Everyone Loves An Opt-Out

Here we have yet another compromise on the public option that sets moderates in Washington stirring. The "opt-out" national public option, which would offer states a chance to eliminate it for their own jurisdiction, is gaining support on Capitol Hill. Chuck Schumer says it's being "very seriously considered". Max Baucus says through an aide he would consider supporting it. Howard Dean said he'd support it if he were a Senator. Richard Kirsch from HCAN says it's better than triggers, co-ops and opt-ins, which is faint praise but praise nonetheless.

I think there's some good and bad to it. We don't know what the opt-out would look like - a referendum? Gubernatorial veto? Federal waiver? A policy bill with a hurdle in state legislatures? Tied to funding? - and how easy it could be surmounted, as well as how easily gamed by special interests. Insurance companies are spending $1 million a day to beat the public option in Congress, you don't need that much to beat it in the states. Would this have a chilling effect on all federal legislation, with every big bill subsequently requiring a state opt-out, balkanizing the country? Or would every red state Governor bluff at opting out, and then, after seeing the numbers for how this would really help people, grudgingly accept it? We also don't know what kind of public option this would bring into being. Would it be Chuck Schumer's weak conception with no tie to Medicare bargaining rates? Or a robust public option with Medicare + 5% rates and Medicare's provider network? I think Nancy Pelosi is doing something very smart by scoring both versions just so the fiscal conservatives can choke on the numbers.

Speaker Nancy Pelosi (D-Calif.) will submit multiple versions of the House's healthcare bill for cost estimates, she announced on Thursday.

The first proposal will include a "robust public option," which would tie doctor reimbursement rates to that of Medicare plus five percent. The remaining two drafts submitted for the Congressional Budget Office's consideration would include a public option based on "the negotiated rates that some in our caucus have supported and which was passed by the Energy and Commerce Committee," the speaker explained during Thursday's press briefing.

"And then we'll see back from the CBO what the scoring is on all of that," Pelosi said. "And, of course, we have promised not a dime to the deficit. This is our promise. We will not take a bill to the floor, the president will not sign a bill that adds a dime to the deficit."

We already know that the CBO considers the robust version to save $85 billion more than the weak version, so this will just cement that even more.

All the while, House Progressives, which have formed a block requiring a straight national public option with no opt-out and ties to Medicare rates, continue to say they won't compromise, won't blink, and claims that they have the votes they need to pass their plan in the House, although some have questioned the numbers.

I think the strategy should be maximalist - pass the best of what you can in the House, and the best of what you can in the Senate, so that when the two bills are merged, you at least are dealing with the best possible from both chambers. A merger, for example, could see a Medicare-tied public option with the opt-out clause.

However, the nagging feeling is that nobody wants to stop the public option, or at least nobody wants to be responsible for it. In that case, shouldn't the plan for supporters be to say to them, "We dare you to kill this"?

Reviving State Regulatory Laws

This is a bit in the weeds, but President Obama reversed a major Bush policy which pre-empted state regulations with federal guidelines that were often threadbare and protected corporate interests over the public. This has implications for consumer product safety, environmental law and all sorts of other regulations. I'd like to see the states-rights conservative argue that it makes more sense for the federal government to pre-empt all kinds of local regulations rather than having those closest to the local issue, and closest to the people, make the decision. While this won't get much attention, it really is the kind of major reversal that leads to something like you saw yesterday, where the federal government adopted California emission standards for cars, instead of fighting them in court.

When Obama does something good, I reward. When he doesn't I beat with a stick. That's how I roll.

Consumer Rights Victory At SCOTUS?

The Supreme Court today ruled that Congress does not give drug companies immunity from prosecution by regulating drugs through the FDA.

Diana Levine was a successful musician, until a toxic drug took away her right hand. The drug, an anti-nausea medicine made by the company Wyeth, causes irreversible gangrene if injected into a patient’s artery. Because Wyeth failed to adequately warn doctors of this poisonous effect, however, a physician’s assistant used an unsafe method to inject the drug into Levine. Her hand and her livelihood were the casualties.

After a Vermont jury found that Wyeth was liable for failing to warn doctors of the dangers presented by its drug, Wyeth claimed that it was immune to accountability for its failure, and that Diana Levine was entitled to nothing as a result. Specifically, Wyeth argued that, because the FDA has to approve new drugs before they enter the market, FDA approval of a drug or its labeling “preempts” any state law which also effects drugs or labels. Needless to say, if Wyeth had won today, it would have been a massive giveaway for the drug companies—total lawsuit immunity.

