The papers are filled with stories (like this one) about the Congressional Budget Office’s conclusion that the Baucus health care reform bill will cost some $829 billion but not increase the federal deficit over the next ten years due to a combination of taxes, fees, and medicare cuts. Only there’s a catch. As the CBO analysis notes on the first page: “CBO and JCT’s analysis is preliminary in large part because the Chairman’s mark, as amended, has not yet been embodied in legislative language.” And again, on pages 8–9 for those who missed it the first time, the analysis notes:
The Chairman’s mark, as amended, has not yet been converted into legislative language. The review of such language could lead to significant changes in the estimates of the proposal’s effects on the federal budget and insurance coverage.
The CBO further notes that some provisions are not included in the analysis costs to be funded by future appropriations, including some implementation costs, are not included, and these could cost several billion dollars. There is also little discussion of the bill’s likely effect on state budgets, which could be quite significant.
The key point here is not the particulars of CBO’s scoring or the merits of the proposed reforms, but the fact that the Senate Finance Committee is poised to consider — and likely vote on — a bill that does not exist. William Jacobson screams this point from the rooftops: “There is no Baucus Bill!” I repeat, there is no bill, and yet the Washington Post reports there could be a committee vote on it as early as tomorrow.
Set aside my naive belief that legislators should actually read legislation before they vote on it and that reading is necessary (if not always sufficient) for understanding. Here Senators are preparing to vote on a bill that does not even exist. I am sure someone will say this is okay, because the Senators have been briefed by their expert staff, read summaries, and thus understand the legislation they have not read. But the expert staff won’t have read the bill, and the summaries are based on some ideas, not actual legislative language.In this case, no one has read the bill. Not the sponsor, not his staff, not the CBO — no one. Their votes on whether to advance legislation to overhaul a substantial portion of the American economy will be based upon nothing more than expert assurances that as-yet-unwritten legislative language will achieve everything as planned.
A bill that has not been written cannot be understood. Until the conceptual outline of the Baucus bill is actually reduced to legislative language, it is impossible to determine what the bill will actually do, let alone what it will cost. Even if legislators don’t need to read legislation in order to understand it, someone does. But no one has read this bill as it is not written, so no one can say, with any assurances, they understand all that it is likely to do or what it will actually cost. And yet we pretend. This is how representative democracy ends — not with a bang, but a whimper.
[An aside: For my academic colleagues who believe reading a bill is unnecessary to understand it, do you feel this way about legal documents? Can your students really understand the cases and other materials assigned for class if they haven’t read them, but instead relied upon the expert analyses found in outlines, headnotes, and the like? And, if not, are we really at the point where we expect less of our elected representatives than our students?]
UPDATE: Is the above a bit overheated? Perhaps. And my concerns about this particular legislation may be a bit premature. As one of the commentators notes, one could view what the Senate Finance Committee is doing as nothing more than delegating to committee staff the drafting of legislation and a committee report along certain lines. That’s a fair point. There is nothing sacrosanct about a particular committee structure, and no reason to insist upon specific committees handling their responsibilities in particular ways, so long as the actual legislative language is published and available before the Senate as a whole considers the bill. My concerns are twofold. First, many people are treating this CBO analysis as if it anything more than a preliminary assessment of what the bill would actually cost (a highly questionable assumption for these reasons, among others). Second, and more importantly, I believe the bill will be fast-tracked (much as Waxman-Markey was in the House) such that neither legislators nor the public will have a clear understanding of what it will do when it comes up for a vote. If this is not what occurs, and the bill text is published and available before the final vote, I will be satisfied this aspect of the process worked as it should, and I will post something accordingly.
alkali says:
And how can we really be sure of the cost when we don’t know for cetain what the final legislative text until it’s enacted? And yet, we cannot enact it before we know what it will cost. So nothing will ever happen. A price worth paying for sound legislative practice.
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October 8, 2009, 10:05 amRoger Ford says:
Jonathan, does it mitigate your concern any that the Senate Finance Committee vote doesn’t do anything other than say the bill should be considered by the full Senate? It’s not a vote on final passage; it might even be a vote of no legal significance whatsoever.
[It would, if I had any confidence that the full legislative language would be available for a reasonable period before the bill is voted on by the full Senate. — JHA]
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October 8, 2009, 10:09 amPLR says:
I regularly give clients advice on the effect of agreements that do not yet exist. Generally, they will look to me to approve the final agreement also, which sometimes comes quickly and sometimes does not.
I also don’t generally scream that my opponent is pulling a fast one when he has clearly stated his reservations about a particular matter.
Hopefully the CBO will score the final Baucus bill as well if the substance of the economics changes. Or if there is screaming.
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October 8, 2009, 10:09 amSeamus says:
So I guess a “yes” vote will be a delegation of authority to the majority staffers to write a bill and send it to the floor as the Committee’s report. What could possibly be wrong with that.
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October 8, 2009, 10:10 amEarly Bird says:
The legislative language doesn’t matter. Judicial and agency interpretations of legislative language are what matters. Simmer down, hoss, you’re making a mountain out of a molehill. Now of course courts and agencies are supposed to follow the clear meaning of statutory language when that meaning is in fact clear, but when has that ever stopped a court from doing what it really wanted to do?
And BTW, why haven’t we heard anything more about the Honduran freedom fighters from you? Perhaps because those freedom fighters whom you so recently praised for their steadfast adherence to the sacred Honduran constitution have recently been doing their best to subvert the clear civil liberties guaranteed by that same constitution?
