Notes on a Theory…

Thoughts on politics, law, & social science

Archive for June 2012

The Impact of Limits of Medicaid Expansion

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As I noted earlier, the big question at the moment is what the potential impact of the limits the Court imposed on the ACA’s Medicaid expansion, which extends to all adults earning less than 133 percent of the poverty level.

David Cole, who I respect a great deal, has thing to say in The Nation

It seems unlikely that states will turn down those funds. Under the ACA, the federal government initially covers 100 percent of all new Medicaid costs, and while the federal contribution  diminishes over time, it never falls below 90 percent of the program’s cost, so any  rational  state will likely take the money and expand its coverage.

I don’t see what that last statement has to do with anything. If your goal is to ensure insecurity, to provide punishment to those at or near the bottom, then the fact that the federal government will mostly pay for achieving a goal you don’t share is irrelevant.  Since breaking the budget to justify further cuts to things like health care, education and public employee pay & benefits is a standard strategy among Republicans in the states right now, this seems to have the logic exactly backwards. This statement is not an outlier, but it seems to reflect an all too common mistake–assuming that conservatives and progressives share the same goals but disagree on means.  I’d suggest reading Cory Robin‘s most recent book to fully understand how mistaken that is. (Robin has some great posts which include excerpts from the book that discuss Justice Scalia that are very timely).

My concern  is articulated well in a post entitled Beyond the mandate: Court’s ruling on another ACA provision could have sweeping implications by Ned Resnikoff:

As Lean Forward reported earlier, George Washington University law professor Jonathan Turley believes that the Medicaid decision could spell disaster for health care reform:

“This creates a ripple effect,” Turley said on MSNBC. “A majority of states oppose this law. If they had an ability to opt out, they would. I don’t see how the health care law could survive if the pool is reduced by that amount. You need to force young people to buy health insurance since they’re not going to get sick as often and (having them in the pool) makes it more affordable.”

Note the issue here isn’t just these individuals, but the impact leaving them out could have on everyone else.

Like I said, this history isn’t written yet.  Whether it’s implementing the law, or expanding it in the future, what happens will be a result of politics,of agitation.  If only one side mobilizes, they have the advantage.

Written by David Kaib

June 28, 2012 at 5:14 pm

Anxiously Looking for Answers About the ACA Ruling

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The Court has made it’s ruling. As best as I’ve been able to gather, here’s what happened: Chief Justice John Roberts joined the four Democrats (calling them liberals wouldn’t be very accurate) ruling 1) that the mandate is constitutional (although as a tax, not under the commerce clause, per the objection of three members of the majority including Roberts) and 2) Medicaid expansion is constitutional, as long as it’s not coercive, meaning that the federal government can offer conditional funding for it but cannot penalize states by taking away other funds for failing to adopt the expansion. This means that the battle continues in the states, where legislative battles will have to be fought to ensure the expansion takes place.

I wasn’t convinced that the mandate was necessary (David Dayen said it carried a weak, easily evaded penalty and Jon Walker argued that history showed that subsidies alone were sufficient), which made its inclusion despite the fact that Obama ran against it and it’s deep unpopularity very frustrating. Medicaid expansion was a key means for insurance access expansion.

I don’t know what the odds look like on this.  My initial thought are this.  As a program that targets the poor, Medicaid expansion isn’t terribly strong politically.  The Republicans seem committed to stopping implementation at all costs. And breaking budgets seems to be a conscious strategy, do being a cost saver might actually hurt it’s chances. On average, Republicans are more likely to control states that have a higher percentage of people who fall under Medicaid.  As I said before the ruling came down, the right has been mobilized on this issue and Democrats have not.

Aside from the states, there are things that must be done by the executive branch and Congress in order to fully implement the ACA, and some of these, if I recall correctly, must take place after the next presidential term, so they can’t be done by the Obama Administration regardless of the outcome of the election.  (In addition, there will be additional court challenges to specific  aspects of the law, but these again are mostly out of our hands in the short run.)

So I made no predictions about the “outcome” but the decision does vindicate what I did say-this is not over, and it will be a long slog. Thinking of this in terms of wins and losses, as an outcome instead of a process, will steer you wrong.

Written by David Kaib

June 28, 2012 at 12:54 pm

Anxiously Waiting the ACA Ruling

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One of the things I’ve been emphasizing lately is how the overwhelming focus on formal decisions, in both political science and non-academic political discourse, distracts us from much of what’s going on.  That’s certainly true with the much anticipated ACA ruling from the Supreme Court.

