The Incidental Economist

The following is a guest post by Dr. Bradley Flansbaum, Chief, Hospitalist Services at Lenox Hill Hospital in New York City.  He is a practicing physician with a strong interest in health policy and engages in advocacy work through the AMA, Society of Hospital Medicine (SHM), and the American College of Physicians (ACP).   He blogs at The Hospitalist Leader.

That line came from none other than Barack Obama at the Whitehouse Correspondents dinner this year, obviously lampooning the glass as half empty, 24/7 news cycle machine .  Normally, I accept the tabloid trough feed of the day, the presumed inspiration for the above laugh line, with my usual healthy sense of disdain or merriment.  However, a recent slew of postings commenting on the shift in Whitehouse and HHS messaging for the promotion of the new health law preoccupied and bothered me.  This type of commentary normally does not get under my skin.

I deliberated and was not sure what I found disturbing, the attacks, the methods of ACA promulgation by its architects, or whether the law itself was flawed, meaning is “is it as bad as they say it is?”

The root cause of the blitz is multifactorial.   As such, it is likely governing philosophy, conservative or liberal, that determines how you perceive and rank the motives.  On that short-list is the troubled economy, poor Whitehouse marketing, folks’ inability to appreciate the complexities of the law, or real gripes with the principles of reform, just to name a few.

The “new” selling points as outlined in the referenced memo are not minor changes as Igor Volsky or Kate Pickert posit.  They read like retractions and timidly portray the law as a less than strident advance.  Knowing the foundation for the less than ideal acceptance of PPACA (and for all you revisionists, remember how six months ago, the country would be “loving” it by now), is a combination of fear, unemployment, and everything mentioned above, I realized it was the attacks that still angered me.  I do not mean the demagoguery, the feeding of meat to the anti-ACA masses, or the snipes.  What I mean is the utter impossibility of anything McCain, conservatives, or the free marketeers could have put on the table enduring the same scrutiny at this juncture in time—and not the claptrap the GOP was pushing last minute.  I am talking a fully realized bill from the principled right.

I wish I could remember who said it, but a policy wonk stated there are four constituents of major importance you must get on board to move a bill forward:  1) the AMA, 2) the AHA, 3) AHIP, and 4) PhRMA/AdvaMed.  Lose one, and you can still move something through.  Lose two, and your dead.

I considered the republicans and the health care summit:  medical malpractice reform, buying across state lines with a Federalized, sensibly designed high-risk pool, consumer empowerment and transparency, etc., all concepts that might work—but with the right tools, safety nets, and oversight (I am a centrist, and not ideologically pure lest you think I am totally ACA adoring ).  Assuming they were in place, where would the advocates of this type of system be six months after passage?  Better yet, what kind of fakakta bill would they have gotten after their journey through the grinder?

Think malpractice reform, actualizing that, and how many pages that portion of the bill would encompass.  An important point the GOP overlooked, or failed to mention, was states oversee tort law and not the federal government.  Can you imagine that legislative headache and the machinations of standardizing anything resembling a national policy?

Even ignoring that, safe harbor creation with sensible use of evidence-based medicine to ameliorate defensive medical practice was also a big talking point.  To wit, a 5-10% reduction in the number of MRI’s, cardiac catheterizations, and unnecessary pathology specimens might be the end game if we minimize unnecessary practice.  Codify that however, and along with the savings, you will have the radiologists, cardiologists, and pathologists with a bit less pocket change.  The AMA, ACC, etc., will not be happy.  Minimizing assurance behaviors also reduces the need to admit diagnoses like chest and abdominal pain, which in turn reduces hospital volume and bed days.  Hospital margins are thin these days, and there is a reason hospitals pay their dues to the AHA.  Expect to hear about it, and keep in mind the most radical estimates of resource overutilization related to defensive practice are 15-20%.

On the delivery front, I recently read a brief from the American Enterprise Institute on the Utah exchange.  What they describe as sensible incremental reform with consumer empowerment, unleashing the forces of the free market that would be a model for national change, to me, is a trial that will play out for years as risk adjustment and quality measurement shake out.  It is not a bad idea, but they will make mistakes aplenty, and I assure you, critics would have a field day.  One man’s “rational evolution” is another man’s wrongheaded experiment.  That is another couple of hundred pages in the bill by the way.

