Saturday, September 9, 2017

President Chemo

I must applaud President Trump for his deal with the Democrats on Harvey aid and the three-month delay of the fiscal cliffs before us.  The most interesting thing about the deal is that Republicans fell in line behind it.  Why didn't McConnell and Ryan say "Sorry, Don, but we're not going to bring that bill to the floor"?  My guess - they don't want to say that.  My guess - they do want to return to regular order.  My guess - they don't want an approval rating of 19% or whatever it is.  All they needed was political cover, and the President, nominally of their own party, has given it to them  This is how the fever breaks in American politics.  If it breaks.

The Republican party has destroyed itself, and race remains at the heart of the problem.  When Lyndon Johnson and the Democrats signed the Civil Rights Act in 1964, the GOP became the party of the unreconstructed South.  The votes were there, and, having no scruples, Richard Nixon and his pals went for them.  A voting (but not philosophical) coalition arose among white voters, even those who hated what the Yankee business interests the party actually stood for.  From Nixon onward, the GOP has been on the wrong side of domestic history, bailed out in the 1980's by being on the right side of world history.   Now, the party is on the wrong side of everything, all because it has put "winning" over deserving to win.

No doubt, the Democrats lowered the bar, and they get no praise for becoming the party of the disenfranchised and no one else.  The Democrats abandoned Big Labor and its members in favor of victims of "oppression."  Oppression is a bad thing, but a party devoted to its remediation is a makeweight, a group whose support one seeks - like the Greens, or the Libertarians - not one of two "major" parties.  Yet here we were, with one party representing racists and plutocrats and the other representing victims and moralists, and nobody representing Joe Sixpack, except to the extent he was also a racist or a moralist.

Without big strategies, the parties descended into color war - winning and losing as institutions and not as ideologies.  The Red side - our right wing, ironically - won via Operation Red Map.  Now, our local and Congressional elections can be won by the biggest wack job on the right, because the winner of the Republican Primary doesn't need swing voters. That sends Tea Party morons to Congress and makes Congress dysfunctional.  Which gives the very same voters who elected the Tea Party morons the idea that "Congress" is broken, but not because their bozos are breaking it.

And so the stage is set.  Everyone hates Congress, but no one blames his or her representative.  Someone has to come along and tell the idiots who elected the Tea Party that they have elected morons without telling them that they are idiots for doing so.  Trump pitched his candidacy perfectly for that purpose - racist enough to get the white vote but also anti-establishment enough to peel off the unorganized mass of opponents, several of whom are more competent and deserving of high office, but none of whom would have had the balls to do what Trump didn't need any balls to do last week.

Trump is chemotherapy for the cancer of intransigence that afflicted the Congress.  He is going to make Congress work by freeing non-Tea-Party Republicans to compromise without being primaried.  The toxic side effects include denigration of just about everything that makes America great - free speech, checks and balances, the truth - but that's how sick we have become.  Trouble is, the side effects won't be felt for years, so we may get eight years of what we only needed for one week: someone who says it's ok to compromise.  Because, make no mistake, by going along with the Trump/Schumer plan, the GOP is compromising, and the voters are going to like the result.  Especially if the next step is elimination of the GOP's annual hostage-taking when it comes time to raise the debt ceiling.  (Sad to see Ben Sasse lament the loss of his party's ability to threaten to kill our credit rating in order to get its way.  And he calls himself a patriot.  Yikes.)

So, score one for President Chemo.  Perhaps Congress will figure out that he will sign anything he can take credit for, and praise everyone who participates in getting it for him, including "compromising" Republicans.  That shifts the game away from satsifying the GOP base to satisfying the electorate.  At least, it would, if Operation Red Map had not been so successful.  It remains to be seen whether the GOP majorities in gerrymandered districts are ok with compromise once "their" President has blessed it.  One hopes so, but only time will tell.

Monday, July 31, 2017

Healthcare is not a right, but...

Remember the last episode of Seinfeld?  The gang is imprisoned forever with each other for failing to rescue a stranger.  For them, at least, Hell will be other people.  I didn't like that last episode, not because I didn't think the characters deserved each other as eternal punishment, but because the premise - that one can be punished for not helping others - is bad law.  Indeed, the greatest difference between here and the hereafter is that here we are not punished for being selfish jerks. I have since forgiven the dramatic license, but in the moment, the lawyer in me got the better of me.