As a general rule, there is an inverse relationship between the amount of attention something gets and the amount of leverage regular people have over it.  The presidential election is an obvious example, but this decision may be the best example.  We don’t have much leverage over the Court, but we certainly don’t have any at the moment. The Court has already made its decision. We’re simply waiting for them to announce it.

Whatever happened, knowing the result within the first few seconds doesn’t change anything. And what’s more, we won’t know what’s going to happen even when the decision gets announced and we have time to digest it (no doubt there will be all sorts of misinformation initially). Without suggesting that the decision is inconsequential, it’s important to understand that it’s impact depends entire on how people react.  Decisions are not self-executing.

Here’s what we know: the right has been mobilized on this since long before the ACA was written.  They didn’t accept defeat when it passed, they just kept on fighting. The law requires states, the executive branch, insurance companies, and Congress to do things ot implement it. Some of these have already happened, some have not.  This process isn’t scheduled to be completed until after the end of the next presidential term.

The left, on the other hand, wasn’t mobilized for the most part. It was divided over what to push for.  The White House pressured those who sought to pressure recalcitrant legislators to stop doing so.  When the process moved to the states, a few states saw pushes to implement it in strong ways.  But in many places that didn’t happen. The strategy from elite Democrats was to craft an agreement in Washington DC, not to engage the public, which meant operating from a position of weakness.

So ask yourself: win, lose or draw, what’s the plan?  There is talk about pushing single payer if the Court strikes the ACA down, but how? How many Democrats in office would support that?  And it the Court upholds it, it doesn’t mean the law is safe.

No matter what, the outcomes won’t be decided only by the judges. It depends on how those off the Court react. Everyone is anxiously awaiting the ruling.  But are they ready for what is to follow?

Written by David Kaib

June 28, 2012 at 12:03 am

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Why is Framing So Misunderstood?: The Distorting Lens of Democracy

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There has been a lot of attention in progressive circles about framing, but because of the way we tend to think and talk about politics, framing itself is poorly understood. Our standard frame of politics is steeped in a particular view of the US constitutional system – American democracy. This view places two party electoral politics at the center, sees formal decision making (without attending to the boundaries of what’s possible) as the only thing of significance in politics, and includes a sharp distinction between the economy and politics, or markets and government. This view is a hindrance to progressive politics, I believe, because it is confuses a way of justifying a state of affairs (legitimation) with a way of making senses of a state of affairs.

What does this have to do with framing? When you use this politics-as-democracy lens to make sense of politics, you overestimate the role of elections, of formal decisions, and the role of individuals.  (I’ve referred to this idea that individual choice manifests itself in an unmediated fashion in politics and policy as ‘democratic efficiency’.)  As a results, the central (only?) drivers in politics appear to be 1) voting and 2) public opinion.  Given that, framing must be (it is inconceivable to think of it any other way) about changing the minds of voters usually in an unmediated fashion (i.e. presidential speeches producing shifts in public opinion, campaign tactics producing electoral majorities). Framing is about communication, only.

The problem is that this does not fit with the arguments of those who talk about framing.  To take George Lakoff as a prime example–his field  is cognitive linguistics, he has helped found the interdisciplinary field of cognitive studies, his books all reference thinking or the mind (Moral Politics: How Liberals and Conservatives Think, The Political Mind: A Cognitive Scientist’s Guide to Your Brain, Don’t Think of an Elephant!: Know Your Values and Frame the Debate, Thinking Points: Communicating Our American Values and Vision).

Framing, then, is first and foremost about being clearer with ourselves about what we stand for. It’s about being clearer about what unites us, and what divides us from our ideological opponents.  This is necessary to build stronger coalitions, form longer term plans, and decide what things we want to push for, and it requires not just talking differently but building a progressive infrastructure to develop better frames and embed them in our institutions.  It’s about recapturing the confidence those on the left had in the post-Great Depression period that our approach is better than then alternative and more appealing. (This sort of confidence is something conservatives have built in the wake of the Civil Rights and it remains a key strength for their movement).  It’s about finding things that unite our side and divide or weaken the other side. It’s about mobilizing your own supporters and demobilizing* resistance.

