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  • October 24, 2016
    Paul Ryan Has Three Great Ideas to Improve Obamacare*

    In less than three weeks, Americans will head to the polls to pick their next President. With the start of the open enrollment period for Obamacare, millions of them will also soon be selecting health care coverage for 2017.

    By most measures, the Affordable Care Act which made health insurance possible for some 25 million Americans has been an overwhelming success. Over 10 million people have purchased private insurance through the Obamacare marketplaces, with about three-quarters receiving subsidies to help cover the cost. States which chose to expand Medicaid have, as predicted, extended coverage to millions more of their residents, slashed their costs for uncompensated care for the uninsured and improved the financial stability of their hospitals. At less than 9 percent, America's uninsured rate is at the lowest level on record. And the ACA hasn't just remained under budget even as the rate of health care cost growth has slowed. Obamacare, it turns out, has helped reduce income inequality.

    But that doesn't mean Obama's Affordable Care Act is not facing serious challenges. Most of Obamacare's health insurance co-ops have failed as actuarial misjudgment and Republican sabotage of the ACA's "risk corridors" program left them exposed by billions of dollars the federal government had promised to provide. The withdrawal of major carriers and minor players from some states has left over a million Obamacare subscribers needing to select a new insurance plan for 2017. As a result, many counties (especially in rural areas) are down to a single insurer offering exchange plans, the very kind of market consolidation the GAO and American Medical Association warned about years before the passage of the ACA. Combined with the insurers' ever-narrowing network of providers and the rapid pace of hospital mergers and acquisitions, higher deductibles and pre-subsidy premiums are making affordable care unaffordable for many.

    There is no mystery regarding the diagnosis and prescription for the ailing American health care system. Ultimately, the United States must treat health care less like a market and more like a utility. As we'll see below, that means doing the very thing every major economy outside the U.S. does to control health care costs: set rates. But in the near-term, the President and Congress can take three steps to help American consumers and stabilize the Obamacare exchanges:

    1. Establish a "public option" for health insurance
    2. Increase the insurance subsidies provided to individuals and families
    3. Redesign the ACA's risk corridor to along the lines of Medicare

    Luckily, Speaker of the House Paul Ryan (R-WI) like President Obama supports all three.

    Well, not exactly. As it turns out, the very measures President Barack Obama recently outlined in the Journal of the American Medical Association (JAMA) to improve Obamacare are ones Ryan has long advocated to gut Medicare as we know it. You read that right. The same Paul Ryan whose "Better Way" plan would take away health insurance from 20 million Americans wants to use many of the same elements of Obamacare to privatize Medicare for tens of millions of future elderly and disabled.

    To understand this glaring contradiction of the heart of Paul Ryan's thinking, it's necessary to revisit his years-long effort to ration Medicare. As he's learned since he first proposed to privatize and cut Medicare, the politics of his voucher scheme are even worse than its math.

    In April 2009, twenty-four months before all but four House Republicans voted for Ryan's plan to ration Medicare, the smaller GOP minority said yea on essentially the same plan. As Steve Benen detailed in the Washington Monthly in the fall of 2009:

    In April, 137 Republicans voted in support of a GOP alternative budget. It didn't generate a lot of attention, but the plan, drafted by the House Budget Committee's Rep. Paul Ryan (R-Wis.) called for "replacing the traditional Medicare program with subsidies to help retirees enroll in private health care plans."

    The AP noted at the time that Republican leaders were "clearly nervous that votes in favor of the GOP alternative have exposed their members to political danger."

    In February 2010, Rep. Ryan unveiled his "Roadmap for America's Future" and its "slash and privatize" agenda for Social Security and Medicare. Because the value of Ryan's vouchers fails to keep up with the out-of-control rise in premiums in the private health insurance market, America's elderly would be forced to pay more out of pocket or accept less coverage. The Washington Post's Ezra Klein described the inexorable Republican rationing of Medicare which would then ensue:

    The proposal would shift risk from the federal government to seniors themselves. The money seniors would get to buy their own policies would grow more slowly than their health-care costs, and more slowly than their expected Medicare benefits, which means that they'd need to either cut back on how comprehensive their insurance is or how much health-care they purchase. Exacerbating the situation -- and this is important -- Medicare currently pays providers less and works more efficiently than private insurers, so seniors trying to purchase a plan equivalent to Medicare would pay more for it on the private market.

    It's hard, given the constraints of our current debate, to call something "rationing" without being accused of slurring it. But this is rationing, and that's not a slur. This is the government capping its payments and moderating their growth in such a way that many seniors will not get the care they need.

    That was certainly the conclusion of the nonpartisan Congressional Budget Office. As the CBO warned in April 2011, Ryan's plan to replace public insurance provided by the government with vouchers for the elderly to buy their own coverage in the private market means getting less care for more money. The CBO analysis concluded that "a typical beneficiary would spend more for health care under the proposal." At $6,500 a year, make that, as Director Douglas Elmendorf explained, a lot more.

    Under the proposal, most elderly people who would be entitled to premium support payments would pay more for their health care than they would pay under the current Medicare system. For a typical 65-year-old with average health spending enrolled in a plan with benefits similar to those currently provided by Medicare, CBO estimated the beneficiary's spending on premiums and out-of-pocket expenditures as a share of a benchmark amount: what total health care spending would be if a private insurer covered the beneficiary. By 2030, the beneficiary's share would be 68 percent of that benchmark under the proposal, 25 percent under the extended-baseline scenario, and 30 percent under the alternative fiscal scenario.

