12:00 p.m.

Congressman Kevin McCarthy has represented the 22nd District of California since 2006 — a district which spans Kern, San Luis Obispo and Los Angeles counties — and has served as the Majority Whip of the United States House of Representatives since 2010. He is committed to policies that give small businesses and entrepreneurs the confidence they need to hire, expand, invest and innovate.

McCarthy’s career is characterized by early success; he started a deli business before he was 21, became active with then-Congressman Bill Thomas while in college, and in 2002 was elected to represent the 32nd Assembly District in the California State Assembly, where he remained until winning a Congressional seat in 2006. McCarthy’s talk will explain how he advanced so quickly in his career: what has been important to his success, the lessons he has learned, and the various challenges and opportunities he has experienced along the way. McCarthy’s talk is jointly sponsored by the Rose Institute of State and Local Government and the Kravis Leadership Institute.

The Health Bill

The real author of contemporary health proposals

In the 2008 campaign, Senator Obama expressed reservations about a mandate. By mid-2009, he changed his mind.

Ross Douthat neatly explains the interest group universe:

The mandate offered the interest groups what all entrenched industries desire: a fresh and captive market for their products. For the insurance companies, it promised enough new business to offset the cost of covering Americans with pre-existing conditions. For the health care sector as a whole, it guaranteed that disposable income currently being spent on other goods and services would be spent on its instead.

This explains why the health care bill was ultimately backed by so many industry lobbying groups, from the Pharmaceutical Research and Manufacturers of America to the American Medical Association. It explains why the big insurers, while opposing the final legislation, never attacked it as vigorously as they did Bill Clinton’s ill-fated reform effort.

By 8/1, Energy & Commerce and HELP approve bills. CQ summary:

Two health care overhaul bills — HR 3200 and a draft Senate bill approved by the Health, Education, Labor and Pensions (HELP) Committee — are similar. Both bills would require employers to provide health insurance to workers and individuals to enroll in an employer-based, private or government health care insurance plan or face penalties. But there are differences in the details.
Employer Insurance Mandate
HR 3200: The bill would require employers that do not offer coverage to pay a payroll tax equal to 8 percent of their payroll costs. Certain small businesses would be exempt.
Senate Committee Draft Bill: For employers that do not provide coverage, the bill would assess a fee of $750 per worker per year, or $375 for part-timers. Businesses with 25 or fewer employees would be exempt.
Individual Mandate
HR 3200: The legislation requires individuals, by 2013, to buy coverage or pay a fine of 2.5 percent of their income — but the fine would be capped at the cost of the average plan in their area. It offers a hardship exemption.
Senate Committee Draft Bill: The bill would make individuals pay a fee of $750 a year if they fail to obtain coverage. As with the House version, it exempts those who have not qualified for any affordable coverage.
Subsidies
Both versions would offer subsidies to those with an income below 400 percent of the poverty level (about $88,000 for a family of four and $43,000 for individuals) down to the eligibility threshold for Medicaid coverage. 

The political climate changes:

• Overall approval rating
• The Tea Party arrives

In the fall, House passes one version, with public option.  The Senate, rather than use the House-passed health bill, instead uses an unrelated tax bill (HR 3590) as the shell for its version.

Scott Brown's election prompts a diffrerent kind of procedure:  passing the Senate version, with agreed-upon changes in the reconciliation bill.

The final legislation.

Nourse and Schacter on bill drafting:

Staffers’ drafting choices seem to be driven not by issues of legal dexterity but by the demands of a competing set of virtues—what we  are calling “constitutive virtues.” The interpretive virtues are the  virtues, generally, of courts: precision in drafting, consciousness of interpretive rules, discovery of meaning in past precedent, and detached reflection on the language of particular texts. Constitutive virtues, by contrast, tend to prize the institutional values of legislatures: action and agreement, reconciling political interests, and addressing the pragmatic needs of those affected by legislation.

Over and over again, staffers explained their choices in terms of constitutive virtues—that deliberate ambiguity was necessary to “get the bill passed,” or that statutory language was drafted on the floor because a bill was “needed” by a particular senator, by the leadership, or by the public. Even staffers’ reliance on lobbyists was an attempt to understand how the bill would “affect” people in the world. It was not that the staffers did not know the rules or recognize the interpretive virtues; it was that those virtues frequently were trumped by competing virtues demanded by the institutional context of the legislature. In an ideal world, the staffers seemed to say, they would aspire to both clarity and agreement, but, if there were a choice to be made, the constitutive virtues would prevail.

Congress and constitutionality

Given the recent Supreme Court oral arguments over the constitutionality of the individual mandate and our reading for Monday, I was reminded of Nancy Pelosi’s comments in October 2009 regarding the health care reform’s constitutionality.

In an incident covered by many conservative blogs, a reporter asked Pelosi where exactly Congress claimed to derive the authority to enact an individual mandate to purchase health insurance. She dismissed the question, saying “Are you serious? Are you serious?” Some people interpreted this as Pelosi implying that it didn’t matter whether the reform was constitutional or not. The next day, her office released a statement explaining that Pelosi believed it was constitutional given the Commerce Clause. The issue was pretty much ignored by most of the major news organizations, although a number of conservative bloggers latched onto it.

The whole exchange, though, raises the question of whether Congress must consider the constitutionality of a law when passing it. Should Congress simply pass the laws it thinks are right/best, and then leave it to the Courts to determine their constitutionality? Or should Congress take constitutionality into consideration when legislating?