Instead, today’s Supreme Court decision upheld the basic American value that no one is immune from the law.

It was a bit of a surprise verdict, especially considering that it was a 6-3 ruling, with Clarence Thomas siding against the radical right of Scalia, Alito and Roberts and with the majority. Thomas is the only principled conservative in this scenario, because he essentially argued that state law cannot be pre-empted by FDA aproval. What made it interesting to me is that the same Court recently ruled that medical device manufacturers could not be held responsible in lawsuits, using markedly different logic. It's good news that Henry Waxman and Ron Pallone hailed the ruling in this case by hearkening back to that one, and seeking to fix it.

“I am pleased that the Supreme Court has recognized the important right of patients to seek redress in court if harmed by a drug – this is a critical check that helps ensure the safety of pharmaceuticals," said Chairman Waxman. “I hope that the Congress will now move to level the playing field and act swiftly to enact legislation to reverse the Court’s earlier decision regarding medical devices and restore the ability of patients injured by medical devices to have their day in court."

"Today's Supreme Court decision is a giant victory for patients," Chairman Pallone said. "Drug companies must be responsible for the safety of their products, and this decision is likely to make pharmaceuticals safer for all Americans. The decision also highlights the need for Congress to pass legislation giving patients harmed by medical devices the same legal recourse now affirmed for pharmaceuticals. There should not be any distinction between the legal treatment of pharmaceuticals and medical devices, and without action by Congress this unfortunate distinction will continue to exist."

We've heard that these two would be introducing legislation to reverse the SCOTUS ruling on medical devices. Today's ruling gives them even more of an impetus to do so.

Not Only Ignorant, But Destructive

It's not just that Sarah Palin can't name another Supreme Court case besides Roe v. Wade - wait, OK, it is that. But there's something more here, something that will offend the intelligence of more than merely all rational Americans. She believes in the Constitutional right to privacy.

Couric Why, in your view, is Roe v. Wade a bad decision?

Sarah Palin: I think it should be a states' issue not a federal government-mandated, mandating yes or no on such an important issue. I'm, in that sense, a federalist, where I believe that states should have more say in the laws of their lands and individual areas. Now, foundationally, also, though, it's no secret that I'm pro-life that I believe in a culture of life is very important for this country. Personally that's what I would like to see, um, further embraced by America.

Couric: Do you think there's an inherent right to privacy in the Constitution?

Palin: I do. Yeah, I do.

Couric: The cornerstone of Roe v. Wade.

Palin: I do. And I believe that individual states can best handle what the people within the different constituencies in the 50 states would like to see their will ushered in an issue like that.

I don't know if she believes in the right to privacy or if she believes in the words "right" and "privacy" and saw them together and took a stab at it. But this is a major, MAJOR no-no for the fundies and the wingnuts. She undermined the entire intellectual argument against Roe without even recognizing it. Taking her logic (if it can be called that), if there's a Constitutional right to privacy then there's a right to keep medical decisions confidential, not a state's right but a fundamental Constitutional right.

This is about 35 years' worth of arguments crashing down right now. If any backlash could cost her the nomination it would be over this. This reaches into Harriet Miers territory.

On a couple other notes:

1) Given that Palin is now personally responsible for saving Katie Couric's job, is there any kickback scheme in the offing?

2) Given that the gobbledy-gook answers that randomly generate at InterviewPalin.com are actually starting to be less surreal than what comes out of her mouth, have we reached a subject that is invulnerable to parody?

3) Do we really know whether or not Sarah Palin is Sacha Baron Cohen's greatest role?

California GOP To Schwarzenegger: We Hate Clean Air

Congressional Democrats are now trying to move legislation that would overturn the EPA's anti-scientific decision which denied California a waiver to regulate their own tailpipe emissions. Arnold Schwarzenegger is suing the EPA. It seems that the only group of people who aren't on board with this policy are Republican members of Congress.

Most GOP members of the state's congressional delegation are siding with the Bush administration in trying to keep states from imposing stricter regulations on greenhouse gas emissions than the federal government. Without bipartisan support from the state's representatives, the bill's proponents say, the measure's prospects are dim.

"I don't support California thinking that it can act alone effectively," said Rep. Darrell Issa (R-Vista), noting that climate change is a problem that extends beyond state lines.