    Paul Krugman summed up the problem at the heart of Ryan's gambit. "If Medicare costs had risen as fast as private insurance premiums, it would cost around 40 percent more than it does," Krugman explained, "If private insurers had done as well as Medicare at controlling costs, insurance would be a lot cheaper."

    All of which is why Rep. Ryan went back to the drawing board and came with up with a new version of his Medicare overhaul. This time, Ryan introduced the idea of keeping traditional fee-for-service government Medicare as a "public option" on his new exchanges. Based on a 2010 proposal from Pete Domenici and Alice Rivlin, the New York Times described Ryan v2.0 this way:

    Congress would establish an insurance exchange for Medicare beneficiaries. Private plans would compete with the traditional Medicare program and would have to provide benefits of the same or greater value. The federal contribution in each region would be based on the cost of the second-cheapest option, whether that was a private plan or traditional Medicare.

    In addition, the growth of Medicare would be capped. In general, spending would not be allowed to increase more than the growth of the economy, plus one percentage point -- a slower rate of increase than Medicare has historically experienced.

    Which is why the Congressional Budget Office still found Ryan's revised plan still would shift health care costs to future seniors. Looking at the CBO's March 2012 assessment of the new House GOP budget, ThinkProgress explained why version 2.0 of Ryan's voucher program was little better than the first:

    Beginning in 2023, the guaranteed Medicare benefit would be transformed into a government-financed "premium support" system. Seniors currently under the age of 55 could use their government contribution to purchase insurance from an exchange of private plans or--unlike Ryan's original budget--traditional fee-for-service Medicare... But the budget does not take sufficient precautions to prevent insurers from cherry-picking the healthiest beneficiaries from traditional Medicare and leaving sicker applicants to the government. As a result, traditional Medicare costs could skyrocket, forcing even more seniors out of the government program. The budget also adopts a per capita cost cap of GDP growth plus 0.5 percent, without specifying how it would enforce it. This makes it likely that the cap would limit the government contribution provided to beneficiaries and since the proposed growth rate is much slower than the projected growth in health care costs, CBO estimates that new beneficiaries could pay up to $2,200 more by 2030 and up to $8,000 more by 2050. Finally, the budget would also raise Medicare's age of eligibility to 67.

    But Ryan's plan didn't just embrace a public option for Medicare. As Ezra Klein explained, the privatization of Medicare contained in Ryan's "Path to Prosperity" blueprint and the GOP budget based on it also requires:

    You'd get the health insurance from a "Medicare Exchange", and "health plans which choose to participate in the Medicare Exchange must agree to offer insurance to all Medicare beneficiaries, thereby preventing cherry picking and ensuring that Medicare's sickest and highest cost beneficiaries receive coverage."

    Sound familiar?

    Familiar, indeed. Alice Rivlin, the former Clinton OMB chief who worked on Ryan's first version of the voucher, later confirmed to Klein that the idea was almost identical to the Affordable Care Act:

    If Ryan-Rivlin will unleash ferocious innovation that holds costs down, then so too should the Affordable Care Act. So at the end of our conversation, I asked Rivlin, who supported PPACA [Obamacare], if I was missing something. She laughed. "I keep talking to Paul and trying to convince him of that," she said. "But even if he agreed with me, he couldn't say so."

    That's exactly right. Paul Ryan's latest blueprint contained all of the same elements as Obamacare (and more)--exchanges, subsidies, navigators, risk corridors and even a public option. (Many of the same features are found in the Medicare Part D prescription drug program and Medicare Advantage, the program that enables about 30 percent of the nation's 57 million elderly to obtain coverage from private insurers.) If Ryan's Medicare privatization scheme for the oldest and sickest members of society will spur competition and lower costs, so too should Obamacare for those under age 65.)

    Nevertheless, Paul Ryan's approach has never been popular, in part because the current Medicare system is. (Recall that common and oxymoronic Tea Party rally cry, "keep your government hands off my Medicare.) That's why in the run-up to the 2010 midterms, future Speaker John Boehner (R-OH) brushed off Ryan's proposal as "his plan." That's why in 2011, then-GOP White House frontrunner Michele Bachmann (R-MN) backed off her own vote by declaring, "put an asterisk on my support...I'm concerned about shifting the cost burden to seniors." That's why Donald Trump has ignored the 2016 GOP Platform and repeatedly insisted, "We are not going to cut your Social Security and we're not cutting your Medicare" And that's why this summer, Paul Ryan's "Better Way" dropped any mention of Medicare cost-controls and omitted any discussion of capping the growth of its subsidies (a.k.a. premium support).

    Beginning in 2024, Medicare beneficiaries would be given a choice of private plans [akin to Medicare Advantage] competing alongside the traditional FFS ["Fee for Service"] Medicare program on a newly created Medicare Exchange. Our plan would ensure no disruptions in the Medicare FFS program for those in or near retirement, while also allowing these grandfathered individuals the choice to enroll in the new premium support program. Medicare would provide a premium support payment either to pay for or offset the premium of the plan chosen by the beneficiary, depending on the plan's cost.

