Hollow Victories

“I wish I knew how to quit you.”

          —Jake Gyllenhaal as Jack Twist in Brokeback Mountain

 

So the Republicans gained enough seats to flip control of the Senate.  Mitch McConnell (R-KY) won re-election in a race that shouldn’t have been as close as it was, and likely gets to become the Senate Majority leader, replacing Harry Reid (D-NV).

You’ll excuse me if I’m not dancing in the streets.

For one thing, it may well be a very short party.  2016 presents the reverse of this year’s lopsided slate of at-risk seats, with incumbent Republicans up in 24 of 34 races, including purple-to-blue states such as Wisconsin, Illinois, Ohio, Pennsylvania, and Florida, so the Democrats have much more to gain than to lose.  Of the Democratic seats up in 2016, only Nevada and Colorado are remotely in play—you think Republicans are going to pick up a Senate seat in Oregon, where they just legalized pot?—for Republicans.  The potential, if not likelihood, is that the Democrats to pick up a net of at least six or seven seats, enough to regain the majority.

But my concern runs deeper than that.

Yes, pulling Harry Reid’s cryptkeeper fingers off the levers of control over the Senate’s agenda, even temporarily, is a good thing.  Yes, having a Senate that’s a little more likely to resist Obama appointments is a good thing.  You could argue that having a Senate majority that will at least speak to the House majority is a good thing (although I see merit in a status quo that leaves Congress unable to screw anything up further).

But all of that is only true if you’re going to get something from a Republican-controlled Congress that’s appreciably different from what you got under a Democrat-controlled Congress.  If I thought you were going to get a return to Constitutional moorings and a serious reduction of the bloated federal Beast, if I thought you were going to get a real adult move towards fiscal sanity, I’d be there with you.  But if it’s just about being able to say our team won, I don’t see the point.

Unfortunately, the writing is already on the wall that there is likely to be little that changes in the District with Mitch McConnell holding the Senate gavel.  The post-election party dance floor wasn’t even cold before McConnell was giving up his bargaining position on two major issues, saying that there would be no government shutdown—meaning he will not force the President to compromise on spending—and no attempt to repeal FUBARCare.  In other words, he’s more interested in the political optics of avoiding a veto or a shutdown (by the way, does anyone even remember we had a government shutdown last year?) than he is about standing up for some kind of conservative principles.

And this illustrates the fundamental problem.  The establishment Republican leadership is not interested in advancing the principles of its conservative base; it’s interested in Republicans winning for the sake of Republicans being in office.  They’re more concerned about their personal vested stake in the system than about ideals.

Consider some of the key Republican Senate leaders who were re-elected this week:

Mitch McConnell has been in the Senate 30 years.  Thad Cochran (R-MS) has been there a whopping 36 years (41 total in Congress).   Susan Collins (R-ME) has 18 years in the Senate.  John Cornyn (R-TX), Lamar Alexander (R-TN), and Lindsey Graham (R-SC) have been there 12 years each.  Their longevity alone is a problem—I believe term limits in Congress and the federal courts may be the single most important issue in saving the Republic—but take a look at their voting records as scored by the Heritage Action for America Scorecard.  With a less-than-impressive score of 79, Cornyn comes in as the most conservative of the bunch.  From there it drops off dramatically:  McConnell 68 (last I checked, that’s an F), Cochran 53, Graham 49, Alexander 48, and Collins an abysmal 22.

And these are some of the most senior Republicans in the Senate.  Add to them other core senior Republicans who weren’t up this time, and you get the likes of Orrin Hatch (R-UT), 36 years in the Senate, Heritage score of 54; John McCain (R-AZ), 27 years, Heritage score of 51; Saxby Chambliss (R-GA) 11 years, Heritage score of 50; and Lisa Murkowski (R-AK) 12 years, Heritage score of 23.

These are the people who will now be running the Senate (likely the same people who excoriated Ted Cruz (R-TX), Rand Paul (R-KY), and Mike Lee (R-UT) (Heritage scores of 93, 92, and 96, respectively) for their filibuster efforts last year), and they are not conservatives, despite what Karl Rove’s American Crossroads PAC tries to tell you.  They are anti-Constitution, big-government spenders—in other words, Democrats with different colored ties.