[The legislative language still matters, both for CBO scoring (as the CBO indicates) and for what the bill does. And clear language often stops courts from doing what they “really want” to do. As for Honduras, I never said they were “freedom fighters.” I just don’t believe we have a sufficient legal basis for rejecting their interpretation of their constitution. — JHA]
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October 8, 2009, 10:10 amyao says:
Ah, William Jacobson. Now there’s a serious thinker. What are his latest thoughts about Bill Ayers or Obama’s mustard?
Prof. Adler seems to be confused about the legislative process — or perhaps he’s just intent on confusing his readers. Plain-language bills are voted on so that the lawmakers have a clearer understanding what they are voting for. The bills are then converted to legalese.
See: http://voices.washingtonpost.com/ezra-klein/2009/09/dont_read_the_bill.html
[Ezra Klein’s being a little loose with his description of what occurs. It is not always possible to render the plain english version into clearly equivalent legislative language, which is why the CBO makes clear that its analysis could change once the plain english version is converted into legislative language. In such cases, the plain english version, like staff summaries, etc., actually obscure understanding of the actual bill. JHA]
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October 8, 2009, 10:12 amCato The Elder says:
I remember reading somewhere that these “deficit reduction” claims rely on some disingenuous manipulation; that they are borne from some clever rejiggering of the length of the “X-year” frame and also its position on the deficit timeline. Can anyone elaborate more specifically on this criticism?
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October 8, 2009, 10:22 amBN says:
This kind of thing happens every day in the real world. You run the numbers based on the best available information and then update the projection as you get better information. How is that different from what the CBO did?
That is correct. It is also irrelevant. I think you misunderstand the concept of a financial projection. It is basically a best guess based on assumptions. As the assumptions change so does the best guess.
IMO, legislators should have as much information as possible to make their decisions. The CBO report will help them understand how much the final bill will cost and how it will be paid for. I don’t understand what your problem with it is.
[My problem is not with the CBO, with running estimates based on bill outlines or anything of that sort. My problem is with the idea that we can pretend to know what legislation of this sort actually does — and vote on it — before the legislation is actually written. JHA]
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October 8, 2009, 10:23 amA.L. says:
With all due respect, this is an exceedingly silly thing to get agitated about. We’re not talking about the final vote, here. This is a committee vote. Various other versions of a health care bill have already passed through other committees (many months ago). They’ll all need to be merged, reconciled and reduced to statutory language before the full Senate votes. And after that, it’ll have to be merged and reconciled with the House bill and another vote will occur. This is the beginning of the process, not the end. It is perfectly reasonable for the Senate Finance Committee to vote based on a mark up at this point. The Constitution doesn’t require any specific committee procedure (indeed, it doesn’t even contemplate this particular legislative bottleneck).
The Finance Committee has been dragging its feet for months now. The issues have been widely debated and scrutinized, both publicly and within the committee. The committee members have more than enough information to vote on whether or not to advance the bill to the next stage of the process.
It’s probably also worth noting that, from a historical perspective, no piece of legislation has been more carefully considered. Democrats have been trying to pass health care reform for many decades. Entire think tanks are devoted to this issue. Many policy wonks have spend their entire careers grappling with this single issue. We’ve already spent much longer debating this particular bill than any other legislative proposal in recent memory. The notion that the Finance Committee doesn’t yet have sufficient knowledge to move this process along is ludicrous.
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October 8, 2009, 10:24 amSouthern Appeal » What Bill Did the CBA score? says:
[...] have found a way to save money by spending money through the Baucus health care bill. The problem? Unicorns likely exist more than this bill; the only thing we have are a bunch of expert summaries... The key point here is not the particulars of CBO’s scoring or the merits of the proposed reforms, [...]
dan28 says:
Yeah, what Roger said. Even if there was legislative language, that language would be heavily modified by the process of folding it into the HELP committee bill and presenting it to the Senate floor. So what’s the difference? The Senators are voting for a broad statement of principles, not for specific legislative language. What evs.
William Jacobson — that guy’s a hoot. Screaming from the rooftops is all that guy does. “This blog is a product of over 25 years of biting my tongue in polite society” he says. A perfect summary of everything that’s wrong with the Internet; a place for dogmatic assholes with no social skills to yell at each other.
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October 8, 2009, 10:26 amAnon21 says:
I think the near-hysteria of this post only makes sense if you ignore the institutional context in which this is taking place. In this case, as Roger Ford points out, we are talking about a committee vote. There are bills from other committees circulating already, both on the House and Senate sides. Basically, committees are roadblocks in this process; once one navigates around them, one can get to the process of considering an actual bill. I think concerns like Prof. Adler’s tend to assume that the committee process is somehow good, useful, or necessary in situations like this, where the legislation is so complex that no one committee has complete jurisdiction. That strikes me as very debatable.
The other point to consider is that even if all the committees passed out only general frameworks, the full Senate can’t vote on anything that does not have specific text, and the all-important conference committee will also have to report out the specific text of a bill. Frankly, given all the steps left to go in this process, it’s pretty hard to take these low-level process-based concerns seriously.
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October 8, 2009, 10:27 amBrett says:
Jonathan: for a fuller discussion of this issue with respect to the Senate Finance Committee in particular, you should look into the discussions that the committee had regarding this exact issue. If I understood the discussion, Yao is correct above: the practice of this committee is to vote on non-technical language, and then to allow the experts to draft the language. The CBO gives a preliminary score for the non-technical language and then a final score only when the bill has been translated, so to speak. This process inverts the lawyer’s (or the textualist lawyer’s) preoccupation with legislative language, and it requires a transparent drafting process. But it’s not a bad way of doing business: agreement on what the language of the bill should do provides a standard against which to evaluate the technical bill text if there is some slippage in the process of converting the committee agreement into technical language.