    The Medicare recipient would choose, from an array of guaranteed-coverage options, a health plan that best suits his or her needs. This is not a voucher program. A Medicare premium support payment would be paid, by Medicare, directly to the plan or the fee-for-service program to subsidize its cost. The program would operate in a manner similar to the Federal Employees Health Benefits (FEHB) program, where plans compete for individuals' choice based upon premium amount and a certain percentage - or a defined contribution - is offset by the government to lower the cost of coverage. Additionally, the program would adopt the competitive structure proven successful by Medicare Part D, the prescription drug benefit, to ensure affordability through market-based competition.

    But there is one major feature of Obamacare that works very differently than in Medicare Advantage or Medicare Part D: risk adjustment. As Bob Herman explained in Modern Healthcare, the Affordable Care Act and Medicare Act now only calculate payments for risk pool losses differently, but differ in who pays. Under Obamacare, insurers are paid from funds insurers themselves fund. But under the Medicare Advantage model touted by Paul Ryan, Uncle Sam pays the bill:

    The two risk-adjustment systems work in very different ways but are both intended to reduce the incentive for insurers to cherry-pick the healthiest members. Under the ACA, insurers peg their members with risk scores based on the services and conditions that are coded in hospitals and doctor offices. Plans that have healthier people with lower risk scores pay into a pool in each state, and plans with sicker members get to take money--giving the program a zero-sum outcome...

    In Medicare Advantage, insurers similarly evaluate the health of their members and build risk scores based on medical coding, but the Medicare trust fund covers the cost. There's no contributing pool of money to help out insurers with sicker enrollees. Each company codes its own members, and each receives payments adjusted to reflect the risk scores.

    If the exchanges moved to that model, it would require Congress to approve a new pot of funding for the health insurance industry. Even if legislation were proposed, it is unlikely Republicans would support it given their heated opposition to the ACA.

    To put it another way, Republicans like Senator Marco Rubio (R-FL) are more than willing to have the federal government "bail out" insurers for Medicare losses. Obamacare, not so much.

    As I've documented elsewhere, global experience shows there are two certainties of health care reform. The first is that reform itself is continuous. Far from a one-time affair, changes in coverage, prices, treatments and providers never-end. In his August article in JAMA ("United States Health Care Reform: Progress to Date and Next Steps") acknowledged as much. The rise in insurers' requested premiums increases for 2017, the lack of competition in some areas of the country and the rapid increase in prescription drug prices, Obama noted, are reflected in "surveys [which] indicate that many of the remaining uninsured individuals want coverage but still report being unable to afford it.)" Measures like the public option, a new structure for risk adjustment and larger subsidies--all parts of current Medicare or proposed Republican revisions--would certainly help Americans afford both their coverage and their out-of-pocket expenses. Government negotiation of pharmaceutical prices, already a pillar of the VA health system, would help as well. All of these measures are supported by Obama's would-be Democratic successor, Hillary Clinton. These carrots, along with the stick of high penalties for non-enrollment, would encourage younger, healthier people to sign up and thus improve the risk pool for insurers as well.

    Ultimately, however, the United States will fail to lower health costs for individuals and for the nation until it embraces the second certainty of health care reform: rate-setting. Virtually of America's major trading partners deliver health as good or better than the U.S. for half to two-thirds of the cost because the government establishes the costs of insurance, hospital care, prescription drugs, physicians' services, laboratory tests and more. With its current 80/20 rule for the "medical loss ratio," the U.S. could move in the direction of Germany or Switzerland in establishing basic insurance coverage sold on a non-profit basis by private insurance companies. Like Australia, Spain or the UK, America could negotiate a national formulary to set the price ranges of comparable drugs. Like France, Germany and Japan, the federal government working with private insurers could create a "big blue book" of payments to hospitals, clinics and physicians for every treatment. (This could be accomplished in a single-payer system like Medicare for All, but an all-rate payer system is closer to what we have today.)

    Regardless, Obamacare, or the Patient Protection and Affordable Care Act as it more formally known, isn't just the greatest progressive accomplishment since LBJ's Great Society. Like Medicare, which dramatically reduced poverty among America's elderly, the ACA is a very real boost to millions of Americans' standards of living. And by making some of the incredibly reforms already supported by Republicans for Medicare, Obamacare could quickly do more. Assuming he's still House Speaker in January, Paul Ryan could make that happen. After all, why not do for Americans under 65 what he's long been pushing for Americans over 65?

    The answer to that question, too, is no mystery. "Any change is difficult, but it is especially difficult in the face of hyper-partisanship," President Obama wrote in August, "Republicans reversed course and rejected their own ideas once they appeared in the text of a bill that I supported."

    That doesn't sound like a better way for America to me.

    Perrspective 10:00 AM | Permalink | Comments (0) | Share

    October 20, 2016
    Inflation-Adjusted Federal Spending Has Fallen Under President Obama

    It is an article of conservative faith that federal spending under President Obama is "out of control." As the 2016 GOP Platform states in an amazing revision of recent history:

    The Administration's policies systematically crippled economic growth and job creation, driving up government costs and driving down revenues. When Congressional Republicans tried to reverse course, the Administration manufactured fiscal crises -- phony government shutdowns -- to demand excessive spending.