Being rescued is not a right, because it is impossible to prove that one knew that one could have effected a rescue without paying some unreasonable price.  Where does one draw the line on who should rescue whom from what?  The idea is unworkable, and common law, at least, has rejected it.  You cannot have a right to be rescued if no one has a duty to rescue you.

And yet, certain politicians - I hesitate to call them "liberals" anymore, as such labels are losing their focus - claim that healthcare is a "right."  But healthcare is a rescue, and the law says you have no right to be rescued, because no one has the duty to rescue you.  People can volunteer to rescue you, and the society as a whole can agree, in a binding way, to "rescue" you by giving you the funds to buy healthcare from someone who will voluntarily sell it to you.  But those decisions do not arise from the idea that healthcare is a right, but rather from a political consensus that having others pay for one's own care should be a right.  Pols like Pelosi and Sanders argue that we should make healthcare a right because it is a right.  Huh?

I don't believe in economic rights.  In the grand scheme of things, everything is a luxury that some people cannot afford.  How many people are denied the luxury of a roof over their heads and three square meals a day?  We call these things necessities in common parlance to distinguish them from things we can more easily do without, but in the great algebraic continuum of desiderata, there are no necessities, only priorities.  Thus, by calling healthcare a luxury, I am not saying that only wealthy individuals should have health care.  I am saying that only wealthy people can have it.

I say "wealthy people" because a society can declare that all of its people are, by virtue of their membership in the society at any given time, wealthy enough to have healthcare.  All of the industrialized West, except the US of A, has determined that their polities are wealthy enough for all of their members to have healthcare regardless of their individual ability to pay.  One could say that, in such places, healthcare is a "right."  But that's a post hoc legal term, not an a priori bit of natural law from which one can reason - or argue- to a legislative conclusion.

How, then, do we get there?  There's been a lot of talk recently about a guaranteed basic income (GBI).  Lifetime healthcare has an actuarial cost that is more or less equal for all people.  If we assume that healthcare is a valuable commodity, then lifetime healthcare is a guaranteed basic income, delivered in a gift card rather than cash.  I'll bet there's a pretty strong overlap between those who favor universal healthcare and those who support the GBI.  But is the GBI a right?  If not, how can a targeted, actuarially determinable GBI be a right?  Because that's all universal healthcare is.

I like the GBI.  I think the time has come to make "survival" a right.  We should provide a roof and three squares a day to any American who wants them.  And healthcare. We are that wealthy.  We can afford that luxury.  But we can start with healthcare.

Friday, July 28, 2017

Lyin's of the Senate

Without a scorecard, one cannot be sure who is voting for what in the Senate.  But one thing seems to be clear: votes are not politically wasted.  No one votes against a stupid idea his stupid constituents want unless it may actually become law.  Then, as few senators as possible are given the task of "standing on principle," "showing political courage," "putting country over party," or whatever cliche will work to kill the stupid idea before it makes the senators look dumb in retrospect for passing it.

My best guess is that all of these acts of "courage" are carefully orchestrated.  Take last week's "battle" over whether to bring the various doomed Obamacare repeal bills to the floor.  After the vote was taken to proceed to a floor vote, Senator McCain gave a wonderful speech about how the Senate should return to regular order, with committees and hearings and inter-party negotiations and compromises.  It was a stirring speech, delivered after the thing to be stirred was already fully baked.  The horse had left the barn, and McCain was not gonna let him escape some more.

Why was this speech not given before the vote to do the opposite?  The answer is simple: leadership wanted to give members the ability to vote to repeal Obamacare one last time.  They could not get that opportunity if the motion to proceed was defeated, and it would not be seemly at all for them to vote to proceed after the heroic McCain had struggled from his deathbed to exhort them to legislate like, well, legislators.  So, McCain voted for the motion to proceed and then pretended to urge his brethren and sistren to do exactly the opposite of the thing they had just done.  A profile in courage?  Not hardly.

But wait, there's more.  Once the bill got to the floor, something had to be done to keep it from becoming law, because it was terrible and unpopular, without requiring too many senators to vote against repealing Obamacare.  Collins and Murkowski were already committed - it's not clear why, but let's call them brave and move on - but who would be the third necessary vote to bell this particular cat?  Who can exhibit such remarkable independence?  Who can be a maverick and put country first?  In other words, who had the least to lose?  Maybe some old guy with a short life expectancy and maybe a score to settle with our Feckless Leader?  Who might that be?