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October 8, 2009, 10:27 amyankee says:
I’m not one of your “academic colleagues,” but I do feel this way about legal documents; I just disagree with you about which documents are analogous. It seems to me that the best analogy to a legislator who must decide whether to vote up or down on legislation is a CEO who must decide whether or not to sign a contract. I don’t expect the CEO to have read and understood every provision of the contract, and I don’t think they are shirking their fiduciary duty to the shareholders if they don’t. If anything, they would be shirking their duty to the shareholders by reading and trying to understand all of the hundreds of pages of legal documents prepared in a significant transaction, because their time is better spent thinking about the business merits of the transaction, not the legal details. Similarly, a legislator’s time is better spent learning about the underlying policies and their merits than learning about every single dot and comma in the bill.
It is far from clear to me why a legislator is more like a law student than like a business executive. (That particular analogy is also poorly chosen, since law students are rarely expected to read an entire case.)
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October 8, 2009, 10:30 amArthurKirkland says:
I gather that conservatives often see their role as standing on the sidewalk of history, yelling “Stop!”
Sometimes, this is a useful, if not invaluable, exercise.
Other times, they reprise Kevin Bacon’s role on that downtown sidewalk near the end of Animal House.
When Jim Bunning assumes the voice of intellectual rigor, we have reached the comedic portion of the program, whether some of the actors recognize it or not.
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October 8, 2009, 10:31 amcorneille1640 says:
Is it common practice to send a bill out of committee without the full legal language being written yet? Even if it is common, that does not necessarily excuse the practice, but it makes it a little less egregious.
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October 8, 2009, 10:34 amA.L. says:
Jonathan, one more thing. Your question about reading through legal documents before signing them is particularly inapt. There is nothing remotely final about a committee vote. If you want to make the analogy to the process of negotiating a legal agreement, we’re at non-binding term sheet stage, not the final agreement stage. In negotiating a deal, parties routinely rely on very simple, non-binding term sheets at the early stages. Once they get a term sheet, the lawyers then work to reduce it to contractual language. You don’t start out with a fully drafted contract.
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October 8, 2009, 10:38 amAnon21 says:
Well, do you just mean in the sense that these things tend to be scored on a 10-year deficit horizon, so that shortfalls after that point don’t get factored into a CBO score? If so, then this is an old and common stupid Washington trick, not something that started in the debate over healthcare reform. If you’re saying that the Baucus proposal has specifically been altered such that it isn’t being scored based on the usual 10-year timeline, I’ve heard nothing to that effect, but I suppose it’s possible. The only news I’ve heard lately about messing with the deficit window is Kent Conrad attempting to sandbag healthcare reform altogether by suggesting that it be scored on a 15– or 20-year window, or something along those lines.
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October 8, 2009, 10:39 amSara says:
The “screaming” is surely unhinged, if this is how the committee has always worked.
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October 8, 2009, 10:40 amTNeloms says:
Are you finally admitting, after all this arguing, that is is in fact sometimes possible for the plain English version and the legalese to be equivalent? And that in those cases summaries can be sufficient, so that reading the actual text of the bill is not always “necessary” as you said in your post?
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October 8, 2009, 10:41 amegd says:
I suppose you’re excluding the 27th amendment from your list of “legislative proposals”?
Also, this “particular bill”, as Adler points out, doesn’t exist. How can you suggest we’ve been debating this bill for any longer than, say, H.R. 146?
Just how long should we debate bills that threaten the economic stability and health of most of the world’s citizens? I would suggest significant scrutiny.
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October 8, 2009, 10:43 amCato The Elder says:
Yes, that’s what I was looking for — I think I first read about this practice in a book called How Your Government Really Works, albeit about a year ago. Thanks for refreshing me, Anon21.
I wonder if that was done here. I am quite suspicious of a subsidy-laden bill reducing the deficit appreciably, because that logic doesn’t make any economic sense to me. The preliminary findings in Massachussetts are that the subsidies have actually increased the rate of medical spending, as sicker people are adversely selected into the inefficient Health Connector plan, which I fully expect to occur in the Democrats’ federal plan also.
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October 8, 2009, 10:51 amBlue says:
I work for a state legislative branch agency that scores the cost of legislation. Were I to cost a bill without bill text it would never make it through our most basic reviews. In addition, the rules of our legislature require a fiscal note before a bill can even be discussed in committee...no matter how trivial the subject.
It’s appalling that the CBO can operate in such a loose and unrigorous manner at the Federal level.
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October 8, 2009, 10:52 amSoronel Haetir says:
Given the abundently stated desire for bills that are simpler and straightforward to understand perhaps we need to get away from having legislators (and regulatory agencies for that matter) doing their work in legalese. Perhaps the plain language version should in fact be the law.
I understand that it is unlikely, but I am at least somewhat surprised that no one else even brought it up as a possible alternative.
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October 8, 2009, 10:53 amPete Freans says:
For my academic colleagues who believe reading a bill is unnecessary to understand it, do you feel this way about legal documents?
That’s exactly the point I made on September 23,2009 when Professor Kerr mocked reading a computer bill in its entirety.
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October 8, 2009, 10:53 amGabriel McCall says:
Certainly, there have been decades of man-hours invested in this general area of policy, but to argue that “no piece of legislation has been more carefully considered” requires that there be careful consideration of this specific piece of legislation. It is not possible to consider “a piece of legislation” until that piece of legislation actually, you know, exists.