I recognize what I’m about to say is political heresy, and likely ends what little prospect I had of ever running for office.  But this is what you get as a conservative when you steadfastly adhere to William F. Buckley, Jr.’s admonition to “vote for the most conservative candidate electable.”  You get people who will talk just enough conservative talk to pacify the conservative base, but when they get to the District it’s business as usual because they know at the end of the day they’ll never be held accountable to walk the conservative walk.  Come re-election time, they count on conservatives ultimately holding their noses and voting for them because we see them as the lesser of two evils.

And they have good reason to think that way:  because that’s what we do.  Every time.

If, as many say, the solution for the conservative movement is reform within the existing Republican Party—and I’m not convinced it is—I fear we have an extremely painful process ahead of us.  For the Republican Party to change course, it has to be taught that the conservative base will hold its candidates accountable.  It is not enough for us to scream about fiscal responsibility and the Constitution.  It is not even enough for us to push conservative candidates in the primaries.  Unless and until Republicans face negative consequences come election time when they field non-conservative candidates, the party has no reason to change its behavior.

In other words, the party won’t change until it sees its non-conservative candidates lose not only in primaries (see ya, Eric Cantor (R-CA)), but also in general elections, and lose because the conservative base stayed home or cast protest votes.

I know I have argued to the contrary in the past, in particular with respect to the Ron Paul libertarian devotees.  But as I’ve watched the GOP in large part fail in its function as the opposition, and as I’ve watched the establishment repeatedly torpedo conservatives within its own ranks, I’ve become of a mind that more drastic action is necessary, or we’re forever going to face a choice between the Left and the near-Left.

As long as conservatives continue to settle, as long as we continue to be good soldiers every other November and show up to vote for bad RINO candidates, that’s what the GOP is going to give us.  The Reince Priebus/Karl Rove machine will continue to give us Mitch McConnells and Thad Cochrans in the Senate, and will continue to serve up the likes of Chris Christie and Jeb Bush for President, promoting the Republican brand, but with no substantive difference.

I have no interest in having a Republican President or Republican representatives in Congress for the sake of having Republicans.  If you don’t stand for conservative principles of limited government and adherence to the Constitution, I don’t care what letter you have next to your name on the ballot.

We’ll see what Mitch and the GOP do now that they’ve been handed the keys to the Capitol.  I’d like to hope that they do something to change my mind over the next two years (they’ve warned Obama not to take executive action on amnesty, although I suspect that’s only so he doesn’t steal their thunder).  But I doubt they will, and if they don’t, it’s going to take some real housecleaning to return the party to its conservative roots.

And that means 2016 (and beyond) may be even more painful than we think.

Your Liberty Is Being Decreed Away

“I don’t want to sell anything, buy anything, or process anything as a career.  I don’t want to sell anything bought or processed, or buy anything sold or processed, or process anything sold, bought, or processed, or repair anything sold, bought, or processed.  You know, as a career, I don’t want to do that.”

      —John Cusack as Lloyd Dobler in Say Anything

 

Somebody has to put a stop to this.

On Thursday, the President purported to bail out Congressional Democrats drowning in a tsunami of outrage over millions of people losing their medical care insurance due to the minimum coverage requirements of FUBARCare.  Following up on a proposal discussed in the last post, Obama made an executive decree authorizing the continued sale of discontinued policies made illegal under the law.

The trouble is the Democrats, having created the problem in the first place, can’t fix it by reinstating the plans.  They don’t have the constitutional authority to do so, and their insistence on doing it anyway is frightening.

They can’t do it via legislation, as we discussed Senator Mary Landrieu (D-LA) pushing.  The one thing Chief Justice John Roberts got right in his majority opinion in National Federation of Independent Business v. Sebelius was that the Commerce Clause does not give Congress the power to compel economic activity.  Because of that, it could not be used as a constitutional basis for upholding the individual mandate.  Senator Landrieu’s proposal simply amounts to an insurance company mandate, and the same analysis would apply.