Anyway, overly simplified I know, but you get the idea.  You can fill in the blanks with just about anything conceptually related to health care, left or right and it would all be a jumble 180 days after passage.

In the end, we would have a mash up that the minority–Pelosi and Reid, would describe as a “gargantuan 2000 page failure of the American people that the GOP rammed down our throats!”  Suddenly, a rapacious left would rise up and engage in the same behavior as the conservative detractors I am criticizing now.

My point is that as Aaron and Austin have stated many times on this blog, whether we get to the Promised land with a value-added tax, value-based purchasing, or vouchers is immaterial—as long as it is equitable, fair, and it works.  However, no matter what passed, at this stage, frankly, we would be, and are, stuck with a helluva problem, and opponents need to know their Shangri-La version of PPACA would be no charmer either.  Talk is cheap, and they would be in a similar pickle.

Regardless, I do not worry about repeal or defunding, but I do have concerns about resistant states where the messaging is ugly, and individuals push back and prolong implementation.  Len Nichols said it best: “reform is a participation sport.”  Do not forget PPACA is now law, and there are opportunities for reach outs and change.  Obfuscation and bluster will only hurt most of the folks in this country who are paying gobs (or not) for a system badly in need of repair.  At some point, I hope we can move on begrudgingly, begin to compromise, and make the darn thing work…warts and all.

PS–If you are speculating as to whether we will ever perform a wart-ectomy, this segment is a nice primer on potentially finding a cure.

This post is part of a multi-post series on the filibuster in the U.S. Senate. An index to all other posts in the series, as well as a list of main sources that have informed this series, is included in the first post.

When I began this summer project on the filibuster, I didn’t know enough about it to form my own opinion on whether and how to reform it. Now I do. I’m sympathetic to the notion that it is far too easy for the Senate’s minority to obstruct and delay. Scott Lilly makes a good case that the Senate

fails to complete much of the work for which it is responsible and falls so far behind schedule in completing the work it does do as to seriously undermine the capacity of the entire federal government to respond in an effective and efficient way to the problems facing our country.

Yet I’m also sympathetic to the notion that debate more deliberative and open than occurs in the House is of some value. Hence, the filibuster should be reformed, but not too much.

These are two principles at odds. Providing the minority rights to consider and debate, but not to unduly delay and obstruct is a balancing act. But the two principles can be better balanced. The key is to permit reasonable delay so senators can review bills and nominees, but not to allow them to be open ended. The goal should be to strengthen cloture, not weaken filibuster or make it more onerous.

As explained in the Congressional Research Service report on this topic, cloture has far more value than just ending debate. It is also a means of streamlining the process of amendments. As such, it’s used as an organizing force, to get things done, even when obstructionist motivations are not present. It helps senators with contradicting incentives accomplish the nation’s business. In fact, that’s the purpose of the two-day ripening period between submission of the cloture petition and the cloture debate. Senators need to prepare and submit their amendments. Once the two-day window closes, so does the opportunity to submit an amendment.

So, cloture has value that can be enhanced and strengthened while providing time for senators (minority and majority alike) to participate. To do so, and in looking over the various proposals I reviewed last week, I suggest the following as one set of possible reforms:

• If there need be a reduction in the cloture threshold, do it across the board, once and for all, not in steps that lengthen the legislative process, as proposed by Tom Harkin. For example, reduce the cloture threshold from a three-fifths (60 vote) to a four-sevenths (58 vote) majority.
• Adopt Michael Bennet’s idea and impose expiration dates on nomination holds, executive and legislative alike. A hold in this case should be for purposes of review, not for indefinite obstruction. Extend the expiration date in instances where the hold is bipartisan. Perhaps the length of delay could be proportional to degree of bipartisanship in some fashion.
• Institute Bennet’s proposal to reverse the bias of the cloture vote. Force the minority to produce 41-votes to continue debate, not the majority to produce 60 to end it.
• Create a one-filibuster-per-bill rule by eliminating the ability to filibuster a motion to proceed. (Separate filibusters on amendments would be possible.) Forcing the majority to wait out two rounds of cloture for each bill is unnecessarily dilatory (once on the motion to proceed, once on the bill itself).
• Further limit debate. Thirty hours per cloture vote is unnecessary and rarely fully used (never before 2003, though a few times since). Cut the time to some length that seems binding. Lilly suggests 16 hours.