Reports are that McCain spent a fair amount of time openly chatting with Chuck Schumer on the night of the Obamacare repeal vote.  These are not dances one does as if no one were watching.  This dance was done in plain sight to suggest that McCain got something for his bravery, that his appeal to regular order won't end up making him look like a sap.  One can only hope that he did get something, that regular order does return to the Senate, and that they produce a popular bill that even the morons in the House won't be stupid enough to reject.  I'm not a fan of Schumer - he's a walking platitude, elevated by seniority to a position where a statesman might be useful - but he's not a terrible person.  We Americans may be approaching our Churchill moment, when we do the right thing after trying everything else.

Monday, July 17, 2017

The Rand Paul Compromise

I wish I knew St. Paul's view on healthcare.  Maybe he thought it was a right.  If so, Rand Paul would certainly be the right guy to propose the solution to the healthcare mess that he has come up with.

Being a complete hypocrite, Sen. Paul does not care whether Obamacare disappears.  He just wants to be able to say he voted to repeal it and did not vote to replace it.  It makes no difference to him what the replacement says or does, so long as he can "keep his promise" to vote for the repeal.  After that, if Republican moderates and Democrats want to destroy the country, at least his pecker tracks won't be on the bills.  He'll be the author of the procedure that made the new law possible, but he'll have voted against it, and that's all he has to do to fool enough of the people enough of the time in Kentucky.

I really like this solution.  By allowing Republicans to vote for what Sen. Paul calls "clean repeal," he gives each of them the ability to go home and shout from the rooftops the wholly irrelevant fact that he or she successfully voted to repeal Obamacare.  That's the promise Republican have been making for eight years, and it's the promise they can claim - substance aside, of course - to have kept.  After that, a compromise bill can be created.

On substance, Dr. Paul doesn't understand the issues.  He has latched onto an important insurance notion - adverse selection - but he has not shown any useful grasp of it.  Adverse selection is the tendency of people with the greatest risk to buy the most insurance.  In other words, the people voluntarily buying health insurance are, in general, sicker than those choosing not to buy it.

Adverse selection is a problem for insurers today because, under Obamacare, people can buy insurance from any carrier with no exclusion for pre-existing conditions.  The mandate that forces people to buy when they are healthy does not help insurers, because the insurer acquiring a sick person does not get the money that that person may have paid under the mandate when healthy.  If the person paid the penalty for declining coverage, or was covered by Medicaid or a parent's group plan, the new insurer must rely on a subsidy (or higher premiums on everyone it covers) to defray the cost of pre-existing conditions.

Senator Paul doesn't like these subsidies because the "health insurance industry" is making $15B annually, and he doesn't see why an industry that is making so much money should get a government bail-out.  This is really a stunningly stupid claim.  The insurance companies are making that much money only because they are not forced to participate in the individual Obamacare market.  They have withdrawn from that market so that they can remain profitable.  If the subsidies under Obamacare were increased to the level necessary to attract private insurers, those insurers would make some more money - they are entitled to profit on every class of business - but no more than is usual under our capitalist system.  That's not a "bail-out," as Sen. Paul likes to call it.  It's just how a free private market works.

What Paul does not seem to see is that he is exposing the thread on which the fans of single-payer are dying to pull: administrative costs.  If the insurance companies are making so much money, maybe it's because they charge more than a public payer - Medicare, say - would charge for covering the same ailments in the same way.   (That is, of course, the case.)  He is laying the groundwork for single payer by attacking the insurance industry.  Is that any way for a guy named Rand to think?

But wait!  There's more!  Sen. Paul's solution to the problem of insurers leaving the individual market is to get rid of that market by letting people form non-employer groups.  There are group policies available in other areas of insurance - life insurance through AARP, say - that are based on affinity of some sort, so why not health insurance?  The answer: all of these other insurance programs do have some underwriting requirements; they are actuarially sound and benefit primarily from the economies of scale.  Health insurance policies without pre-existing exclusions are not actuarially sound (see adverse selection, supra) and, therefore, cannot work that way.

