Tag: Senate

Three Irrefutable Facts About the Baucus Bill

The Senate Finance Committee votes today on Senator Max Baucus’ version of the health care bill. Cato health care experts have analyzed the bill thoroughly, and point out three vital components to the cost and reach of the legislation:

1) The real cost of the bill is in excess of $2 trillion.

Chairman Max Baucus hoodwinked the CBO with a number of clever budgetary gimmicks, most notably by keeping about half of the cost off the federal books. The bill also assumes Congress will make cuts to Medicare payments, which has never once happened before.

2) The bill contains an enormous middle-class tax hike.

The bill imposes a 40 percent excise tax on health insurance plans that offer benefits in excess of $8,000 for an individual plan and $21,000 for a family plan. Insurers would almost certainly pass this tax on to consumers via higher premiums. As inflation pushes insurance premiums higher in coming years, more and more middle-class families will find themselves caught up in the tax — providing the government with more revenue.

3) The bill creates a national ID program.

The bill contains a paragraph explicitly addressing “eligibility verification.” You must prove who you are to federal entitlement agencies in order to qualify for the bill’s “state exchanges” and tax credits. No ID, no benefits.

Wednesday Links - Health Care Costs

The Congressional Budget Office released a report this week that revealed that the proposed health care bill would not increase the deficit.  But is it that simple? Cato health care policy experts have examined the bill and added up the costs. Here are a few things they have found:

If You Can’t Trust a Spy, Who Can You Trust?

As I noted last week, it looks like top Democrats in the Senate are folding on even fairly mild PATRIOT Act reform for fear of disrupting ongoing investigations—and in particular a “sensitive collection program” involving Section 215 “tangible things” orders. The impulse to defer to executive branch claims of necessity is powerful, and even understandable, but it ought to be resisted. We normally impose neutral magistrates between law officers and search warrants precisely because we understand that the investigators, precisely because of the admirable vigor and single-mindedness we want and expect from them, are not necessarily the best judges of how much power they require.  The classic “not enough power” story used to justify the so-called “lone wolf” provision turned out not to hold up under scrutiny, but as I was mulling the current debate, I suddenly remembered a curious story from my days as a tech journalist.

In July of 2005, the Bureau was investigating Magdy Mahmoud Mostafa el-Nashar, a one-time associate of the men who had recently bombed London’s public transit system. (It was soon determined that el-Nashar had not been involved in the plot.) According to a 2007 summary of the investigation, an agent was sent with a grand jury subpoena to recover records from North Carolina State University at Raleigh on July 13.

But then, it appears, something odd happened.”After receiving the subpoena,” the documents recount, the agent “served the subpoena and had some records in hand when he received a call” from his supervisor, who “had been notified by FBIHQ… that we were not to utilize a Grand Jury subpoena and that we must obtain a National Security Letter (NSL).” The agent apparently returned the records (though there appears to be some confusion about whether the agent had actually finished serving the subpoena), and the Bureau’s Charlotte office got to work drafting an NSL.

That was an exceedingly odd thing to do, because the law is totally unambiguous about the kinds of records and institutions that are subject to National Security Letters. And while they’re extraordinarily broad tools, anyone even passingly familiar with them should know they don’t apply to educational records. The school’s lawyers, doubtless perplexed about why they were getting an invalid request for records they’d already happily turned over, nevertheless properly refused to honor the illicit NSL. Agents are supposed to voluntarily report any improper NSL requests, even accidental ones, to an oversight board within 14 days. This one, for some reason, took over a year to make its way up the chain. And yet within a week of the event, FBI Director Robert Mueller was conspicuously well informed about the little mishap with el-Nashar’s school records:

A July 21 e-mail to the North Carolina office explained: “The director would like to use this as an example tomorrow as to why we need administrative subpoenas’s [sic] to fight the war on terror. In particular, he would like to know how much extra time was spent having to get the Grand Jury subpoena.”

So to review, a legally proper request is issued, the records sought are in hand, when suddenly the call comes down to give them back and use an obviously inappropriate NSL request, costing several days. The head of the bureau is instantly aware of this—though apparently not of the flagrant impropriety—and eager to cite it as evidence that, of course, investigators need more power or their vital efforts to protect us from terrorists will be stymied.

Now, I’m happy to suppose that the initial mix-up was just an honest mistake. But it also very clearly wasn’t evidence to cite in favor of the proposition that the Bureau needed broader powers. Yet nobody, at the time—neither Mueller nor the legislators before whom he testified—seemed to have the time or inclination to get particular about the facts. It was, for the purposes of all concerned, one of those stories that’s “too good to check.” Now that it has been checked, it’s a story to bear in mind when the boys at Justice cry “necessity.”

Incredibly Mild PATRIOT Reform too Much for Dems

At hearings last week on reform and renewal of parts of the PATRIOT Act, Sen. Al Franken (D-MN) made a big show of reading the full text of the Fourth Amendment to Assistant Attorney General David Kris (who, just going out on a limb, had probably seen it).   On Thursday, a notably less vocal Franken joined his a bipartisan majority of his Senate Judiciary Committee colleagues in a lopsided vote that torpedoed even the most modest of proposals to introduce elementary civil liberties safeguards into the USA PATRIOT Act.