Those are just my favorite ideas to date. I’m sure we’ll hear about others. Notice that they mostly focus on making cloture easier, not making filibuster harder. Moreover, they preserve important but reasonable pauses in the legislative process. Readers who can’t get enough of this stuff and want to know what someone more expert than I thinks about it should read Jonathan Berstein’s favorite reform ideas.

We should all want a more efficient Senate, provided all sides of a debate are heard as much as necessary, but no more, and largely on bills of import (not motions and minor executive nominations). So, my charge to the Senate: deliberate, not too long, mostly bills (h/t Michael Pollan).

This post is part of a multi-post series on the filibuster in the U.S. Senate. An index to all other posts in the series, as well as a list of main sources that have informed this series, is included in the first post.

I’ll go out on a limb and suggest that most bloggers who devote more than a post to the filibuster find something they’d like to change about it. I’m no exception. But at least one (actual) scholar of the subject has written a defense of the filibuster, Gregor Koger. He notes that a 51-vote majority in the senate can represent just 17.7% of the nation’s population. Thus, a check on the majority is justified to minimize chances it “tries to pass legislation that lacks public support and/or is a payoff to some organized group. …”

In a second post in defense of the filibuster Koger emphasizes its positive role in fostering debate.

[F]ilibustering empowers the minority party to insist on a fair chance to debate major bills—and this is a good thing. Not only is it fair to the minority party—and good for the electoral process—to allow real debate on major legislation, it also enhances the legitimacy of the majority party and its actions.

Of course “empowering the minority” and “allowing real debate” are qualities of a process, but don’t themselves define it. Contrary to popular perception, the Senate’s terms and procedures of debate are open to redefinition and revision. Rule reform can occur at any time with 67-vote support. At the start of a new Congress (i.e., in January of each odd-numbered year) rule reform requires only a 51-vote majority, provided the Vice President declares a new session. The cloture rule has been modified in just this way in the past. For instance in 1975 the number of votes required to achieve cloture was reduced from two-thirds (67) to three-fifths (60) of Senators.

There is also a means 60-vote route to filibuster reform, as explained in a post by Jim Hufford. In other posts, Hufford goes deep into the weeds on the 51-vote (two posts) and 67-vote mechanisms.

With Harry Reid signaling an interest in revising Senate rules and Joe Biden as President of the Senate, it appears that at least discussion, if not action, toward curbing minority obstruction of the Senate is likely. What options might they consider? The following is a list of the broad categories of ideas I’ve seen so far, along with my thoughts about which are or are not sensible and why. Many of the links and some of the ideas were harvested from Koger’s excellent post that summarizes some specific Senators’ proposals. See also Jonathan Bernstein’s two posts that review various reform ideas.

Reducing Cloture Threshold. Cloture puts a date certain on conclusion of debate (30 more hours). Changing the cloture threshold for success from a three-fifths (60 vote) majority to something less would certainly make achievement easier. Tom Harkin has proposed to allow the cloture threshold to drop by three votes with each successive attempt. I agree with Koger that Harkin’s idea is the wrong way to go as it will decrease the cost of obstruction while further delaying the process. Evan Bayh has proposed a 55-vote cloture.

Michael Bennet’s ideas kick in after the third failed cloture vote. One is to force the minority to find bipartisan support or the cloture threshold reduces from 60 to 56. The same reduction would occur if the majority finds three minority members to vote for cloture. These strike me as both needlessly complicated and suffering from the same problem as Harkin’s idea. But I do like the notion of getting something for bipartisanship (more below).

Limit Holds. By objecting to unanimous consent a single senator can initiate a “hold” and require a cloture vote, not just on bills but on nominations, whether executive or judicial. Senators can even do so anonymously. Bennet has proposed to eliminate anonymous holds on nominations and to insert an expiration date on them (30 days if bipartisan, two otherwise).  Ruth Marcus of the Washington Post also suggests that executive (but not judicial) branch nominees be immune from holds, i.e. affirmed with a simple majority vote. Since one can imagine a check on executive appointments being wise and necessary, I favor Bennet’s ideas over Marcus’s: require bipartisan support for executive nomination holds to last longer than is necessary for a senator to have time to collect his thoughts (which is a reasonable justification for a brief delay of a deliberative body).