Sen. Paul also argues that these pick-up groups would be viable just like employer groups.  If the large-employer market is profitable without subsidies, he, er, reasons, why wouldn't group plans of random citizens be healthy?  Well, one of the first thing one learns in the group insurance business is that group insurance isn't insurance.  Group insurance is "experience- rated." The employer basically pays the cost of all claims, plus an administrative fee.  The insurance policy simply smooths out the peaks and valleys, but premiums are adjusted to match claims over time.  An employer-based plan is an employee benefit, part of the compensation of the employees, with the added benefit of a healthier workforce for the sponsoring employer.  A random group of people with no interested third-party to pick up the rising costs simply would not be viable.

The employer's backstop for employee plans, and the entanglement of membership in the plan with having a job, make the employer market a wholly different place from the random group market.  Indeed, if these sorts of plans were viable, is there any doubt that insurance companies would have lobbied to make them legal?  If they made any damn sense, they would exist already. Because they don't make sense, they don't exist.  Sadly, the same cannot be said for Rand Paul.

Tuesday, June 13, 2017

What Privilege?

Part of the art of the dodge is in being willfully inarticulate.  Or in willfully not trying very hard to speak as clearly as one thinks.  I won't try to quote A.G. Sessions on the privilege that seems to have the Democrats on the Intelligence Committee so flummoxed.  If he had stated his position clearly, they might have figured out how to deal with the problem.  But, being a skilled obfuscator, the A.G. relied on "policy" - never a legal basis for anything - and forced the poor Dems to ask for a copy.  Yikes.

Here's what A.G. Sessions would have said if he felt obliged to speak clearly:  
All confidential communications between the President and anyone else in the Executive Branch are privileged.  Only the President can waive that privilege.  He does not need to "assert" it; it applies until it doesn't, and the Attorney General has no power to pretend that it doesn't.  Where, however, the President has publicly revealed a communication that would otherwise be covered by the privilege, the action implies that the President does not consider that communication privileged, and so someone privy to that communication can discuss it publicly.  
So, when the President says publicly "I asked Rod Rosenstein and Jeff Sessions for their views on Jim Comey," the communication ceases to be privileged, and the A.G. can properly, i.e., without breaking privilege, tell the Senate that the President "asked him" for his advice on Comey.  That testimony would not, pace, Senator King, amount to "selective" use of the privilege in question, however one frames it.

But Sessions did not expressly rely on Executive Privilege, because the President has not asserted it, as if that were necessary to its application.  Instead, Sessions relied on a policy of the Justice Department, which appears very much to walk like executive privilege and quack like executive privilege.  That's because it is executive privilege.  Otherwise, it would be nothing more than a wish that Congress could rightly ignore.  

This confusion serves Trump very well.  Not one Senator asked Sessions "Could the President authorize you to answer these questions?"  The answer is clearly "yes."  Leading to the follow-up "Will you ask the President to allow you to answer these questions?"  Stonewall that, Mr. Sessions. As things stand, the President can say he didn't "assert" Executive Privilege even has he hides behind it.  All because the Attorney General could get away with invoking the privilege on the President's behalf by reference to a bright, shiny object - the DOJ's policy (of tacitly treating Executive Privilege as asserted until waived) - that the Senators are now all trying to get a copy of.  

Where does that leave Mr. Comey's disclosure of things the President said to him?  The President is free to say that Comey is lying about his conversations with the President and, at the same time, claim Executive Privilege as to what he and Comey talked about.  Comey himself made this clear when he described a newspaper story as false but declined to say in what regard, because that would reveal things that should not be made public.  What is less clear is whether the President can order Comey, now a private citizen, not to disclose his recollections of conversations that arguably have a bearing on his personal status.  Privilege means "You don't have to tell Congress"; that's not the same as "Don't tell Congress."  Or is it?  I'm going to leave that hot potato for another day.

Thursday, June 8, 2017

No Comment

A lot of noise is being made these days about what Jim Comey did and did not say publicly.  Almost all of that noise is logically fallacious.  Comey tried to explain the matter using what he called the "slippery slope" analogy, but no one was listening.  He should have been more forceful.

The answer to the question "Why couldn't he simply say that Trump was not under investigation?" is simply this: "What would he have said if Trump were under investigation?"

If a reporter asks the FBI whether X is under investigation, there is only one suitable answer:  "No comment." Every other answer is wrong, because any other answer means that there are at least two possible answers: "No Comment" and [the other answer].  And, if that other possible answer is "No," "No Comment" must imply "yes"; otherwise, the "No" answer would have no reason to exist.