Even so, some might think these things will involve persuasion. Certainly, any discussion of rhetoric will implicate persuasion, but the important thing to remember here is that people are ambivalent.  We listen to, or participate in, elite discourse, we organize our own thinking around liberal-conservative ideology, talk about opinion polls revealing beliefs.  But most regular people are not engaged with this discourse, don’t organize their thinking on a lib-con spectrum, and have more complex views than can be captured by a single poll question. Lakoff suggests that most people have progressive and conservative frames available to them, that many of us can actively use both frames, but that conservatives have been far more successful at activating conservative frames.  This means that even self-professed liberals / progressives often argue within conservative frames rather than challenging them. The issue is less convincing people to abandon a strongly held consistent position than activating one way of thinking over another.

Most people who study and talk about American politics don’t think like this.  They think about the importance of getting 50% plus 1.  As a result, talk of framing (and for that matter, organizing) sounds like naive gibberish.  Or in some cases, it means people who want to use framing but don’t understand it speak naive gibberish, thinking that if we could only get the right sound bite it would turn the tide, something Lakoff has always rejected.  I suspect part of the reason is that those who focus on framing haven’t really challenged the politics-as-democracy frame or recognized the way it distorts these discussions.

*It doesn’t mean putting barriers in the way of participation. I object to that on principle regardless of the context.

Written by David Kaib

June 21, 2012 at 12:45 pm

Expanding the Boundaries of the Possible: The Mandate

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Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity.  

Jack Balkin has a piece on The Atlantic that didn’t get the attention it deserved.  Called From Off the Wall to On the Wall: How the Mandate Challenge Went Mainstream, the piece focuses on how legal arguments move from the fringe to common sense.

The changing perception of the individual mandate is an example of one of the most important features of American constitutional law — the movement of constitutional claims from “off the wall” to “on the wall.” Off-the-wall arguments are those most well-trained lawyers think are clearly wrong; on-the-wall arguments, by contrast, are arguments that are at least plausible, and therefore may become law, especially if brought before judges likely to be sympathetic to them. The history of American constitutional development, in large part, has been the history of formerly crazy arguments moving from off the wall to on the wall, and then being adopted by courts. In the process, people who remember the days when these arguments were unthinkable gape in amazement; they can’t believe what hit them.

I’d go farther, and suggest that this is an example of the one of the most important features of American politics.  But the sad thing is that both political science and our general political discourse tends to ignore these questions. Instead, they ask: (given the boundaries of what’s possible) how is choice made?  But the question of what is possible is far more important than the choice itself.  As political scientist E.E. Schattschneider reminded us a long time ago, “The definition of the alternatives is the supreme instrument of power,” yet we’ve rarely listened.

Balkin has been asking these more important questions for some time.  I’ll just sketch the argument here.

The basic idea is to understand the roles of several key actors.

1) Intellectuals.  The role of intellectuals is to develop ideas that are considered off the wall.  Conservatives have long understood this which is why they built an infrastructure that allows intellectuals to do this and that creates networks among them. These have to be willing to do so without worrying about their acceptability, or they will simply be reinforcing the status quo. (This is why tying think tanks and the like too closely to either politicians or funders is a bad idea.)

2) Social movements.  Movements are one of the most important drivers of change, but they work long-term, through cultural change, that is, “from the bottom up”.  Obviously, conservatives were mobilized against the mandate, but Balkin argues that social movements work on a much longer time line.  There was not enough time to move arguments that the mandate was unconstitutional from the fringes to an acceptable legal claim this quickly.

3) Political parties. When a party gets behind a claim, it moves it quickly to ‘on the wall.’ “[W]hen an entire political party gets behind a constitutional argument,” Balkin says, “almost by definition the position has become mainstream.” Needless to say the unity of the Republican Party makes this a lot easier.

4) Media. The media tends to reflect the political parties.  That is, if one party makes a claim, the media will treat it seriously. This is true for institutions like Fox News, but it’s also true for the media in general.  Journalistic conventions don’t allow the media to challenge these sorts of claims, when they are taken seriously by one (or both) of the parties. This has a tendency to reinforce the role of the parties.  (Balkin here parallels the arguments of media scholars – see for example Jay Rosen’s classic post detailing Daniel Hallin’s arguments, here.)

5) The Courts.  Once a position has become ‘reasonable,’ judges are willing to give them a hearing, and once lower courts, especially circuit courts, are willing to accept an argument, this lends respectability before the Supreme Court (not to mention beyond the judiciary).

Of course, if you were to look only at the choices of courts, or the Court, ideological splits would go a long way towards explaining those choices.  It’s true that the president, Congress, or the public have no formal ability to reverse decisions.  But judges care about what’s reasonable, they take things for granted, and they reconsider things they previously took for granted.