Reverse Bias of Cloture Vote. Bennet has another intriguing cloture idea: to require the 41 senators who wish to block cloture to appear for the vote, as opposed to the current arrangement which puts the onus on the 60 senators who wish it to pass. Koger gives credit to Jonathan Krasno and Gregory Robinson for this idea, and he points to the likely result were it implemented.

[I]f the rule was adopted the majority could make a habit of filing for cloture on Thursday or Friday and keeping the Senate open on Saturday and Sunday, so that obstructionists would have to stay in D.C. to vote against cloture. For today’s “Tuesday to Thursday” Senate (on a busy week) this would be a real change, and could quite possibly swing the outcome of some cloture votes.

Reduce Scope of Filibuster Applicability. Bennet and Marcus both suggest removing the right to filibuster the “motion to proceed” (the motion to bring the bill to the floor). Requiring multiple cloture votes on the same bill, whether to end debate on bringing it to the floor or on the bill itself, has only one purpose: delay. I agree with ending this unnecessary facilitation of gridlock.

Make ‘Em Talk. The idea of returning to the good-old-fashioned, Mr. Smith Goes to Washington, talk-a-thon type filibusters is very popular, probably out of a false sense of nostalgia, though it was considered by Robert Byrd and Richard Durbin, among others, during the health reform debate and threatened during the debate over financial regulation reform. I’m not a fan, neither are Marcus and Koger, nor would be most senators. Though requiring such a filibuster would reduce its allure by increasing its cost to the minority (good), senators have far better things to do than to waste time reading the phone book on the Senate floor. We ought to be able to come up with reforms that solve the filibuster’s problems without wasting everyone’s time.

Speed it Up. As of the writing of a 2003 Congressional Research Service report on the filibuster, the 30 hours of debate that successful cloture allows had never been fully used. It has been used since then, most recently during the health reform debate in December 2009. The infrequent use of the full 30 hours is justification for reducing it. Marcus also points to the two-day delay between the filing of the petition for cloture and the start of the 30-hour clock. But that delay actually has a purpose, to which I’ll return in my next post.

This post is part of a multi-post series on the filibuster in the U.S. Senate. An index to all other posts in the series, as well as a list of main sources that have informed this series, is included in the first post.

A filibuster can kill a bill, but often it motivates changes to it and causes a delay of its passage. So, filibusters end, but in different ways. Gregory Koger classifies the three main methods of countering the filibuster: cloture (a vote to end debate), attrition (waiting it out), and reform (changing the rules). I think there’s a fourth: concede (as in giving the opposition something it wants).

No doubt the route of concession is widely used and harder to detect. That’s exactly what Max Baucus was trying to do on the Senate Finance Committee last summer. His process of crafting a health reform bill was explicitly designed to attract the votes of Republican committee members (he got one) in order to decrease opposition and likelihood of filibuster.

These days Senate filibuster is closely associated with cloture (Senate Rule XXII), the invocation of which promises a specified degree of delay. Once a motion for cloture is presented, it is not voted upon for two days (the “ripening period”). Then, if passed (requiring 60 votes), it allows for 30 hours of debate on the bill to which it pertains. However, cloture is not employed only to counter a filibuster, but also as a tool to manage the Senate’s schedule and amendments process (more on this later in the series). Hence, a cloture motion cannot be taken as an indicator of the presence or absence of a filibuster.

Opposing a filibuster by attrition was more common before the 1970s. (An amusing historical fact: the longest single speech was made by Sen. Strom Thurmond of South Carolina on Aug. 28-29, 1957, lasting just over 24 hours.) More recently Mr. Smith Goes to Washington force-them-to-speak style filibuster opposition has been superseded by other countermeasures. Reasons were covered in the second post of the series. Attrition is just too disruptive to Senators’ schedules. Moreover, it provides the opposition an opportunity to create a spectacle, which is often what it seeks. Interestingly, however, Republicans backed down in response to the Democratic threat of opposition by attrition during the April 2010 debate over financial regulation reform.

Efforts to reform the rules that shape or limit filibuster are rare. One notable reform is the budget reconciliation process, included in The Congressional Budget Act of 1974. Budget reconciliation can be used to obviate the need for a cloture vote, but the purpose for which it is used must be anticipated in the budget resolution bill that Congress passes early in the year. The Center on Budget and Policy Priorities explains,

[A] reconciliation directive [included in the budget resolution] instructs a committee to produce legislation by a specific date that meets certain spending or tax targets. … The Budget Committee then packages all of these bills together into one [budget reconciliation] bill that goes to the floor for an up-or-down vote, with only limited opportunity for amendment.

