washingtonmonthly--2020-12-23--On His Way Out the Door, Barr Drops a Bombshell About the Durham Investigation

Last week William Barr announced that he would resign as attorney general effective Wednesday .
In what might be his final interview on the job , the 70-year-old talked to Wall Street Journal opinion columnist Kimberley Strassel .
While Barr used the opportunity to suggest that his defense of Donald Trump and associates was actually part of his nonpartisan approach to justice ( an absurd claim ) , he dropped a bombshell about his efforts to undermine the origins of the Trump-Russia investigation .
Barr told Strassel that he didn ’ t “ see any sign of improper CIA activity @ @ @ @ @ @ @ July 2016 .
The CIA stayed in its lane.
” Strassel attempted to diminish that revelation by suggesting that this is something Barr knew all along .
But a look at the evidence suggests otherwise .
Less than a month after Special Counsel Robert Mueller ’ s report was released publicly in March 2019 , Barr announced that he had assigned John Durham—the U.S. Attorney for the District of Connecticut—to investigate the origins of the Trump-Russia probe .
An entire conspiracy theory developed on the right about how Obama ’ s CIA Director @ @ @ @ @ @ @ concoct the “ Russian hoax.
” Here is what Margot Cleveland wrote about that at The Federalist in an article titled : “ All The Russia Collusion Clues Are Beginning To Point Back To John Brennan.
” The evidence suggests that the CIA and intelligence community—including potentially the intelligence communities of the UK , Italy , and Australia—created the contacts and interactions [ between Russian agents and the Trump campaign ] that they then reported to the FBI as suspicious… These are the questions Barr and Durham should be asking themselves to arrive @ @ @ @ @ @ @ Russia connections contrived by the CIA , and was Brennan the plotter-in-chief hoping to prevent a President Trump—or to destroy him later ?
Other articles at right-wing news outlets amplified those claims .
For example : • None “ The Brennan Dossier : All About a Prime Mover of Russiagate ” by • None “ Durham ’ s On the Way ” by In the fall of 2019 , Barr and Durham gave credence to the conspiracy theories by traveling to the UK and Italy to investigate claims that the CIA fabricated the @ @ @ @ @ @ @ that Brennan was , in fact , at the center of Durham ’ s investigation .
The truth is that Brennan has been very open about his role in the origins of the Trump-Russia investigation .
That aligns with what journalist Greg Miller wrote in his 2018 book , The Apprentice : Trump , Russia and the Subversion of American Democracy , as well as what the Washington Post reported in June 2017 about the Obama administration ’ s handling of Russian interference in the 2016 election .
According to the latter , @ @ @ @ @ @ @ was delivered directly to the White House .
Early last August , an envelope with extraordinary handling restrictions arrived at the White House .
Sent by courier from the CIA , it carried “ eyes only ” instructions that its contents be shown to just four people : President Barack Obama and three senior aides .
Inside was an intelligence bombshell , a report drawn from sourcing deep inside the Russian government that detailed Russian President Vladimir Putin ’ s direct involvement in a cyber campaign to disrupt and discredit the U.S. presidential @ @ @ @ @ @ @ The intelligence captured Putin ’ s specific instructions on the operation ’ s audacious objectives — defeat or at least damage the Democratic nominee , Hillary Clinton , and help elect her opponent , Donald Trump .
While Republicans and right-wing media have always been obsessed with the so-called “ Steele dossier ” and its role in the origins of the Trump-Russia probe , those documents weren ’ t delivered to the FBI team investigating Russian interference until September 2016 , almost a full two months after the probe began .
It was @ @ @ @ @ @ @ intelligence community that , not only was Russia attempting to interfere in the election , but that Moscow was doing so to defeat Hillary Clinton and elect Donald Trump .
It is therefore significant that Barr basically exonerated Brennan in his Strassel interview .
He claimed that Durham ’ s focus will be on the FBI agents involved in Crossfire Hurricane , the name given to the agency ’ s investigation .
But even there , he is tamping down expectations .
Barr is signaling to right-wingers that Durham won ’ t bring @ @ @ @ @ @ @ the extent that he has an interest in “ contemptible or abusive behavior ” that doesn ’ t reach the bar of criminal charges , the attorney general might want to take another look at the Mueller report and how Rep. Adam Schiff ( D-CA ) , chair of the House Intelligence Committee , defined Trump ’ s collusion with Russia .

Last week William Barr announced that he would resign as attorney general effective Wednesday. In what might be his final interview on the job, the 70-year-old talked to Wall Street Journal opinion columnist Kimberley Strassel. While Barr used the opportunity to suggest that his defense of Donald Trump and associates was actually part of his nonpartisan approach to justice (an absurd claim), he dropped a bombshell about his efforts to undermine the origins of the Trump-Russia investigation.
Barr told Strassel that he didn’t “see any sign of improper CIA activity” or “foreign government activity before July 2016. The CIA stayed in its lane.” Strassel attempted to diminish that revelation by suggesting that this is something Barr knew all along. But a look at the evidence suggests otherwise.
Less than a month after Special Counsel Robert Mueller’s report was released publicly in March 2019, Barr announced that he had assigned John Durham—the U.S. Attorney for the District of Connecticut—to investigate the origins of the Trump-Russia probe. An entire conspiracy theory developed on the right about how Obama’s CIA Director John Brennan colluded with foreign governments to concoct the “Russian hoax.” Here is what Margot Cleveland wrote about that at The Federalist in an article titled: “All The Russia Collusion Clues Are Beginning To Point Back To John Brennan.”
The evidence suggests that the CIA and intelligence community—including potentially the intelligence communities of the UK, Italy, and Australia—created the contacts and interactions [between Russian agents and the Trump campaign] that they then reported to the FBI as suspicious… These are the questions Barr and Durham should be asking themselves to arrive at the bottom line: Were the Russia connections contrived by the CIA, and was Brennan the plotter-in-chief hoping to prevent a President Trump—or to destroy him later?
Other articles at right-wing news outlets amplified those claims. For example:
“The Brennan Dossier: All About a Prime Mover of Russiagate” by Aaron Maté at RealClearPolitics ,
“Durham’s On the Way” by R. Emmett Tyrrell at the American Spectator , and
“John Durham investigation intensifies focus on John Brennan” by Jerry Dunleavy at the Washington Examiner .
In the fall of 2019, Barr and Durham gave credence to the conspiracy theories by traveling to the UK and Italy to investigate claims that the CIA fabricated the “Russian hoax.” It became clear that Brennan was, in fact, at the center of Durham’s investigation.
The truth is that Brennan has been very open about his role in the origins of the Trump-Russia investigation.
“I encountered and am aware of information and intelligence that revealed contacts and interactions between Russian officials and U.S. persons involved in the Trump campaign that I was concerned about,” he told Congress in May 2017. That information, Brennan added, “raised concerns in my mind about whether or not those individuals were cooperating with the Russians,” which then “served as the basis for the FBI investigation to determine whether such collusion-cooperation occurred.”
That aligns with what journalist Greg Miller wrote in his 2018 book, The Apprentice: Trump, Russia and the Subversion of American Democracy, as well as what the Washington Post reported in June 2017 about the Obama administration’s handling of Russian interference in the 2016 election. According to the latter, Brennan prepared his own dossier, which was delivered directly to the White House.
Early last August, an envelope with extraordinary handling restrictions arrived at the White House. Sent by courier from the CIA, it carried “eyes only” instructions that its contents be shown to just four people: President Barack Obama and three senior aides. Inside was an intelligence bombshell, a report drawn from sourcing deep inside the Russian government that detailed Russian President Vladimir Putin’s direct involvement in a cyber campaign to disrupt and discredit the U.S. presidential race. But it went further. The intelligence captured Putin’s specific instructions on the operation’s audacious objectives — defeat or at least damage the Democratic nominee, Hillary Clinton, and help elect her opponent, Donald Trump.
While Republicans and right-wing media have always been obsessed with the so-called “Steele dossier” and its role in the origins of the Trump-Russia probe, those documents weren’t delivered to the FBI team investigating Russian interference until September 2016, almost a full two months after the probe began. It was Brennan’s dossier that alerted the intelligence community that, not only was Russia attempting to interfere in the election, but that Moscow was doing so to defeat Hillary Clinton and elect Donald Trump.
It is therefore significant that Barr basically exonerated Brennan in his Strassel interview. He claimed that Durham’s focus will be on the FBI agents involved in Crossfire Hurricane, the name given to the agency’s investigation. But even there, he is tamping down expectations.
The attorney general also hopes people remember that orange jumpsuits aren’t the only measure of misconduct. It frustrates him that the political class these days frequently plays “the criminal card,” obsessively focused on “who is going to jail, who is getting indicted.”…One danger of the focus on criminal charges is that it ends up excusing a vast range of contemptible or abusive behavior that doesn’t reach the bar.
Barr is signaling to right-wingers that Durham won’t bring any new criminal charges. But to the extent that he has an interest in “contemptible or abusive behavior” that doesn’t reach the bar of criminal charges, the attorney general might want to take another look at the Mueller report and how Rep. Adam Schiff (D-CA), chair of the House Intelligence Committee, defined Trump’s collusion with Russia.


washingtonmonthly--2020-12-23--The GOP’s Abandonment of Governing Poses a Dilemma for Democrats