A House bill to allow California and other states to implement their own tailpipe regulations was introduced last week, with the support of 27 of the 33 California Democrats, including House Speaker Nancy Pelosi of San Francisco. Only two of the 19 Republicans -- Rep. David Dreier of San Dimas, who is perhaps Schwarzenegger's closest ally in the delegation, and Rep. Mary Bono Mack of Palm Springs -- signed on as cosponsors.

In addition to Issa, John Campbell, Kevin McCarthy, George Radanovich, Devin Nunes and Wally Herger are quoted, all saying a variation of how global warming is a big problem and we have to have a unified solution. Of course, 18 other states are signing on to California's lawsuit, representing a majority of the population who actually wants to do something abut climate change.

I really think this has the potential of politically isolating the GOP. It's notable that Dreier and Bono Mack understand that their districts are becoming more purplish, and that they need to stay out in front of them. But the combination of hypocrisy among the state's rights crowd and being on the wrong side of popular opinion (most California Republicans favor granting the waiver) and scientific rationality could make for a powerful wedge. We know that people are finally starting to drive less. Utilities are starting to block production of any and all coal-fired power plants. Those who are standing in the way of renewable projects, alternative energy solutions, and yes, government mandates to solve the problem are dinosaurs. At the Congressional level, I believe this vote will resonate in November.

Incidentally, if you want to see some of that post-partisan leadership in action, check it out:

Schwarzenegger spokesman Bill Maile said the governor supports the legislation. By allowing California to implement "the nation's toughest tailpipe regulations," he said, "it will help us achieve our aggressive goals to reduce greenhouse gases." But a number of California Republicans in Congress say that they have yet to hear from Schwarzenegger or his office.

Way to put the pressure on, Guv.

Ideology Over Healthy Families

Really, this Administration is bucking to go down in history as the world's most callous collection of people.

The Bush administration, continuing its fight to stop states from expanding the popular Children’s Health Insurance Program, has adopted new standards that would make it much more difficult for New York, California and others to extend coverage to children in middle-income families.

Administration officials outlined the new standards in a letter sent to state health officials on Friday evening, in the middle of a month-long Congressional recess. In interviews, they said the changes were aimed at returning the Children’s Health Insurance Program to its original focus on low-income children and to make sure the program did not become a substitute for private health coverage.

The S-CHIP program works, states want more of their kids to be covered, and in the long run it's far more affordable than allowing the uninsured to use the emergency room as their primary care physician.

Doesn't matter to this President. Wouldn't want people to get the idea that they can get decent health care.

California wants to increase its income limit to 300 percent of the poverty level, from 250 percent. Pennsylvania recently raised its limit to 300 percent, from 200 percent. New Jersey has had a limit of 350 percent for more than five years.

Before making such a change, Mr. Smith said, states must demonstrate that they have “enrolled at least 95 percent of children in the state below 200 percent of the federal poverty level” who are eligible for either Medicaid or the child health program.

Deborah S. Bachrach, a deputy commissioner in the New York State Health Department, said, “No state in the nation has a participation rate of 95 percent.”

The President is mandating these participation rates, but offering no budgeting for them. It becomes a self-fulfilling prophecy, designed for states to be unable to meet the 95% number and therefore restricting health access for children.

Basically what the President is saying here is that the system is working too well. They speak about competition but they don't want S-CHIP to ever compete with private insurance (mainly because it would blow the doors off of it).

To minimize the risk of such substitution, Mr. Smith said in his letter, states should charge co-payments or premiums that approximate the cost of private coverage and should impose “waiting periods,” to make sure higher-income children do not go directly from a private health plan to a public program.

If a state wants to set its income limit above 250 percent of the poverty level ($51,625 for a family of four), Mr. Smith said, “the state must establish a minimum of a one-year period of uninsurance for individuals” before they can receive public coverage.

There's another provision that says if private insurers start losing customers to S-CHIP then the higher coverage would be slashed. This despite the fact that insurers have never seen such a drop, and if they did it'd be their own fault for denying coverage to so many based on pre-existing conditions.

This is an important moment for the nation. At a time when health care is the number one domestic policy, when tens of millions have been added to the ranks of the uninsured, and when this President has done virtually nothing about it in 6 1/2 years, he's putting up a firewall designed to make sure your kids aren't covered.