Budget reconciliation was the legislative procedure used to amend the Affordable Care Act and, therefore, received a lot of attention. One of its peculiarities is the requirement that budget reconciliation provisions directly affect federal revenue or else they are ruled out of order (the so-called Byrd rule, first introduced in 1985). Reconciliation has been employed for major legislation, including that pertaining to health care, for decades.

The next post in the series will present current proposals to reform the filibuster.

This post is part of a multi-post series on the filibuster in the U.S. Senate. An index to all other posts in the series, as well as a list of main sources that have informed this series, is included in the first post.

My filibuster education was enhanced considerably by health reform. Never before had I followed the Byzantine journey of legislation so closely. As the Republican strategy of opposition and obstruction solidified, the filibuster played a key role in shaping legislation and dictating the schedule of its passage. Of course, that passage very nearly failed. It was the prominence and influence of the filibuster during debate over health reform that motivated my study of it and the writing of this series.

About health reform’s improbably successful journey through the Senate, Jennifer Senior wrote in New York Magazine,

The measure squeaked through on the basis of an exception (a fleeting Democratic supermajority) and a technicality (reconciliation requires only 50 votes). Before that, the Senate of the 111th Congress had been an awesomely inefficient body, threatening the most filibusters and reauthorizing appallingly few bills; almost every Democrat had a story about legislation held hostage.

Senior makes clear that health reform was not the only piece of legislation filibustered during the first year of the Obama presidency. As Gregory Koger notes, the filibuster played a prominent role early in the 111th Congress.

In January [2009], Senate Democrats were compelled to trim their first major bill—a “stimulus” package of spending and tax cuts—from $940 billion to about $780 billion ($787 billion in the final law) in order to gain the votes of a centrist bloc of moderate Democrats and three Republicans.

More recently, the filibuster was employed as a delay tactic during debate over financial regulation reform.

The Senate health reform bill famously had to run the filibuster gauntlet, requiring all 60 Democratic Caucus members to pass the Senate in December of 2009. In March 2010, amendments to the bill passed in a budget reconciliation process that operates under filibuster-proof rules. So, health reform was hard to pass, but it has always been so. Historically it was killed relatively early in the process. That filibustering was so apparent in the 2009-2010 effort is, in part, testimony to a successful legislative strategy, one that gained the support (or blunted the opposition) of major special interest groups, including health care providers and organized labor.

That Democrats succeeded in turning health reform legislation into the law—the Affordable Coverage Act (ACA)—does not mean the Republican filibuster had no tangible effect. In fact, the ACA adheres more closely to conservative ideals than it might have in the absence of unified Republican opposition. It is in structure, and in some details, similar to past Republican health reform proposals and to the Massachusetts health reform championed by former (Republican) Bay State governor Mitt Romney. It also includes many of the ideas Republicans proposed as alternatives.

What Republican unanimity in opposition did was to force Democrats to appeal to the most conservative members of their caucus. Had a moderate Republican or two (e.g. Olympia Snowe or Susan Collins) voted for reform, a few relatively conservative Democrats could have either voted off or might have felt safer in supporting a bipartisan bill. You might recall that Olympia Snowe even supported a weak form of public option (via trigger). The ACA has no such thing.

The filibuster of health reform presented Democrats with a collective action dilemma. Months passed during which fewer than all 60 members of the Senate Democratic Caucus wanted to vote for the latest proposal but the party had a strong interest in seeing a bill become law. This gave rise to some of the now infamous “backroom deals” such as the Cornhusker Kickback (which was ultimately removed in the reconciliation amendment).

Given that health reform did pass, the most significant way in which the Republican filibuster affected the legislative process was to cause substantial delay. That’s not surprising since that’s what filibuster is, if nothing else. It took three months for the bill to become law (March 23, 2010) after it had passed the Senate (December 24, 2009). And there were many earlier delays as well. In fact, the broad structure of reform hadn’t changed significantly between the summer of 2009 and when it ultimately passed both chambers of Congress. One could argue that Republican opposition and obstruction delayed passage and enactment by nine months. (See the NY Times, “A History of Overhauling Health Care.”)

