Essentially Contested America

Should we consider the health care reform act, which President Obama signed into law today to be a civil rights act? There is good reason to do so. Though the Act is far from perfect, it does represent a commitment by Congress to expand access to a fundamental human right. Article 25 of the Universal Declaration of Human Rights states that “Everyone has the right to a standard of living adequate for the health and well being of himself and his family, including . . . medical care.” Martin Luther King called access to medical care a civil right. Though our Constitution does not include a right to health care (or any other substantive economic rights), it does give Congress the authority to create such rights. And, in a speech after the passage of the Act, House Speaker Nancy Pelosi invoked the Declaration of Independence’s statement that all people are guaranteed a right to “life, liberty and the pursuit of happiness.” Before the vote, Pelosi and other congressional leaders marched through protesters hurling racial epithets, an act that self-consciously harkened back to civil rights demonstrations of the past. The Act falls within the tradition of Congress enforcing the rights of social citizenship – economic rights that are essential preconditions to one’s ability to exercise other civil and political rights.

Strangely, opponents of the Act also think the Health Care Reform Act is a civil rights act, and argue that this is a reason to oppose it. In February, Rush Limbaugh called the Act a “civil rights act,” a “reparations” bill which people should oppose. Last week, Newt Gingrich compared the Act to the 1964 Civil Rights Act, arguing that Obama’s support of the Health Care Reform Act would wreck the Demcratic party like Lyndon Johnson’s support of the 1964 Act did.

How ironic! I have always thought of the passage of the 1964 Civil Rights Act as one of the great moments in American history. I also thought that as a society we had achieved a consensus that civil rights were a good thing. What could Gingrich possibly mean by his critique? Johnson was re-elected by a landslide in the fall of 1964, and he relied on that mandate to push through the Medicare Act and the 1965 Voting Rights Act the next year. When Gingrich says the 1964 Act wrecked the Democratic party, could he be referring to the fact that after passage of the Civil Rights Act, many of the pro-segregationist southern Democrats became Republican, eventually turning the South from a solid Democratic block to the solid Republican block we have today?

If so, why would Gingrich want to remind us of the southern Republican party’s roots in segregationism and racism? It’s hard not to see a connection between Limbaugh and Gingrich’s remarks and the racial slurs hurled by protestors against the African American and Latino members of Congress on Sunday. Like Congress’ tradition of expanding human rights in acts like the 1964 Civil Rights Act, the Social Security Act and the Medicare Act, there is an equally strong tradition of using race baiting as a tactic in American politics. One of the vestiges of segregation in our society is the racial disparity that still exists in our health care system. If this act helps to remedy this disparity, then it truly is a civil rights act.

I am both surprised and bemused at Chief Justice Roberts’ criticism of President Obama in a question and answer session with students at the University of Alabama School of Law last week. The Chief Justice said that Obama’s criticism of the Court’s recent ruling in the Citizens United case (in which the Court struck down a 100 year old campaign finance law) during his state of the union address was “very troubling.” It is not unusual for a president to criticize a Supreme Court decision. Both President Bushes and President Reagan repeatedly attacked the Court’s holding in Roe v. Wade that women have a constitutional right to choose an abortion. Richard Nixon ran for president on an anti-Warren Court platform. Franklin Roosevelt accused the Court of being out of touch when it struck down key New Deal measures. Indeed, Roberts conceeded that it was permissible for the president to criticize the Court, saying that he just didn’t think the state of the union address was the appropriate format for such critique.

What is highly unusual, if not unprecedented, is for a Supreme Court Chief Justice to criticize the President for his stance on a Supreme Court opinion. While it is appropriate for members of the political branches to criticize the Court, the Court is supposed to be insulated from politics. Others have accused Roberts of whining, but I am most concerned about the political overtones of Roberts’s remarks. Most likely, like his colleague Samuel Alito, Justice Roberts just does not like being criticized to his face. But given that the Citizens United opinion will almost certainly benefit the party of the President that appointed him, Justice Roberts should be a little more circumspect before he allows himself to be drawn into what is really a political, and not a judicial, debate.

The public option took a shot to the kidney yesterday.  The punch was hard and it was not fair, but it is just a part of the game.  The public option may be getting a standing eight-count in boxing parlance, but it should not be counted out.  In the next several weeks, the pressure will continue to build for a public option.  Eventually, the House of Representatives will pass a bill with a public option.  The Senate may not follow suit, but eventually will have to compromise on some form of a public option.  What form the public option will take is anyone’s guess.  However, it will be in a form that will allow all sides to claim victory and get on to campaigning for 2010.

This week, news circulated suggesting that President Barack Obama sent emissaries to attempt to convinced New York Governor David Paterson to exit the 2010 New York gubernatorial race.   I have heard some argue that the president’s attempt is anti-democratic and that the voters of New York should decide who their governor will be.  Of course, all would agree that New Yorkers should elect their governor.  However, given that the president is the de facto head of the Democratic Party, he has an obligation to do what he can to ensure that the person New Yorkers elect is a Democrat and that the person running at the top of the ticket is as strong as possible.  The stakes for the Democratic Party in the 2010 New York election are large.  A weak candidate may weaken turnout and affect down-ticket races.  Given that Sen. Gillibrand is crucial to count to 60 Democrats in the Senate, a strong gubernatorial candidate is important for reasons important to the national Democratic Party and its agenda.  As important is the redistricting that will occur in the wake of the 2010 Census.  The map that a Republican governor would endorse is likely to be far different than the one a Democratic governor would endorse.  Congressional seats may be in the balance.  If these are the concerns that drove Pres. Obama to encourage Paterson (and those who would have challenged Sen. Gillibrand) out of the New York primaries, his actions may be perfectly understandable and somewhat necessary as the head of the party.  Of course, the president may be wrong about the parade of horribles that could follow a Gov. Paterson primary run (and possible win) but that is a very different question than whether he should have gotten involved at all.

