• Kevin Drum takes a look at the arduous process to extend unemployment benefits, noting that after weathering three filibusters, the legislation passed unanimously. It's a good example of modern Republican obstructionism, and a handy reminder that institutional reform is something Democrats in Congress should be taking seriously if they ever want to pass legislation that makes a difference in people's lives. Meanwhile the Senate voted down an amendment designed to combat imaginary illegal immigrant vote fraud and stopped Lindsey Graham's proposal to bar the 9/11 suspects from being prosecuted in federal court.
• Speaking of amendments, Tom Coburn, when he's not placing holds on veterans benefits bills, has made it his crusade to strip funding for political science from the National Science Foundation. Fortunately, that amendment failed, with voting falling mostly along partisan lines, although the scatterplot of votes is worth a look.
• Jon Chait demonstrates with some choice embarrassing examples that when it comes to The Weekly Standard, there isn't any news that can't be spun as big wins for Republicans. He distinguishes this from magazines like National Review, which are more inclined to push the conservative agenda, not necessarily the interests of the GOP, although I'd argue that these days the party and the ideological movement are less distinguishable from one another than at any point in the recent past, and that new coalition's face has been the endless stream of incoherent tea parties this year.
• Remainders: Do we need another WPA?; cheap labor conservatives forever; and the horrors of government sponsored health care are too terrible to countenance.
  

--Mori Dinauer

As Ezra noted earlier this week, much of the reason that American health care is so expensive is because we pay so much per-unit of care, whether it's a prescription or a CT scan. In order to insure health care remains affordable and that reform is sustainable in the long term, these costs need to be brought under control -- a point conservatives, to their credit, have repeatedly raised. Democrats have tried to address the issue by trying to extract savings and price-control measures from groups like the drug industry, given the federal government's buying power through entitlement programs like Medicare. But, as The New York Times points out today, there's at least one area in which rapidly escalating costs will be far more difficult to constrain: the medical device industry. And it's not certain that the current health-care legislation will be able to make a big difference.

At the heart of the problem is that device makers, unlike the drug industry or health providers, don't receive Medicare payments directly from the government. Instead, as the Times article explains, the government gives a flat fee to hospitals, who are left to negotiate individually with device makers and manufacturers. Hospitals, however, often have little data to be able to gauge the relative effectiveness of different devices. Moreover, they're often contractually prohibited from disclosing how much they end up paying. As a result, hospitals -- and public entitlement programs -- end up relying on devices whose cost can vastly outstrip their value.

What's more, given the current fee-for-service model, hospitals themselves can also profit from inflated prices. In a separate Times story, David Leonhardt reveals how the Intermountain hospital chain managed to negotiate a significant price reduction for a certain medical device but still decided to charge patients -- and insurers like Medicare -- the old price:

A few people in the meeting were clearly bothered by this. They asked the finance executive, participating by speakerphone, if anything could be done. One committee member argued that Intermountain (which is nonprofit) should not overcharge for a treatment, even if it helped the hospital cover its overall expenses. The finance executive replied, apologetically, that changing the reimbursement rate would cost Intermountain millions of dollars and that there did not seem to be any way to make up for the loss.

Unfortunately, the current health-care legislation doesn't do anything to change this payment system, and legislators decided not to hit up hospitals themselves on the issue of medical-device payments. Unable to use Medicare price negotiations as a point of leverage, Congress ended up having to use a sledgehammer instead of a scalpel: they imposed a direct $40 million tax on the device industry itself. The device lobby lashed out and immediately rounded up a slew of Democratic legislators to protest the tax on the grounds that it would stifle innovation and job creation in their home states. And it seems like the device lobby has won: the House decided to halve the tax to $20 million, and the Senate is likely to follow suit.

Given the fact that medical-device costs are rising even faster than drug costs, such a measure hardly seems like it will squeeze adequate savings from the industry. It is a small consolation, at least, that the bill's comparative-effectiveness research will enable hospitals to make better cost-value judgments. But, in the end, it doesn't seem like it will be enough to fix a faulty, bloated payment system.

--Suzy Khimm

Reihan Salam weighs in on the Ft. Hood shootings:

The danger is that Hasan's despicable crime will subtly and slowly change these perceptions for the worse. Overnight, Twitter feeds and message boards pulsed with anti-Muslim anger. This kind of venting is important to a free society. But it could also be an ominous sign of tensions to come. It is thus no surprise that groups like the controversial Council on American-Islamic Relations have been so quick to condemn the violence. The vast majority of Americans recognize that Hasan doesn't represent all Muslims, just as the Virginia Tech killer Seung-Hui Cho didn't represent all Korean-Americans. Yet people who are on the fence about whether Muslims can be trusted could tip over into believing that they can't. Back in 2004, a survey sponsored by Cornell University found that 29 percent of Americans believed that "all Muslim Americans should be required to register there whereabouts with the federal government," a policy that would be a massive propaganda coup for America's rivals.

I think Salam is, in some sense, correct--Hasan's alleged crime will have the practical effect of making some non-Muslim Americans more mistrustful of American Muslims and more likely to support counterproductive policies that will benefit America's enemies.

I also can't help but be frustrated by the fact this is another example of collective guilt--Muslims aren't just responsible for themselves individually, they're responsible for making sure people don't hold bigoted feelings toward them. There's no sense in Salam's piece that the people who hold anti-Muslim views, or the people who will be inclined to indulge their prejudices against Muslims and use Hasan's actions as an excuse, who hold Muslims as a people collectively guilty for Hasan's actions, are at all responsible for doing so.

This is the paradox of being a minority in America--you're not only responsible for your own actions as an individual, but the bad acts of everyone in your community. Yet while we are all utterly aware of this reality, we seem to rarely question the logic behind it. 

-- A. Serwer

Mark A.R. Kleiman's book, When Brute Force Fails, has been making the rounds in the blogosphere, from Matt Yglesias to The Economist to The Volokh Conspiracy. The book is about how to improve criminal justice policy so that America has "less crime and less punishment." A centerpiece of Kleiman's argument is Judge Steven Alm's HOPE probation program in Hawaii, which has had startling success in reducing violation rates among probationers.

The main insight Kleiman draws from the program is that punishment is most effective as a deterrent when it is swift and certain, not necessarily severe. Our current method of dealing with crime, inconsistently doling out long, draconian prison sentences, Kleiman argues, is counterproductive and imposes significant social and financial costs on society--particularly in the communities offenders call home.

While Kleiman's ideas have gotten a lot of traction in the blogosphere, today is where some of those ideas begin to become policy. Earlier, Democratic Rep. Adam Schiff of California -- a state struggling to cope with a massive prison population -- joined with Republican Rep. Ted Poe of Texas in announcing the introduction of the The Honest Opportunity Probation with Enforcement (HOPE) Initiative Act. The bill would create a grant program for states interested in replicating Hawaii's HOPE program, in order to "reduce drug use, crime, and recidivism by requiring swift, predictable, and graduated sanctions for noncompliance with the conditions of probation."

It's worth mentioning that both Poe and Schiff are former prosecutors -- Poe also used to be a judge. The ideological landscape of criminal justice policy has shifted so significantly in recent years that ending the nightmare of mass incarceration is becoming a bipartisan proposition -- often with current and former law enforcement officials leading the way.

-- A. Serwer

Right now, independent voters are astonishingly volatile. Democrats did poorly in elections on Tuesday partly because of disappointed liberals who think that President Obama is moving too slowly, but mostly because of anxious suburban independents who think he is moving too fast.