That’s significant because little else occurred in those nine months. With health reform dominating the news and sucking up all the political oxygen, nothing was accomplished on environmental or financial regulation reform. That’s the narrow sense in which health reform was actually a victory for Republicans. They succeeded in delaying and obstructing substantial pieces of Obama’s legislative agenda. With the clock running, every day’s delay was a day closer to the mid-terms, in which Republicans hope to regain seats and begin building toward the reestablishment of their own majority and the retaking of the presidency.

Should the Republicans regain control of Congress and the presidency, the shoe will be on the other foot. The filibuster is not a Republican maneuver. It’s a minority one. Unless rules that shape its use are changed, expect Democrats to include it among their tactical options just as did their colleagues across the aisle.

The following appeared at Kaiser Health News on 28 June 2010 and has been cited in the 22 June 2010 edition of Health Wonk Review.

The mechanism that governs the growth rate of Medicare spending on physician services isn’t working. The Sustainable Growth Rate put in place in 1997 is supposed to keep total Medicare physician costs from growing faster than the overall economy. When costs do grow too quickly–and they always do–the law demands that prices be cut commensurately.

But it doesn’t work. The SGR target is too low. Medical inflation is perennially above the growth rate of the economy. So Congress always overrides those mandated cuts, and the gap between spending dictated by the SGR and actual spending grows. Most recently it stood at 21 percent.

This is no way to run a health care system. The SGR may make 10-year budget projections look good, but that’s only because it’s based on an unrealistic assumption that the mandated low growth rate can be sustained. By now we know that it can’t.

The solution is not to let the 21 percent cut go into effect. That’s too deep a cut and would devastate physician practices and severely restrict beneficiary access to care. Nor is the solution to keep patching the problem with interim over-rides. That’s what Congress did last week. It’s a stop-gap and doesn’t address deeper problems.  Instead, a systemic “doc fix” is required.

The first step toward a solution is a fuller understanding of the problem. Costs are the product of payments and volume. Growth in Medicare physician payments are constrained by the relatively small updates Congress allows in its over-rides of SGR dictated cuts. Last week Congress voted to replace the 21 percent payment cut with a 2.2 percent increase, for example.

With such small increases, payment levels are below those in effect in early in the decade, adjusted for medical inflation. (This is, by the way, a cost-control virtue of the SGR. There’s nothing like the threat of a double-digit percentage payment cut to make a one or two percent increase look large.) But the volume of health care services remains unconstrained. As it grows, so do costs.

Controlling volume is a challenge, one Congress has never met. It’s too easily defeated by charges of government rationing. Of course, markets ration, too, based on prices. In a market, higher prices lead to lower volume. But Medicare is not a market. Congress – not beneficiaries — pays most of the bill. Congress can’t dictate prices and turn a blind eye toward volume and expect costs to fall.

The SGR problem is now so large it offers an opportunity for political leverage on the issue of volume. The American Medical Association and other physician groups may want it fixed badly enough that they’ll accept some payment system changes in return. And, in the current anti-deficit climate the cost of a full fix–estimated at $245 billion over 10 years–must be partially offset with some kind of savings. As an illustration of the political power of a full SGR fix, the AMA supported health reform on the promise of one.

What should Congress seek in exchange for scrapping the SGR methodology? At the top of my list would be to base some of physician payment on quality improvement. Aligning payment incentives with quality and not quantity will strike at the heart of the cost growth problem. Also high on the list should be reducing payments to specialists and increasing those for primary care physicians.

Specialists are responsible for hundreds of billions of dollars of unnecessary care annually and primary care doctors are predicted to be in short supply as more Americans obtain coverage under the new health reform law. Finally, payments should be adjusted to account for geographic variation in costs that are reasonable and related to appropriate care.

The SGR system was flawed from the start and should have been fixed years ago. But now we have an opportunity to make necessary systemic changes. This lemon really can, and must, be turned into lemonade.

Acknowledgment: Aaron Carroll (physician, Indiana University professor, and blogger) provided valuable feedback on an earlier draft.

Nancy Marshall Genzer, by quoting me, highlights a key problem with the interim high-risk pools that started taking applications today. There’s not enough money allocated for them, only $5 billion to get us to 2014. The CBO says that’s only enough for 200,000 enrollees. Based on my 2005 paper on high-risk pools, I think there’s closer to one million likely eligible for them. What to do?