Donald Trump sent shock waves through Washington when he released a video in which he called the $ 900 billion stimulus bill passed by Congress on Monday “ a disgrace , ” suggesting that he wouldn ’ t sign it .
While it is impossible to predict what happens next , the best explanation for what the president just did came from journalist Michael Kruse in an article at Politico titled , “ Is Trump Cracking Under the Weight of Losing ?
” The obvious answer to that question is , “ yes.
” Aside from that drama , there @ @ @ @ @ @ @ how Congress is likely to function under a Biden administration based on what happened with this legislation .
The first thing to keep in mind is that , as has often happened in the past , important legislation was tacked on to an omnibus spending bill .
Congress didn ’ t just pass a covid relief bill , but annual appropriations to keep the government functioning .
That ’ s why you hear members of Congress complaining that the bill was over 5,000 pages .
Negotiating something that massive allows members to insert @ @ @ @ @ @ @ while others don ’ t .
That is what Rep. Alexandria Ocazio-Cortez was complaining about when she tweeted that one provision in the bill would make illegal streaming a felony .
She wrote that , “ Members of Congress have not read this bill .
It ’ s over 5000 pages , arrived at 2pm today , and we are told to expect a vote on it in 2 hours .
This isn ’ t governance .
It ’ s hostage-taking.
” She ’ s right .
A democratic republic requires transparency as @ @ @ @ @ @ @ other hand , Jonathan Chait points out that , included in this massive bill was “ a huge package of energy reforms that will result in major greenhouse-gas reductions.
” He suggested that this is how major legislation is likely to pass in the future .
The larger lesson here is that , in the modern era , constructive legislation is still possible — as long as the issue stays below the radar .
High-profile policy fights tend to become grist for right-wing media , and once Fox News is on the case @ @ @ @ @ @ @ a compromise reasonable enough that it won ’ t be presented to conservative viewers as a socialist plot .
But negotiating issues privately , dumping them into a giant must-pass bill , and passing the whole thing within hours short-circuits the demagoguery cycle .
Chait is absolutely right .
As David Frum so presciently noted ten years ago , the real leaders of the GOP are right-wing television and talk radio personalities who have no interest in compromise or governing .
Their business model depends on feeding red meat to their viewers/listeners in @ @ @ @ @ @ @ .
This is the dilemma Democrats face due to the fact that Republicans have abandoned the democratic process of governing : they can either further erode democratic norms by hiding important legislation in huge must-pass legislation , or fail to address the challenges we face as a nation .
Contrary to conventional wisdom , transparency is more likely to kill legislation than to advance it .
At this point , Democrats are the only party defending democratic norms .
Abandoning those mores amounts to joining Republicans down the rabbit hole to authoritarianism .
@ @ @ @ @ @ @ hole precisely because it has been willing to sacrifice democracy at the altar of power .
Addressing the needs of the American people is not their concern .
If , in defending democratic norms , the left allows itself to be neutered , that simply empowers Republicans .
In 2011 , former GOP operative Mike Lofgren explained how that happens .
As with all dilemmas , there are no easy answers to this one .
But denying the reality of what Democrats face , while simply championing one response or the other , @ @ @ @ @ @ @ avenues for an actual solution .
Democrats who promote transparency as a critical part of the governing process are making an important point – as are those who insist that their party do what is necessary to make whatever progress is possible .

Donald Trump sent shock waves through Washington when he released a video in which he called the $900 billion stimulus bill passed by Congress on Monday “a disgrace,” suggesting that he wouldn’t sign it. While it is impossible to predict what happens next, the best explanation for what the president just did came from journalist Michael Kruse in an article at Politico titled, “Is Trump Cracking Under the Weight of Losing?” The obvious answer to that question is, “yes.”
Aside from that drama, there are some things we can learn about how Congress is likely to function under a Biden administration based on what happened with this legislation. The first thing to keep in mind is that, as has often happened in the past, important legislation was tacked on to an omnibus spending bill. Congress didn’t just pass a covid relief bill, but annual appropriations to keep the government functioning. That’s why you hear members of Congress complaining that the bill was over 5,000 pages.
Negotiating something that massive allows members to insert their pet projects—some of which survive, while others don’t. That is what Rep. Alexandria Ocazio-Cortez was complaining about when she tweeted that one provision in the bill would make illegal streaming a felony. She wrote that, “Members of Congress have not read this bill. It’s over 5000 pages, arrived at 2pm today, and we are told to expect a vote on it in 2 hours. This isn’t governance. It’s hostage-taking.” She’s right. A democratic republic requires transparency as the governing process unfolds.
On the other hand, Jonathan Chait points out that, included in this massive bill was “a huge package of energy reforms that will result in major greenhouse-gas reductions.” He suggested that this is how major legislation is likely to pass in the future.
The larger lesson here is that, in the modern era, constructive legislation is still possible — as long as the issue stays below the radar. High-profile policy fights tend to become grist for right-wing media, and once Fox News is on the case, there is no such thing as a compromise reasonable enough that it won’t be presented to conservative viewers as a socialist plot. But negotiating issues privately, dumping them into a giant must-pass bill, and passing the whole thing within hours short-circuits the demagoguery cycle.
Chait is absolutely right. As David Frum so presciently noted ten years ago, the real leaders of the GOP are right-wing television and talk radio personalities who have no interest in compromise or governing. Their business model depends on feeding red meat to their viewers/listeners in order to keep the demagoguery cycle going.
This is the dilemma Democrats face due to the fact that Republicans have abandoned the democratic process of governing: they can either further erode democratic norms by hiding important legislation in huge must-pass legislation, or fail to address the challenges we face as a nation. Contrary to conventional wisdom, transparency is more likely to kill legislation than to advance it.
At this point, Democrats are the only party defending democratic norms. Abandoning those mores amounts to joining Republicans down the rabbit hole to authoritarianism. But the GOP has gone down that hole precisely because it has been willing to sacrifice democracy at the altar of power. Addressing the needs of the American people is not their concern. If, in defending democratic norms, the left allows itself to be neutered, that simply empowers Republicans. In 2011, former GOP operative Mike Lofgren explained how that happens.
A couple of years ago, a Republican committee staff director told me candidly (and proudly) what the method was to all this obstruction and disruption. Should Republicans succeed in obstructing the Senate from doing its job, it would further lower Congress’s generic favorability rating among the American people. By sabotaging the reputation of an institution of government, the party that is programmatically against government would come out the relative winner.
As with all dilemmas, there are no easy answers to this one. But denying the reality of what Democrats face, while simply championing one response or the other, only deepens the problem, cutting off avenues for an actual solution. Democrats who promote transparency as a critical part of the governing process are making an important point – as are those who insist that their party do what is necessary to make whatever progress is possible.


washingtonmonthly--2020-12-23--What Bernie Sanders Can Teach Alexandria Ocasio-Cortez

Last week , Rep. Alexandria Ocasio-Cortez , champion of the Green New Deal , suffered the humiliation of an overwhelming defeat dealt by her fellow House Democrats for a spot on the House Energy and Commerce Committee .
Also last week , Sen. Bernie Sanders led a successful battle to include direct payments for millions of Americans in the pandemic relief .
One socialist shaped one of the biggest pieces of legislation this year .
The other socialist was denied the ability to shape environmental legislation for the next two years .
What did one do right , and the @ @ @ @ @ @ @ known for their sociability .
Sanders once admitted , “ I ’ m not good at backslapping .
I ’ m not good at pleasantries .
If you have your birthday I ’ m not going to call you up to congratulate you so you ’ ll love me.
” Famously crotchety , Sanders , though , doesn ’ t go as far as Ocasio-Cortez and encourage primary challenges against incumbent Democrats in his chamber .
Sanders is proving more influential than AOC because he grabbed on to a fresh issue with great @ @ @ @ @ @ @ the post-election period defending her signature positions even though they proved to be political liabilities .
Shortly after Election Day , Ocasio-Cortez pushed the selective data point that “ Every single swing-seat House Democrat who endorsed # MedicareForAll won re-election or is on track to win re-election.
” That ignores other facts .
All of the challengers who endorsed Medicare for All lost their races .
The House Democrats with the five narrowest victories—the ones who get the party up to and over the 218-majority threshold—are not single-payer supporters .
Nor are three @ @ @ @ @ @ @ Most strikingly , single-payer supporter Kara Eastman lost the Nebraska 2nd congressional district contest by 4.6 percentage points , while single-payer opponent Joe Biden won it by 6.5 percentage points and snagged an Electoral College vote .
Ocasio-Cortez sought to affix blame on House moderates for running weak social media campaigns .
Those moderates countered that the claim was an inaccurate attempt to deflect from the problems caused by her edgy positions such as “ Defund the Police ” and “ Green New Deal , ” the latter being particularly nettlesome for Democrats @ @ @ @ @ @ @ , such as Texas Senate challenger MJ Hegar and Rep. Kendra Horn from Oklahoma ’ s 5th congressional district .
Sanders hasn ’ t abandoned any of his signature positions , but since the election , he hasn ’ t dwelled on them either .
Instead , he championed direct payments which attracted bipartisan support in the initial round of pandemic relief .
Turns out that sending government checks to most Americans is quite popular .
When direct payments were left out of the bipartisan proposal that jumpstarted negotiations this month , Sanders @ @ @ @ @ @ @ , pledged to hold up consideration of any relief past Christmas unless the checks were included .
Senate leaders recognized the issue was politically potent and didn ’ t want to be blamed for resisting it .
Sanders and Hawley asked for $ 1200 checks for most individuals , then settled for half that , along with a shorter extension of unemployment assistance , in order to keep the centrists happy with the overall price tag .
So , Sanders wasn ’ t rigid about the particulars .
He identified a popular issue @ @ @ @ @ @ @ power given to individual Senators under the chamber ’ s rules .
He worked with members of the other party who agreed with him and members of both parties who didn ’ t , to reach a compromise .
After nearly 30 years in Congress , Sanders is well practiced at this sort of legislating .
He and his supporters have long bragged about being dubbed the “ Amendment King ” by Rolling Stone , proof that the socialist was also a pragmatist .
Ocasio-Cortez has only two years in Congress but hasn @ @ @ @ @ @ @ being the Amendment Queen .
Her reaction to the final relief bill , which was part of a heavily loaded omnibus bill , was outrage that such a package was being rushed to vote with only hours to review the details .
She voted for it , but not before trashing the process on Twitter : “ This isn ’ t governance .
It ’ s hostage-taking.
” This is the role where Ocasio-Cortez is most comfortable : the outsider who managed to get inside , exposing how awful the system really is @ @ @ @ @ @ @ for a movement politician hoping to upend the status quo , possibly by waging an insurgent campaign for president .
But it is not the way to win plum committee assignments and shape legislation .
More importantly , progressives need more wins to refurbish their reputation after the mixed results of the 2020 election .
Democratic moderates are far more inclined to distance themselves from progressive agitation .
That won ’ t change so long as the progressive wing is defined by tainted slogans .
The way to regain influence is with fresh @ @ @ @ @ @ @ .
Sanders did it .
AOC can , too .