    As the data and history show, every claim in those two sentences is flat-out wrong. (As an aside, don't overlook the 800-pound donkey in the room: the economy almost always performs better under Democratic presidents.) And just last week, the nonpartisan Congressional Budget Office once again demolished the last one. Taking inflation into account, federal spending has actually declined under Barack Obama.

    Of course, that truth is not apparent from the recent headlines. While the Wall Street Journal predictably warned "U.S. budget deficit rose in fiscal year 2016, first time in five years," the Associated Press led with this cautionary note:

    The government ran a $587 billion budget deficit for the just-completed fiscal year, a 34 percent spike over last year after significant improvement from the record deficits of President Barack Obama's first years in office.

    Friday's deficit news, while sobering, does not appear bad enough to jolt a gridlocked Washington into action to stem the flow of red ink.

    But there's good reason that action isn't called for now. Even with outlays exceeding tax revenue by $600 billion, deficits of 3 percent of GDP and persistent low interest rates on U.S. Treasury bonds, Dean Baker of the Center for Economic and Policy Research explained, "It's totally manageable. There's literally nothing there to worry about." (It's also worth noting that the larger deficit in FY 2016 was largely the predictable result of the December 2015 deal on so-called "tax extenders" which will drain $650 billion in revenue over the next decade.")

    In its report on monthly spending in September, CBO delivered its preliminary assessment that FY 2016 outlays would rise to $3.86 trillion dollars, up from $3.69 trillion in 2015. Revenues, meanwhile, are expected to reach $3.27 trillion, compared to $3.25 trillion last year. But taking inflation into account by using constant FY 2009 dollars (see OMB historical table 1.3) shows a different picture. At, $3.42 trillion, inflation-adjusted FY 2016 spending will still be lower than on Barack Obama's first inauguration day. As I noted previously:

    On January 7, 2009, CNN reported on the latest long-term budget forecast from the CBO. Two weeks before President Bush ambled out of the Oval Office, CNN explained "the U.S. budget deficit in 2009 is projected to spike to a record $1.2 trillion, or 8.3% of gross domestic product." With the recession in full swing and the massive TARP program passed the previous fall, CBO predicted in January 2009 that federal spending would spike to $3.543 trillion dollars while tax revenue would plummet to an anemic to $2,357 trillion. As it turned out, the final deficit figure for the 2009 fiscal year which ended on September 30, 2009 reached $1.413 trillion because of worse-than-expected tax collections ($2,105 trillion.)

    If you're looking for a big spender, look no further than George W. Bush.

    Several other points in recent CBO data are worth highlighting. Simply put, Washington does not have a near-term spending problem. As a share of the U.S. economy, non-defense discretionary spending (that is, everything outside of Medicare, Medicaid, Social Security, the Pentagon and interest on the national debt) is already at its lowest level in 50 years. As CBO has repeatedly shown,Obamacare reduces the national debt. It is the aging American population in general and Medicare spending in particular (along with a presumption of higher interest rates on the national debt) that causes deficits to begin to increase again starting in FY 2019.

    If anything, Barack Obama has been a tax-and-not-spend liberal. After all, stimulus spending largely ended by 2011. Over 40 percent of that $800 billion program was tax cuts. Annual deficits have been slashed by two-thirds during Obama's presidency. The good news is that the higher income and capital gains tax rates on the rich that Obama signed into law in 2013 have refilled the United States Treasury, but as predicted had no negative impact on economic growth and job creation. But as has been documented elsewhere, the recovery from the Great Recession would have been quicker and more robust if the federal government had spent more to offset the "anti-stimulus" of shrinking state and local governments. As the Economic Policy Institute lamented in a recent analysis, it is that austerity which has made the recent recovery the slowest in four decades:

    All of which is why President Obama isn't a big spender. He is, however, the man who saved the American economy despite the Republicans' all-out effort to kill it.

    Perrspective 10:40 AM | Permalink | Comments (0) | Share

    October 17, 2016
    With Call to Jail Hillary Clinton, Trump's GOP Demands the Criminalization of Politics

    On July 28, 2008, the Justice Department's Office of the Inspector General and Office of Professional Responsibility jointly published the results of a year-long investigation into the hiring practices at the Bush DOJ. As the AP reported, "A new Justice Department report concludes that politics illegally influenced the hiring of career prosecutors and immigration judges, and largely lays the blame on top aides to former Attorney General Alberto Gonzales." Unsurprisingly, the report singled out Gonzales' White House liaison Monica Goodling for "violating federal law and Justice Department policy by discriminating against job applicants who weren't Republican or conservative loyalists."

    That finding was unsurprising because Ms. Goodling had already admitted as much. During her May 23, 2007 testimony before the House Judiciary Committee, she acknowledged that "on some occasions" in the hiring of career prosecutors "I crossed the line of the civil service rules." Admitting that she illicitly screened out civil service job applicants who happened to be Democrats, Goodling clarified for all why she sought immunity from the Committee in the first place:

    "I do acknowledge that I may have gone too far in asking political questions of applicants for career positions, and I may have taken inappropriate political considerations into account on some occasions, and I regret those mistakes."