Brooks makes no attempt to justify the idea that Obama is moving too fast, in part because it's hard to find evidence that supports such a statement. Since the passage of the American Recovery and Reinvestment Act last winter, the president hasn't convinced Congress to pass a major piece of legislation. That's not to say he hasn't done anything -- he has shepherded health-care reform through a long and thorough public debate, he has made numerous important executive-branch appointments and decisions, he has developed a budget that will cut the deficit in half in four years.

Of the major parts of his legislative agenda, though, he has yet to achieve ... any of them. True, congressional Republicans have been in the habit of saying things are moving too fast, but in comparison to what, they don't say. Nor do they offer any real alternatives for solving problems. If they don't like what the Democrats are offering, they can vote against their agenda, but requesting time to talk and then having nothing to say doesn't cut it. Meanwhile, I'm not the first to note, Republicans are demanding that Obama make immediate decisions on foreign-policy matters. It's hard to take them seriously.

In any case, I'd be very curious to hear what Brooks thinks Obama is doing so quickly that it alarms independents, and why he thinks that his fast action on these policies with which I'm unfamiliar is of greater concern to independents than, oh, the economy.

-- Tim Fernholz

Next week the Supreme Court will be hearing oral arguments about two cases in which juveniles were sentenced to life without parole for non-homicides. The most disturbing thing about these cases that is that both sentences seem egregiously unjust even before considering the age of the defendants. One of the convicted teenagers received the draconian sentence even though he had been fairly convicted only of one robbery and a parole violation, a remarkably disproportionate sentence.

The case of Joe Sullivan, sentenced to life without parole at 13, is even more appalling. His conviction is riddled with so many potential constitutional deficiencies that his sentence would be utterly indefensible irrespective of his age. The evidence used to convict him of sexual assault would need quite a bit more heft to even be considered "thin": the uncorroborated testimony of two self-interested accomplices and the victim's claim that her attacker's voice -- she never saw him -- "does sound similar." Even more problematic, however, was the performance of Sullivan's counsel, Mack Plant, who has now been suspended from practicing in Florida. Amy Bach has the grim details:

Plant punted at every step, beginning with his failure to address whether Sullivan was even competent to stand trial. Social science research shows that most teens don't have the ability to determine whether to take a plea deal, much less make decisions about strategy for trial. But from the record, it appears Plant never had his client's reasoning and comprehension skills evaluated.

The lawyer declined to give an opening statement, which is like a batter not taking a swing. Plant also failed to cross-examine witnesses vigorously. He did not explore Gulley's and McCants' backgrounds to show they had a motive to lie. He never asked: "Did you get a deal here?" Michael Gulley had an extensive criminal history that included one sexual offense, according to court papers. A lawyer might have used this information to cast Gulley as a possible suspect instead of Sullivan. Plant did not. Instead, he focused on the fact that Gulley had to have his memory refreshed about the entire crime before testifying. This was a good point, but Plant blew through it. (Entire cross: a little more than a page.) And he never challenged the victim's identification of her assailant's voice as Sullivan's or asked her to listen to the other two boys' speech.

If this constitutes an adequate defense, we might as well just repeal the Sixth Amendment right now and be done with it. The idea that anyone -- let alone an adolescent -- was locked up for life with this kind of representation is an abomination.  And just for the poison cherry on top, the judge didn't seem to understand the sentence he was doling out.

And if all this isn't depressing enough, Sullivan -- who, at least based on the evidence presented in court, should never have been anywhere near an adult prison -- was repeatedly sexually assaulted in prison and is now confined to a wheelchair with multiple sclerosis. The Supreme Court overturning his sentence can't repay him for what he's lost, but it would be a start.

--Scott Lemieux

Linda Li on Ayn Rand's place in the conservative movement:

David Boaz read all 1,168 pages of Atlas Shrugged in four days during his senior year of high school. "It was the most fascinating thing I'd ever read," he announced to the Cato Institute audience. As Cato's executive vice president, Boaz launched last week's Ayn Rand book forum with a clarion call for "individual rights, free enterprise, and strictly limited government." Conservative groups of every stripe were represented: the gun-toting U.S. Bill of Rights Foundation; the protectionist Manufacturers Alliance; and the Atlas Society, heir to the original Objectivist Institute. These varied delegates all could pinpoint the feverish moment in their adolescence when they experienced a Randian epiphany. One audience member testified that he, too, "was one of those 19-year-olds" who discovered The Fountainhead
and thought he was "the only rational person on the earth."

The publication of two new Rand biographies by Jennifer Burns and Anne Heller coincides with Rand's apparent resurrection. In February, CNBC's Rick Santelli inspired the tea party movement when he decried President Barack Obama's housing bailout as anti-Rand and encouraged every freedom-loving American to go John Galt. That same month, Atlas Shrugged's sales ranking on Amazon.com surged into the top 100, well above its place in the 500s over the past two years. After languishing at the sidelines of the political arena, Rand has entered into public discourse. Will this "Ayn Rand moment" last?

KEEP READING ...

Terence Samuel asks if Tuesday's elections mean anything at all:

Given the orgy of gloating on the right and the hand-wringing on the left that followed this week's elections, it would not seem unreasonable to conclude that next year's midterm elections have already been decided via Tuesday's results.

The parties -- and their associated franchises in the punditocracy -- have split in predictable ways. Progressives see the two congressional special elections, which Democrats won in New York and California, as way more predictive of the national political mood than the two governor's races, which they lost in Virginia and New Jersey. Meanwhile, Republicans are ecstatic about their high-profile gubernatorial victories and what the results portend for 2010. The truth is that Tuesday's wins and losses tell us next to nothing about next year's elections.

KEEP READING ...

Should illegal immigrants be able to purchase private health insurance within the newly created federal exchanges if they use their own money? That question, as I noted yesterday, is one of the biggest sticking points in the fight about immigration in the health-care bill. The Senate supports such a prohibition, while the House hasn't done so. Spooked early this fall on by accusations that the bill would cover illegal immigrants -- e.g. Joe “You Lie!” Wilson -- the White House has made it clear that it prefers the Senate's prohibition. Congressional Democrats wary of looking soft on illegal immigrants have echoed such concerns: Rep. Gerald Connolly told The Washington Post yesterday that he wants to make sure that those "who are here illegally cannot avail themselves of the infrastructure that we're creating."

But what these wary Dems seem to be overlooking is just how extreme such a prohibition would be. Those who advocate for cracking down on illegal immigrants always insist that taxpayer money shouldn't be spent on supporting their welfare. But the federal government wouldn't be spending any more money if it allowed unauthorized immigrants to purchase private plans on the exchange, as they wouldn't be receiving any subsidies to do so. And, yes, while taxpayer dollars are subsidizing the infrastructure for the private insurance exchange, the same can be said for the nation's public transportation system, energy supplies, and agricultural output. Should unauthorized immigrants also be prohibited from riding buses, filling up a tank of gas, or buying groceries because these industries are supported by federal subsidies and infrastructure? That's essentially the logic that those who want to exclude illegal immigrants from the exchange are subscribing to.

--Suzy Khimm

Adam Serwer on the continuing battle over voter fraud:

Two days before New Jersey's gubernatorial election, Wall Street Journal columnist and voter-fraud hype-man John Fund warned the election might be stolen away from Republican Chris Christie through voter fraud. "Local politicos," he wrote, "tell me Philly operatives associated in the past with Acorn may now be advising their Jersey cousins on how to perform such vote harvesting."

That's quite a hedge -- and understandably so, given that ACORN had "conducted absolutely no political or voter registration activity" in New Jersey during the 2009 cycle. A few hours later Fund went on The Glenn Beck Show to strike fear into the hearts of Beck's viewers: "People are going door to door in parts of Camden with Hispanics that don't have very much knowledge of English, and they're saying, 'We have a new way for you to vote, la nueva forma de votar; just fill out these papers.'"

KEEP READING ...