I do have one objection. Balkin’s argument largely avoids confusing democracy as a legitimation with democracy as an explanatory concept. But see here:

When establishment politicians — who, after all, have to stand for election and don’t want to be thought out-of-touch to their constituents — get behind a constitutional argument, they often help move it forward quickly.

The problem here is that there is plenty of reason to think that politicians aren’t driven by such concerns.  There are often large gaps between public opinion and policy, both foreign and domestic.  The Republican Party has demonstrated that marching away from the center doesn’t automatically lead to electoral defeat.  Reasonableness is an elite phenomenon.  The belief that one can infer popular beliefs from institutional outcomes (i.e. ‘democratic efficiency’) is generally false.

Written by David Kaib

June 13, 2012 at 1:17 pm

Citizens United and the Way Out

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[Updated below]

A common refrain is that until the problem of money in politics is dealt with, we can’t achieve anything.  Often, the focus is on Citizens United*, and the necessity of a constitutional amendment to overturn it.  The difficulty here should be obvious – enacting a constitutional amendment is exceedingly difficult, it would require gaining support from plenty of red states in addition to the blue and purple ones, it would require a set of strategies different from those common in campaigns now (i.e. ad driven, because why would big money donors support it), etc.  How could this be achieved in a system that is broken?  Obviously, one needs a way to improve the situation that can operate within the existing system, or there is no way out. By focusing on a constitutional amendment (without offering a path to get there), we offer people two choices – fatalism, or magic thinking. Neither view is very useful.**

It strikes me the key is to 1) find strategies that rely less on big money, preferably by harnessing the energy of the large majorities of Americans who oppose Citizens United and are concerned about corruption in politics and 2) finding reachable, intermediate goals  that could create a path to major change but wouldn’t require it in order to be achieved.

In terms of strategies, face to face interaction is more powerful than advertisements both in getting people to vote and in engaging them to act.  This would require building a permanent organizing infrastructure (that is, one that is not created and dismantled around individual campaigns). It would mean relying on volunteers over paid staff.  And it will require choosing frames that inspire excitement and support rather than those that poll well with independents. This sort of organizing can’t be limited to elections–when people mobilize to elect candidates and then demobilize when those candidates take office, the policy that results will be a disappointment, as corporate interests and conservatives will continue to fight.  It has to include battles over policy and organizing in the workplace as well.

What about the intermediate steps?  Well, first corporations can be pressured directly to disclose their spending, and shareholders can pressure corporations not to use their money to advance political causes. (On the latter, remember the recent efforts to pressure corporations to stop supporting ALEC). The rules governing corporations could be changed to require them to get shareholder support in order to engage in electioneering or lobbying.  Public funding could be instituted at the state level (as long as they don’t include a trigger where candidates get more spending when they are being outspent the Supreme Court is unlikely to strike it down ,and it’s not clear that these triggers are necessary.)  And as an organizing infrastructure is created, it can be used to support candidates who in turn could be pressured not to use media strategies that require large donors.

None of this would be easy, but all of it is easier than a constitutional amendment.  Regardless, any approach has to operate within the system.

*I’m not convinced that Citizens United is the problem.  The system was fairly broken before that decision.  There’s little doubt that in the wake of the decision the amounts of campaign cash skyrocketed.  But simply returning to the pre-Citizens United rules would be no solution, and neither would placing spending limits on corporations alone.

**I’m leaving aside the question of disclosure, because I fail to see how 1) it’s possible using existing strategies or 2) why it would matter much.  I knew a number of people who worked in the business campaign finance sector in the late 90s. Back then, any conversation about campaign finance ended with their suggestion that the solution was full disclosure.  I don’t think it was because they wanted to limit the power of business.

[Update]

David Dayen has a really good take on how the decision to go forward with a recall in Wisconsin narrowed the possibilities there that’s well worth checking out.  A taste:

The populist movement that arose from the uprising could have used every dollar given to a politician or an outside campaign spending group and used it in community-based organizing. We could have seen well-funded nonviolent actions. We could have seen education campaigns, going door to door with a message rather than an ask to support Tom Barrett or whoever else. We could have seen economic boycotts on Walker-supporting businesses. We could have seen more organizing into broad coalitions around the idea of repealing the rights-stripping collective bargaining law. We could have seen an insurgent movement, one that captured the energy of the uprising rather than re-channeled it.

Written by David Kaib

June 8, 2012 at 3:16 am

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