Last week, Rep. Alexandria Ocasio-Cortez, champion of the Green New Deal, suffered the humiliation of an overwhelming defeat dealt by her fellow House Democrats for a spot on the House Energy and Commerce Committee.
Also last week, Sen. Bernie Sanders led a successful battle to include direct payments for millions of Americans in the pandemic relief.
One socialist shaped one of the biggest pieces of legislation this year. The other socialist was denied the ability to shape environmental legislation for the next two years. What did one do right, and the other do wrong?
Neither socialist is known for their sociability. Sanders once admitted, “I’m not good at backslapping. I’m not good at pleasantries. If you have your birthday I’m not going to call you up to congratulate you so you’ll love me.” Famously crotchety, Sanders, though, doesn’t go as far as Ocasio-Cortez and encourage primary challenges against incumbent Democrats in his chamber.
Sanders is proving more influential than AOC because he grabbed on to a fresh issue with great political potential, while Ocasio-Cortez has spent the post-election period defending her signature positions even though they proved to be political liabilities.
Shortly after Election Day, Ocasio-Cortez pushed the selective data point that “Every single swing-seat House Democrat who endorsed #MedicareForAll won re-election or is on track to win re-election.” That ignores other facts. All of the challengers who endorsed Medicare for All lost their races. The House Democrats with the five narrowest victories—the ones who get the party up to and over the 218-majority threshold—are not single-payer supporters. Nor are three Democratic challengers who successfully flipped seats. Most strikingly, single-payer supporter Kara Eastman lost the Nebraska 2nd congressional district contest by 4.6 percentage points, while single-payer opponent Joe Biden won it by 6.5 percentage points and snagged an Electoral College vote.
Ocasio-Cortez sought to affix blame on House moderates for running weak social media campaigns. Those moderates countered that the claim was an inaccurate attempt to deflect from the problems caused by her edgy positions such as “Defund the Police” and “Green New Deal,” the latter being particularly nettlesome for Democrats who lost in fossil fuel friendly areas, such as Texas Senate challenger MJ Hegar and Rep. Kendra Horn from Oklahoma’s 5th congressional district.
Sanders hasn’t abandoned any of his signature positions, but since the election, he hasn’t dwelled on them either. Instead, he championed direct payments which attracted bipartisan support in the initial round of pandemic relief. Turns out that sending government checks to most Americans is quite popular.
When direct payments were left out of the bipartisan proposal that jumpstarted negotiations this month, Sanders, along with Republican Sen. Josh Hawley, pledged to hold up consideration of any relief past Christmas unless the checks were included. Senate leaders recognized the issue was politically potent and didn’t want to be blamed for resisting it. Sanders and Hawley asked for $1200 checks for most individuals, then settled for half that, along with a shorter extension of unemployment assistance, in order to keep the centrists happy with the overall price tag.
So, Sanders wasn’t rigid about the particulars. He identified a popular issue. He leveraged his bully pulpit and power given to individual Senators under the chamber’s rules. He worked with members of the other party who agreed with him and members of both parties who didn’t, to reach a compromise.
After nearly 30 years in Congress, Sanders is well practiced at this sort of legislating. He and his supporters have long bragged about being dubbed the “Amendment King” by Rolling Stone, proof that the socialist was also a pragmatist.
Ocasio-Cortez has only two years in Congress but hasn’t yet shown an interest in being the Amendment Queen. Her reaction to the final relief bill, which was part of a heavily loaded omnibus bill, was outrage that such a package was being rushed to vote with only hours to review the details. She voted for it, but not before trashing the process on Twitter: “This isn’t governance. It’s hostage-taking.”
This is the role where Ocasio-Cortez is most comfortable: the outsider who managed to get inside, exposing how awful the system really is. Such a posture is well suited for a movement politician hoping to upend the status quo, possibly by waging an insurgent campaign for president. But it is not the way to win plum committee assignments and shape legislation.
More importantly, progressives need more wins to refurbish their reputation after the mixed results of the 2020 election. Democratic moderates are far more inclined to distance themselves from progressive agitation. That won’t change so long as the progressive wing is defined by tainted slogans. The way to regain influence is with fresh proposals and to nimbly work the system. Sanders did it. AOC can, too.


washingtonmonthly--2020-12-23--Will Mike Pence’s Constitutional Duties Sink His Political Future?

Mike Pence has a problem .
As vice-president of the United States , he a constitutional responsibility to validate the election results , a grim duty that other defeated vice presidents including Al Gore and Dan Quayle have endured with stoicism .
President Trump does not want Pence to gracefully announce in front of Congress and the world that Joe Biden won the election .
After four years of obsequious subservience in which he has assiduously avoided any hint of separation from the president , he now has reached a moment of truth .
If , as Axios reports , @ @ @ @ @ @ @ of his duties as “ the ultimate betrayal , ” how can the vice-president avoid losing his presidential viability among Trump ’ s supporters ?
Could it be that after working so tirelessly to position himself as Trump ’ s successor , he finds it was all for naught ?
The first thing to understand is the vice-president ’ s role in the process .
On December 14 , the Electoral College met in all 50 states and the District of Columbia , and certified that Joe Biden and Kamala Harris were the @ @ @ @ @ @ @ 306 electoral votes to 232 .
Trump watched the process unfold on television in the dining room off the Oval Office .
He complained that the television networks were , according to the Associated Press , “ treating it like a mini-Election Night while not giving his challenges any airtime.
” That evening , he sacked Attorney General William Barr , presumably because he hadn ’ t used the Justice Department to overturn the election results .
The certification of the vote was only a midway point in the obscure process of determining @ @ @ @ @ @ @ It actually began months before Election Day when the Archivist of the United States sent a letter to the governor of each State and the mayor of the District of Columbia detailing their constitutional responsibilities and asking for a point of contact for receipt of the election results , which were then sent to the director of the Federal Register .
This was a two-part procedure , wherein the states first sent Certificates of Ascertainment to the National Archives and Records Administration ( NARA ) .
These certificates listed the Electors and the @ @ @ @ @ @ @ .
The official results came on December 14 , and the Certificates of Vote were due at NARA on that date .
Pence ’ s role begins on December 23 , the deadline by which he and NARA must be in possession of the Certificates of Vote .
If the Senate has not received copies of these certificates from every state by this date , Pence , serving in his capacity as president of the Senate , is required to request a copy from NARA .
In other words , it ’ s @ @ @ @ @ @ @ is not required or to make it if it is .
Whether Trump knows it or not , this is Pence ’ s first opportunity to shirk or fulfill his constitutional duty .
If Pence does ask NARA for any certificates , they must be delivered to the Senate no later than January 3rd .
Pence ’ s most visible role takes place on January 6 , when Congress meets in joint session to count the electoral votes and he , as the President of the Senate , serves as the presiding officer @ @ @ @ @ @ @ supposed to look : The President of the Senate announces the results of the State vote and then calls for any objections .
To be recognized , an objection must be submitted in writing and be signed by at least one member of the House and one Senator .
If an objection is recognized , the House and Senate withdraw to their respective chambers to consider the merits of any objections , following the process set out in 3 U.S.C .
§15 .
After all the votes are recorded and counted , the @ @ @ @ @ @ @ , if any , have been elected President and Vice President of the United States .
Axios reports that “ Pence ’ s role on Jan. 6 has begun to loom large in Trump ’ s mind ” and that Trump spent Monday evening meeting with a handful of House Republicans in the Oval Office to plot their strategy for objecting to the Electoral College votes .
That plot to overturn the election will fail , and Pence will then be forced to declare Biden and Harris the winners .
It ’ s @ @ @ @ @ @ @ January 2017 to declare Trump and Pence the winners over Clinton and Kaine .
There ’ s no way for Pence to avoid it , although he could , from the presiding officer ’ s chair , make a Trumpian statement about how unfair it is .
It ’ s unclear what Trump would have him do instead .
Not show up ?
In that case McConnell could appoint a senator to fill the chair and execute the announcement .
What is clear is that all eyes will be on Pence on January @ @ @ @ @ @ @ in a no-win situation .
The most loyal of all Trump allies will be scrambling to assuage the boss ’ s temper .