    But during his questioning, Indiana Republican Rep. Mike Pence ignored Goodling's confession to make a different point about the Bush administration's purge of U.S. attorneys then under investigation.

    "I'm listening very intently. I'm studying this case, and I want to explore this issue of illegal behavior with you. Because it seems to me, so much of this, and even something of what we've heard today in this otherwise cordial hearing, is about the criminalization of politics. In a very real sense, it seems to be about the attempted criminalization of things that are vital to our constitutional system of government, namely the taking into consideration of politics in the appointment of political officials within the government." [Emphasis mine.]

    "I am troubled," Pence concluded, "about the fact that we seem to be moving ever further down the road of the criminalization of politics."

    Alas, that was then, and this is now. And now, Mike Pence and his running mate Donald Trump are in danger of being on the receiving end of a November 8th beat down at the hands of Democrat Hillary Clinton. And that means Trump, Pence and the "lock her up" crowd calling for her arrest and prosecution are demanding the criminalization of politics they once claimed to detest--and much, much worse.

    During their second debate last week, The Donald promised Secretary Clinton that under President Trump, "you'd be in jail." Referring to now-concluded the FBI investigation of Clinton's private email server, a probe which produced no charges, Trump promised:

    "If I win, I am going to instruct my attorney general to get a special prosecutor to look into your situation, because there has never been so many lies, so much deception. There has never been anything like it, and we're going to have a special prosecutor."

    Now, most observers took Trump's pledge for what it is: a threat to America's democratic institutions. (For example, see here, here, here and here.) In the modern United States, the very notion of imprisoning political opponents had been beyond the pale. But from seeing it as "abhorrent," "absurd" and "terrifying", as even former Republican Justice Department appointees summed it up, Trumps' running mate Mike Pence called it a highlight of last Sunday's face-off:

    "I thought that was one of the better moments of the debate. I'm old enough to remember a day when a president of the United States erased 18½ minutes and they ran him out of town. She used high technology to erase 33,000 emails."

    In case you missed that, the Republican nominee for Vice President basically compared Watergate to an ill-timed fart. But Nixon wasn't forced to resign over 18½ minutes of audiotape. As Ari Melber pointed out, misuse of his executive power by "interfering with" the Federal Bureau of Investigation "was literally one of the articles of impeachment against Richard Nixon." Right-wing radio host and regular MSNBC guest Hugh Hewitt loved Trump's "because you'd be in jail" line, declaring it belonged "in the eternal debate reel." Of course, when Hewitt was its director, the Nixon Presidential Library described Watergate as a "coup" engineered by Nixon enemies.

    That, of course, was the defense Nixon himself cooked up. In his June 14, 1973 discussion with his Vice President, Nixon counseled Agnew not to worry about the "crappy little Watergate" he was facing over bribery charges in Maryland that would eventually force his resignation:

    Just say that it's persecution. Political partisan persecution crap.

    Thus the Republican "criminalization of politics" defense was born. And over the succeeding decades, it would become the go-to scandal shield for GOP lawlessness and wrongdoing for everything from Plamegate and Bush's prosecutors purge to illicit NSA domestic surveillance and Dubya's regime of detainee torture. But it was father, President George H.W. Bush, who is best known for formally introducing the criminalization of politics canard to survive the Iran-Contra affair.

    In justifying his Christmas Day 1992 Iran-Contra pardons, Bush the Elder used the talking point that would come to define the discourse of his son's 21st century water carriers. Much like his son's defenders, Bush 41 sought to recast rampant Republican lawlessness in the Reagan White House as mere political disagreement. As the New York Times reported at the time:

    Mr. Bush said today that the Walsh prosecution reflected "a profoundly troubling development in the political and legal climate of our country: the criminalization of policy differences."

    He added: "These differences should have been addressed in the political arena without the Damocles sword of criminality hanging over the heads of some of the combatants. The proper target is the President, not his subordinates; the proper forum is the voting booth, not the courtroom."

    The Iran-Contra scandal, as you'll recall, almost laid waste to the Reagan presidency. Desperate to free U.S. hostages held by Iranian proxies in Lebanon, President Reagan provided weapons Tehran badly needed in its long war with Saddam Hussein. In a clumsy and illegal attempt to skirt U.S. law, the proceeds of those sales were then funneled to the Contras fighting the Sandinista government in Nicaragua. And as the New York Times recalled, Reagan's fiasco started with his emissary to Tehran, Robert McFarlane, bearing a cake and a Bible as gifts from the Gipper himself.

    The rest, as they say, is history. After the revelations regarding his trip to Tehran and the Iran-Contra scheme, a disgraced McFarlane attempted suicide. After his initial denials, President Reagan was forced to address the nation on March 4, 1987, and acknowledge he indeed swapped arms for hostages:

    A few months ago I told the American people I did not trade arms for hostages. My heart and my best intentions still tell me that's true, but the facts and the evidence tell me it is not. As the Tower board reported, what began as a strategic opening to Iran deteriorated, in its implementation, into trading arms for hostages.