The White House, while realistic, tried to focus on the good signs: unemployment declined at a slower rate, again, with fewer jobs lost in October than September, and there was an up-tick in temporary employment, traditionally a sign that economists look for to see if the labor market is improving (employers hire temporary workers first, then make permanent hires as recovery looks to stick around). The real question now is what the governing Democrats will do, and I think Steve Benen has a nice framework for looking at this problem: Go Big, Go Home or Take a Detour.

To my mind, this situation calls for "take a detour." The administration should push Congress to finish health care as soon as possible, let the relevant committees continue working on financial regulation, and devote the rest of its efforts to the problem of unemployment, whether by passing a jobs tax credit or fiscal aid to states. While Going Big is awful tempting, it's not clear to me that Congressional Democrats have the stomach to do what is necessary to get through the president's agenda against the substance-less carping of the opposition party, which wants to take more time to talk about the ideas they don't have. Given that, doing what can be done and focusing on the economy seems to make the most sense. But I'm certainly in agreement with Matt: Going home isn't an option, and the moderate Democrats who want to use the economic situation as an excuse to do nothing at all ought to be ashamed. Democrats were elected to solve problems, and if they fail in that responsibility, not only will they be booted out of office, they'll deserve it.

-- Tim Fernholz

Dave Weigel reports that the conservative Committee for Justice is complaining in the aftermath of the nomination of one Latino and one African American to the federal bench, that President Obama's judicial nominees aren't diverse enough because there aren't enough southern white men among them.

Does President Obama or his advisors believe that southern white men are likely to be bigoted, making them unfit to serve on the second most powerful court in the land? We hope not and readily concede that it is difficult to know if any such stereotype lurks in the White House. The absence of southern white male circuit nominees could, instead, be an innocent coincidence or the not-so-innocent byproduct of a judicial selection process dominated by racial and gender preferences.

But regardless of the reason for the pattern we noted in 2007 and again now, even the appearance that Democrats are biased against southern white men is a potential problem for the party generally, and for President Obama’s goal of transcending old racial divisions.

Just to put this in perspective, a whopping 18 percent of judges on the federal bench are people of color. But in the eyes of this conservative group, assigning more white men to the federal bench "transcends racial divisions," and that doing otherwise reflects a selection process "dominated by racial and gender preferences." Conservatives regularly try to cast affirmative action as racially discriminatory, but rarely does someone openly admit that their only issue with the process is simply who is being discriminated against. 

There's something to be said for considering diversity of life and professional experience in picking judges, but some conservatives often don't seem too concerned about such things unless -- as in this case -- they're making the argument on behalf of white men.

-- A. Serwer

Soon after news of the Ft. Hood shooting had reached the airwaves, the Council on American Islamic Relations released a statement saying, "We condemn this cowardly attack in the strongest terms possible." The name of the alleged assailant, Major Malik Nidal Hasan, had necessitated a quick response from the group because of the fear that Muslims as a whole would be assigned collective responsibility for the actions of one man whose religious affectations were, at that point, unknown. Some reporters began pontificating about the dangers of Post-Traumatic Stress Disorder, which was just as irresponsible.

But CAIR's fears were sadly confirmed quite quickly, as John Nichols wrote yesterday evening. Michelle Malkin, whose book In Defense of Internment advocated for the use of racial profiling against Arabs and Muslims, quickly recycled a 2003 column suggesting that there was something wrong with allowing Muslims to serve in the armed forces. "Political correctness is the handmaiden of terror," Malkin tweeted. Don't you see? If we had just listened to her, and treated those people as enemies to begin with, this would never have happened. There are thousands of Arab-Americans serving in the armed forces, and many have given their lives defending this country -- Malkin would have us see all of them as potential traitors.

This is not unusual. In every community, there are those who make it their role to assign collective responsibility of the group's miseries to outsiders. Shortly after the shootings at Virginia Tech -- the immediate aftermath of which was rife with the same sort of Islamophobia -- Pat Buchanan was shrieking about immigration because the shooter, Seung-Hui Cho, was a South Korean national.

Indeed, the attempt to assign collective responsibility to Muslims worldwide for the murderous actions of a few is sadly predictable. Doing so is the first step in rationalizing the unthinkable and justifying the unjustifiable. But where this sort of reaction is to be expected from the likes of Malkin and Buchanan, far more shocking was the exchange between Sen. Kay Bailey Hutchinson and FOX News anchor Shepard Smith. Upon discovering Hasan's name, Smith said "The name tells us a lot, does it not, Senator?" to which Hutchinson responded, "It does. It does, Shepard."

How shameful. At the time, it told us literally nothing. But here were a sitting senator and a man whose job it is to report the news indulging their personal prejudices on national television. They were as ready to assign collective responsibility for the Ft. Hood massacre to Muslims as a whole as the pundits who do it for a living.

In the past few months, we've seen a number of shootings performed by white men with right-wing fringe beliefs. But while an attempt to assign the responsibility for the murder of George Tiller, or the killing of police in Pittsburgh, or the assault on the Holocaust Museum to white men as a whole would rightfully be seen as idiotic, there are those who sit poised and prepared assign the alleged actions of one man to an entire people. This is, quite frankly, the best reaction groups like al-Qaeda could hope for: The strength of their narrative of a war between Islam and the West ultimately rests on our own actions. We should not indulge them or those that share a similar worldview.

I'm glad Hasan is alive so that he can be tried for his alleged crimes -- if he is guilty, he will be a martyr to no one's cause. His motivations will be clear in time. But even if his motives were religious or political, the responsibility is his and his alone. In the meantime, I only hope that Americans will listen to the better angels of their nature.

-- A. Serwer

This piece in the Times emphasizes something that comes up a lot regarding the McChrystal report, and many other approaches to Afghanistan: Whether or not a given strategy is a good idea, the ability to actually implement it in a reasonable time is simply nonexistent. This goes for the "civilian" surge, which is severely delayed; troop deployments, which are severely constrained by U.S. dwell policies; and now it applies to the training of Afghan troops, which is at the center of both the COIN view of Afghanistan and those who take a more middle-ground approach. It turns out that current timelines just aren't that realistic.

The latest reports offer new details that show just how tough it will be to meet General McChrystal’s training goal. Among the previously undisclosed conclusions: one out of every four or five men in the security forces quit each year, meaning that tens of thousands must be recruited just to maintain the status quo. The number of Afghan battalions able to fight independently actually declined in the past six months.

It seems that new NATO involvement may speed things up, but NATO troops often decline to accompany their Afghan partners into the field -- this probably doesn't help -- which is a critical part of the mentoring process. Once again, it seems that what the U.S. might like to do in Afghanistan may not even be possible.

-- Tim Fernholz

Details are still slowly coming in, but earlier today, gunmen killed 12 soldiers and wounded 31 others at the Ft. Hood Army Base in Texas. President Obama issued a statement moments ago, acknowledging the “horrific outburst of violence” and added that “it is difficult enough to lose these brave Americans in battles overseas, but it is horrifying that they should come under fire at an Army base on American soil." (View the president's remarks here.)

One of the gunmen, Army Major Malik Nadal Hasan, was killed and two others -- also soldiers -- were reportedly taken into custody. Much will likely be made of the fact that Hasan was a recent convert to Islam, and reawaken the temptation to treat Muslims as a group that, unlike other demographics, does not make meaningful distinctions between its peaceful and violent adherents.

The Council on American-Islamic Relations (CAIR) issued the following statement in response:

We condemn this cowardly attack in the strongest terms possible and ask that the perpetrators be punished to the full extent of the law. No religious or political ideology could ever justify or excuse such wanton and indiscriminate violence. The attack was particularly heinous in that it targeted the all-volunteer army that protects our nation. American Muslims stand with our fellow citizens in offering both prayers for the victims and sincere condolences to the families of those killed or injured.