I suppose one could argue that an insurance company mandate could be supported like the individual mandate was by enforcing it via a tax—Roberts was still wrong on that, by the way—but as a practical matter I don’t see how you would make that work.  It’s one thing to require individuals each of whom has to file their own tax return to submit proof of insurance with the return or have to pay their individual penalty.  But how do you enforce a tax on an insurance company to compel the reinstatement of hundreds of thousands of canceled policies?  How would you even compute such a tax, particularly when some people may have made other arrangements and don’t renew?  And there remain the disastrous long-term economic effects of compelling reinstatement, which we touched on in the last post.

Nor can the President do it.  Like Congress, he doesn’t have the authority to compel economic activity; the Commerce Clause doesn’t even apply to the President.  But he avoided that by not going as far as requiring insurance companies to reinstate policies, only decreeing that they would be permitted to continue selling policies that do not meet the statutory minimum coverage requirements.  He calls it “enforcement discretion,” and it is a power that doesn’t exist under the Constitution.  Scour Article II—you will not find it. 

Once again, we see this President unilaterally amending legislation—legislation he signed into law—creating a line-item veto by executive fiat, a power he simply does not have.  The President is only empowered to execute—that’s what an “executive” is—the laws passed by Congress.  He is not empowered to edit them, nor is he empowered to pick and choose which laws he will execute and which he will not.  One wonders where all those Democrats who little more than a month ago were shrieking at Ted Cruz that “It’s the law of the land!” are now. Thursday’s announcement and whatever order or communication that will go out to implement it are absolutely and unequivocally unconstitutional.

Notice a couple of things about the President’s “fix.”  One, it doesn’t lift the minimum coverage requirements; it only says that the penalties won’t be enforced.  It will remain illegal to have such a policy, and it will remain illegal to sell such a policy.  I don’t know about you, but I don’t know how comfortable I’d be holding or selling an illegal policy based on this President’s (unconstitutional) assurance—revocable at any time at his whim—that I won’t be punished for it.

Two, this “amnesty” plan is only good through 2014, once again conveniently pushing the issue off just long enough to get them through yet another election cycle.  And it likely does little for the millions who have already had their policies terminated.  Like everything else with this President, it’s a substance-less veneer; a cynical mirror hastily erected to divert your attention from the bigger issue.

And that bigger issue resides in the underlying thought process reflected in FUBARCare and the most recent band-aid.  Under FUBARCare, Congress took upon itself the power to compel individual private citizens to purchase a product regardless of whether they wanted it or could afford to pay for it, under penalty of law.  Let’s stop there for a moment; where does that end?  If Congress can make you buy medical care insurance, can’t it through the identical mechanism make you buy any other product or service it chooses to favor with an artificial compulsory market?  Suppose the UAW goes to Congress and says “We need more people buying cars”—what’s to stop Congress from enacting an individual automobile purchase mandate requiring every person over the age of 26 to buy a new car every three years or face a $15,000 fine, er, tax (with, of course, the appropriate federal subsidies, etc.)?

Pressing on, we see that the proposed solutions to the policy cancellation issue simply flip the analytical equation that led to FUBARCare in the first place.  Having compelled people to buy the product, the Progressives’ instinctive fix for the cancellations was then to compel people to sell the product.  True enough, Obama’s illegal exercise of fiat has—for now—stopped just short of compelling private insurance companies to sell the old policies, but compulsory sales was in fact the concept behind Senator Landrieu’s legislative proposal.  She wanted to force insurance companies to continue to sell policies they would otherwise cancel, and do so even at a loss.

Just like compulsory buying, this compulsory sale idea is subject to logical extension, and the place it leads isn’t pretty.  If government—whether via legislation or executive order—can compel a private insurance company to sell a policy, then it can compel any other private enterprise to sell a product, again even at a loss.  And if it can compel a private corporation to sell a product, it can compel any organization to sell a service.  And if it can compel a private organization—a private group of people—to sell a service, then it can compel a private individual to sell a service—force him to work—and again, to do so even at a loss.

Rusty, that’s crazy.  No one would ever suggest the government force individuals to provide a service against their will.

Really?  Well there are Progressives already openly campaigning on the premise that government should force doctors to accept Medicare and Medicaid patients—force them to provide a service—even if those doctors can’t break even under those programs’ payment structures.  It’s not far from there to say that doctors have to accept all patients, regardless of who they are or whether they can pay at all.  And if they can do it to doctors, well guess what, Sport . . .