Already, we are seeing the fall-out of the possibility of "No" being an answer.  Comey testified
(i) that when he last spoke to President Trump, he told Trump that the FBI was not investigating him, and 
(ii) that his statement to Trump was true.  
Items (i) and (ii) are entirely separate things.  Item (i) is an action Comey swears he took in private.  Item (ii) is a public statement about an investigation that Comey swears is true.  It would be practically impossible for Comey to deny item (ii) without raising the possibility that he was lying to Trump, but that's why he should not have added item (ii).  Indeed, if asked whether what he told Trump was true, he should have answered "I can't comment publicly on whether an investigation was ongoing."  That sounds bizarre, and it would likely be treated as bizarre by the bozos who make hay out of things that sound bizarre.  But Comey could logically have said this:
"I can testify publicly to what was said by President Trump and me and to what I have done in connection with the matter.  Neither of those things requires me to make a public statement as to the truth of what I told President Trump, and, because there can be only one such statement - "No comment" - I am making that statement.  You should not infer anything from my statement, as it is the only one I am able to make, and so it carries no information with it, as if I did not hear it being asked.
Information theorists will see the heart of the matter quickly.  Information is anything that reduces the degrees of freedom in a system.  That's a high-sounding, generalized way of saying that if there are two possibilities (yes and no), and a statement about those possibilities causes there to be one possibility ("YES!!"), then that statement carries information.  If the statement does not reduce the number of possibilities ("No comment"), it carries no information, and nothing can be inferred from it.  For that description of things to be valid, however, it is essential that "No Comment" be the only possible answer.  Otherwise, there are more than one possible answers, so giving either one of them reduces the degrees of freedom in the system of answers and carries information.  Thus, there must be only one possible answer to the question if that answer is to deliver no information.

Comey's slippery slope argument says that if the FBI says it is not investigating X, it must also say that it is not investigating anyone else about whom it is asked, unless, of course, it is investigating that person.  So, if the answer isn't "no," it will be read as "yes," even if it is spelled "No comment," and there goes the FBI's ability to investigate someone without publicly saying so.

This is a big deal.  It explains everything about why officials don't say things publicly even when it is clear that they know the answer and may even be clear to everyone what the answer is.  Any deviation from "No comment" makes any subsequent "No comment" more meaningful than it needs to be.

Thus, Comey testified that, in connection with the matter of Secy. Clinton's emails, he was permitted to say, to Congress and in press briefings - it's not clear why - that the FBI had opened a "matter," but not an "investigation."  That bothered Comey, who said "We're the Federal Bureau of Investigation," so it makes no sense for us to open anything but and investigation.  But A.G. Lynch's justification for ordering him to call it a matter was that the FBI does not comment on whether it has opened an investigation.  But, by creating an alternative statement to "No comment," A.G. Lynch had made "matter" mean something other than "No comment," and the only reasonable thing it could be made to mean, when opened by the Federal Bureau of Investigation, was, duh, an investigation.  Again, Comey should have been directed not to say anything about the matter, other than "No comment." And now it looks like the A.G. was trying to provide cover for Mrs. Clinton, when, perhaps, she was trying, unsuccessfully, to adhere to a policy without understanding its most important instrument: "No comment."

Sunday, May 28, 2017

Plus ça change

"We, the German Führer and Chancellor, and the British Prime Minister, have had a further meeting today and are agreed in recognizing that the question of Anglo-German relations is of the first importance for our two countries and for Europe. We regard the agreement signed last night and the Anglo-German Naval Agreement as symbolic of the desire of our two peoples never to go to war with one another again. We are resolved that the method of consultation shall be the method adopted to deal with any other questions that may concern our two countries, and we are determined to continue our efforts to remove possible sources of difference, and thus to contribute to assure the peace of Europe."  Neville Chamberlain after Munich.

"This call for driving out terrorism is a message I took to a historic gathering of Arab and Muslim leaders across the region, hosted by Saudi Arabia.  There, I spent much time with King Salman, a wise man who wants to see things get much better rapidly.  The leaders of the Middle East have agreed at this unprecedented meeting to stop funding the radical ideology that leads to this horrible terrorism all over the globe."  Donald Trump after Riyadh.