To maintain otherwise is equivalent to hypothesizing a future book about whether Shakespeare’s works were written by Francis Bacon, and then claiming that people have been arguing over this book for years. They may have been arguing over the issue, but they can’t possibly have been arguing over the book.
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October 8, 2009, 10:56 amSeamus says:
If only that were true. I recall that at least once during the past decade, the chambers have voted on a “bill” that didn’t actually exist in tangible form, but was an amalgam of inserted pages, handwritten notes, etc., that hadn’t actually been gathered into one physical document, but that had be assembled after the vote so that the bill could be enrolled, signed, and sent to the president for signature.
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October 8, 2009, 10:57 amSeaDrive says:
I’m sure JA feels that all bills should be read in advance, but would he have posted this way about a post he favored? Somehow I doubt it. Anyway, Otto von Bismark warned us all long ago: Laws are like sausages. It’s better not to see them being made.
You act on the information you have, not on the information you wish you had.
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October 8, 2009, 10:59 amBN says:
I don’t understand why you have to have “bill text” to score a proposal. In the private sector you would have some idea of the cost of the proposal most, if not all, of the way through the process. Why is that a bad thing in government? I am missing something.
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October 8, 2009, 11:03 amA.S. says:
I pointed out this fact on one of the threads about reading the bills before voting on them.
If one believes (as some of your academic colleagues do) that it is not necessary to read the full text of the bill before voting — i.e., that it is sufficient to read an expert’s summary of a bill instead — then I don’t see why it makes a difference whether the summary is produced before the bill is actually drafted (and voted on) or after. If you have confidence that the experts can fairly summarize a complex bill for you, then you should likewise have confidence that said experts can create a complex bill out of that summary.
Frankly, I don’t even see that it should make a difference (for those who trust the experts to manage the relationship between bill and summary) if the bill is actually created after the full Senate votes on it (or even after the President signs it).
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October 8, 2009, 11:03 amfrankcross says:
I think the analogy is not about students but about whether a name partner should read every case he used in a memo or brief or whether he could delegate some of that to a trusted associate or junior partner.
If I were doing an oral argument, I suppose I should read every case. If not, I think I might delegate. How would this be worse than delegating authority to an administrative agency.
[Frank — I think the proper analogy is to the legal brief itself. A partner shouldn’t sign a brief unless he’s read it. — JHA]
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October 8, 2009, 11:03 amXanthippas says:
Failing to read bills is the end of democracy? I’d put a few things ahead of that, like lobbying campaigns that funnel millions to politicians without restraint from ineffective campaign finance regulation, or a media that’s incapable of analyzing or reporting on current issues with any measure of depth or insight. Why would a politician need to read a bill? A lobbyist probably wrote it for him, and the clowns at CNN and FOX neither know nor care.
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October 8, 2009, 11:07 amPubliusFL says:
Even if he concedes that it “is in fact sometimes possible for the plain English version and the legalese to be equivalent,” wouldn’t it still be necessary to read the bill in order to tell in any particular case whether the summary is adequate or not? It’s like when I back out of a parking space, sometimes the only small children I need to avoid running over are clearly visible in the rear-view mirror. But not always. So I always look over my shoulder.
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October 8, 2009, 11:10 amASlyJD says:
Re: students reading full cases.
The fact of the matter is that, for all our collective bitching, even the best students almost never read the full case. We read the excerpted important bits in that 8lb $150 book the prof or his buddies edited. If professors really cared about getting students to read the full cases, they would not require a casebook. They would give the citations for the relevant cases and require students to read those through Lexis/Westlaw. (My Con Law I prof actually did this. Amazingly, I didn’t miss all the open ended questions and filler paragraphs.)
[FWIW — I regularly assign unedited cases, particularly in my 2nd and 3rd year classes, and one reason is because no one edits cases for you once your out of law school. JHA]
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October 8, 2009, 11:37 amBlue says:
An “idea” of the cost really isn’t sufficent. A comma, semi-colon, or added subsection can easily add (or subtract) huge amounts from the cost of a piece of legislation.
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October 8, 2009, 11:39 amBN says:
Thanks for the response.
I understand that a sentence can materially affect the cost of the proposal. What I don’t understand is how legislators know what the costs/benefits might be as they are discussing the bill. For example, if legislators want to pay for a bill by increasing the sales tax how would they know how much they have to increase it? If your department/agency doesn’t answer that question who does?
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October 8, 2009, 11:54 amMichael Smith says:
Aside from the insane notion that it is acceptable to vote for legislation not yet written, there is an even more insane notion: namely, that the cure for healthcare being “too expensive” is to pass legislation adding 3/4 of a trillion dollars to the cost of healthcare. To cure us of the effects of poison we are being given another huge dose of poison.
For years I’ve listened to liberals whine about the “injustice” of 30 million Americans (or pick whatever number you like) being without health insurance — and now that liberals have both houses of Congress and the Presidency, what is their proposed solution to this “injustice”? Put a gun to the head of every American and force them to buy insurance, or face fine/imprisonment. Some solution!
And to top it all off, these damn cowards fully realize what a financial disaster this will be and what it will do to healthcare — that’s why they dare not have its major provisions kick in until after the next Presidential election.
Simply unbelievable — and utterly disgusting.
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October 8, 2009, 12:02 pmBlue says:
It’s probably better to back up a second to understand what costing a bill means.
It does not mean an analysis of costs and benefits. Rather, it simply means the change in projected expenditures and revenues that are directly related to the legislation...dynamic scoring (e.g., tax cuts raising overall tax recipets) need not apply.
