Political Theater at its Worst

Politico's Jennifer Haberkorn and Manu Raju reported last week on discussions among Senate Republicans about whether and how to use parliamentary procedure tied to the Budget Reconciliation process to repeal the Affordable Care Act (Obamacare) in the next Congress.

Explaining the technical elements of this effort are not necessary for this particular blog post, but this process would allow the Senate Republican majority to pass legislation repealing Obamacare with a simple majority of 51 votes without Democrats being able to filibuster it. 

Any discussion occurring on this topic, and any effort to use reconciliation to repeal Obamacare represent political kabuki theater at its worst. Simply put, such an effort would be utterly and completely disingenuous and would indicate that Republicans care far more about appeasing their base than they do governing. 

Make no mistake about it, most elected Republicans (if not all), genuinely believe that the Affordable Care Act is bad public policy. I've seen very few policy based explanations (i.e. the ACA will cause these negative consequences) as to why the law is such bad policy (as opposed to ideological ones that view the ACA as greater government intrusion into the healthcare system and into people's lives). But I don't doubt the genuineness of this belief. 

Regardless, however, of what Republicans genuinely believe, they cannot repeal or destroy the Affordable Care Act before at least the spring of 2017. President Obama will veto any legislation that the next Congress passes to repeal the Affordable Care Act or to gut its core. 

Overriding such a veto would require the support of 13 Democratic senators. Based on National Journal's 2013  vote rankings, that would require the support of liberal stalwarts Jeff Merkley (OR) and Tim Kaine (VA), and socialist Bernie Sanders (VT). The odds of that happening are roughly equivalent to me being offered a job with a $1 million per year salary, a date with Jennifer Lawrence, and a body guaranteed to last me without major issue until age 105 in the next 24 hours. 

As such, any repeal vote would represent political theater designed to signal Republicans' dislike for the law, and to let the conservative base know that elected Republicans agree with them about Obamacare, and are doing everything they can to destroy the law.

There would be no real governing cost to holding a regular vote to repeal Obamacare in the Senate. Democrats would filibuster, the bill would go nowhere, and Republicans could lament the Democratic obstruction. Attempting to use reconciliation to vote to repeal Obamacare, however, has real governing consequences.

As Haberkorn and Raju detailed, attaching repeal of the Affordable Care Act to budget legislation could imperil other legislative priorities that have an actual chance of becoming law—such as corporate tax reform, or even individual tax reform. If President Obama vetoes a budget reconciliation bill because it repeals the Affordable Care Act, Congress could not subsequently pass another reconciliation bill including tax reform (or any other legislative priority). 

While all of this procedure can be arcane and confusing, the ramifications of this distinction are huge. If tax reform, for example, is not part of a budget reconciliation bill, it would be subject to a Senate filibuster. Thus, it could only be achieved with the support of at least 60 senators. This hurdle might allow a coalition of liberal and conservative senators who disliked a compromise tax reform bill for different reasons to come together to torpedo it. 

Using the budget reconciliation bill to stage a symbolic and fruitless attempt to repeal Obamacare also would undoubtedly irritate and antagonize President Obama pointlessly. After 5 years of rhetoric and countless House votes, the vast majority of the public is well aware that Congressional Republicans loathe the law and that there is absolutely no way that the president will allow them to repeal it. 

The suggestion that Republicans are even contemplating using reconciliation to repeal the ACA should bother Americans, because it calls into question post-election Republican promises to focus on governing and to work with the President where possible. Passing such reconciliation legislation would be highly controversial and acrimonious. It would also likely occupy a substantial amount of the finite legislative calendar time because it would involve significant parliamentary maneuverings. 

All of these consequences would make it more difficult to pass other consequential, much needed, and possible legislation, ranging from tax reform to increased transportation funding—all in the name of a symbolic effort that represents the prioritization of politics over legislating. 

The American people are well aware that, if given simultaneous control of Congress and the White House (including 60 senators), Republicans plan to dismantle the Affordable Care Act by any means necessary. They do not have to resort to legislative contortions to prove this point.

This use of reconciliation would undoubtedly please the conservative base. It is exactly kind of tactic that Senator Ted Cruz (R-TX) advocates, because it would represent the maximum possible effort that Republicans could take to destroy a law that they have pledged to repeal.  