--The Editors

• Not one but two taxpayer "bill of rights" were struck down by big majorities on Tuesday, but don't tell that to the "freedom fighters" engaged in performance art on Capitol Hill today. They think health-care reform is like the Holocaust. They think reciting the Pledge of Allegiance pisses off liberals and can't even recite it properly. They tolerate and support conspiracy theorists. They think the culture wars of 40 years ago have salience today. They openly encourage revolution. Frighteningly, they also have the support of prominent Republican members of Congress.
• House Republicans, who have no clue how to promote good public policy, unsurprisingly received a terrible score from the CBO on their version of health-care reform, primarily because it manages to embody Alan Grayson's "don't get sick" characterization. This was understandably difficult for conservatives to handle since it's at odds with their supposed commitment to fiscal discipline, leading Ramesh Ponnuru to find the silver lining: "But are voters more concerned about the effect of a plan on the uninsured and the budget, or on their own costs (in taxes and premiums)?"
• While it is true that the South has had too much influence on national politics for far too long, I don't think that began to change in 2006. In 1980, for instance, a non-Southerner was elected president. A Massachusetts liberal was Speaker of the House at the time, and Reagan defeated a Minnesota technocrat in 1984. Both presidential nominees in 1988 were from New England, even if the Republican made his money in Texas. And despite a Southern Democratic ticket in 1992, and a Georgian being Speaker of the House, the midwestern Republican Senate majority leader ran for president in 1996. Things didn't just suddenly change when Nancy Pelosi rose to the No. 3 position in the country.
• If you're still dying to know whether the special elections of 2009 are a preview of 2010, political science has answers for you. Alternatively, you could read this fine example of substance-free political analysis from Politico, secure in the knowledge that you're cognizant in the cutting edge of Beltway conventional wisdom.
  
• Remainders: Thankfully, Barbara Boxer doesn't care what James Inhofe thinks about climate change; the U.S. Senate has deep institutional problems; I wonder how long it will take Michael Steele to beg Rush Limbaugh's forgiveness; for Dick Armey, parochial concerns aren't important until they are; and clearly Congress should suspend all other business until it gets to the bottom of this unprecedented "czars" situation.

--Mori Dinauer

Today the AARP and American Cancer Society endorsed the House health-care bill, with the American Medical Association expressing its positive (if qualified support). But amid this big news, a strong message of dissent was sent to the Senate side of things -- and it didn't come from Bachmann's tea-party spectacular on Capitol Hill.

In a letter sent to Senate Majority Leader Harry Reid today, the American College of Surgeons and 19 other physician groups stated their strong opposition to the current Senate legislation as based on the provisions in the Finance Committee's bill, primarily due to fears that it will not fix the Medicare payment system to doctors and will find other ways to cut down provider fees. The group wrote: "If these concerns are not adequately addressed when a health care reform package is brought to the Senate floor, we will have no other choice but to oppose the bill." 

At heart, the AMA's qualified support of the House bill and the surgeons' problems with the Senate bill are rooted in the same key issue: fixing Medicare's flawed payment system for providers. As Jonathan Cohn points out, in the endorsing health reform, AMA underscored the fact they they were supporting not one but two bills: the primary bill Nancy Pelosi has put forward, and a separate $210 billion bill that would do away with planned reductions to Medicare physician payment to bring them in line with the Sustainable Growth Rate (SGR). On the Senate side, however, the attempt to pass a version of the latter -- the so-called doc fix -- failed when Senate Democrats joined Republicans to defeat a $245 billion, unfunded bill. And ACS's letter today intended to send the message to the Democrats that such a move was unacceptable.

So, in different ways, both the AMA and ACS made it clear today that their support for the health-care legislation is significantly contingent upon Congress's ability to pass some form of "doc fix." Problem is, it's far from certain that this will happen within the time frame of health-care reform debate. As Cohn notes, "Congress seems disinclined to pass an SGR fix, even as a separate bill, without new revenue or savings to offset the cost" -- and finding extra money will be extraordinarily difficult. If that's the case and the doc fix doesn't get passed, will doctors and surgeons end up turning against health reform? Surgeons certainly issued a credible threat to the Senate today.

--Suzy Khimm

Advocates of breaking up the banks have jumped on the news that the British, led by their Fed chair equivalent, Mervyn King (right), are planning on splitting apart their banks. It's an interesting precedent, but it's important to keep in mind that the British banking sector is already much more concentrated than the U.S. If this data is right*, then the three largest banks in the U.K. are all nearly a trillion dollars larger, in terms of assets, than their largest U.S. counterparts. This more recent data puts things in more perspective: The largest, Royal Bank of Scotland, has $3.5 trillion in assets, while the largest U.S. Bank, JPMorgan Chase, has "only" 2.2 trillion -- and there are two other British banks larger than JPMorgan. (Which, incidentally, is one of the banks that has been strongest throughout the financial crisis.) Additionally, there are many fewer banks in the U.K. compared to the U.S., which has a much stronger regional bank system.

What does that mean? I think policymakers in the U.K., seeing that they have essentially three huge banks, the largest of which it owns 70 percent of, are probably wise to decide to break up their banks. Here in the United States, by contrast, we seem to have much more variety and competition, so their situation doesn't seem entirely relevant to ours. We should definitely look into ways to have banks where the U.S. has major ownership stakes sell of divisions to pay back taxpayers sooner -- in the case of Citibank, something that is already happening. The broader U.S. problem is that, when push came to shove in 2008, regulators could either bail out banks or send them into bankruptcy; neither was a good option but bailing them out was better than freezing the lending economy. That's why giving the government the ability to dissolve safely in the case of failure is such a good idea.

That doesn't mean it would be a bad idea to go back to Glass-Steagall, although the mix of commercial and investment banking didn't have much at all to do with last year's crisis, and even the biggest advocate of that position, Paul Volcker, has now said he doesn't want to go back to Glass-Steagall, only to stop banks from running hedge and private equity funds, which seems very wise.

Basically, if regulators have the tools to force banks to divest themselves of certain business areas they shouldn't be in, that's a smart move. But more important than capping bank size is making sure that bad practices are discontinued, and that tools exist to deal with bank failure the right way in the future. All that just underscores the fact that, at the end of the day, having regulators who will enforce rules and take action is just as important as having the right structures in place.

-- Tim Fernholz

* Anyone know where I can find data on British banks comparable to this? I had no luck at the FSA or Bank of England, but I might not know what I'm looking for.

The House may be closer to settling the immigration issues in the health-care bill this week, but the issue is sure to rear its head again further down the road in the legislative process. In the manager’s amendment to the bill released Tuesday, Speaker Nancy Pelosi confirmed that the House would not adopt the stricter measures included in the Senate Finance Committee’s bill to bar illegal immigrants from purchasing insurance in the federal health exchanges. With Pelosi's amendment now included, both the House and Senate bills follow the Social Security Act’s verification process to allow only immigrants who can provide a valid name and Social Security number to receive government subsidies to buy insurance on the exchanges. However, the House bill does not prohibit illegal immigrants from using their own money to purchase private insurance in the exchanges or the public plan, while the Senate bans this practice.

Groups advocating for a crackdown on illegal immigrants had been lobbying hard for the stricter provisions to be adopted on the House side, but they were met with fierce opposition from members of the Congressional Hispanic Caucus (CHC), who threatened to hold up the bill if stricter prohibitions were adopted. Interestingly, though, few House Democrats entered the fight to exclude illegal immigrants from accessing health care -- on the Hill, the concerns about immigration were essentially taken up by proxy, via DCCC chair Chris Van Hollen, who wanted to protect vulnerable members from getting slammed on the issue. The conservative House members angriest about the immigration provisions are Republicans like Joe Wilson who were going to vote against the bill anyway, giving their side little leverage compared to powerful Hispanic Caucus members like Xavier Becerra. With few conservative Dems making threats, the House seems to have reached a resolution of the issue that the CHC can live with.