Mike Pence has a problem. As vice-president of the United States, he a constitutional responsibility to validate the election results, a grim duty that other defeated vice presidents including Al Gore and Dan Quayle have endured with stoicism. President Trump does not want Pence to gracefully announce in front of Congress and the world that Joe Biden won the election. After four years of obsequious subservience in which he has assiduously avoided any hint of separation from the president, he now has reached a moment of truth. If, as Axios reports, Trump would view Pence’s fulfillment of his duties as “the ultimate betrayal,” how can the vice-president avoid losing his presidential viability among Trump’s supporters? Could it be that after working so tirelessly to position himself as Trump’s successor, he finds it was all for naught?
The first thing to understand is the vice-president’s role in the process.
On December 14, the Electoral College met in all 50 states and the District of Columbia, and certified that Joe Biden and Kamala Harris were the winners of the 2020 presidential election, 306 electoral votes to 232. Trump watched the process unfold on television in the dining room off the Oval Office. He complained that the television networks were, according to the Associated Press, “treating it like a mini-Election Night while not giving his challenges any airtime.” That evening, he sacked Attorney General William Barr, presumably because he hadn’t used the Justice Department to overturn the election results.
The certification of the vote was only a midway point in the obscure process of determining the winner of the presidential election. It actually began months before Election Day when the Archivist of the United States sent a letter to the governor of each State and the mayor of the District of Columbia detailing their constitutional responsibilities and asking for a point of contact for receipt of the election results, which were then sent to the director of the Federal Register.
This was a two-part procedure, wherein the states first sent Certificates of Ascertainment to the National Archives and Records Administration (NARA). These certificates listed the Electors and the preliminary results of the states’ elections. The official results came on December 14, and the Certificates of Vote were due at NARA on that date.
Pence’s role begins on December 23, the deadline by which he and NARA must be in possession of the Certificates of Vote. If the Senate has not received copies of these certificates from every state by this date, Pence, serving in his capacity as president of the Senate, is required to request a copy from NARA. In other words, it’s his responsibility to make sure this request is not required or to make it if it is. Whether Trump knows it or not, this is Pence’s first opportunity to shirk or fulfill his constitutional duty. If Pence does ask NARA for any certificates, they must be delivered to the Senate no later than January 3rd.
Pence’s most visible role takes place on January 6, when Congress meets in joint session to count the electoral votes and he, as the President of the Senate, serves as the presiding officer. Here’s how that is supposed to look:
The President of the Senate announces the results of the State vote and then calls for any objections. To be recognized, an objection must be submitted in writing and be signed by at least one member of the House and one Senator. If an objection is recognized, the House and Senate withdraw to their respective chambers to consider the merits of any objections, following the process set out in 3 U.S.C. §15. After all the votes are recorded and counted, the President of the Senate declares which persons, if any, have been elected President and Vice President of the United States.
Axios reports that “Pence’s role on Jan. 6 has begun to loom large in Trump’s mind” and that Trump spent Monday evening meeting with a handful of House Republicans in the Oval Office to plot their strategy for objecting to the Electoral College votes. That plot to overturn the election will fail, and Pence will then be forced to declare Biden and Harris the winners.
It’s the same task Joe Biden performed in January 2017 to declare Trump and Pence the winners over Clinton and Kaine. There’s no way for Pence to avoid it, although he could, from the presiding officer’s chair, make a Trumpian statement about how unfair it is. It’s unclear what Trump would have him do instead. Not show up? In that case McConnell could appoint a senator to fill the chair and execute the announcement.
What is clear is that all eyes will be on Pence on January 6, and he’ll be in a no-win situation. The most loyal of all Trump allies will be scrambling to assuage the boss’s temper.


washingtonmonthly--2020-12-25--The World That Made Lincoln

The World That Made Lincoln

However much Americans boasted about the superiority of their republican political institutions in the Victorian Era , we never managed to escape the accusation that our politics had been bought at the price of cultural inferiority .
“ The Americans are a brave , industrious and acute people , ” conceded Sydney Smith , the British clergyman and critic , but “ who reads an American book ?
Or goes to an American play ?
Or looks at an American picture or statue ?
” This image was not improved in European minds when , on the cusp of a @ @ @ @ @ @ @ their president a common trial lawyer with no university degree , a heavy backwoods twang , and a reputation for vulgar story-telling .
“ Abraham Lincoln , ” announced one British Tory parliamentarian , was a “ railsplitter , bargee , and attorney…a man brought up in a rough way , a clever woodcutter ” and “ an incapable pretender.
” He was proof ( according to the then-current Prime Minister , Lord Palmerston ) that putting “ Power in the Hands of the Masses throws the Scum of the Community to the @ @ @ @ @ @ @ contempt , both for Lincoln and for 19th-century American culture , was cruelly undeserved .
The same decades that bracket Victoria and Albert , Smith , and Palmerston were also the decades of a new American literature ( from Nathaniel Hawthorne to Harriet Beecher Stowe ) , a new art ( from the portraiture of the Peales to Frederic Edwin Church ) , and new music ( Henry Bristow ’ s and William Henry Fry ’ s symphonies ) .
And alongside these manifestations of high-brow culture , Americans exhibited a bumptious middle-class @ @ @ @ @ @ @ sensationalism , violence , and zany humor—literature , penny newspapers , music , and popular exhibits full of strange , freakish images that sometimes verged on the surrealistic.
” No one has been a better chronicler of 19th-century American culture than David Reynolds , a Distinguished Professor at the Graduate Center of the City University of New York .
His break-out book in 1995 , Walt Whitman ’ s America : A Cultural Biography ( which won the coveted Bancroft Prize ) , eschewed the kind of literary history which treats texts like @ @ @ @ @ @ @ tediously apart .
He did not merely itemize Whitman ’ s ancestry ; he placed it in the context of a kind of parentage in 19th-century Brooklyn .
His Whitman did not merely write for newspapers ; he entered into a dizzying world of temperance orators , roughneck Bowery “ b ’ hoys ” ( a slang Irish term for rowdy working-class males ) , dark-alley mystery novels , and political oratory .
“ In the carnivalized atmosphere of antebellum America , rigid cultural hierarchies did not yet exist , ” Reynolds wrote @ @ @ @ @ @ @ exchange between…Shakespeare ’ s plays ” and “ minstrels , farces , songs and so on.
” I am large , Whitman said , I contain multitudes , and so did Reynolds .
In Abe : Abraham Lincoln In His Times , ( New York : Penguin Press , $ 45 ) , Reynolds embarks on a similar project for re-imagining the sixteenth president .
His 1008-page re-imagining begins with the bluntness of the title – Abe – since no one , once Lincoln had achieved adulthood , ever dared to address him @ @ @ @ @ @ @ friends , he was always Lincoln ; even to his wife , he was Mr. Lincoln .
His correspondence was invariably signed A. Lincoln , as though he found even Abraham overly familiar .
Only on his most important state papers did he write out his name in full .
But to the country at large , he was indeed Abe – Uncle Abe , Old Abe , Honest Abe , Abe Lincoln of Illinois .
Good god you goin to shake with me Uncle Abe , was the cry of an astonished @ @ @ @ @ @ @ hand at a review .
“ Hey !
Uncle Abe are you joking yet , ” was the satirical title of a political song in 1864 .
This was partly a response to the way he was perceived – the homely jokester , the most common of self-made Americans , the approachable statesman who had malice toward none , charity for all .
No better name existed for that Lincoln than Abe .
But it was also an image which Lincoln helped confect himself .
Born of the frontier , with no particular @ @ @ @ @ @ @ and a squeaky-voiced Border-State accent that ( to the horror of Julia Ward Howe ) made heard into heerd , Lincoln saw himself very clearly as others were likely to see him — and to scoff at him .
And so he let them scoff , enticing them into underestimating him , luring them into complacency and arrogance with what Reynolds calls his “ Uncle Abe persona ” and his Barnumesque “ ugly man act ” ( 171 , 512 ) .
Those who were thus fooled presently found themselves outfoxed , out-thought @ @ @ @ @ @ @ ” said his old lawyer friend , Leonard Swett , “ who took Lincoln for a simple minded man would very soon wake up with his back in a ditch.
” Reynolds ’ s complaint about Lincoln biography , in general , is that too much of it assumes that politics and political ideas were his only life .
This politicized Lincoln is not entirely wrong : after all , his law partner of a quarter-century , William Henry Herndon , insisted that “ Politics were his Heaven , and his Hades metaphysics.
@ @ @ @ @ @ @ , either , and Reynolds ’ s great service in the sprawling , alluvial landscape of Abe is to open up the cultural environments that Lincoln inhabited , the cultural artifacts he manipulated , and the cultural signs he appropriated to his uses .
Reynolds ’ s Lincoln emerges as an amalgam of two cultures – the Cavalier who was descended from 17th-century royalist gentlemen , and the Puritan whose ancestry was rooted in their psalm-singing Cromwellian opponents – which haunted antebellum literature .
He inherited the Cavalier ( or believed he had @ @ @ @ @ @ @ nobleman ” who had fathered his illegitimately-born mother , and at its lowest level , Cavalier culture formed the milieu in which he came of age in Kentucky and Indiana , a culture of honor-fights , drunkenness , tall tales and casual violence .
The Puritan Lincoln grew from a different soil – his father ’ s Calvinism , a loathing of slavery , and a thirst for self-transformation that embraced alike Shakespeare and the Declaration of Independence .
As president , he was a habitué of the theater and traded professional Shakespeare @ @ @ @ @ @ @ also loved clownish joke-books and compared his political tactics to a circus act ( Charles Blondin ’ s high-wire crossings of Niagara Falls ) .
Like Whitman , Lincoln was large , he contained multitudes .
Abe is not a conventional Lincoln biography : Lincoln ’ s twenty-something years in New Salem , Illinois , are compressed into a single paragraph ; the 1864 election occurs without any particular explanation , including the voting results .
And there are moments when Reynolds ’ s lengthy digressions into the emergence of Santa Claus as @ @ @ @ @ @ @ of Anna Ella Carroll , a wealthy Maryland pamphleteer , threaten to make Abe into a cultural history of the Civil War rather than Lincoln .
But Reynolds has struck a seriously-overlooked vein of gold in understanding Lincoln ’ s embrace of natural law , and when Reynolds turns his attention to Lincoln as an orator his analysis of Lincoln ’ s “ parsimony in style ” at Gettysburg , and the elegant balance of the Second Inaugural is without peer in the Lincoln literature .
Lincoln biography has struggled with mounting levels @ @ @ @ @ @ @ at Lincoln ’ s record on race and much of it coming from a mixed chorus of progressives and libertarians .
Against these criticisms , Reynolds shoves back energetically .
Against the late Lerone Bennett , the long-time editor of Ebony Magazine and author of the militantly anti-Lincoln manifesto Forced Into Glory : Abraham Lincoln ’ s White Dream ( 2000 ) , Reynolds denies the charge of covert white supremacy .
Against Richard Hofstadter , he insists that Lincoln ’ s emancipation proclamation made him “ a demigod among black people , @ @ @ @ @ @ @ were actually “ a stalling tactic ” to protect emancipation .
Even so , it is not certain that Reynolds will be able to persuade either progressives or libertarians that Lincoln deserves their respect , if only because modern terms like progressive or conservative , much less libertarian , do not readily fit themselves to the shapes of 19th-century politics .
As much as Reynolds yearns to paint Lincoln in current progressive colors , Lincoln ’ s notion of progress was closer to John Stuart Mill than modern liberals like John Rawls .
@ @ @ @ @ @ @ favored a “ big-spending activist government , ” but most of Lincoln ’ s “ big-spending ” was on the war , and even then never amounted to more than 1.8 % of real GDP .
Nor did even that much last for long : as historian Mark Neely wrote in Lincoln and the Triumph of the Nation a decade ago , “ the minimal enhancement of executive power in the Civil War had no lasting effect.
” What Reynolds has nevertheless done wonderfully is fill in a vast uncolored space around Lincoln @ @ @ @ @ @ @ the spectacle , , and the sound of American culture in an era of slavery and freedom , of Cavaliers and Puritans , of poets and b ’ hoys .
Sydney Smith and Lord Palmerston should have taken closer note ; they might have found that culture , and Abraham Lincoln , more interesting than Victoria and Albert .