    Of course, the sad saga didn't end there. Then Lt. Colonel and now Fox News commentator Oliver North saw his Iran-Contra conviction overturned by an appellate court led by faithful Republican partisan and later Iraq WMD commissioner Laurence Silberman. And in December 1992, outgoing President George H.W. Bush offered his Christmas pardons to Defense Secretary Caspar Weinberger and five other Iran-Contra scandal figures. Among them were Elliot Abrams and John Poindexter, men who eight years later reprised their roles in the administration of George W. Bush. And as it turns out, it was Rep. Dick Cheney, later Bush 41's secretary of defense and Bush 43's vice president, who authored the sneering 1987 Congressional Iran-Contra Committee minority report:

    The bottom line, however, is that the mistakes of the Iran-contra affair were just that - mistakes in judgment, and nothing more. There was no constitutional crisis, no systematic disrespect for 'the rule of law,' no grand conspiracy, and no Administration-wide dishonesty or coverup. In fact, the evidence will not support any of the more hysterical conclusions the committees' report tries to reach.

    The "criminalization of politics" arrow has been the first one pulled from the Republican scandal quiver ever since.

    Take, for example, the outing of covert CIA operative Valerie Plame by the Bush administration in July 2003. After her husband, Ambassador Joe Wilson, wrote his New York Times op-ed about the yellow cake uranium he didn't find in Niger, Americans learned his wife worked for the CIA on, of all things, WMD proliferation issues. Neither Karl Rove nor others were ever charged with the technical and narrowly defined offense of revealing the identity of Valerie Plame to Robert Novak and others. But Cheney's chief-of-staff, Scooter Libby, was convicted on four counts of perjury and obstruction of justice. And to the shock troops of the conservative movement, Libby the felon was a victim of the criminalization of politics.

    The usual cavalcade of apologists for Republican lawbreaking swarmed to Libby's defense. With Libby's looming indictment in the fall of 2005, Texas Sen. Kay Bailey Hutchison compared him to Martha Stewart, and offered a new variant of the old sound bite, the "perjury technicality." Hutchison said she hoped:

    That if there is going to be an indictment that says something happened, that it is an indictment on a crime and not some perjury technicality where they couldn't indict on the crime and so they go to something just to show that their two years of investigation was not a waste of time and taxpayer dollars.

    Hutchison, of course, had plenty of company in offering the criminalization of politics canard in the CIA leak case. On October 14, 2005, Bill Kristol complained, "I am worried about what happens to the administration if Rove is indicted," adding, "I think it's the criminalization of politics that's really gotten totally out of hand." In succeeding days, Kristol's Fox News colleagues Bill O'Reilly, Sean Hannity, Stuart Varney, and Chris Wallace joined the chorus. On October 24, Kristol took to the pages of the Weekly Standard to denounce a supposed Democratic strategy of criminalizing conservatives. When Libby was later convicted, the Wall Street Journal editorial page called for a pardon. The WSJ cited grave dangers if the Libby verdict were to stand: "Perhaps the worst precedent would be normalizing the criminalization of policy differences."

    Fox News regular Tucker Carlson tried to normalize a precedent of his own. While failing to mention that his father, Richard, was on the board of the Scooter Libby Legal Defense Fund, Carlson launched a smear campaign against special prosecutor Patrick Fitzgerald. In November 2005, he insisted Fitzgerald was "accusing Libby--falsely and in public--of undermining this country's security," adding, "Fitzgerald should apologize, though of course he never will." Reversing his past position in support of independent counsels, Carlson in February 2007 blasted "this lunatic Fitzgerald, running around destroying people's lives for no good reason." After Fitzgerald in a May 2007 court filing confirmed Plame's covert status, Carlson called the Bush appointee a liar:

    CIA clearly didn't really give a shit about keeping her identity secret if she's going to work at f**king Langley...I call bullshit on that, I don't care what they say.

    Former House Majority Leader Tom Delay called bullshit, too, when he was indicted on money laundering charges. Delay, who had previously been reprimanded by the House and saw several of his aides convicted in the Jack Abramoff and other scandals, declared as early as April 2005 of the ethics charges then swirling around him, "Democrats have made clear that their only agenda is the politics of personal destruction and the criminalization of politics." Amazingly, that comment came before Delay's own October 2005 indictment in Texas for money laundering in association with his Texans for a Republican Majority (TRMPAC).

    Unsurprisingly, the conservative echo chamber rushed to Delay's defense and amplified his talking point. Days after Delay's indictment by District Attorney Ronnie Earle, Robert Novak penned a column titled Criminalizing Politics, concluding:

    Democrats are ecstatic. The criminalization of politics may work, even if the case against DeLay is as threadbare as it looks.

    Tom Delay, who on the day of his booking said, "Let people see Christ through me," had a similar message following his conviction in November 2010:

    This is an abuse of power. It's a miscarriage of justice. I still maintain my innocence. The criminalization of politics undermines our very system.

    Back in August, Delay warned newly indicted Gov. Rick Perry about the Travis County prosecutor's office: "This is what they do, this is how they intimidate the elected officials in the state Legislature and the governor and around the state." As for The Hammer, he claimed vindication when a Texas appeals court by a 2-to-1 vote threw out his money laundering conviction last year. But he's not in the clear yet: In March the Texas Court of Criminal Appeals announced it would review that decision. Either way, the two Texans will be singing from the same "criminalization of politics" hymnal.