As I noted in a post earlier this week, there were two main reform proposals on the table: An impressively comprehensive and careful one floated by Sen. Russ Feingold (D-WI), and a much more limited one from Sen. Patrick Leahy (D-VT) that nevertheless would have tightened the rules to require that so-called “pen/trap” surveillance and broad “section 215” orders for private records only target individuals with at least some plausible connection to terrorists or terrorism.  Some of us had nourished a foolish hope that the Committee might see fit to incorporate some of the most important elements of Feingold’s reform into the Leahy bill. Instead, Sen. Dianne Feinstein (D-CA) swooped in at the last minute with substitute legislation that stripped away even the mild but important limitations that were already there.  There’s a single bizarre exception for records obtained from libraries, presumably because librarians have long been at the forefront of opposition to PATRIOT and section 215 authority, where the higher standard obtains. So if you surf the Web or check out books from your public library, your activities enjoy greater privacy protection than when you surf the web or order books off Amazon from your home or workplace.

The rationale for this was the fear, articulated by Feinstein, that a higher standard might interfere with an important “ongoing investigation.” First, it should be a little distressing if the current investigative methods in use would be utterly disrupted without the ability to broadly acquire records that don’t pertain to terrorists, nor to suspected activities of terrorists, nor even to people directly in contact with suspected terrorists. Second, even granting that it might be better not to change the rules for investigations currently underway, this explanation doesn’t hold up to scrutiny. The authority under 215 to compel the production of records or other “tangible things” (a blood or DNA sample from your doctor’s office, say) has always had a built-in expiration or “sunset” date, which all the proposals under consideration would have extended for another four years. But the sunset provisions have always included a grandfather clause, allowing the new PATRIOT powers and standards to remain in place for ongoing investigations, even as they expired for new investigations. There’s no reason a similar clause couldn’t have been added to Leahy’s reforms in order to  avoid disrupting searches already underway. Finally, Marcy Wheeler of Firedoglake has a guess as to what that “ongoing investigation” entailed, and without going into great detail, it sounds like a sufficiently narrowly tailored order probably should have been available for the kind of investigation Wheeler envisions even under the more stringent standard Leahy had proposed. Back in 2005, incidentally, those slightly stricter standards had won the unanimous acceptance of the Judiciary Committee—so apparent we’ve achieved Change in the level of concern for civil liberties, albeit maybe not the sort for which some of us had Hoped.

But wait, it gets worse.

The standard established in the Feinstein substitute is, at least arguably, even less protective than current law. Thanks to some anemic checks imposed under the 2005 PATRIOT reauthorization, investigators at least have to present a judge with a statement of facts “showing reasonable grounds to believe” that the records or pen/trap surveillance sought will be “relevant” to an investigation, with records pertaining to suspected terrorists or their activities or their contacts being “presumptively relevant.” Feinstein’s bill scraps that language and requires “a statement of the facts and circumstances relied upon by the applicant to justify the belief of the applicant” that the information sought will be “relevant,” though it also removes the language specifying categories of “presumptively relevant” records. So why bother swapping out the “reasonable grounds to believe” language for this awkward, doubly-reflexive formulation about the applicant’s belief? One assumes it has to make some difference or they wouldn’t have bothered, and it sounds rather like an attempt to eliminate any hint of an objective standard of review (are the grounds objectively reasonable?) in favor of something like a “good faith” test that focuses on the investigator’s subjective state of mind.

None of this is final yet: The Judiciary Committee will meet next Thursday, consider potential amendments for a maximum of one hour, and then vote on the final language to send to the full Senate for approval. But the clear momentum at present is against any kind of meaningful change to the sweeping surveillance powers Congress has granted the government in recent years.

The Seat-Warming Senate

With Gov. Deval Patrick’s appointment of longtime Kennedy courtier Paul Kirk to Sen. Edward M. Kennedy’s seat in the U.S. Senate, there are now at least three close aides holding on to Senate seats while their states go through the formality of an election. The governor of Delaware appointed Joe Biden’s longtime friend and former chief of staff to fill the rest of his term in the Senate. Can you name him? It is generally thought that he is obligingly holding on to the seat until Biden’s son Beau gets back from National Guard service and is able to run to succeed his father. And in Florida, Gov. Charlie Crist named his former chief of staff to fill the seat of retiring Sen. Mel Martinez until the 2010 election in which Crist is running for the seat. There are more seat-fillers in the Senate than at the Oscars.

Of course, Kennedy himself took his seat when he attained the age of 30, after it was kept warm for him by family retainer Benjamin A. Smith III.

Meanwhile, as of 2005 there were 18 senators who gained office at least partly through their family ties – sons, daughters, wives, nephews of former senators, governors, presidents, and so on.

The Founders envisioned the Senate as an assembly of wise and accomplished men, chosen for their experience and judiciousness. Political campaigns that favor the handsome, the glib, the panderers, and the best fundraisers are bad enough. But a Senate full of legacies and seat-warmers is especially unfortunate.

Transparent Health Care Legislating?

Will Americans get “quality time” with proposed health care legislation before it passes?

Some say no: The Senate Finance Committee recently turned back an effort to put Chairman Max Baucus’ bill online for 72 hours before the committee’s vote. The Committee is on the wrong side of history.

Transparency shifts power away from the center, so it’s favored by those out of power. It’s no wonder that Republican representative John Culberson, a member of the minority party, is putting H.R. 3400 (a significant health care bill) online for comment, using a tool called SharedBook.

Transparency won’t be a gift from government. It is something we have to take. That’s why I think the action lies in private efforts like OpenCongress, GovTrack, and (my own) WashingtonWatch.com. (Links are to sites’ H.R. 3400 pages.)

The public has a way of conforming their expectations to what’s possible, and transparent law-making is entirely possible today. Closed processes like the Senate Finance Committee’s consideration of health care legislation will not satisfy the public, and it will emerge from the committee with one strike against it irrespective of the merits.