But the immigration question is far from being resolved in the larger legislative debate. For one thing, the White House supports the Senate's prohibition on allowing illegal immigrants to purchase health insurance with their own money on the exchange and had a meeting scheduled with the CHC today to discuss the issue. While allowing such access wouldn't entail government handouts to illegal immigrants, Senate Democrats and administration officials remain wary of such accusations. And when the Senate bill comes to the floor, expect a slew of Republican amendments that could force Democrats to take politically difficult votes on the issue.

--Suzy Khimm

On the left, one controversial part of health-care reform is the Senate's health insurance excise tax, which forces insurance companies to pay a tax on high-cost insurance plans. Unions oppose the tax because many of their members have expensive health benefits in lieu of higher wages -- leaving them more vulnerable to its effects -- while health wonks love it because it provides an incentive for insurers to rein in costs on their most expensive plans. The Center for Budget and Policy Priorities has pretty much convinced me that the excise tax, properly tailored, is a good idea. Now here's Ezra making the progressive case for the tax:

The reason is that, unlike the House's surtax on family income over $1,000,000, the excise tax on high-cost insurance plans is not simply a tax. It's also a policy. Economists believe, with substantial evidence, that it will restrain the growth in health-care costs by making employers less willing to pay the automatic increases that insurers pass down each year. That money, they believe, will be routed back into wages. This is not intuitive, but it is, again, heavily backed up by evidence.

Few forces in American life are as regressive as the rise in health-care costs. At the bottom of the income scale, the rising costs make it impossible for employers to offer insurance coverage and convince some employers to end their health benefit programs, throwing their workers into the ranks of the uninsured. Moving up, working-class folks see their wages stagnate and their premium payments increase.

Ezra emphasizes the evidence because many of the arguments against the tax are simply that economists don't know what they're talking about it -- it's just the "egghead economist approach," says the AFL-CIO's Jerry Shea. But barring better arguments, I think labor is wrong on this one. An excise tax, appropriately targeted, is what one administration official calls "a revenue raiser and a game changer": It doesn't just cover the costs, it brings them down, too. That means both more subsidies for low-income health care and cheaper premiums for everyone; if economists are right, it also means higher wages.

-- Tim Fernholz

Pirates of the song-ripping, not Somali, variety.

Cory Doctorow passes along word that a draft version of an international agreement on copyright law has leaked, as have earlier documents from the hush-hush negotiations over what's called the Anti-Counterfeiting Trade Agreement.

Officials from the U.S., Japan, Switzerland and other countries have been hammering out the details of the trade agreement in far-flung places for the last five years or so. Round six -- with the participation of Obama's U.S. Trade Representative Ron Kirk -- happening this week in South Korea. What the draft text says about a new global regime for "Internet distribution and information technologies" is, says Cory, "very bad." And you can certainly make a strong argument that what's being debated this week would move forward the current front line of the copyright wars.

You can also make a good case that that's exactly why we're seeing this latest battle in the copyright wars playing out in secured conference rooms in Seoul rather than in front of C-SPAN cameras in the Senate. Congress, for all of Orrin Hatch's musings about blowing up computers, has stopped short of turning such aggressiveness into law. ACTA, then, takes a top-down approach. ACTA would get done at the level of international law something copyright interests like the RIAA, MPAA, and some software firms have wanted for years. It would do away with an understanding we have in the U.S. about the Internet: that, generally speaking, the networks and platforms that make up the online world (whether that's TimeWarner Cable or YouTube) have some protections against being held liable for what people post onto their services, like swapping songs they don't have the rights to.

Here's where the ACTA approach brings to mind how '80s-era mandatory sentencing for drug crimes came to be such a mess. Drug reform advocates wanted some sort of standardization on what had been the chaotic enforcement of drug laws. Short and consistent terms, the thinking went, would benefit overworked courts and defendants. After a zealous Congress got done with the idea, though, we had uniformly draconian sentencing laws that judges came to despise. Copyright enforcement, especially online, is similarly fuzzy. Internet companies get caught in the ambiguity. So ACTA offers what seems to be a tempting escape hatch.

The agreement that seems to be on the table in Seoul would give Internet services a safe harbor that protects them against what's called intermediary liability. That's arguably a positive step -- only to get there, the Internet services would be required to enact a mandatory zero-tolerance policy against copyright infringement. They have to agree to filter copyrighted material and strip infringing content from their networks. And more than that, Internet service providers would have to set up their services in a way that allows them to cut off copyright-infringing customers, a step they've fought against. (That tactic even goes by the name "three strikes and you're out.") That's a drastic, speech-limiting step that even Congress has shied away from.

That's why they call it the copyright "wars." And actually, it's reasonable to even tease out this whole war on drugs analogy further. You can argue that there's some similar cultural blending at work here. Like how Nixon and his team purposely grouped the marijuana beloved by long-haired counterculturalists with heroin and cocaine without much public consensus, the international agreement on the table lumps in illegal song-sharing -- rightly or wrongly -- with big global problems like counterfeit pharmaceuticals and even the big business of fake handbags. It's strategic for copyright interests to have all those things bundled together if and when it's time for Congress to have its say on the matter.

--Nancy Scola

(Photo credit: swanksalot)

Exciting news on the housing front: Effectively nationalized mortgage lender Fannie Mae has adopted a new policy to deal with foreclosures: Letting homeowners remain in their homes as renters instead of kicking them out and abandoning the property, as happens in many foreclosures.

"The Deed for Lease Program provides an additional option for qualifying homeowners who are facing foreclosure and are not eligible for modifications," said Jay Ryan, Vice President of Fannie Mae. "This new program helps eliminate some of the uncertainty of foreclosure, keeps families and tenants in their homes during a transitional period, and helps to stabilize neighborhoods and communities."

The new program is designed for borrowers who do not qualify for or have not been able to sustain other loan-workout solutions, such as a modification. Under Deed for Lease, borrowers transfer their property to the lender by completing a deed in lieu of foreclosure, and then lease back the house at a market rate.

To participate in the program, borrowers must live in the home as their primary residence and must be released from any subordinate liens on the property. Tenants of borrowers in this circumstance may also be eligible for leases under the program. Borrowers or tenants interested in a lease must be able to document that the new market rental rate is no more than 31% of their gross income.

This is really excellent news. Foreclosures are a source of economic problems not just for residents who become homeless but also because property values decay, hurting the broader housing market. Many people have advocated adopting this policy for some time, including our own Dean Baker, as it became increasingly clear that the central program designed to prevent foreclosures, Treasury's Making Home Affordable, hasn't been working nearly as well as it needs to be to have real effects on the crisis.

Of course, given that Fannie requires tacit approval from government regulators for any major decisions (since taxpayers own the firm), you'd have to think someone in the administration had a hand in this ...

-- Tim Fernholz

The administration's biggest economic mistake so far was to badly underestimate last January how terrible the employment situation would become by fall. As a result, it low-balled the stimulus -- settling for a plan that, while avoiding even worse job losses, didn't go nearly far enough.

Obama has to return to Congress, seeking a larger stimulus.

Yes, I know. We're already in the gravitational pull of the midterm elections (look at the bizarre attention given to gubernatorial elections in New Jersey and Virginia, and even to a congressional election in the 23rd district of New York, as supposed harbingers of voter behavior a year from now!). So it will be even harder to round up the needed votes from Blue Dog Dems fretting over the deficit. And you can forget the Republicans.