However much Americans boasted about the superiority of their republican political institutions in the Victorian Era, we never managed to escape the accusation that our politics had been bought at the price of cultural inferiority. “The Americans are a brave, industrious and acute people,” conceded Sydney Smith, the British clergyman and critic, but “who reads an American book? Or goes to an American play? Or looks at an American picture or statue?”
This image was not improved in European minds when, on the cusp of a national civil war, Americans inaugurated as their president a common trial lawyer with no university degree, a heavy backwoods twang, and a reputation for vulgar story-telling. “Abraham Lincoln,” announced one British Tory parliamentarian, was a “railsplitter, bargee, and attorney…a man brought up in a rough way, a clever woodcutter” and “an incapable pretender.” He was proof (according to the then-current Prime Minister, Lord Palmerston) that putting “Power in the Hands of the Masses throws the Scum of the Community to the Surface.”
A great deal of this contempt, both for Lincoln and for 19th-century American culture, was cruelly undeserved. The same decades that bracket Victoria and Albert, Smith, and Palmerston were also the decades of a new American literature (from Nathaniel Hawthorne to Harriet Beecher Stowe), a new art (from the portraiture of the Peales to Frederic Edwin Church), and new music (Henry Bristow’s and William Henry Fry’s symphonies). And alongside these manifestations of high-brow culture, Americans exhibited a bumptious middle-class and vernacular culture, “ablaze with sensationalism, violence, and zany humor—literature, penny newspapers, music, and popular exhibits full of strange, freakish images that sometimes verged on the surrealistic.”
No one has been a better chronicler of 19th-century American culture than David Reynolds, a Distinguished Professor at the Graduate Center of the City University of New York. His break-out book in 1995, Walt Whitman’s America: A Cultural Biography (which won the coveted Bancroft Prize), eschewed the kind of literary history which treats texts like tapestries whose threads have to be pulled tediously apart. He did not merely itemize Whitman’s ancestry; he placed it in the context of a kind of parentage in 19th-century Brooklyn. His Whitman did not merely write for newspapers; he entered into a dizzying world of temperance orators, roughneck Bowery “b’hoys” (a slang Irish term for rowdy working-class males), dark-alley mystery novels, and political oratory. “In the carnivalized atmosphere of antebellum America, rigid cultural hierarchies did not yet exist,” Reynolds wrote, and Whitman embraced “a fluid exchange between…Shakespeare’s plays” and “minstrels, farces, songs and so on.” I am large, Whitman said, I contain multitudes, and so did Reynolds.
In Abe: Abraham Lincoln In His Times, (New York: Penguin Press, $45), Reynolds embarks on a similar project for re-imagining the sixteenth president. His 1008-page re-imagining begins with the bluntness of the title – Abe – since no one, once Lincoln had achieved adulthood, ever dared to address him as “Abe.” To his closest friends, he was always Lincoln; even to his wife, he was Mr. Lincoln. His correspondence was invariably signed A. Lincoln, as though he found even Abraham overly familiar. Only on his most important state papers did he write out his name in full. But to the country at large, he was indeed Abe – Uncle Abe, Old Abe, Honest Abe, Abe Lincoln of Illinois. Good god you goin to shake with me Uncle Abe, was the cry of an astonished soldier to whom Lincoln stuck out his hand at a review. “Hey! Uncle Abe are you joking yet,” was the satirical title of a political song in 1864.
This was partly a response to the way he was perceived – the homely jokester, the most common of self-made Americans, the approachable statesman who had malice toward none, charity for all. No better name existed for that Lincoln than Abe. But it was also an image which Lincoln helped confect himself. Born of the frontier, with no particular education, with cadaverously homely looks, and a squeaky-voiced Border-State accent that (to the horror of Julia Ward Howe) made heard into heerd, Lincoln saw himself very clearly as others were likely to see him — and to scoff at him. And so he let them scoff, enticing them into underestimating him, luring them into complacency and arrogance with what Reynolds calls his “Uncle Abe persona” and his Barnumesque “ugly man act” (171, 512). Those who were thus fooled presently found themselves outfoxed, out-thought and out-maneuvered. “Any man,” said his old lawyer friend, Leonard Swett, “who took Lincoln for a simple minded man would very soon wake up with his back in a ditch.”
Reynolds’s complaint about Lincoln biography, in general, is that too much of it assumes that politics and political ideas were his only life. This politicized Lincoln is not entirely wrong: after all, his law partner of a quarter-century, William Henry Herndon, insisted that “Politics were his Heaven, and his Hades metaphysics.” But Herndon was not entirely right, either, and Reynolds’s great service in the sprawling, alluvial landscape of Abe is to open up the cultural environments that Lincoln inhabited, the cultural artifacts he manipulated, and the cultural signs he appropriated to his uses.
Reynolds’s Lincoln emerges as an amalgam of two cultures – the Cavalier who was descended from 17th-century royalist gentlemen, and the Puritan whose ancestry was rooted in their psalm-singing Cromwellian opponents – which haunted antebellum literature. He inherited the Cavalier (or believed he had inherited it) from a Virginia “nobleman” who had fathered his illegitimately-born mother, and at its lowest level, Cavalier culture formed the milieu in which he came of age in Kentucky and Indiana, a culture of honor-fights, drunkenness, tall tales and casual violence. The Puritan Lincoln grew from a different soil – his father’s Calvinism, a loathing of slavery, and a thirst for self-transformation that embraced alike Shakespeare and the Declaration of Independence. As president, he was a habitué of the theater and traded professional Shakespeare criticism with foreign visitors; yet he also loved clownish joke-books and compared his political tactics to a circus act (Charles Blondin’s high-wire crossings of Niagara Falls). Like Whitman, Lincoln was large, he contained multitudes.
Abe is not a conventional Lincoln biography: Lincoln’s twenty-something years in New Salem, Illinois, are compressed into a single paragraph; the 1864 election occurs without any particular explanation, including the voting results. And there are moments when Reynolds’s lengthy digressions into the emergence of Santa Claus as a Christmas icon or the strategic recommendations of Anna Ella Carroll, a wealthy Maryland pamphleteer, threaten to make Abe into a cultural history of the Civil War rather than Lincoln. But Reynolds has struck a seriously-overlooked vein of gold in understanding Lincoln’s embrace of natural law, and when Reynolds turns his attention to Lincoln as an orator his analysis of Lincoln’s “parsimony in style” at Gettysburg, and the elegant balance of the Second Inaugural is without peer in the Lincoln literature.
Lincoln biography has struggled with mounting levels of cynicism, much of it directed at Lincoln’s record on race and much of it coming from a mixed chorus of progressives and libertarians. Against these criticisms, Reynolds shoves back energetically. Against the late Lerone Bennett, the long-time editor of Ebony Magazine and author of the militantly anti-Lincoln manifesto Forced Into Glory: Abraham Lincoln’s White Dream (2000), Reynolds denies the charge of covert white supremacy. Against Richard Hofstadter, he insists that Lincoln’s emancipation proclamation made him “a demigod among black people,” while his proposals for black colonization were actually “a stalling tactic” to protect emancipation.
Even so, it is not certain that Reynolds will be able to persuade either progressives or libertarians that Lincoln deserves their respect, if only because modern terms like progressive or conservative, much less libertarian, do not readily fit themselves to the shapes of 19th-century politics. As much as Reynolds yearns to paint Lincoln in current progressive colors, Lincoln’s notion of progress was closer to John Stuart Mill than modern liberals like John Rawls. Reynolds would like to believe that Lincoln favored a “big-spending activist government,” but most of Lincoln’s “big-spending” was on the war, and even then never amounted to more than 1.8% of real GDP. Nor did even that much last for long: as historian Mark Neely wrote in Lincoln and the Triumph of the Nation a decade ago, “the minimal enhancement of executive power in the Civil War had no lasting effect.”
What Reynolds has nevertheless done wonderfully is fill in a vast uncolored space around Lincoln, surrounding him with the carnival, the spectacle, and the sound of American culture in an era of slavery and freedom, of Cavaliers and Puritans, of poets and b’hoys. Sydney Smith and Lord Palmerston should have taken closer note; they might have found that culture, and Abraham Lincoln, more interesting than Victoria and Albert.


washingtonmonthly--2020-12-28--Yes, Biden Won the Electoral College. But It’s Still a Huge Problem.