This isn’t a tough one to solve, but none of the options look so hot politically because they can all be spun as a failing of the law. They’re all rocks and hard places. (OK, maybe one or another is a big bed of thorns–cozy!)

• Turn away applicants once the money runs out? That’s a lousy thing to do and those folks are pretty sympathetic cases. Imagine the media sob stories (justifiably so).
• Ask Congress for more money? Are you kidding?! What, just a few years into the fabulous new health reform law and you’re already out of money?!?!
• Raise premiums on the medically needy? How does that play? Not good.

Frankly, I’m surprised the Democrats got themselves into this pickle. The high-risk pools are one of the first things the new law creates. You want the early stuff to be successful. You don’t want to have to admit you blew it. Even if they had put $25 billion into the pools that would have hardly changed the total spending in the bill (close to $1 trillion). Why were they so stingy?

My guess is they’ll sneak a payment increase into some other bill, bury it among all sorts of tweaks, and pay for it with a tiny cut to something else (or claim as much). Nevertheless, it was a silly mistake. Or am I missing something?

A reader sent a link to the following paper. I had no idea.

Abnormal Returns from the Common Stock Investments of the U.S. Senate, by Alan J. Ziobrowski, Ping Cheng, James W. Boyd and Brigitte J. Ziobrowski, Journal of Financial and Quantitative Analysis, 2004, vol. 39, issue 04, pages 661-676.

The actions of the federal government can have a profound impact on financial markets. As prominent participants in the government decision making process, U.S. Senators are likely to have knowledge of forthcoming government actions before the information becomes public. This could provide them with an informational advantage over other investors. We test for abnormal returns from the common stock investments of members of the U.S. Senate during the period 1993-1998. We document that a portfolio that mimics the purchases of U.S. Senators beats the market by 85 basis points per month, while a portfolio that mimics the sales of Senators lags the market by 12 basis points per month. The large difference in the returns of stocks bought and sold (nearly one percentage point per month) is economically large and reliably positive.

Your tax dollars pay those savvy senators for early access to the information upon which they may be trading. Sounds rather unsavory. However, this study was conducted during the pre- or very early internet age. Whatever informational advantage senators have, it’s likely smaller now.

This post is part of a multi-post series on the filibuster in the U.S. Senate. An index to all other posts in the series, as well as a list of main sources that have informed this series, is included in the first post.

In this installment I summarize the history of the filibuster.

Sarah Binder, author of Politics or Principle: Filibustering in the United States Senate, explained in a March 2010 interview with Ezra Klein that the origins of the Senate’s filibuster stem from the removal of the “previous question motion.” I hate the name of that motion since it reveals to me little of its function. It suffices to know that it is essentially a simple majority version of today’s 60-vote cloture rule. That is, a previous question rule would terminate debate in the Senate with 51 votes. Binder to Klein:

In 1805, Aaron Burr … comes back to the Senate and gives his farewell address [in which] he goes through the rulebook pointing out duplicates and things that are unclear.

Among his suggestions was to drop the previous question motion. And they pretty much just take Burr’s advice. And once it’s gone, it takes some time for leaders to realize that they can’t cut off debate anymore. But the striking part to me was that we say the Senate developed the filibuster to protect minorities and the right to debate. That’s hogwash! It’s a mistake. Believe me, I would’ve loved to find the smoking gun where the Senate decides to create a deliberative body. But it takes years before anyone figures out that the filibuster has just been created.

Thus, the filibuster was not invented in a conscious effort to create a more deliberative legislative body. It was, rather, an accidental byproduct of early 19th century Senate rules reform. The Senate’s filibuster owes its existence not to design but to a lack of provisions that would limit senators’ rights to participate in the legislative process.

Though it has existed for centuries, the filibuster’s form and frequency have not been constant. Filibustering was rare before 1960 and “has skyrocketed since then, from an annual average of 3.2 filibusters during 1951–1960 to 16.5 between 1981 and 2004. … [There were] 111 during the 110th Congress (2007-2008) alone.” (Source: Koger.) The following figure documents the number of filibuster-ending cloture votes by  year (Source: David Lightman, McLatchy).

Scholars have investigated the extent to which changes in rates of filibuster are correlated with other seemingly relevant factors like Senate turnover, partisanship, and threat of reform. These factors, however, do not have a strong relationship with filibuster use historically.