And yes, I know: Only about half the current stimulus has been spent, so it will be awkward to make the case that we need a larger one.

But here's the problem. Everything else on the table -- a new jobs tax credit, more loans to small businesses, more help to troubled homeowners, another extension of unemployment insurance, another round of subsidies to first-time home buyers -- are small potatoes relative to the importance and likely effect of a larger stimulus. Some of these initiatives may do some good, but even combined they'll barely make a dent in the growing numbers of jobless Americans.

More after the jump.

--Robert Reich

MORE...

The circumstances of yesterday's conviction in absentia of 23 CIA agents by an Italian court for the extraordinary rendition of Abu Omar, who was disappeared from Milan, were strange to me. The U.S. usually only uses rendition when the host country is either unfriendly or can't be seen cooperating with the U.S., and Italy is neither. Furthermore, five "high-ranking Italians" charged in the case were given immunity for reasons of "national security."

Peter Bergen reported on the extraordinary rendition of Abu Omar for Mother Jones in April of last year, and his reporting confirms my suspicion that the Italian government had been told in advance of the abduction:

[Milan CIA Station Chief] Robert Lady, who speaks fluent Italian and had good relations with his local counterparts, emerges from this tale as something of a tragic figure. He had opposed the snatch of Abu Omar on the grounds that it was counterproductive; he knew that Italy's counterterrorism police had been trying to build a case against the Egyptian militant and had even warned a top Italian counterterrorism official, Stefano D'Ambrosio, that the CIA was planning the Abu Omar operation. D'Ambrosio told Italian investigators that Lady considered the whole scheme "stupid." But Lady was forced to lead the operation by his bosses in Rome and Langley, who were under intense pressure from the White House to produce results in the war on terrorism. Lady told Pironi that he'd never have spent all his savings to buy a retirement house in the Italian countryside "unless he had been sure that no inquiry against him was under way."

Bergen's piece is also important for putting in context what extraordinary rendition, which began during the Clinton administration and increased during the Bush administration, is and is not supposed to do. For example, it's not for the purpose of getting intelligence:

The extraordinary rendition program was not primarily intended to yield information, according to Michael Scheuer, the CIA official whom the Clinton White House tasked with implementing it. "It came from an improvisation to dismantle these terrorist cells overseas. We wanted to get suspects off the streets and grab their papers," Scheuer explains. "The interrogation part wasn't important." He also claims that the program was overseen by congressional committees and "was lawyered to death." After 9/11, "The White House was desperate," Scheuer says. The rendition program quickly expanded because holding any but the most important Al Qaeda prisoners was a "burdensome proposition" for the Agency.

There's one word here that sticks out to me: "suspects." These people hadn't necessarily committed any crimes, and the government didn't even believe they had valuable intelligence information, but the U.S. sent them to countries to be tortured because dealing with them ourselves was a "burdensome proposition." The government simply suspected that these people were dangerous, and the Bush administration was desperate for "results" in the war on terror, even to the point of committing crimes in friendly countries.

The Obama administration claims to have ended the practice of "extraordinary rendition", or the deliberate rendering of suspects to countries where they will be tortured. The Department of Justice says they have developed better procedures for getting "assurances" from foreign countries that the individuals the U.S. renders to them will not be tortured--an experienced FBI interrogator in Bergen's piece said that "assurances" given during the Bush administration were "worthless."

Back in August, White House counterterrorism official John Brennan suggested that the Obama administration might be utilizing rendition more as a result of the administration's attempts to avoid instituting a preventive detention regime for the "hard cases" at Guantanamo.

-- A. Serwer

Mark Schmitt on how his daughter could be the next Hideki Matsui:

When it's her long-awaited turn to play an inning behind the plate, I rush over to my daughter and help her strap on her leg guards, chest protector, and mask and then watch as she does her best imitation of Jorge Posada, crouched unsmiling behind the batter. When there's a chance of a play at the plate, she whips off the mask and positions her glove exactly where it's supposed to be.

It still brings a tear to my eye. I didn't expect to be much of a Little League dad -- I never played organized baseball myself and don't have much of a competitive streak. But I'm very much a Title IX dad. My 8-year-old is the only girl on her team this year, but that's mostly a trivial fact. She's hardly conscious of it, and the only time I've ever heard any of her teammates mention it was to worry about whether she was going to switch to softball, as other girls have done -- something she has no intention of doing. She was thrilled when she learned that there was no actual rule or law against women playing Major League Baseball, just that it hadn't happened yet. Her aspiration to play for the Yankees is not measurably less realistic than any other 8-year-old's.

KEEP READING ...

I reported last week that human-rights groups have been using Gen. Stanley McChrystal's strategic assessment to argue for detention reforms in Afghanistan. One of my sources for that story, Sahr MuhammedAlly, is among the authors of a new report from Human Rights First that cites both McChrystal and Marine Reserve Gen. Doug Stone to make the argument that reforming the detention system isn't just a human-rights issue but will "more fully align U.S. detentions with strategic priorities."

Earlier this year, there was some skepticism about the amended Detainee Review Board procedures at Bagram, since they resemble the prior detention review procedures under the last administration that were deemed unconstitutional. Yet the HRF report actually says the reforms the Obama administration made are significant, but don't go far enough. HRF wants to see Afghan judges brought into the review process; it wants access to detention centers -- including Bagram -- for human rights groups; and it wants improvements in detainees' ability to "examine and challenge the evidence against them, exclude evidence gained through coercion, and create a combined repository of information." HRF wants to see detainees get legal representatives in the DRB, since even the improved procedures have them being assisted by non-lawyer "personal representatives" instead. The report also recommends making the transcripts of DRB proceedings public, and shifting detention authority over to the Afghans in part by strengthening their criminal-justice system.

But one of the most important recommendations is the one the U.S. is most likely to ignore: the repatriation or release of non-Afghans who were brought to Afghanistan in order to shield them from the eyes of U.S. courts. Back in April, Judge John Bates ruled that foreign detainees captured in a third country and brought to Bagram had habeas rights, just like detainees at Gitmo. Later, Gen. David Petraeus indicated that the FBI had been to Bagram to mirandize some detainees there. We've seen little movement on this issue since then. Given how complicated and lengthy the process of reviewing detainees at Guantanamo has been (as a result of the previous administration's practices), the administration is probably going to kick this legal time bomb down the road as long as it can.

There will be other good recommendations in the report that the administration will probably ignore, which is a reminder that while the strategic goals of the U.S. military and huma- rights groups may sometimes align in theory, they don't always in practice.

-- A. Serwer

STAMFORD -- City native Michael Pavia, who promised voters he will strive to limit property tax increases and improve basic city services, won a landslide victory Tuesday over Democrat David Martin, becoming the first Republican to win the mayor's seat in 14 years.

...In his campaign, Pavia tried to paint Martin as the mayor's "rubber stamp" and voiced complaints that the city has lost focus on basic city services, such as road paving and sidewalk repair, while allowing property taxes to rise.

Pavia said the Malloy administration focused too much on bringing in big businesses while ignoring the needs of small business owners. He has not shied away from calling for major changes to the city charter, saying he favors term limits and an overhaul of the city's master plan.

Indeed, in New Jersey and Virginia voters were saying much the same thing. New Jersey voters were focused on the economy and the state's high property taxes; Virginia voters were concerned about unemployment. It's not a question of ideology or even party; it's a question of incumbency. (In fact, the only race driven by ideology, NY-23, went to the Democratic candidate.) That's an important distinction to make because it highlights the choices that incumbent Democrats have to make in the next year: Whether they continue to pursue the economic policies that have begun to demonstrate they can turn around the economy, and indeed increase their efforts with further help to the labor markets, or whether they act timidly and pursue choices that may be popular now but will end with disaster at the polls next year. Tomorrow's unemployment numbers will set the tone -- there are some signs that the number of people who lost their jobs last month will be at its lowest in some time.