The Electoral College has never felt more outdated than during the first week of November 2020 .
Americans waited four days to learn whether Joe Biden or Donald Trump would be the next president even though the popular vote winner was clear almost immediately .
Within 24 hours , Biden had built an insurmountable two million vote lead that has grown to over seven million .
Due to the bizarre way we choose our president , a few thousand votes in key swing states matter more than millions nationwide .
It wasn ’ t until Biden ’ s margins in @ @ @ @ @ @ @ he was declared victorious .
Fortunately , there is a chance 2020 will be the last time a candidate can win the presidency while losing the popular vote .
Slowly but surely , that ingenious plan to fix the Electoral College called the National Popular Vote Interstate Compact has gained momentum .
Because the Electoral College was created in Article II Section 1 of the Constitution , amending the Constitution is the most direct path toward reform .
However , given the partisan divide over the issue–89 percent of Democrats support an amendment @ @ @ @ @ @ @ status quo—getting two-thirds of Congress and three-fourths of the states to support an amendment is extremely unlikely .
The Compact offers a different path .
You ’ ve probably heard of it before , but it ’ s critical to understand the details and why it ’ s important again , even though in 2020 , the President-elect won the popular vote and the electoral vote , unlike 2000 and 2016 .
A refresher course : The compact is an agreement between states in which each state would award all of its electoral @ @ @ @ @ @ @ popular vote .
For example , even if Donald Trump got the most votes in Wyoming in 2020 , if Wyoming were part of the Compact , Joe Biden would still win the state ’ s three electoral votes because Biden won the national popular vote .
The Compact does not take effect until states totaling a majority of electoral votes ( 270 as of 2020 ) have joined .
Once that happens , the Compact would ensure that the candidate who wins the popular vote always wins the Electoral College .
There @ @ @ @ @ @ @ even if the Compact is enacted , it will not work as intended .
Would Vermont really award all of its electors to a Republican candidate even if two-thirds of its residents supported the Democrat ?
But the Supreme Court ’ s recent decision in Chifalo v. Washington supports the notion that a state ’ s electors must do as they are told .
The decision allows states to require presidential electors to vote for the person they promised to choose when they were initially nominated , which would seem to strengthen the @ @ @ @ @ @ @ .
Though the specific question would likely need to be litigated , the Compact at least has recent precedent working in its favor .
So far , the push for the Compact has primarily been a Democratic effort .
Since 2007 , fifteen states and Washington D.C. have joined , including California , New Mexico , Maryland , and New York .
The effort recently gained another victory when Colorado voters approved Proposition 113 .
Colorado initially joined the Compact in March of 2019 , but a repeal effort put the question directly @ @ @ @ @ @ @ the first time , voters were asked to choose whether their state ’ s voters or the will of the national electorate should matter more in electing a president .
By a 52 to 48 margin , Coloradans chose the latter , opting to stay in the Compact , keeping the current total at 196 electoral votes , just 74 short of success .
The victory in Colorado was crucial , given that it was the first “ purple state ” on board .
Getting the Last States Of course , getting those @ @ @ @ @ @ @ challenge .
Because Republican candidates have lost the popular vote in seven of the last eight presidential elections , some outspoken Republicans have made deeply flawed arguments defending the Electoral College .
But as I ’ ve written before , none of those arguments can withstand scrutiny , which the 2020 election proved once again .
Proponents argue that the Electoral College prevents small states from being ignored , but that isn ’ t true .
Small states are already ignored .
In 2020 , over 90 percent of general election campaign events @ @ @ @ @ @ @ with the majority taking place in Pennsylvania , Florida , North Carolina , Michigan , and Wisconsin , some of the most populous states in the country .
For every New Hampshire or Nevada , which were small swing states , there were more small states like Hawaii , Wyoming , Vermont , or North Dakota that were ignored .
Much more than magnifying the power of small states , the Electoral College magnifies the power of politically divided states—an unfairly arbitrary criterion that results in presidential candidates lavishing attention on Wisconsin and @ @ @ @ @ @ @ York .
Proponents also contend that the Electoral College prevents a dangerous “ tyranny of the majority ” in which the candidate who wins the most votes imposes their will on the minority .
But they can never explain why a democratically elected executive who is checked by two other branches of government amounts to a tyrant .
Or why letting the candidate who did not win the most votes impose their will on the majority is a guarantor of minority rights .
As for the argument that without the Electoral College , @ @ @ @ @ @ @ rule over the rest of us , the error in that line of thinking is that places don ’ t have any will to exert .
Only people have interests , and votes are the best way to reflect those interests .
A popular vote would more accurately reflect the will of the people in every state than the Electoral College ’ s winner-take-all method .
Five million Californians voted for Trump , more than in multiple small states combined .
Their voices would count in a popular vote election .
As would @ @ @ @ @ @ @ African-American , in the red southern states like Alabama , Tennessee , Arkansas , or Mississippi .
And of course , no Electoral College supporter can explain why a voter in Pennsylvania or Wisconsin should have more influence than a voter in Wyoming or California , solely because the former states are more politically divided .
So how can the Compact succeed , in spite of opposition , before our next presidential election ?
Does It Need Congressional Approval ?
Supporters of the Compact have already reaped most of the low hanging fruit—solidly @ @ @ @ @ @ @ won every state that has already joined the Compact .
But there are still some blue-leaning states out there for the picking .
Virginia has not gone red since 2004 , and it ’ s been even longer for Maine and New Hampshire .
Adding those three states to the Compact would bring the total up to 217 .
But to cross the 270 threshold , the Compact will win the support of more swing states such as Colorado .
There have been signs of hope on that front .
The Compact has @ @ @ @ @ @ @ of the state legislatures in Minnesota , Arizona , Michigan , and North Carolina .
The Compact also passed both houses of the Nevada legislature in 2019 , only to be vetoed by Nevada ’ s Democratic Governor Steve Sisolak , who said that the Compact “ could diminish the role of smaller states like Nevada.
” Taken together with Virginia , New Hampshire , and Maine , those five states would be more than enough to successfully enact the Compact .
Getting that many new states on board before 2024 will be @ @ @ @ @ @ @ , the more opponents will mobilize against it .
For example , the march toward ratification for the Equal Rights Amendment slowed dramatically after reaching thirty-four states .
But the Compact recently added four new states in 2019 .
Adding a bigger state like Florida or Pennsylvania would really speed things along .
The obvious challenge of getting swing states on board is that the more state legislators believe their state benefits from the current system , the less likely they are to support a national popular vote .
Not only do swing @ @ @ @ @ @ @ states , but studies also show that they get more federal grant money and disaster declarations as well .
To overcome those incentives , Compact advocates must emphasize the nonpartisan benefits of a popular vote , of which there are many .
For starters , just because the Electoral College has helped Republicans recently doesn ’ t mean it will happen in the future .
In 2004 , if 60,000 George W. Bush supporters in Ohio had voted for John Kerry instead , Kerry would have won the Electoral College while losing the @ @ @ @ @ @ @ Electoral College will always work in their favor is playing with fire .
Second , a popular vote would solve the winner-take-all problem in which any voters in the minority party of a “ safe state ” are effectively wiped off the books .
A popular vote would give Republicans in California and New York or Democrats in Oklahoma or Missouri more incentive to cast their ballots .
Third , a national popular vote would also create more definitive results in elections when one candidate wins the popular vote by a substantial margin @ @ @ @ @ @ @ .
Granted , Donald Trump would probably cry foul under any system .
Still , it is much easier to stoke conspiracy theories of voter fraud and a stolen election when the margin is tens of thousands of votes in swing states than when the margin is millions of votes nationwide .
Those reasons should be enough for legislators in swing states to put their country ’ s interests ahead of their own .
Even if the Compact surpasses the 270 electoral vote threshold , it would likely face one final challenge—litigation .
@ @ @ @ @ @ @ the Compact requires Congressional approval and whether it even constitutes an “ interstate compact.
” A report issued by the Congressional Research Service in 2019 stated that Supreme Court case law “ supports reading Article II of the Constitution to broadly provide states with wide discretion as to how its electors are selected ” but that “ given the lack of any precise precedent respecting the constitutionality of the NPV ” the constitutionality of the Compact remains an open question .
Nonetheless , the Compact represents our best and only chance of fixing @ @ @ @ @ @ @ election .
And if enough activists who support a popular vote ask their state legislators to support the Compact in the interests of the greater good , we may be able to sleep soundly on November 5 , 2024 , knowing that the candidate who wins the most votes will also win the presidency .