    So, too, did congressional Republicans sing during the imbroglio surrounding the politically motivated firings of U.S attorneys in 2006. In May 2007, Republican California Congressman Dan Lundgren was only too happy to offer the criminalization of politics ruse for Monica Goodling and Alberto Gonzales alike. Just moments after acknowledging Goodling's admission of violating civil service rules and Hatch Act prohibitions ("she did admit that she made mistakes in that regard"), Lundgren returned to the script:

    Let me just say this -- and I think it's an important point -- there is too much of a tendency in this environment to try and criminalize political disputes. That's been the effort here. They have found no basis for criminality, so the suggestion is now a vote of no confidence. Who knows what is next?

    As it turned out, the DOJ's own inspector general later rejected Goodling's criminalization of politics maneuver. But in a July 2010 report for the Department of Justice, Bush appointee Nora Dannehy effectively brushed the prosecutor purge under the rug, concluding the Bush administration's actions in sacking seven U.S. attorneys were inappropriately political, but not criminal.

    The same, however, cannot be said of the President Bush's regime of detainee torture implemented after the devastating attacks of September 11, 2001. As I have documented elsewhere, U.S. and international law not only define waterboarding as torture, but require the legal prosecution of the torturers. As Scott Horton explained after Vice President Cheney (soon followed by President Bush) boasted of their support for waterboarding and other so-called "enhanced interrogation techniques:

    Section 2340A of the federal criminal code makes it an offense to torture or to conspire to torture. Violators are subject to jail terms or to death in appropriate cases, as where death results from the application of torture techniques. Prosecutors have argued that a criminal investigation into torture undertaken with the direction of the Bush White House would raise complex legal issues, and proof would be difficult. But what about cases in which an instigator openly and notoriously brags about his role in torture?...

    What prosecutor can look away when a perpetrator mocks the law itself and revels in his role in violating it? Such cases cry out for prosecution. Dick Cheney wants to be prosecuted. And prosecutors should give him what he wants.

    Alas, it was not to be. Despite the agreement by President Obama, Attorney General Holder, and the Senate Intelligence Committee's John McCain that waterboarding constitutes torture, Bush, Cheney, and their henchmen never faced justice for authorizing torture and forever staining the honor of the United States.

    As a candidate for the presidency, then-Sen. Barack Obama denounced waterboarding as torture: "It's time to stop the political parsing and to close the legal loopholes," Obama said on October 29, 2007. "Waterboarding is torture, and so are other 'enhanced interrogation techniques' like 'head-slapping' and 'extreme temperatures.' It's time to reclaim our values and reaffirm our Constitution." As president, Obama reiterated his belief in the illegality of the Bush administration torture techniques. As recently as his May 2013 speech at the National Defense University, President Obama declared:

    In some cases, I believe we compromised our basic values -- by using torture to interrogate our enemies, and detaining individuals in a way that ran counter to the rule of law... We unequivocally banned torture, affirmed our commitment to civilian courts, worked to align our policies with the rule of law, and expanded our consultations with Congress.

    Yet even he before he was sworn in, President-elect Obama made it clear that the Bush torture team need not fear punishment from him:

    We need to look forward as opposed to looking backwards.

    From a political and economic perspective, Obama's fear of looking into that rearview mirror was understandable. After all, the economy he inherited from President Bush was in free fall. In the last quarter of 2008, GDP collapsed by 8.9 percent; 2.2 million jobs evaporated in the first quarter of 2009 alone. With the economy requiring immediate action and his ambitious agenda for 2009, President Obama was afraid to risk a total political conflagration in Washington by launching the kind of investigation the Bush administration's possible war crimes demanded.

    So Obama signaled to Team Bush and its Republicans allies there would be no accountability for their high crimes and misdemeanors. And he did so by reducing war crimes to a talking point conservatives love most: criminalizing politics. During his confirmation hearings on January 16, 2009, Attorney General nominee Eric Holder declared, "Waterboarding is torture." But he also reassured Republicans on the Senate Judiciary Committee about something else:

    I think President-elect Obama has said it well. We don't want to criminalize policy differences that might exist between the outgoing administration and the administration that is about to take over. We certainly don't want to do that.

    Ultimately, President Barack Obama never prosecuted anyone involved in the design and execution of President Bush's program of detainee torture. While the memos authorizing these potential war crimes have seen the light of day, those who ordered and perpetrated them did not. Attorney General Holder announced, "It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department." (Ultimately, none were, as Holder in August 2012 ended his last investigation into two detainee deaths.) President Obama went further in seemingly backing away from any legal action against the Bush torture team:

    In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution...

    This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past.

    But spending that time and energy was never about "laying blame for the past," but redeeming American values by holding America's leaders to account for failing to uphold those values--and the law. As George Washington University Professor Jonathan Turley, now a supporter of the House GOP lawsuit against the president, put it in 2010:

    Because it would have been politically unpopular to prosecute people for torture, the Obama Administration has allowed officials to downgrade torture from a war crime to a talking point.

    And a Republican talking point at that. After all, what Eric Holder called "criminalizing policy differences," is the standard defense Republican miscreants have used for decades to fight off scandals, including Iran-Contra, the Valerie Plame affair, illicit domestic surveillance by the NSA, and the Bush administration's prosecutors' purge. And when the Obama administration in April 2009 released those four torture memos authored by Bush attorneys Jay Bybee, Stephen Bradbury, and John Yoo, Republicans in Congress and their amen corner in the media charged that the new president was "criminalizing conservatism."