Back in Connecticut, meanwhile, Dodd is in trouble because of his financial industry connections. But his new regulatory reform plan, which would create a "super-regulator" and severely diminish the Fed's powers, "stakes out an extreme position, and is likely to face major resistance, especially from the banking industry." Barney Frank told me last week he doesn't think Dodd has the votes for this, but it's a nice change from the compromise-first position asserted by the administration. It may also help save Dodd's bacon.

-- Tim Fernholz

Over at Newsweek, Ben Adler describes how the Republican upsets in New York City's suburbs are “an actual bad sign for the Democrats.” I’d actually look a bit farther east to include the results in Connecticut as another reason for concern.

Republicans ousted Democrats in municipal elections throughout the state, picking up seats in Stratford, Trumbull, Monroe, Darien, Guilford and other towns throughout southwestern and central Connecticut. In Stamford -- the state’s financial hub -- Michael Pavia trounced his Democratic opponent to become the city’s first Republican mayor in 14 years.

“With the economy so bad, people are looking for change,” Nancy DiNardo, the state’s Democratic Party chair, told the AP, linking the results to a broader, national repudiation of incumbents. Even so, the results don’t bode well for politically embattled Sen. Chris Dodd, who still trails leading Republican challenger Rob Simmons by over six points.

Less than two weeks ago, Obama himself traveled up to Stamford to attend a fundraising dinner for Dodd, praising his efforts to push for robust financial regulatory reform. But -- as I explained in a TNR piece earlier this year -- Dodd faces an uphill battle to dissociate himself from the deep-pocketed financial interests that reside in his state and shower him with campaign contributions, given his chairmanship of the Senate Banking Committee. And a few of yesterday’s local Connecticut races pointed to some of the political challenges that Dodd is already facing.

In Stamford’s mayoral race, for example, Pavia railed against the Democratic incumbent for favoring the financial titans over the town’s small businesses, recalling the kind of criticisms that Simmons has levied against him over the AIG bonus scandal and federal bank bailouts. Simmons, for one, has already taken the opportunity to link 2009 with 2010, blasting Dodd for being his role in the “economic meltdown and its myriad of failed responses” in the same breath that he praised yesterday’s GOP victories in the state.

To be sure, Dodd could still have an opportunity to come back if the health-care bill and robust financial regulatory reform pass successfully. And if his Banking chairmanship makes him an easy target during economic hard times, he could conversely reap political rewards if the economy recovers to the public’s satisfaction next year. Either way, though, it seems unwise to overlook yesterday’s Republican victories in Dodd’s home state as insignificant. In a state that was at ground zero of the financial crisis, with a federal lawmaker who’s tried to guide its economic recovery, local and national concerns can be one and the same.

--Suzy Khimm

• Anyone looking for the meaning behind yesterday's elections should consult this chart from Joshua Tucker, which tells you all you need to know about the new balance of power in Washington and at the state level. And of course, if yesterday was a referendum on Obama's policies, especially health care, then "the people," as it were, voted to give Nancy Pelosi two more votes in the House.
• Chris Matthews is correct that some liberal activists had too high expectations for the first year of the Obama administration's ability to "change the Congress," but his insistence that the "netroots" are "wrong and misinformed" is confusing. During last year's campaign, the Obama team quite deliberately shut out the liberal blogosphere and constructed instead a parallel "netroots" that was composed of, unsurprisingly, those most enthusiastic about Barack Obama. Separating these different netroots, to say nothing of the less activist, more policy-oriented blogger, is something self-important media figures like Matthews have never been able to do.
  
• As Daniel Larison observes, it's impossible to take anything conservative hawks say on foreign policy seriously because so much of what passes for "analysis" on the right is designed to assess the president's actions and intent in the worst possible light. The same applies, of course, to domestic policy, and the result is that the bulk of what passes for conservative thought is so intellectually dishonest and motivated by pure partisan gamemanship that legitimate conservative criticism is lost in the noise.
• Remainders: Obama nominates two more America-hating judges to destroy the Constitution; Blue Dog Democrats are under the impression that they were elected to Congress to get nothing done; the coming turf war between Defense and State boils down to money; Hendrik Hertzberg plausibly predicts the next four years; Carly Fiorina announces gubernatorial run, is immediately labeled a RINO; and Chuck Colson is here to lecture you on religious foundations of morality.

--Mori Dinauer

House leadership is still struggling to find a compromise on abortion provisions that could threaten to derail the health-care bill, which they are trying to bring to a vote as early as this weekend. Yesterday, Indiana Rep. Brad Ellsworth, an anti-abortion Democrat, put out his own amendment to try to break the legislative deadlock. While Ellsworth has many of the same concerns as Bart Stupak, the Michigan representative who has threatened to hold up the bill with at least 39 others for not going far enough to prohibit federal funding of abortions. So what is Ellsworth asking for? Here’s the gist of his proposal (abridged for length):

• Explicitly prevents all federal tax dollars from being used to provide abortions in the public option;
• Prohibits any funds from the U.S. Treasury from paying for abortion services in any of the plans purchased through the proposed Health Insurance Exchange;
• Establishes clear, strict rules for separating public funds from the premiums of private individuals;
• Guarantees every American participating in the Health Insurance Exchange will always have access to a pro-life insurance option;
• Expands conscience protections to prevent the government from discriminating against pro-life health insurance plans.

Now, what's the difference between the Stupak and Ellsworth proposals?

The current version of the bill requires each state to have one insurer that provides abortion services and one that does not. As I explained earlier this week, Stupak's main problem is that the bill allows insurers who provided abortion services to participate in the exchange, which has participants supported by government subsidies. Stupak would thus categorically prohibit any insurers in the exchange from offering abortion coverage. Meanwhile, Ellsworth's proposal seems to require that the exchanges only have an anti-abortion insurance option, without necessarily guaranteeing an option that provides abortion services.

The reality is that most insurance companies do cover abortion services, making it fairly likely that a pro-choice insurer would be included. But Ellworth's proposal suggests that might not be guaranteed, though outside observers say it won't be entirely clear until the amendment's legislative language is released. The other provisions of Ellsworth's amendment suggest that the public plan would either prohibit any abortion coverage or have the public plan use money from private insurers (i.e. not Treasury's) for such coverage.

The Ellsworth proposal has already attracted criticism from reproductive rights and anti-abortion groups -- though anti-abortion advocates were far more vehement in their attack. While Planned Parenthood said they were "concerned" about the effect of the amendment on women's rights, the National Right to Life Committee called the move "a phony compromise" that is "only intended to wrap the pro-abortion provisions in additional layers of concealment," as Politico reported. Ellsworth has received the green light from the House leadership to try to whip other pro-life Democrats to support his compromise.

While Stupak is "reviewing" Ellsworth's alternative, he is "continuing to hold firm" in supporting his own proposal, Stupak spokesperson Michelle Begnoche said today. But though Stupak might still be willing to compromise, it's unclear whether the House leadership will have the time or patience to keep negotiating with him further. If the Ellsworth alternative manages to strip away enough of Stupak supporters, it could be enough to move the bill forward.

--Suzy Khimm

Tim Fernholz on what the election results mean for Democrats:

Not two days ago, a veteran Democratic operative told me that he expected Tuesday's election results to be a death knell for Republican moderates. But after the votes were counted, the message is that extremists are out and economic concerns are in, as voters chose a Democrat over a conservative in a New York congressional seat and two governors' races were decided over economic concerns.