The Electoral College has never felt more outdated than during the first week of November 2020. Americans waited four days to learn whether Joe Biden or Donald Trump would be the next president even though the popular vote winner was clear almost immediately. Within 24 hours, Biden had built an insurmountable two million vote lead that has grown to over seven million. Due to the bizarre way we choose our president, a few thousand votes in key swing states matter more than millions nationwide. It wasn’t until Biden’s margins in Pennsylvania and Nevada grew large enough that he was declared victorious. Fortunately, there is a chance 2020 will be the last time a candidate can win the presidency while losing the popular vote.
Slowly but surely, that ingenious plan to fix the Electoral College called the National Popular Vote Interstate Compact has gained momentum. Because the Electoral College was created in Article II Section 1 of the Constitution, amending the Constitution is the most direct path toward reform. However, given the partisan divide over the issue–89 percent of Democrats support an amendment while 77 percent of Republicans prefer the status quo—getting two-thirds of Congress and three-fourths of the states to support an amendment is extremely unlikely. The Compact offers a different path.
You’ve probably heard of it before, but it’s critical to understand the details and why it’s important again, even though in 2020, the President-elect won the popular vote and the electoral vote, unlike 2000 and 2016.
A refresher course: The compact is an agreement between states in which each state would award all of its electoral votes to whichever candidate wins the national popular vote. For example, even if Donald Trump got the most votes in Wyoming in 2020, if Wyoming were part of the Compact, Joe Biden would still win the state’s three electoral votes because Biden won the national popular vote. The Compact does not take effect until states totaling a majority of electoral votes (270 as of 2020) have joined. Once that happens, the Compact would ensure that the candidate who wins the popular vote always wins the Electoral College.
There are concerns, of course, that even if the Compact is enacted, it will not work as intended. Would Vermont really award all of its electors to a Republican candidate even if two-thirds of its residents supported the Democrat? But the Supreme Court’s recent decision in Chifalo v. Washington supports the notion that a state’s electors must do as they are told. The decision allows states to require presidential electors to vote for the person they promised to choose when they were initially nominated, which would seem to strengthen the Compact’s hold on its members. Though the specific question would likely need to be litigated, the Compact at least has recent precedent working in its favor.
So far, the push for the Compact has primarily been a Democratic effort. Since 2007, fifteen states and Washington D.C. have joined, including California, New Mexico, Maryland, and New York. The effort recently gained another victory when Colorado voters approved Proposition 113. Colorado initially joined the Compact in March of 2019, but a repeal effort put the question directly to Colorado’s voters. For the first time, voters were asked to choose whether their state’s voters or the will of the national electorate should matter more in electing a president. By a 52 to 48 margin, Coloradans chose the latter, opting to stay in the Compact, keeping the current total at 196 electoral votes, just 74 short of success. The victory in Colorado was crucial, given that it was the first “purple state” on board.
Getting the Last States
Of course, getting those last 74 votes will be a substantial challenge. Because Republican candidates have lost the popular vote in seven of the last eight presidential elections, some outspoken Republicans have made deeply flawed arguments defending the Electoral College. But as I’ve written before, none of those arguments can withstand scrutiny, which the 2020 election proved once again.
Proponents argue that the Electoral College prevents small states from being ignored, but that isn’t true. Small states are already ignored. In 2020, over 90 percent of general election campaign events were concentrated in just twelve states, with the majority taking place in Pennsylvania, Florida, North Carolina, Michigan, and Wisconsin, some of the most populous states in the country. For every New Hampshire or Nevada, which were small swing states, there were more small states like Hawaii, Wyoming, Vermont, or North Dakota that were ignored. Much more than magnifying the power of small states, the Electoral College magnifies the power of politically divided states—an unfairly arbitrary criterion that results in presidential candidates lavishing attention on Wisconsin and North Carolina rather than Texas or New York.
Proponents also contend that the Electoral College prevents a dangerous “tyranny of the majority” in which the candidate who wins the most votes imposes their will on the minority. But they can never explain why a democratically elected executive who is checked by two other branches of government amounts to a tyrant. Or why letting the candidate who did not win the most votes impose their will on the majority is a guarantor of minority rights.
As for the argument that without the Electoral College, a few big states or cities would rule over the rest of us, the error in that line of thinking is that places don’t have any will to exert. Only people have interests, and votes are the best way to reflect those interests. A popular vote would more accurately reflect the will of the people in every state than the Electoral College’s winner-take-all method. Five million Californians voted for Trump, more than in multiple small states combined. Their voices would count in a popular vote election. As would the millions of Democratic votes, largely African-American, in the red southern states like Alabama, Tennessee, Arkansas, or Mississippi. And of course, no Electoral College supporter can explain why a voter in Pennsylvania or Wisconsin should have more influence than a voter in Wyoming or California, solely because the former states are more politically divided.
So how can the Compact succeed, in spite of opposition, before our next presidential election?
Does It Need Congressional Approval?
Supporters of the Compact have already reaped most of the low hanging fruit—solidly blue states. In fact, Biden won every state that has already joined the Compact. But there are still some blue-leaning states out there for the picking. Virginia has not gone red since 2004, and it’s been even longer for Maine and New Hampshire. Adding those three states to the Compact would bring the total up to 217. But to cross the 270 threshold, the Compact will win the support of more swing states such as Colorado.
There have been signs of hope on that front. The Compact has been approved by at least one branch of the state legislatures in Minnesota, Arizona, Michigan, and North Carolina. The Compact also passed both houses of the Nevada legislature in 2019, only to be vetoed by Nevada’s Democratic Governor Steve Sisolak, who said that the Compact “could diminish the role of smaller states like Nevada.” Taken together with Virginia, New Hampshire, and Maine, those five states would be more than enough to successfully enact the Compact. Getting that many new states on board before 2024 will be difficult, and the closer we get, the more opponents will mobilize against it. For example, the march toward ratification for the Equal Rights Amendment slowed dramatically after reaching thirty-four states. But the Compact recently added four new states in 2019. Adding a bigger state like Florida or Pennsylvania would really speed things along.
The obvious challenge of getting swing states on board is that the more state legislators believe their state benefits from the current system, the less likely they are to support a national popular vote. Not only do swing states receive more campaign visits than other states, but studies also show that they get more federal grant money and disaster declarations as well. To overcome those incentives, Compact advocates must emphasize the nonpartisan benefits of a popular vote, of which there are many.
For starters, just because the Electoral College has helped Republicans recently doesn’t mean it will happen in the future. In 2004, if 60,000 George W. Bush supporters in Ohio had voted for John Kerry instead, Kerry would have won the Electoral College while losing the popular vote. Anyone who thinks the Electoral College will always work in their favor is playing with fire.
Second, a popular vote would solve the winner-take-all problem in which any voters in the minority party of a “safe state” are effectively wiped off the books. A popular vote would give Republicans in California and New York or Democrats in Oklahoma or Missouri more incentive to cast their ballots.
Third, a national popular vote would also create more definitive results in elections when one candidate wins the popular vote by a substantial margin, as Joe Biden did in 2020. Granted, Donald Trump would probably cry foul under any system. Still, it is much easier to stoke conspiracy theories of voter fraud and a stolen election when the margin is tens of thousands of votes in swing states than when the margin is millions of votes nationwide. Those reasons should be enough for legislators in swing states to put their country’s interests ahead of their own.
Even if the Compact surpasses the 270 electoral vote threshold, it would likely face one final challenge—litigation. There is a debate as to whether the Compact requires Congressional approval and whether it even constitutes an “interstate compact.” A report issued by the Congressional Research Service in 2019 stated that Supreme Court case law “supports reading Article II of the Constitution to broadly provide states with wide discretion as to how its electors are selected” but that “given the lack of any precise precedent respecting the constitutionality of the NPV” the constitutionality of the Compact remains an open question.
Nonetheless, the Compact represents our best and only chance of fixing the Electoral College before the next presidential election. And if enough activists who support a popular vote ask their state legislators to support the Compact in the interests of the greater good, we may be able to sleep soundly on November 5, 2024, knowing that the candidate who wins the most votes will also win the presidency.


washingtonmonthly--2020-12-29--The New Surprise Billing Law Is an Imperfect Win

After nearly two years of fighting , false starts , and near misses , Congress has finally banned health care ’ s most obviously exploitative practice .
Starting in 2022 , it will be illegal for doctors and hospitals to send surprise bills : charges to insured patients from out-of-network providers that the patient could not choose , like anesthesiologists and emergency room physicians .
Congressman Frank Pallone Jr. , the chairman of the House Energy and Commerce Committee , told the Washington Post that the law is “ the biggest victory for consumers since the Affordable Care Act.
” @ @ @ @ @ @ @ provider and the insurance to figure this out , ” he said .
“ It ’ s not the consumers ’ problem.
” There ’ s no doubt the ban is an enormous win .
Surprise bills have become an increasingly ubiquitous part of the U.S. healthcare system , destroying the credit of some families , outright bankrupting others , and costing Americans with employer-provided health insurance approximately $ 40 billion each year .
But the solution Congress passed will save consumers far less than it could have , and it took more @ @ @ @ @ @ @ Congress struggled to stop this notoriously grotesque practice , it suggests the government will have an extraordinarily difficult time tackling America ’ s broader , exploding health care costs .
When the House and Senate began looking to ban surprise bills in the winter of 2019 , they focused on two possible mechanisms .
The first , favored by patient advocates and insurers , involved benchmarking treatment prices—like X-rays or biopsies—to the median price that insured people pay while in network .
Insurers would then automatically compensate the out-of-network physician that amount .
@ @ @ @ @ @ @ doctors ’ groups , involved having outside arbiters decide what insurers will pay .
At first , both parties in Congress appeared to favor the benchmarking approach .
They had good reason .
Benchmarking prices is widely thought to save patients more money and better control health care costs overall .
Arbitration , by contrast , tends to result in more provider-friendly rulings , resulting in larger insurance payouts .
Insurers then pass on these costs to consumers in the form of higher rates , deductibles , and co-pays .
Since New York @ @ @ @ @ @ @ certain surprise bills , costs for New Yorkers have gone up , not down .
At an event hosted by consumer advocates , Pallone worried that arbitration might simply “ recirculate ” lost surprise-billing charges “ so that the individual pays it in their premium.
” But providers , some of who can earn handsome profits from surprise bills , aggressively lobbied Congress to switch to arbitration .
Gradually , both the House and Senate obliged .
First , Pallone ’ s bill , co-drafted with Republican Senator Alexander Lamar , added an @ @ @ @ @ @ @ by an all-arbitration bill drafted by the Democratic and Republican leaders of the House Ways and Means committee .
This still wasn ’ t enough to earn the endorsement of major doctors ’ groups , including the American Medical Association .
Some organizations , like the American College of Surgeons , even expressed tepid opposition .
By requiring doctors to disclose their typical compensation , the ACS argued , the bill could “ potentially driv [ e ] down physician payment.
” Providers did not get everything they wanted out of the recent @ @ @ @ @ @ @ , but arbiters will have to consider the median in-network rates ( what would have been the benchmark ) when making their rulings .
Doctors will have to disclose their typical compensation .
But the system is arguably closer to what providers wanted than the Ways and Means bill , and certainly closer than what patient advocates sought .
In addition to being entirely based on arbitration , the law bans arbiters from considering Medicare procedure rates when issuing rulings .
Medicare sets its health care prices outright , making it perhaps the @ @ @ @ @ @ @ .
The absence of these rates means that arbiters might settle on higher charges .
Patient advocates are happy the bill passed .
But its design tempers their enthusiasm .
“ I don ’ t think this is a terrible approach , ” Jen Taylor , the senior director of federal relations for Families USA , told me .
“ It just leaves room for certain folks to figure out how to bill more.
” She worried that , over time , the legislation won ’ t fully hold costs down .
Much @ @ @ @ @ @ @ charges would simply be socialized among the broader patient population .
Other analysts are more optimistic .
“ The legislation would still likely reduce premiums by a small amount , ” Loren Adler , a health policy expert at the Brookings Institute , told me .
He pointed out that part of what makes surprise bills so destructive is that they skew the balance of power away from consumers and their insurers and toward providers in cost negotiations .
Surprise bills , he told me , “ piss enrollees off so much , @ @ @ @ @ @ @ they then complain to their insurer or employer , who are then willing to pay even more.
” That ill-gotten leverage will soon dissipate .
Either way , benchmarking is the simpler and more secure solution because it just sets a rate , rather than leaving the decision to be settled on a case-by-case basis .
The fact that Congress couldn ’ t create any outright benchmarks augurs poorly for more major health care reforms .
The roughly $ 40 billion annual cost of surprise medical bills is significant , but it ’ @ @ @ @ @ @ @ 3.6 trillion the U.S. spends each year on healthcare , a number that ’ s rising far faster than the rate of inflation ( or the rate of health care spending in other wealthy nations ) .
That explosion has come despite a variety of attempts to control costs , most prominently in the Affordable Care Act .
Only Medicare and Medicaid , which set the rates outright , have been held in check .
During the 2020 Democratic primary , both Elizabeth Warren and Pete Buttigieg advocated for capping many medical expenses @ @ @ @ @ @ @ .
But both lost to Biden .
And even if the president-elect wanted to set prices across health care , he would stand little chance of getting it through this Congress—and not just because of Republicans .
Chuck Schumer played a major role in killing Pallone ’ s benchmarking legislation .
So did Richie Neal , the Democratic Ways and Means committee chairman .
Schumer has strong ties to the hospital industry .
Some of Neal ’ s biggest backers are private equity groups , which have bought up enormous doctor ’ s @ @ @ @ @ @ @ .
The obstacles , however , run deeper than Congress .
Fundamentally , Americans tend not to fully grasp why their health care is so expensive .
Right now , most Americans strongly approve of health care providers .
This is understandable .
Providers save lives and , during the pandemic , many have been downright heroic .
But U.S. doctors are contributors to—and beneficiaries of—our extraordinarily expensive system .
They earn far more than their counterparts in Europe and Canada because Americans pay far more for health care than does anyone else @ @ @ @ @ @ @ in better outcomes .
It ’ s not just doctors .
Many hospitals earn fortunes from neglecting the poor while overtreating the rich .
But American politics and discourse rewards them with tax exemptions and top spots on major health care rankings .
A Politico investigation , for example , found that the nation ’ s top seven hospitals as ranked by U.S. News & World Report—all nonprofits—took in more than $ 33.9 billion in operating revenue in 2015 , a 15 percent increase from two years before .
These hospitals ’ spending @ @ @ @ @ @ @ percent over the same time period .
( The Monthly has put out its own hospital rankings , emphasizing affordability and care for the less affluent , as a counter to U.S .
News . )
But until the public better understands why costs are so high , it will be easy for interest groups to kill solutions .
Providers are so popular , and their fates so intertwined with patients , that lobbyists must simply argue proposed reforms will be bad for doctors and hospitals .
The benchmarking bill , for example @ @ @ @ @ @ @ campaign suggested it would put providers out of business .
Changing minds , however , will be tricky for activists .
The advertisement ’ s accusation was false , something academics and advocates went out of their way to explain .
But the wonky fact check proved no match for the televised specter of shuttered ERs .
“ We want to have three-and-a-half hours to discuss the merits , and someone says ‘ death panels ’ and you ’ re done , ” said Taylor , of Families USA .
To win more @ @ @ @ @ @ @ need to rethink how their messaging resonates with average citizens .
It will be a long journey , but it ’ s necessary if the government is going to grapple with exploding prices .
In the meantime , advocates say it ’ s important to celebrate any victory—including the end of this especially egregious practice .
“ This is a really important step forward for consumers , ” Taylor said of the surprise billing law .
“ It just is .
”