This may be an overly saturnine observation, but it seems that the United States is no longer governable–if by “governable” one means implementing the positions that win elections. The current Health Care Reform crisis is one of many such examples, but there are others also. Indeed, it’s a good test case. If we get a bill will it be one that favors the people or the Health Insurance companies? Four out of five congressional committees reported bills including a public option. One would think a public option is a sure thing. Right? Not necessarily. This fiasco turns off even those citizens who for the first time and who turned out en masse to support a candidate for president. How will this president reward them? Bold, courageous action is required, not politics as usual.

Has American public discourse ever been as vitriolic and dangerous as it is now? If not, what’s the explanation? Is it protecting the wealthy by concentrating on relatively distractions such as the Obama “takeover,” and other issues that don’t go to the heart of the inegalitarian character of American society? It is possible for us to reverse the trend? What steps are needed to do so? Last night a cable station broadcast presented an exchange between a preacher and a gay talk show host. The preacher indicated that he would not have a problem with someone assassinating the president and told the talk show host that he should die of brain cancer like Teddy Kennedy. Can we just write this off as the Kooky fringe? Or should we be alarmed? And if the latter, what’s the remedy? The only remedy can be a concerted effort on the part of the responsible figures–are there any left?–on all sides of the political spectrum to denounce such discourse. Vitriol can lead to violence and even when it doesn’t, it certainly prevents intelligent discussion about fundamental matters of national concern.

How will the so-called “trigger” work? What will insurance companies need to do to avoid the trigger? Will the trigger have “teeth”? And what will “teeth” amount to? No one seems to take these questions seriously. As such, the trigger seems to be a gimmick providing cover for those who oppose a public action. There is no substitute for a public action. With a public option, it will be apparent whether choice and cost-effectiveness works. Without one there will be no baseline for determining whether insurance companies will be kept “honest.”

It’s been quite a week. I watched folks marching in the Labor Day parade carrying “Health Care Now” signs, and heard an enthusiastic crowd member call out, “Health care yesterday!” I talked to my friend whose husband lost his job about her difficult decision about whether or not to take her son to the doctor for an ear infection since it would cost over $100. I think of my friend who was just diagnosed with cancer. Thank goodness she has health insurance – I can’t bear to think of her having to forego treatment, as so many have who can’t afford it and lack the insurance to pay for it. I think of my friend with the severely disabled daughter who can’t move because after years, she finally got her daughter on state supported health care. I think, maybe relief is finally here for her and the 46 million uninsured in this country.

Yesterday, President Obama said that health care reform is not just an economic issue, it’s a moral issue. I agree. Why do the people who suffer bad luck such as loss of job or severe illness then have the further bad luck of not being able to afford health care? It’s just not fair, and it’s not in this way in any other advanced industrialized nation. Health Care (Reform) Now? I sure hope that it will be here soon.

Will President Obama go the way of George H.W. Bush? There’s speculation that the president will not keep his promise to include a public option in the health care reform bill. That’s more than unfortunate. Moreover, word has it that the anti-rescission provision might fail as well.  Fully aware that the president is rescission by difficulties few presidents ever faced, failure to keep his promise can be devastating to his presidency. Surely any hope of being a transformative president seems already gone. The forces that have killed universal health care for the past half century will simply be emboldened by another victory. It would be better for the president to serve one term fighting for principle than hanging on to two terms by playing politics. Yet, he might not even succeed at that. The House progressive caucus has threatened not to support such legislation. Failure all around. A bad bill is not better than no bill at all. The president must resist a bill that includes a so-called “triggering” mechanism for a public option if the insurance companies do not control costs is a bad bill. There’s no way to guarantee compliance. It’s simply cosmetic. I sympathize with the president. But consensus-seeking is an inappropriate strategy when one hasn’t a partner in the consensus-seeking enterprise. Standing for principle, committing oneself to health care reform that is fair, cost-efficient, and universal, even if it fails, is better than a self-congratulatory bill that is unfair, doesn’t contain costs, even it covers more Americans.  How valuable is a bill that doesn’t preclude rescission of coverage? What kind of coverage is that? Please Mr. President take the high road. Keep your promise to principle. Even if we lose at least we will at least know what we’re fighting for?

As I have said before on this blog, the Virginia governor’s race will not be a referendum on President Barack Obama.  The latest flap in that race suggests as much.  A few days ago, the Washington Post published a story on Republican candidate Bob McDonnell’s master’s thesis written in 1989.  The thesis is worth a read.  It reads like a Republican playbook from the end of the Reagan era.  McDonnell concedes as much.  Its attack on Democratic policy is full-throated.  Its critique of women outside of the home and homosexuals everywhere is not kind.  The ideas expressed in the thesis are not necessarily kooky, they are just very conservative.  The thesis was not written by a callow 24-year-old.   It was written by a 35-year-old man who would begin elected public service just a few years later.  Virginia Democrats have argued that McDonnell has followed his thesis  through his 14 years in the Virginia legislature followed by his 3 years as attorney general.   They claim that his work reflects rather than repudiates his thesis.  Not surprisingly, McDonnell claims otherwise.

The race will be fought over the next 60 days or so over issues that are peculiar to Virginia.  Virginia politics is not just local, it is special.  Regardless of whether McDonnell wins or his Democratic opponent Creigh Deeds wins, the outcome of the Virginia governor’s race is unlikely to hinge on any general feeling regarding President Obama and his policies.