    That's Powerline's Hinderaker made that exact charge in a piece by the same title. "Many liberals don't just want to defeat conservatives at the polls, they want to send them to jail," he wrote, adding, "Toward that end, they have sometimes tried to criminalize what are essentially policy differences." In a scathing editorial on April 23, 2009, titled, "Presidential Poison," the Wall Street Journal went on the attack using the GOP's tried-and-untrue criminalizing politics canard:

    Mark down the date. Tuesday, April 21, 2009, is the moment that any chance of a new era of bipartisan respect in Washington ended. By inviting the prosecution of Bush officials for their antiterror legal advice, President Obama has injected a poison into our politics that he and the country will live to regret...

    Above all, the exercise will only embitter Republicans, including the moderates and national-security hawks Mr. Obama may need in the next four years. As patriotic officials who acted in good faith are indicted, smeared, impeached from judgeships or stripped of their academic tenure, the partisan anger and backlash will grow...

    Mr. Obama is more popular than his policies, due in part to his personal charm and his seeming goodwill. By indulging his party's desire to criminalize policy advice, he has unleashed furies that will haunt his Presidency.

    But over five years later, no "patriotic official" has been indicted, no judges have been impeached and no professor has been stripped of his academic tenure--not even the one who defined torture as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." John Yoo was awarded an endowed faculty chair at the UC Berkeley School of Law. Bush appointee Jay Bybee remains on the federal bench. Cheney's legal alchemist David Addington is now creating alternative realities at the Heritage Center. Psychologist James Mitchell, one of the consultants who helped the Bush administration render the Geneva Conventions quaint, didn't lose his professional credentials, even after claiming, "I'm just a guy who got asked to do something for his country." Jose Rodriguez, who as head of the CIA's clandestine service personally ordered the destruction of dozens of interrogation videotapes, is a conservative hero who smeared the long overdue Senate Intelligence Committee report on the CIA torture program despite having never read a word of it. Meanwhile, Dick Cheney appears regularly on your television screen to accuse President Obama of treason. As for Cheney's former Oval Office sock puppet, George W. Bush, he's free to paint himself in the shower and give speeches to "replenish the ol' coffers."

    All of these Republicans--and more--have joined Bush in laughing all the way to bank. The "criminalization of politics" defense not only works for conservatives, it pays well, too. Former Bush GSA chief Lurita Doan, forced from office as a result of her Hatch Act violations, is a columnist and Fox News regular paid to attack the congressional Democrats who uncovered her wrongdoing. Conservatives pointing to the new GAO study concluding President Obama violated the law when he ordered the prisoner swap that resulted in the release of Army Sgt. Bowe Bergdahl had no issue with the Bush administration's program of illicit domestic surveillance by the NSA, a program that flouted the Foreign Intelligence Surveillance Act (FISA). Many of its architects, like Michael Hayden and Keith Hayden, are now enjoying life in the private sector. (Ironically, most of Bush's Justice Department leadership did have a problem with it, and threatened to resign en masse in March 2004 over the program.. Then again, in their defense, Republicans like Sens. Jeff Sessions (R-AL), Pat Roberts (R-KS), and John Cornyn (R-TX) used a different--if similarly disgusting--talking point to explain it away in December 2005:

    None of your civil liberties matter much after you're dead.

    The same could said for the rest of the Constitution if Republican Donald J. Trump becomes the 45th President of the United States. But you don't have to take my word for it. Just ask Michael Mukasey, George W. Bush's last Attorney General and first in line to defend detainee torture. Mukasey, who famously suggested President Obama could be impeached over the prisoner swap by which U.S. Army Sgt. Bowe Bergdahl was freed by the Taliban in exchange for five detainees held at Guantanamo Bay, blasted Trump after last week's debate performance:

    "It would be like a banana republic. Putting political opponents in jail for offenses committed in a political setting, even if they are criminal offenses -- and they very well may be -- is something that we don't do here."

    Undaunted, Donald Trump doubled down, telling a Florida rally on Wednesday that "we have to investigate the investigation." Hillary Clinton doesn't just need to go to jail, he insisted, "She shouldn't be allowed to run for president."

    Mukasey's successor Eric Holder begs to differ. In a series of tweets on October 9th, Holder warned:

    In the USA we do not threaten to jail political opponents. @realDonaldTrump said he would. He is promising to abuse the power of the office.

    Holder, President Obama's Attorney General for over six years, knows what he's talking about. After all, Obama admitted that the United States under President Bush "tortured some folks." But despite the government's obligations under U.S. and international law, neither Bush nor the rest of his torture team was ever prosecuted. Never prosecuted, that is, because Eric Holder said, "We don't want to criminalize policy differences that might exist between the outgoing administration and the administration that is about to take over."

    Well, if Donald Trump takes over, he's already promised that as President he will have Obama's Secretary of State Hillary Clinton arrested and prosecuted over a matter the FBI has already investigated and resolved. Candidate Trump made another promise, too. If elected, he will repeat President Bush's war crimes--and worse.

    Perrspective 10:45 AM | Permalink | Comments (0) | Share

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