Here in Texas the way the process works is that, for expenditures, we ping affected executive branch agencies for information on the costs of a bill...but we conduct an independent analysis of those assumptions. Revenue projections are supplied from the Comptroller’s office.
One thing you always watch out for is “repeallers.” A single line can, for example, wipe out the state income tax in its entirety.
We’re helped by a “one subject rule” for bills–including other subjects can subject a piece of legislation to a fatal point of order. That would be a very good discipline to subject Federal legislation to.
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October 8, 2009, 12:06 pmmidasear says:
Who cares?
The entire CBO process in this case is especially meaningless. Both the Baucus pseudo-bill and the House bill are premised on future Medicare cuts that no thinking person believes will actually happen when the future arrives. It’s a fiction designed solely to appease the CBO oracle who will then permit the elders to invoke the magic of “budget reconciliation”, thwarting the influence of the dread god “Filibuster” and the fearsome sacrifices appeasing that spirit requires.
They might as well all be puzzling out the meaning in the entrails of a sacrificial animal in the latter days of the Roman Republic. This is the equivalent of drugging the white bull to make sure it doesn’t put up a struggle when the hammer blow falls. Once that sort of trickery is resorted to, who cares if someone paints over a small black spot or two.
Now if only someone could catch a small black dog and set it to run across the Senate floor before the final vote.
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October 8, 2009, 12:16 pmCato The Elder says:
Look at this gem from the CBO Report:
Election-year shenanigans, dare I say?
Look at this, too:
IOW: “Since you’ve delegated your legislative authority to another commission who will perform the needed dirty work later, we estimate that this will reduce the deficit by $22 billion over 5 years.” If one is allowed to include that sort of modeling in the analysis, the CBO can massage virtually any estimate to what Congress wants.
This bill, succinctly described, takes from the old to give to the poor. I’ve been slowly reading through it, and it seems like the bulk of all the putative deficit savings comes from reducing payments to Medicare and Medicare Advantage plans, which according to the CBO should arrest the rate of public medical spending growth, given some quite accommodating assumptions. But this, while possibly true, does not really approach the heart of the emotional issue — the working public is not merely concerned with reducing public spending growth, but also private spending growth, for example in the form of their insurance premiums, since all such spending money public or private inevitably comes from taxpayer’s pocket.
I also wonder how sophisticated this analysis is, to an economist’s eyes. This all seems “static”, not “dynamic” — they do not seem to analyze any second-order effects of possible medical inflation from all this shifting of people between different plans. That is one of my main complaints about DC “wonkery” in general; sometimes, I feel like all it takes to perform it is to lop off a few percentages from some expenditure line somewhere, so that self-assured Post reporters can then declare solving health-care an easy problem for the pols to tackle.
All Congress would be doing in reality with this bill is moving the deficit from the inscrutable ledgers at the Federal Reserve to a deficit on our credit card and checking account balances.
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October 8, 2009, 12:17 pmHarry Schell says:
Bad enough that CBO has not seen the legislative text (and a Democrat on the panel says reading it would be worthless because of the arcanery of “legislative language”).
Worse is the idea that such tax increases will bring the anticipated revenue (CBO uses static analysis, which assumes people don’t change their behavior...which is why revenue from tax increases is almost always overstated in scoring). Cutting Medicare and “other costs” means less care delivered unless an entreched program notorious for fraud and waste will magically become efficient and effective. How can that be evaluated?
Why can’t that be done right now? We have heard about a health care “crisis” for a decade or more and now finally Congress is going to make Medicare efficient? NOW they are serious? You could give me a unicorn for my own and I still wouldn’t believe that.
The Medicare and other costs are simply going to be defunded, doctors will abandon the program and rationing/treatment delays will begin.
This bill, in any language, will be a failure in reducing cost or improving delivery. It has been so every place it has been tried, with a few notable exceptions that always seem to involve very tiny (comparatively) countries with quite homogenous populations and land area. And even then, small scale doesn’t guarentee success.
Why are the real specialists in socialism, the Europeans, trying to undo the monster? And why are we trying to energize it? The basic failure of this bill is its idea of grabbing a failed concept and pretending it will work this time.
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October 8, 2009, 12:22 pmJon Roland says:
Though similar remarks are often attributed to Otto von Bismarck, this is the earliest known quote regarding laws and sausages, and is attributed to John Godfrey Saxe in The Daily Cleveland Herald (29 March 1869). Saxe is also the author of the famous poem, “The Blind Men and the Elephant”.
This legislation is clearly in the early drafting stage, with many proposals being made as trial balloons to test the political winds. The mistake comes from commentators and some members of Congress speaking of “the” bill when no bill has been drafted yet. Such aspirational language can be misleading.
Can you imagine being a staffer asked to write a coherent bill with such guidance?
The main thing we should gather from this process is that the issues are too complex for a deliberative body like Congress to grasp. They are cognitively inadequate to cope with them, and would be better advised not to try.
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October 8, 2009, 12:30 pmyankee says:
Sure. But why is voting for legislation more like a partner signing a legal brief than a director voting to approve the agreements involved in a complex transaction? Nobody expects the directors to have read the agreements in their entirety and nobody thinks they are violating their fiduciary duty to the shareholders by failing to do so. Would a board of directors that insisted on reading hundreds of pages of legal agreements in their entirety before voting on them be appreciably better in any way? I think not; all it would do is slow down the transaction.
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October 8, 2009, 12:33 pmrunape says:
I would wager a large sum of money that your students (even your best) are not reading every last word. It is utterly unnecessary to do so to succeed at law school, and all law students know this. Indeed, part of what is required to succeed in law school is understanding what needs to get done and what can be left aside. Optimal law school performance does not resemble anything like reading every word.