The frequency of filibuster has increased as the legislative penalties for obstruction have decreased. Prior to 1917 the only available responses to the filibuster were to wait it out or to strike a deal. In 1917, Woodrow Wilson convinced the Senate to adopt a rule that could limit debate, the cloture rule. In its original form it allowed for the halting of debate if two-thirds (not today’s three-fifths) of senators agreed.

Though a cloture rule existed, it wasn’t frequently used until much later in the century. The change came after the strategy of trying to outlast a filibuster failed during debate over the Civil Rights Act of 1960. Southern senators thwarted efforts to bring debate to a close.

This failure led several senators to rethink the Senate’s tolerance for filibustering, given the body’s growing workload. After all, the federal government had expanded tremendously since the 1930s, and the United States had taken on the foreign-policy responsibilities of a world superpower. Moreover, with the growing availability and convenience of air travel, senators also enjoyed easier transportation to their home states, to speaking opportunities around the country, and to foreign travel. It was increasingly difficult for the legislature either to overcome or outlast a filibuster. (Source: Koger.)

Consequently, the necessity of cloture votes to pass major legislation become routine. In 1975, Nelson Rockefeller, Gerald Ford’s Vice President, succeeded in a decades-long effort to reduce the cloture threshold. It dropped from a two-thirds to a three-fifths majority, the level that exists today. Around the same time filibustering shifted from a round-the-clock talk-a-thon that shut down the Senate to a behind the scenes threat that blocked individual bills (“holds”). A further shift in filibuster tactics and frequency was facilitated by Robert Byrd’s dual-track system, which put filibustered legislation to the side so the Senate could take up other business. Forcing a cloture vote no longer gummed up the entire Senate. It just slowed down or blocked passage of a specific piece of legislation.

The rules governing cloture have been modified over time in other ways. For example, before 1979 there was no cap on the time allotted for post-cloture debate, opening the possibility for post-cloture filibuster (a seeming oxymoron that was exploited). Thus, in 1979 debate was capped at 100 hours after a successful cloture vote. In 1985 the cap was reduced to 30 hours. However, even that length of debate had never occurred as of the writing of a 2003 Congressional Research Service report on the issue. Since 2003, 30 hours of post-cloture debate have been used, most recently during the debate over health reform in December 2009.

Today forcing cloture votes has become a standard tactic of the minority, even when it doesn’t have the votes to sustain a filibuster. Ezra Klein explained the rationale in a March 15, 2010 Newsweek column.

The goal is to slow the Senate to a crawl. After you call for cloture, you need to wait two days to take the vote. After you take the vote, there’s 30 hours of post-cloture debate. And you can do this on the motion to debate, on amendments, on the vote on the bill itself … on everything, really. A single, committed crank … can waste weeks forcing the majority to break his filibusters.

With these innovations of obstruction, filibustering became less costly to the minority. It was less public and did not threaten other Senate business. Thus, it became a more routine means by which to extract concessions. Welcome to the modern Senate, the home of gridlock.

Jim Hufford recently completed a very good five-part series on the filibuster, to which I linked in the initial post of my own series. Since he has good taste, he linked back to my filibuster series kick-off and noted that it is a good source for references on the topic. Then he suggested a bunch of other references, which I’ll swipe. The following is quoted from Hufford so all commentary is his.

• Beth, R. (2005). “Entrenchment” of Senate Procedure and the “Nuclear Option” for Change: Possible Proceedings and Their Implications. Congressional Research Service.
• Davis, C. (2005). Standing Order and Rulemaking Statute: Possible Alternatives to the “Nuclear Option”? Congressional Research Service.
• Gold, M. & Gupta, D. (2005). The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster (pdf). Harvard Journal of Law & Public Policy.
• Palmer, B. (2005). Changing Senate Rules or Procedures: The “Constitutional” or “Nuclear” Option. Congressional Research Service.
• I know I’ve mentioned Jonathan Bernstein’s filibuster reform series, posted as guest blogger for Ezra Klein (whose own merits are unrivalled), about a hundred times already. Make it a hundred and one. See also Bernstein’s posts on filibusters at his own place, A Plain Blog about Politics. Examples here, here, and here.
• I’m also a fan of David Waldman’s work at Congress Matters. Waldman manages to put legislative procedure and wit together in ways most people would assume impossible.

Whew! There’s no way I’m going to read all that, but I wish I could. (Life is too short and requires too much sleep. Damn it!)