After nearly two years of fighting, false starts, and close misses, Congress has finally banned health care’s most obviously exploitative practice. Starting in 2022, it will be illegal for doctors and hospitals to send surprise bills: charges to insured patients from out-of-network providers that the patient could not choose, like anesthesiologists and emergency room physicians. Congressman Frank Pallone Jr., the chairman of the House Energy and Commerce Committee, told the Washington Post that the law is “the biggest victory for consumers since the Affordable Care Act.” It is “now up to the provider and the insurance to figure this out,” he said. “It’s not the consumers’ problem.”
There’s no doubt the ban is an enormous win. Surprise bills have become an increasingly ubiquitous part of the U.S. healthcare system, destroying the credit of some families, outright bankrupting others, and costing Americans with employer-provided health insurance approximately $40 billion each year. But the solution Congress passed will save consumers far less than it could have, and it took more than twenty months to complete. If Congress struggled to stop this notoriously grotesque practice, it suggests the government will have an extraordinarily difficult time tackling America’s broader, exploding health care costs.
When the House and Senate began looking to ban surprise bills in the winter of 2019, they focused on two possible mechanisms. The first, favored by patient advocates and insurers, involved benchmarking treatment prices—like X-rays or biopsies—to the median price that insured people pay while in network. Insurers would then automatically compensate the out-of-network physician that amount. The second, favored by hospitals and doctors’ groups, involved having outside arbiters decide what insurers will pay.
At first, both parties in Congress appeared to favor the benchmarking approach. They had good reason. Benchmarking prices is widely thought to save patients more money and better control health care costs overall. Arbitration, by contrast, tends to result in more provider-friendly rulings, resulting in larger insurance payouts. Insurers then pass on these costs to consumers in the form of higher rates, deductibles, and co-pays. Since New York State implemented an arbitration system to settle certain surprise bills, costs for New Yorkers have gone up, not down. At an event hosted by consumer advocates, Pallone worried that arbitration might simply “recirculate” lost surprise-billing charges “so that the individual pays it in their premium.”
But providers, some of who can earn handsome profits from surprise bills, aggressively lobbied Congress to switch to arbitration. Gradually, both the House and Senate obliged. First, Pallone’s bill, co-drafted with Republican Senator Alexander Lamar, added an arbitration appeal. It was then killed by an all-arbitration bill drafted by the Democratic and Republican leaders of the House Ways and Means committee. This still wasn’t enough to earn the endorsement of major doctors’ groups, including the American Medical Association. Some organizations, like the American College of Surgeons, even expressed tepid opposition. By requiring doctors to disclose their typical compensation, the ACS argued, the bill could “potentially driv[e] down physician payment.”
Providers did not get everything they wanted out of the recent legislation. It’s all arbitration, but arbiters will have to consider the median in-network rates (what would have been the benchmark) when making their rulings. Doctors will have to disclose their typical compensation. But the system is arguably closer to what providers wanted than the Ways and Means bill, and certainly closer than what patient advocates sought. In addition to being entirely based on arbitration, the law bans arbiters from considering Medicare procedure rates when issuing rulings. Medicare sets its health care prices outright, making it perhaps the most cost-effective insurer in the United States. The absence of these rates means that arbiters might settle on higher charges.
Patient advocates are happy the bill passed. But its design tempers their enthusiasm. “I don’t think this is a terrible approach,” Jen Taylor, the senior director of federal relations for Families USA, told me. “It just leaves room for certain folks to figure out how to bill more.” She worried that, over time, the legislation won’t fully hold costs down. Much like in New York, the excess charges would simply be socialized among the broader patient population.
Other analysts are more optimistic. “The legislation would still likely reduce premiums by a small amount,” Loren Adler, a health policy expert at the Brookings Institute, told me. He pointed out that part of what makes surprise bills so destructive is that they skew the balance of power away from consumers and their insurers and toward providers in cost negotiations. Surprise bills, he told me, “piss enrollees off so much, piss patients off so much, that they then complain to their insurer or employer, who are then willing to pay even more.” That ill-gotten leverage will soon dissipate.
Either way, benchmarking is the simpler and more secure solution because it just sets a rate, rather than leaving the decision to be settled on a case-by-case basis. The fact that Congress couldn’t create any outright benchmarks augurs poorly for more major health care reforms. The roughly $40 billion annual cost of surprise medical bills is significant, but it’s a small fraction of the $3.6 trillion the U.S. spends each year on healthcare, a number that’s rising far faster than the rate of inflation (or the rate of health care spending in other wealthy nations). That explosion has come despite a variety of attempts to control costs, most prominently in the Affordable Care Act. Only Medicare and Medicaid, which set the rates outright, have been held in check.
During the 2020 Democratic primary, both Elizabeth Warren and Pete Buttigieg advocated for capping many medical expenses at a multiple of what Medicare pays. But both lost to Biden. And even if the president-elect wanted to set prices across health care, he would stand little chance of getting it through this Congress—and not just because of Republicans. Chuck Schumer played a major role in killing Pallone’s benchmarking legislation. So did Richard Neal, the Democratic Ways and Means committee chairman. Schumer has strong ties to the hospital industry. Some of Neal’s biggest backers are private equity groups, which have bought up enormous doctor’s practices and aggressively surprise billed unwitting patients.
The obstacles, however, run deeper than Congress. Fundamentally, Americans tend not to fully grasp why their health care is so expensive. Right now, most Americans strongly approve of health care providers. This is for good reason. Providers save lives and, during the pandemic, many have been downright heroic. But U.S. doctors are contributors to—and beneficiaries of—our extraordinarily expensive system. They earn far more than their counterparts in Europe and Canada because Americans pay far more for health care than does anyone else, even though this does not result in better outcomes.
It’s not just doctors. Many hospitals earn fortunes from neglecting the poor while overtreating the rich. But American politics and discourse rewards them with tax exemptions and top spots on major health care rankings. A Politico investigation, for example, found that the nation’s top seven hospitals as ranked by U.S. News & World Report—all nonprofits—took in more than $33.9 billion in operating revenue in 2015, a 15 percent increase from two years before. These hospitals’ spending on direct charity care fell by 34 percent over the same time period. (The Monthly has put out its own hospital rankings, emphasizing affordability and care for the less affluent, as a counter to U.S. News.)
But until the public better understands why costs are so high, it will be easy for interest groups to kill solutions. Providers are so popular, and their fates so intertwined with patients, that lobbyists must simply argue proposed reforms will be bad for doctors and hospitals. The benchmarking bill, for example, died in part because an ad campaign suggested it would put providers out of business.
Changing minds, however, will be tricky for activists. The advertisement’s accusation was false, something academics and advocates went out of their way to explain. But the wonky fact check proved no match for the televised specter of shuttered ERs. “We want to have three-and-a-half hours to discuss the merits, and someone says ‘death panels’ and you’re done,” said Taylor, of Families USA. To win more broadly, she emphasized that reformers will need to rethink how their messaging resonates with average citizens.
It will be a long journey, but it’s necessary if the government is going to grapple with exploding prices. In the meantime, advocates say it’s important to celebrate any victory—including the end of this especially egregious practice. “This is a really important step forward for consumers,” Taylor said of the surprise billing law. “It just is.”