Pundits will no doubt try to use the results to prognosticate for the 2010 congressional midterms, but the real significance of Tuesday's results is how they will influence politicians in the coming months, not what they predict for voter behavior a year from now.

KEEP READING ...

After noting that Palin will be in Chicago later this month to appear on "Oprah", Kirk writes that "the Chicago media will focus on one key issue: Does Gov[ernor] Palin oppose Congressman Mark Kirk's bid to take the Obama Senate seat for the Republicans?"

Kirk goes on to write that he is hoping for something "quick and decisive" from Palin about the race, perhaps to the effect of: "Voters in Illinois have a key opportunity to take Barack Obama's Senate seat. Congressman Kirk is the lead candidate to do that."

Palin, it appears, has become something of a kingmaker among conservatives (although, to be completely accurate, people in that role typically endorse winning candidates, not losing ones). It will be interesting to see if Palin is pragmatic enough to endorse Kirk, but one thing is clear: Having an independent conservative in the race would make it very difficult for Kirk to win what would otherwise be a very competitive race for him. It's not simply the issue splitting the Republican base. The problem comes with the kind of issues Kirk would be forced to talk about during the race: While cultural issues and fiery rhetoric excite the Glenn Beck crowd, winning campaigns in the last few years have been focused on economic issues and jobs. Just ask incoming Virginia Governor Bob McDonnell or NY-23 Congressman-elect Bill Owens.

"It doesn't make sense to me how you would ever talk about things other than what actually matters to people in the district, but the House Republicans manage to do it every time," one Democratic operative told me as we discussed the NY-23 race this morning. "I was so amused with the debate over the 'heart and soul of the Republican Party.' Could there be anything in the world that the average voter cares about less than the fate of a fucking political party?"

-- Tim Fernholz

A week ago, New York City Mayor Michael Bloomberg reported that he had raised (from himself) $85 million dollars, while opponent William C. Thompson had raised about $9 million. And yet Thompson, an uninspiring candidate with no message and no real base, came within four percentage points of defeating Bloomberg.

What is the big lesson here? Certainly it's that Bloomberg was more vulnerable than most recognized, especially all the potential candidates who were so intimidated that they not only gave up their candidacies but even backed his scheme to undo term limits. But more significantly, it is further proof of a rule of thumb in campaign finance that is often forgotten: After a certain point, more money doesn't do you any good. (Political scientists Jonathan Krasno and Donald Green showed this in a 1988 paper I can't find online.) There are rapidly diminishing returns to greater spending, as self-financed candidates before Bloomberg, whose names you might not remember because they lost, have found.

A corollary is that, to run a viable race against a big-spender, a candidate doesn't need to keep pace, but just has to reach some threshold of viability. It's hard to know exactly where that is, but it's a reasonable guess that Bloomberg's previous opponents, Mark Green, who raised and spent $17 million in 2001, and Fernando Ferrer, with $10.5 million in 2005, probably reached it, which is to say, money wasn't the main factor in their losses. (That's still a lot of money: the average successful Senate candidate in 2008 spent $8 million.) The great thing about New York City is that it is comparatively easy to reach the threshold, because of the campaign finance system that provides a public match of 6:1 on small contributions. So Thompson got, as of October 23, $3.2 million in public money; Ferrer had $4.3 million in matching funds.

As for diminishing returns, it's easy to see why more money doesn't matter -- there's only so much you can do. Once people have seen your TV ads or heard your radio ads a dozen times, another two dozen are only going to annoy them. Bloomberg seems to have engaged in a very creative experiment to see whether he could defeat the law of diminishing returns -- rather than mere robo-calls, his campaign came up with a scheme of precisely targeted calls, so that you might get a recorded call from your own building manager, or a call precisely keyed to language -- older immigrant voters might get a call in their language, younger voters in English with an accent!

It's brilliant, and expensive, but robo-calls don't work (another fact proven by Don Green!) and so it should come as no surprise that micro-targetted robo-calls don't work either. The only thing Bloomberg's $85 million campaign did was keep a lot of campaign consultants off the streets.

-- Mark Schmitt

To follow up on Adam's excellent post, Emily Bazelon raises a useful contrast between Maine and Massachusetts. In both states, a process was in place that would enable laws providing marriage equality to be changed. In the latter, however, the process required more deliberation, and ultimately opponents of same-sex marriage were unable to secure support from even the necessary 25 percent of the legislature to put the issue to a referendum. Essentially, as more same-sex couples get married (and the apocalyptic claims of opponents look more and more cruel and farcical), support for rolling back rights tends to decline. Alas, Maine voters did not even have the chance to see what the effects of the policy would be, much to the disadvantage of the dignity and equality of its gay and lesbian citizens.

The other key lesson, as I mentioned recently, is that it's foolish to think that obtaining equal marriage benefits from the legislature will somehow preempt opposition. In some states (with Iowa looking like the most recent example) judicial opinions can lead to relatively stable marriage equality, while Maine demonstrates that legislative victories provide no guarantee. As Adam says, the fact that there's a very large overlap between people furious about the courts deferring to elected officials in Kelo and people who claim that their opposition to same-sex marriage is motivated not by bigotry but by opposition to "judicial activism" should make this pretty obvious.

--Scott Lemieux

If for a moment you're tempted to believe Michael Steele's spin that yesterday's gubernatorial elections in Virginia and New Jersey were referenda on the Obama administration, let me remind you of the Democratic victories in those same two states in 2001. Remember how the elections of Mark Warner and Jim McGreevey marked a rejection of George W. Bush and the Republican agenda, and the conservative power structure never recovered from the blow? Don't remember that? Me neither.

So, no, gubernatorial elections are never referenda on the president, Congress, or national parties. They are always their own thing, involving the circumstances of the state and the individual candidates. Political parties mean something different at the state level, and states that will not go Democratic in a national election in this century, like Wyoming and Oklahoma, nonetheless have popular Democratic governors, while Rhode Island and Connecticut, states Obama carried with more than 60 percent of the vote, are governed by Republicans.

It's governance, not elections, that will matter. If Republican governors like Chris Christie in New Jersey, Robert McDonnell in Virginia, or others elected in 2008 or earlier are seen as successful governors, that's the path back to power for Republicans. The Republican surge in the 1990s owed far more to big-state Republican governors who were perceived as successful than to the congressional majority. Tommy Thompson in Wisconsin, John Engler in Michigan, George Voinovich in Ohio, Christine Todd Whitman in New Jersey, Tom Ridge in Pennsylvania and others implanted in those swing-state voters a sense that Republicans could be responsible stewards of government, cutting taxes without cutting services. ("Perceived" is the key word; there were often colossal gimmicks involved.) When voters looked at Bush in 2000, they quite reasonably saw him as cut from the same cloth, and very different from the deeply unpopular Republicans of Congress. Governors present a face of the party as solving problems, not stirring conflict around social issues or obstructing progress on health care.

I'm not too worried about Christie being perceived as a big success. New Jersey ran out of gimmicks a long time ago, and I think the Christie administration will dissolve quickly in scandal. (The "deferred prosecution" racket he created as a U.S. attorney should have been a major issue in the campaign: He gave a company a deal under which they wouldn't be prosecuted if they endowed a chair at his alma mater, Seton Hall! Is that so hard to explain?) But McDonnell takes office on a foundation of eight years of responsible government by Warner and Tim Kaine. The state has one of the most resilient economies in the country (thanks, big government!), and it won't take much for him to be seen as a good governor who can also cut some taxes. Such success could make McDonnell a presidential candidate someday, or more likely a challenger for one of the two Senate seats, and it will potentially restore Virginians' comfort with the Republican Party. Those are the only national consequences of yesterday's gubernatorial elections.

-- Mark Schmitt