Yet, Republicans would be far better off operating as they did on the recently passed "CRomnibus." Thanks to the give and take of the traditional (but rarely seen today) legislative process, that bill carried many Republican favored policies into law (including the highly controversial banking provision that enraged liberals). 

Make no mistake about it, Democrats must understand and accept that the only way to accomplish anything over the next two years is to accept certain Republican priorities becoming law in exchange for some Democratic priorities becoming law. Divided government necessitates this sort of horse trading. 

But such negotiations require trust among the President, Congressional Democrats, and Congressional Republicans. Successful legislation would also require both sides to bargain in good faith, settle for half a loaf, and be willing to infuriate their bases. 

The discussion of using reconciliation to repeal Obamacare unfortunately and ominously signals that Republicans would rather antagonize the President, pass up a chance to achieve major legislative goals, and appease their base than do these things. 


American Health Care— Best in the World?

People (especially political conservatives) like to break out the claim that Americans have the best health care and health care system in the world. This claim makes me laugh. 

Yes, we've avoided the scourge of socialized medicine. We don't have government bureaucrats making rationing decisions about our health care. 

But instead, we've got private bureaucrats making these decisions (i.e. the pre-certification process). Instead of government bureaucrats denying a particular drug or treatment that your doctor orders, a private insurer does it. 

Just like the government in a socialized medical system, private insurers decide if cutting edge or experimental treatments should be covered. 

Additionally, as insurers narrow their networks of doctors in an effort to keep costs down, they are essentially choosing your doctors for you, because paying for out of network doctors is often cost prohibitive for most people. 

We also have a system in which many, many doctors feel as though they must pay inadequate attention to patients, and squeeze as many patients as possible into a day in order to make a living. 

We even have a system in which many medical decisions are made by residents who can work up to 16 hr shifts and 80 hours per week. To make matters worse, many programs expect these young doctors to do just as much work as they did under an old system in which they could work 30 hour shifts, and even longer weeks.

Even under this new system, medical residents are overworked and have too little time for sleep. I don't know about you, but I don't really love the idea of a doctor, no matter how talented, making decisions about my medical care in hour 80 of the work week. 

I'm not arguing that our medical care is bad. We have many cutting edge technologies available to us that aren't available in other countries. We also have fantastic doctors. I would never denigrate the quality of our doctors. 

Nor am I arguing for a socialized medical system. Those systems have their own flaws. 

I am arguing, however, for an acknowledgement that our system needs an overhaul that goes far beyond the reforms in the Affordable Care Act—one that refocuses it on how to provide the best care for patients. 

For starters, our insurers should be non-profits. Any dollar that goes to profit for the insurance company is a dollar more that people have to pay for an essential service, or a dollar less going to doctors who deserve the money, and might be able to provide better care if they could see fewer patients. 

Competition is good (which argues against socialized medicine). And there are other ways that we could structure insurance companies to incentivize innovation, without allowing companies to make large profits and/or to pay executives huge salaries, while premiums go up by large amounts each year. 

Second, we must reorient our system towards preventative care. My favorite example has always been insurers who don't pay for orthotics, but who cover the foot surgery that results from not wearing them. But more broadly, we need to reward doctors for catching problems early, and keeping their patients from needing expensive treatments. 

We should find a way to ensure that people get physicals every year (and all of the related tests and screenings) and to reduce premiums for those engaging in healthy lifestyles. 

We also need to reorient the winners and losers in our system. The New York Times has done a fantastic series showing how much more Americans pay for the same drugs and procedures than people do in other industrialized countries (see these pieces on colonoscopies and asthma inhalers). 

Right now, our system benefits some specialists (dermatologists being one), while punishing doctors in less lucrative fields—especially primary care physicians (if we continue on the current trajectory, by 2020 we will have a shortage of more than 20,000 primary care physicians). Most doctors take on huge amounts of debt to go through medical school, and thus, have to look for ways to charge the maximum amount to patients (I'm looking at you podiatrist who had me come in for a follow up visit, and then never examined my foot during that visit). 

Maybe we need to make medical education free to reduce the incentive to cram as many patients in per day, and to perform as many procedures as possible. All of the incentives right now encourage doctors to do more tests, more procedures, etc. 

Second, we need to pass sane hour limits for medical residents— how about a 50 hour work week with 10 hour shift limits? Why should we ask our most important professionals to work crazy hours, when they can't possibly be as sharp in hour 16 of the day, as they we'd like them to be?