It’s called a “command economy,” and it’s a hallmark of totalitarian communism.  Once government controls both sides of the transactional equation, once it acquires the power to compel both the purchaser to buy and the seller to sell, then all freedom is lost.  There is no private property, because both your money and your goods are subject to being forcibly exchanged in compulsory transactions; they belong to the government, to be disposed of as it sees fit for the collective good.  There is no liberty, because your labor—your fundamental control over yourself—is subject to being forcibly devoted to the service of someone else, whether you receive adequate compensation in return, or even any compensation at all; it likewise belongs to the government, to be disposed of as it sees fit for the collective good.  We all become slaves, each chained to the other, with the whip hand belonging to the Progressive ruling elite.

The Constitution was meant to protect you from this.  And it’s being openly, contemptuously ignored, with hardly a word in protest.  Once this genie is out of the bottle, friends, there ain’t no going back.  Write and call your Representative and your Senators; tell them they have to speak out and take action in defense of the Constitution.

We have to stop this now.  If it’s not already too late.

Truth And Consequences

“Hey, Howard, I thought you were a gentleman.  Sure it’s gone down a little bit, but you got the tip from your printer, I didn’t.  Yeah, you did.  That’s what you said.  I didn’t tell you to buy it, why would I tell you to sell it?  No, I can’t give it back.  Give it back to who?  You own it!”

      —Charlie Sheen as Bud Fox in Wall Street

 

Meet Mary Landrieu.

Ms. Landrieu is the senior Senator from Louisiana.  She’s a Democrat.  And she’s up for re-election in 2014 in what is otherwise normally a red state.

Back in 2009 she provided a pivotal late position change in favor of FUBARCare.  Recall that in order to get past a GOP filibuster to pass the thing, Senate Majority Leader Harry Reid (D-NV) needed every one of the 60 Democrats then in the Senate to be on board.  Landrieu was one of the last holdouts.  With time running out, Reid did what Leftists do: 

He bribed her.

Oh, I don’t mean he literally gave her cash (as far as either of us knows).  But in the seedy world of politics, money coming into one’s district—or, in the case of a Senator, state—is almost as good as money coming into your own pocket.  So, in a move that would make Machiavelli proud, Reid arranged for amendments to the FUBARCare bill that were to extend some $300 million in federal Medicaid assistance to Louisiana, originally given in response to Hurricane Katrina; in other words, in order to secure Landrieu’s Aye vote, Harry Reid and the Democrats took millions of dollars from taxpayers in other States and gave it to Louisiana (which, ironically, then joined 26 other States in suing the federal government in an effort to stop FUBARCare).  So if you’re in Ohio, or California, or Texas, you are subsidizing indigent medical care in Louisiana.

But it gets worse.

It turns out that Landrieu’s vote wasn’t bought for $300 million; the price tag was really over $4 billion.  That’s right.  Due to drafting errors in the bill amendment—What?  Drafting errors?  In the FUBARCare bill?  Get real.—instead of phasing out the additional federal subsidy, payments to the State of Louisiana actually increase, resulting in a total federal cost of about $4.3 billion.  All to give Senator Landrieu something about which she could boast to her constituents in exchange for changing her vote.

And to be clear: Senator Mary Landrieu voted for FUBARCare.  She owns it.

Fast forward to 2013.  FUBARCare launched in earnest on October 1.  Leave aside the side-tent freakshow that is the comically inept website rollout.  The real game is in the millions who are being kicked off their existing medical care insurance plans.  Many Democrats who bought into and repeated the President’s assurances (read: lies) that if you liked your insurance you’d be able to keep it are now shocked—shocked—to find out that it just ain’t so.  Of course, many of us have been warning for years, both before and after FUBARCare passed, that this would happen, and it turns out the Democrats really did know it all along.  But many among the more gullible and ignorant voting public are now finding out the hard way, and boy are they pissed.  And Democrats in reddish states who voted in favor of it—by the way, did I mention that Senator Landrieu voted for FUBARCare?—are feeling the heat.