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October 8, 2009, 12:38 pmMartinned says:
Name me a country with higher (per capita) health care spending than the US.
Because we’re creating systems that involve direct transfers to citizens, who can then choose their own health care plans. (eg. Dutch system) To get there, the current US administration would have to do at least two things that are probably a good idea but politically impossible: sever the link between employment and insurance, and directly subsidize those who can’t afford the health care premiums themselves.
Last weekend, Becker and Posner discussed the Swiss system on their blog.
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October 8, 2009, 12:39 pmMartinned says:
Not to mention that the students are trained to be the guy who reads the bill so that the Senator doesn’t have to. Even the senator has to be able to read it all, he just shouldn’t be required to.
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October 8, 2009, 12:40 pmCato The Elder says:
Name me a country in Europe wealthier than the United States.
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October 8, 2009, 12:41 pmChrisTS says:
So,
a) there is no bill, and
b) no one should ‘cost’ the bill before it exists.
Yet,
c)some of us know that the bill that does not exist will be costly and dangerous.
Parmenides weeps.
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October 8, 2009, 12:44 pmSandy MacHoots says:
Yes they are. See Smith v. Van Gorkom, 488 A.2d 858 (Del. 1985) (holding inter alia that officers and directors who did not read merger documents before agreeing to them breached their fiduciary duties to the corporation and are personally liable).
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October 8, 2009, 12:52 pmMartinned says:
Nominal GDP per capita (IMF):
Nominal GDP per capita (World Bank):
PPP GDP per capita (IMF):
PPP GDP per capita (World Bank):
So the short answer is: Luxembourg and Norway.
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October 8, 2009, 12:56 pmCato The Elder says:
I did NOT say per-capita. Which matters because of our huge amount of immigration relative to those European countries. We lavish transfer payments to poorer folks because we have much more of them in poorer health, first of all, and secondly we can afford it.
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October 8, 2009, 12:58 pmCato The Elder says:
Luxembourg is a silly comparison as well. From what I understand it is a rich enclave of the French elite. Also: What year are your IMF statistics from? The Norway GDP per capita was very probably influenced by the huge run up in oil prices ending in 2007, and the SWF fund which draws its investment pool from that money might have also influenced the calculation.
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October 8, 2009, 1:06 pmChrisTS says:
martinned: Do you know why the WB does not consider (?) Qatar?
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October 8, 2009, 1:06 pmNew ObamaCare Version Claims Not to Increase Federal Deficit, But It Explodes State Deficits, and Relies on Mythical Savings and Unlikely Medicare Cuts | OpenMarket.org says:
[...] “scored” the bill as not increasing the deficit, but in doing so, it admitted that the bill does not even exist except as a concept, and that its details have yet to be fleshed out. Senate leaders intend to have [...]
Federal Farmer says:
So I know that Orin Kerr laughs at the notion that legislators should be required to read a bill before voting on it, but I wonder where he stands on not writing the bill before voting on it?
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October 8, 2009, 1:19 pmClaritas says:
Jonathan, I am afraid you have a naive perspective on the legislative process and the drafting of legal documents in general.
To take an obvious example, have you ever read Madison’s records of the debates in the 1787 constitutional convention? The delegates spent months negotiating and voting upon a series of very short resolutions–a term sheet, in today’s parlance–that embodied the key compromises among the states. Only in late July 1787 did they send the resolutions to the Committee of Detail, which reduced them to a more fleshed-out form. The whole Convention then debated the final document anew, before sending it to the Committee of Style, which crafted the language that we have today, and upon which the whole Convention finally voted.
What the Baucus committee is doing is analogous to that process. The point is, at the legislative stage (as opposed to the stage where courts are interpreting legislation)–especially the interim legislative stage–it is not necessary to have final legal language before rational debate and important policy decisions can occur. To the contrary: prematurely reducing to final legal language is both wasteful (because terms may be omitted or added) and counterproductive (because it prevents compromise by ossifying terms too quickly).
Most practicing lawyers would be quite familiar with this process. On the road to any complex legal document, there are fits and starts along the way. The drafting of the Constitution was possibly the most successful such effort in human history, and even it did not give birth like Athena from the head of Zeus.
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October 8, 2009, 1:31 pmGuest12345 says:
This is pretty funny. I guess it’s to be expected though. Here is my plain language translation:
The lawmakers don’t need to understand the laws that the lawmakers make, they just need to have lawyers around to tell them what those laws mean.
Excellent.
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October 8, 2009, 1:47 pmMichael Smith says:
Martinned demanded:
Name me a country with higher (per capita) health care spending than the US.
Irrelevant.
Nothing on earth justifies the notion that some individuals have a right to free (or reduced cost) goods and services to be paid for by initiating the use of force to loot the fruits of another man‘s labor. Such a set-up is nothing less than the involuntary servitude of some for the economic benefit of others — and nothing justifies ANY amount of involuntary servitude.
Would it have been morally justified if the white plantation owners of the 19th century American south had responded to the demands of the abolitionists by saying, “We hear your complaint, so we’ve decided the slaves only have to work for us 4 days out of 7.” No. Part-time is every bit as immoral as full time slavery.
Would it have been morally justified for those plantation owners to say to the slaves, “Look, you don’t have to physically work for us anymore — provided you send us 40% of whatever you earn working elsewhere. We need that 40%, because without it we won’t be able to feed our children, pay our doctor bills, or put food on the table.” Would anyone have said their “needs” justified continuing to live off the efforts of the blacks?