I know that some medical professionals argue that this would result in residents who don't receive sufficient experience during their residencies. If that is the case, then the proper solution is to extend residencies, but to pay residents better to reflect how much of their career is spent as residents. 

Others argue that the increase in the number of handoffs caused by shorter resident shifts might hurt patients. But there is a simple solution to this problem— increase the number of doctors and nurses working in a hospital at a time, and stagger shifts. Already nurses have to fight for adequate staffing levels. 

While these proposals might be costly, they might also save money by reducing lawsuits that result from errors made by exhausted doctors and overburdened nurses who've been dealt a rotten hand. More importantly, they may save lives, and prevent errors that doctors and nurses make through no fault of their own. It also is far more humane to the poor residents whose work weeks are inexcusably long. 

These initiatives could also be funded by reallocating funds within the health care system. How should we do that?

I firmly believe that we need government price setting, or at least government using its purchasing power (through Medicare) to negotiate lower prices for procedures and drugs. Drugs shouldn't cost 10 to 20 to even 30x as much as they do in Europe. 

Pharmaceutical companies darkly warn that if we cap the prices on drugs, we'll stifle research and development. Well maybe it's time to stop having Americans pay for the entire world's research and development, while consumers in other countries benefit from these drugs, but pay far less. 

Here's another idea: maybe pharmaceutical companies should stop spending so much on advertising (one study found that drug manufacturers spend $19 on marketing for every $1 they spend on basic research. We also know that drug manufacturers spent $2.4 billion just on television advertising in 2011).

Outside of the First Amendment right to free speech (which likely prevents a law banning such advertisements), I'm honestly quite confused as to why a prescription drug should ever be advertised on television. Whether or not a patient needs a drug should be up to a doctor, and doctors don't find out about new medicines from television ads. 

There is something insidious (not to mention costly) with running ads for prescription drugs in an attempt to get patients to go to doctors and request them. 

If private companies won't have enough incentive to develop new drugs without 30% profit margins, then maybe we need to use public funds to undertake drug development. 

At the very least, it's time to end the practice of re-patenting— in which a company slightly changes a drug, for example making it a chewable pill instead of a pill that the patient swallows, in order to get a new patent that prevents the development of generic alternatives.

The New York Times offered a great example of this process— the federal government ordered the manufacturers of spray products to remove chlorofluorocarbon propellants, which harmed the environment. That allowed for new inhaler designs (even though the drug itself did not change), which allowed manufactures to get a new patent, which led to skyrocketing prices for inhalers. 

This process is unconscionable. It reduces the quality of life for many Americans, creates costly litigation, and drives up our healthcare costs. Those increased costs drive premium increases, keep doctors from seeing fewer patients, etc. 

Overall, we have a system that only sometimes serves patients well, asks more from doctors each day (in return for less compensation), but sees pharmaceutical companies make large profits, and health insurance companies profit (and pay executives multi-million dollar salaries).

That structure gets it all wrong. Healthcare should be affordable and treatment quality shouldn't be driven by wealth. While we must not allow bureaucracy to stifle development of new treatments and medical products, we also cannot let our desire to protect industry profits (under the guise of respect for the free market) harm the vast majority of Americans. 

Additionally, it's time to realize that the free market does not and cannot operate in the medical realm (when a doctor tells you that you need a procedure or a drug do you go and price shop? Is it even possible?)

As such, we must accept rational government intervention to protect the public interest, even if it harms specific companies. This intervention can occur without stifling innovation. Any argument to the contrary is a canard aimed at protecting large salaries and high profit margins.

Do we also need other reforms as well— including some form of tort reform that reduces how often doctors practice defensive medicine, turning hospitals into non-profits, etc— yes. 

We also must consider how much of our medical costs stem from our aversion to things like soda taxes or transfat bans that might limit our freedoms in limited ways, but would result in a healthier population with lower healthcare costs. 

Finally, we also need to have an adult conversation about end of life care (no, fear mongering about death panels doesn't count). According to one study, more than 28% of Medicare spending covers care during the last six months of people's lives. 

These changes might not be perfect— indeed we will need to continue experimenting and innovating as medical care advances and as we try policy ideas out. One problem with the Affordable Care Act is that the politics surrounding it have prevented any tweaks or subsequent improvements. 

Yet, I'm confident that they would improve many elements of our system, and reveal other potential solutions that we could employ in the future.