But don’t worry, because Senator Landrieu is now sponsoring a brilliant fix to the problem.  She, along with people like Dianne Feinstein (D-CA) are pushing additional legislation that would require insurance companies to continue to offer the policies they’ve been canceling.  That’s right: the solution to an impossibly messed-up unconstitutional federal regulation is . . . yet more impossibly messed-up unconstitutional federal regulation.

Here’s just how perverse this whole thing is.  As we discussed in the last post, the insurance policies that are being canceled aren’t being canceled because rich, profitable insurance companies are mean.  They’re being canceled because under FUBARCare either (1) they don’t provide the requisite minimum coverage, or (2) they become financially unviable.  In other words, these policies are being canceled because they’re made illegal or unprofitable by the very law Senator Landrieu voted to pass.  Now she wants to avoid the political consequences of that action by requiring insurance companies to continue to offer those policies anyway.

The optics of this are silly—we’re going to require everyone to purchase policies with a certain minimum amount of coverage . . . except for everyone who has a policy that doesn’t meet that standard, which we first banned but now we’re going to mandate stay in effect—but the economics are worse.  As mentioned, many of the policies being canceled are being canceled because under FUBARCare they no longer make fiscal sense—that is, the insurance carrier would lose money if it continued the policy.  Senator Landrieu’s “fix” forces those companies to continue the policy anyway, despite the loss. 

The economics of the policies that do meet the FUBARCare minimums depend on the risk pool including all those people who were to be forced off non-qualifying plans.  That was the point of the minimum coverage requirement: to make the coverage proposition work for the insurance companies, they need to be collecting premiums from people who won’t claim benefits.  With Senator Landrieu’s “fix” allowing those people to avoid being forced into the risk pool for the more comprehensive coverage they do not want, the carriers either have to raise premiums even further, or operate at a loss.  The former prices some people out of the policy and forces them onto the publicly-subsidized exchanges or Medicaid, further reducing the insurance companies’ risk pool and thus starting the cycle all over.  The latter obviously has the insurance company losing money. 

Neither situation is sustainable long term, and all of the scenarios have the insurance companies being compelled by law to continue offering insurance at a loss. 

Now, Senator Landrieu may have a fairly astute strategy here from a short-term political point of view.  If Republicans oppose this move, they’ll be cast once again as obstructionists, placing extreme ideology before practical solutions.  Worse, it will effectively allow the Democrats to shift responsibility for the policy losses to the GOP—don’t blame us, we tried to keep you from losing your policy, but the Tea Party racists wouldn’t compromise—as the Republicans’ hopelessly inept messaging will fail to remind voters that Democrats like Senator Landrieu caused the losses in the first place, and will never be able to articulate the disastrous long term consequences of the proposed solution.  It’s potentially win-win for the Dems: Landrieu gets her life preserver, and the Progressives get one step closer to single-payer.

But this shouldn’t work if the GOP stands firm and refuses to bail them out.  Between the website rollout and the millions of lost policies, the Republicans have a tangible real-world story to tell that puts what to this point had only been an abstract theoretical lie into sharp relief.  If they can get their messaging together, this should be a winning issue in 2014.  And the stakes are significant.  In addition to Landrieu, two other Democrat Senators in States that subsequently sued to stop FUBARCare are also up for re-election in 2014: Mark Begich in Alaska, and Mark Warner in Virginia.  Both voted for FUBARCare.  Other Democrat Senators in otherwise red states are also up for re-election in 2014 or are retiring: Mark Pryor in Arkansas (up), Max Baucus in Montana (retiring), Kay Hagan in North Carolina (up), Tim Johnson in South Carolina (retiring), and Jay Rockefeller in West Virginia.  All five voted in favor of FUBARCare.  Together with Landrieu, that’s eight seats up where FUBARCare should be a major sore spot; six seats flips control of the Senate. 

The truth remains:  Senator Landrieu and the Democrats voted in favor of FUBARCare.  They passed it without a single GOP vote in either house of Congress.  They own it.

And in 2014, that should have consequences.

*****************

EDITOR’S NOTE:  FUBARCare was supposed to add some 27 million to the ranks of the insured.  After six weeks, HHS’ official enrollment figure—likely grossly inflated—is all of 106,000 and change.  At that pace, FUBARCare will reach the 27 million level . . . in 29 years.