Hell no it wouldn’t be morally acceptable — the proper response from the slaves would be to say, “To hell with your needs — fulfilling your needs, including those of your children, is YOUR responsibility, not MINE — my life belongs to ME, not to you, not to society and not to the government.”
No man, no matter how great his “need”, has a right to any part of another man’s life — because no man has a right to slaves.
The fact that we are currently partially socialized and therefore partially enslaved — in the form of a highly progressive income tax that drains the most productive, the most energetic and the most entrepreneurial members of society to pay for Medicare, Medicaid, S-CHIP, public education, public transportation, food stamps, public housing, farm subsidies, ethanol subsidies, i.e. the whole rotten welfare state — the fact that such a set-up currently exists does not justify expanding the enslavement by piling on another massive looting of the taxpayers.
The solution is to begin dismantling the welfare state. And, since it is true that some welfare recipients paid a lifetime of taxes to support that welfare state during their working lives, the dismantling must be done carefully to protect the rights of those that paid a lot of taxes. It won’t be easy to do — but Obamacare will only make it harder.
We must reverse course and take up a new motto: Give us liberty, and death to the welfare state.
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October 8, 2009, 1:47 pmMartinned says:
Hang on: who have more immigration, the US or Europe? And how does that affect the health care story?
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October 8, 2009, 1:53 pmMartinned says:
I just copied the list for the entire world from wiki, and I was too lazy to cut out the non-European ones. Incidentally, the numbers are for 2008.
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October 8, 2009, 1:55 pmMartinned says:
I’m not sure why total numbers for GDP should matter, they rarely do, but here they are:
IMF/nominal (2008):
EU: $ 18,3 trillion
US: $ 14,4 trillion
World bank/nominal (2008):
US: $ 14,2 trillion
Eurozone: $ 13,6 trillion
IMF/PPP (2008):
EU: $ 15,2 trillion
US: $ 14,2 trillion
World bank/PPP (2008):
US: $ 14,2 trillion
Eurozone: $ 10,9 trillion
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October 8, 2009, 1:59 pmMartinned says:
Part of the point of intelligent debate is to trace differences of opinion back to differences in first principles, values that are not themselves open for debate. If this is your opinion, that settles it, there’s nothing left to say. But then, I wonder when you’re going to make those lazy poor people pay for their own share in the cost of national defence. ($ 687 bn translates to $ 2290 per person. Modify this a little to take into account that rich people benefit more from defence than poor people, and there’s still no excuse not to charge every man, woman and child at least $ 1000 per year for the privilege of not being murdered by invading Canadians.)
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October 8, 2009, 2:08 pmPersonFromPorlock says:
So what’s the problem? The money to pay for it doesn’t exist, either. Perfect symmetry!
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October 8, 2009, 2:23 pmGuest12345 says:
Why do you keep flipping between individual countries in Europe and the EU? It hardly seems fair to isolate and cherry pick tiny countries when you want to compare per capita GDP, and then jam them all together when you want to compare GDP.
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October 8, 2009, 2:33 pmMartinned says:
I’m not really sure why GDP matters at all. Cato the Elder asked about it. The “flipping” is caused by the fact that the lists I used for the per capita numbers don’t include an entry for the EU/Eurozone, while a comparison between the US and individual European countries on a total GDP basis is even more nonsensical than a comparison of total GDP already is anyway.
Incidentally, unlike the US constitution, the EU Treaties do explicitly mention health care. Not only does the EU have important supplementary competences in this area (art. 168 TFEU = art. 152 EC.), health care is also part of the general rules on free movement of services, meaning that EU citizen may — in principle — travel to any other EU country for the purposes of obtaining medical treatment. (To be precise, they may do so, but there are certain limitations to health insurers’ requirement to pay for it.) The whole story is here.
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October 8, 2009, 2:43 pmBruce Hayden says:
I think the trick, if there was one, was to start the taxes as soon as possible, but delay the subsidies and the like for four years. The result is that in a 10 year window, you have 10 years of additional taxes, offsetting 6 years of subsidies. So, if everything stays constant, extending it out to 20 years would result in 16 years of subsidies and 20 years of taxes, which is a much different thing (changing the ratio of years from 3/5 to 4/5). Which is why, I think, that it is noted that the numbers look a lot worse after the first 10 years.
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October 8, 2009, 2:47 pmMichael Smith says:
Martinned wondered:
Won’t be necessary.
For a full answer to this, see Ayn Rand’s article, “Government Financing in a Free Society” in her book, “The Virtue of Selfishness”.
The short answer to this is that if government were limited to its only morally justified function — which is to protect individual rights by protecting men from those who initiate force or fraud — it would then consist of only three functions: a police force, a civil justice system and an armed forces. In other words, it would be a fraction of its current size. (Even military spending would probably be much lower as we would not be spending billions on the defense of other nations, like Germany and Japan.)
With government reduced to its proper size, it could be financed by charging fees to those who access its services. For instance, there could be a fee charged as a percentage of all business contracts for those who want their contract to ultimately be enforcable in court (likely to be a huge majority). The fee would be voluntary — no one is forced to pay, but if you don’t pay, you don’t have access to the courts to get the contract enforced. Given the volume of commercial contracts in a 14 trillion dollar economy, that would raise a lot of revenue.
There are other ideas in Rand’s article.
However, even if it were true that some amount of taxation is required to support the valid functions of government, this would not justify the creation of a vast, transfer-of-wealth welfare state that grants the unearned to some by looting the earned from others. If I have to be taxed to pay for the police and the national defense — which I need to protect my individual rights — that hardly justifies the notion that I should also be taxed to pay my neighbor’s doctor bills.
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October 8, 2009, 2:53 pmBruce Hayden says:
There are a lot of reasons why they aren’t going to get the 25% reduction in reimbursements to health care providers. First, for the most part, doctors aren’t going to accept a 25% cut in Medicare reimbursements. Rather, they will just quit taking Medicare patients.
Secondly, the block that votes most heavily, per capita, are those who are on Medicare right now.
And, finally, the self indulgent Baby Boomer generation is rapidly moving towards Medicare. I will be eligible in six years and a couple of days. And the rest of my cohort is unlikely to take cutting their expected retirement benefits so significantly lightly.
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October 8, 2009, 3:11 pmMichael Smith says:
Martinned also said:
Are you telling me that you consider the black man’s desire for freedom from chattel slavery — versus the white plantation owner’s desire to keep his “property” working his cotton fields for free — to be a mere difference of opinion about values that is beyond debate? That there is no moral basis for condemning slavery?
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October 8, 2009, 3:15 pmMartinned says:
By “beyond debate” I meant something that it is impossible to have a debate about, debate being defined in the sentence before. The slave and the slaveowner aren’t having a debate, they’re just talking to each other, each stating their opinion without any chance of agreement. In the end, as in Britain as early as 1772, if enough people with enough power side with the slave, it doesn’t matter anymore what the slaveowner thinks.
In that sense, these underlying values are like God: The unmoved mover. (Belief in God is another notable example of something you can’t argue about. You believe it, or you don’t. What is there to say?)
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October 8, 2009, 3:43 pmyankee says:
Not in the slightest. The failure to read the merger agreement was just one of the many ways in which the officers and directors failed to take any steps to become informed abut the transaction in question. Nothing in Van Gorkom says (or even suggests) that the directors had an obligation to read the merger agreement and ancillary documents in their entirety and that failure to do so, without more, would constitute a breach of duty. Adler’s claim, by contrast, is that a legislator’s failure to read a bill in its entirety before voting on it is irresponsible per se.
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October 8, 2009, 3:51 pmShelbyC says:
I would guess the US. You have evidence to the contrary?
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October 8, 2009, 3:54 pmDavid Nieporent says:
I don’t understand how we got to the point of making this comparison anyway. Members of Congress are not analogous to directors; directors are supposed to provide oversight, not manage the day-to-day operations of the business. Members of Congress are not directors of some sort of legislative corporation; they’re the actual legislators. It’s their personal responsibility, and it’s non-delegable.
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October 8, 2009, 4:11 pmMartinned says:
I answered this one, but for some reason my comment disappeared. I also have an earlier comment “awaiting moderation”. I suspect this is because I like to stick links (=footnotes) in my comments...
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October 8, 2009, 5:17 pmyankee says:
Legislators aren’t supposed to manage the government’s day-to-day operations either. Managing operations is the executive’s job. Legislators enact policies and provide oversight. But you wish to analogize them to officers instead of directors then my point still holds, since officers aren’t expected to read every word of every legal document they sign either.
Obviously a legislator voting for legislation isn’t the same as a corporate director voting to authorize a transaction But voting on legislation is a lot more like voting on a corporate resolution than it is like doing assigned reading for class or signing a legal brief, which were Ilya’s analogies.
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October 8, 2009, 5:28 pmfrankcross says:
JHA, I think the analogy is a different one. The partner on the case signing the brief would be analogous to a member of the congressional committee. Requiring every member to read legislation would be more like requiring every partner of the firm to read all the briefs presented by the firm.
But the analogy is strained, and this isn’t really a matter for analogy. We should find the most sensible, efficient system.
[Frank — Well, not every partner signs every brief; a partner whose name is not on the brief has no obligation to read it and has not in any way attested to its accuracy, soundness, etc. But every legislator who votes for a bill — that is, who casts a vote in their own name — exercises their individual authority to participate in the legal enactment of the bill and, as a consequence, is indicating their conclusion that the legislation is desirable and, given the oath of office, constitutional. How can they attest to these things if they have not read it?
I agree we should seek the most sensible system, but the most “efficient”? Little of existing legislative procedure would pass that test.]
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October 8, 2009, 6:39 pmDavid Nieporent says:
I’m just surprised how many people are endorsing Ken Lay’s defense: all these details are too complicated; just because I’m CEO doesn’t mean you can expect me to pay attention to and understand them all.
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October 8, 2009, 6:45 pmMartinned says:
Who endorsed that? Just because legislators don’t read every letter, doesn’t mean they’re not responsible for their votes. If they never read anything, but simply tossed a coin for every vote, they’d still be responsible.
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October 8, 2009, 7:33 pmLeo Marvin says:
Every partner vouches for the brief by virtue of his liability as a partner.
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October 9, 2009, 12:11 amDavid Nieporent says:
The people who said that they didn’t think corporate officers had to read contracts and that it wouldn’t be a breach of fiduciary duty if they didn’t.
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October 9, 2009, 7:51 amMartinned says:
But he certainly did get fired by the shareholders, just like an elected representative who tossed a coin would get fired by the electorate.
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October 9, 2009, 9:07 amPhil Bredesen:New ObamaCare version claims not to increase federal deficit, but it explodes state budget deficits « www.offmyfrontporch.com says:
[...] Office “scored” the bill as not increasing the deficit, but in doing so, it admitted that the bill does not even exist except as a concept, and that its details have yet to be fleshed out. Senate leaders intend to have [...]