Mojo - September 2011

Raising the Retirement Age: Back on the Table

| Fri Sep. 9, 2011 12:00 PM EDT
Minority Leader Nancy Pelosi and House Democrats hold a press conference to celebrate the one-year anniversary of the Affordable Care Act in Washington D.C. on March 17, 2011.

During the endless debate over raising the debt ceiling, President Obama reportedly floated the possibility of raising the Medicare eligibility age from 65 to 67 as part of a grand bargain to reduce the debt. That measure didn't make it into the final bill.

But the proposal could have a second life. In his speech on Wednesday night, Obama said that his plan would make "modest adjustments to health care programs like Medicare"—an idea that could be taken up by the deficit supercommittee charged with finding $1.2-1.5 trillion in additional savings, Politico reports.

If the committee can't come up with those savings, automatic cuts will be made to Medicare payments to hospitals and other health care providers, to the tune of $45 billion over nine years, according to the American Hospital Association (AHA), a lobbying group representing medical providers.

That threat seems to have spooked the AHA, which is resuscitating the idea of a gradual increase in the eligibility age for Medicare. Seniors ineligible for Medicare, they argue, will eventually be able to buy their own insurance through state insurance exchanges starting in 2014. There will also be subsidies for employers who provide health insurance for their retirees. So it's a win for everybody, right? Not so much. Less than a third of retirees from 55 to 64 receive health coverage from their old employers.

And as Paul Van de Water of the Center on Budget and Policy Priorities has explained, raising the eligibility age is simply cost-shifting by another name. 65- and 66-year-olds who lose their Medicare coverage would pay more for their health care; two-thirds of these beneficiaries, or about 3.3 million people, would pay an average of $2,200 more in premiums, annually. But total health care spending would actually increase: 

So why is the AHA backing the age increase? Over at The Incidental Economist health economist Austin Frakt explains:

That the AHA backs Medicare retrenchment in this fashion makes perfect sense for them because prices paid to hospitals by private insurers are, on average, higher than Medicare’s . . . This is a "solution" in one, narrow sense: it would reduce federal outlays by about $125 billion over 10 years, according to the CBO. However, it would not reduce overall health spending by anywhere near that amount . . .

Raising the retirement age means that more old people will get health care through private insurers; thus it follows that doctors and AHA members get paid.

Who else is getting paid? Members of the supercommittee. According to the folks at MapLight.org, the AHA has paid almost $187,000 to members of the bipartisan awesomesquad. That's good enough to rank the group among the top 15 biggest donors. And that's why raising the retirement age is most definitely part of the conversation.

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The Far-Reaching Consequences of Perry and Willingham

| Fri Sep. 9, 2011 10:43 AM EDT
Texas Governor Rick Perry overhauled the Texas Forensic Science Commission in 2005 as it was on the verge of concluding that Cameron Todd Willingham's conviction was based on bad science.

Adam and I both wrote on Thursday about Texas Governor Rick Perry's decision to go forward with the 2004 execution of Cameron Todd Willingham (in the face of evidence that called into question his guilt) and then kneecap the newly created state commission that seemed to be on the verge of blowing the lid off the whole thing. From a purely political standpoint, it speaks to Perry's judgment and diligence, as well as his respect for scientific process; in this case, the arson science that had been used to convict Willingham for murdering his three kids had been refuted by the time his execution date rolled around.

But the Willingham decision didn't just impact Cameron Todd Willingham; it actually set a precedent that will have a far-reaching effect. That's because, in the process of overhauling the Texas Forensic Science Commission just as it was set to produce a report extremely damaging to his administration, he appointed a new chair: John Bradley, a district attorney whose record was so controversial he was later removed from the TFSC post by the Republican state senate. As the Texas Observer's Dave Mann explains, Bradley took the odd step—likely as a way of wasting time—of asking the state's Republican attorney general to officially weigh in on whether the commission even had jurisdiction to evaluate cases that were decided before the commission was formed.

Given the circumstances by which it was conceived—given the stated goals of the legislators who drafted the law that created the commission—you might say that the entire point of the commission was to investigate cases that had already happened. But instead, the AG's office, taking advantage of a loosely worded mission statement, ruled that the commission could only offer non-binding recommendations, and only on cases that came after 2005. Here's Mann:

This afternoon, the commission considered new cases that involved flawed forensic evidence. It quickly became apparent how constricted the commission is following the recent opinion from the Texas attorney general's office.

The commission rejected a half-dozen complaints, including three allegedly flawed arson cases, because they weren't within its jurisdiction—at least as recently interpreted by the AG. The AG this summer ruled that the commission doesn't have authority to investigate cases before 2005.

The three arson cases all occurred before then. So even though the cases apparently contained serious problems—and would otherwise have been investigated—the commission was forced to dismiss them because of "jurisdictional issues," as Chair Nizam Peerwani put it.

This matters because, as he notes, there are a handful of arson cases, pre-2005, that were almost certainly based on bad science. Arson science changed dramatically over the last two decades; the process used to lock people up in the late 1990s is the forensic equivalent of alchemy.

Update: Yup, the TFSC met on Friday and affirmed that Abbot's ruling prevents them from investigating pre-2005 cases. But via the Statesman, it's not all bad:

The state fire marshal's office has agreed to review prior arson investigations to determine if criminal convictions were obtained using bad science or now-debunked assumptions, it was announced Friday.

The review was a key concession sought by the Texas Forensic Science Commission as part of its investigation into the science used to convict, and ultimately execute, Cameron Todd Willingham for the 1991 fire that killed his three young daughters...

Uncomfortable that a poor understanding of fire science could have influenced other investigations, the commission's Willingham report also urged Fire Marshal Paul Maldonado to review his agency's files.

Maldonado agreed to the review earlier this week, Forensic Science Commission Chairman Nizam Peerwani announced Friday.

Obama Getting Close To One Million Deportations

| Fri Sep. 9, 2011 9:44 AM EDT

The Obama administration has deported close to one million undocumented immigrants since January 2009, according to recently updated statistics from Immigrations and Customs Enforcement.

Since fiscal year 2009, the actual number is 1,107,415. But the financial year started in October of 2008, when George W. Bush was still president, so the total under Obama is actually 982,548. On the other hand, the current numbers only go up to the end of July, so the administration may have already passed the one million deportations threshold. By comparison, in his last 28 months in office, Bush deported about 785,148 undocumented immigrants. (I couldn't find monthly records for before 2007.)

How you react to Obama's record on deportation depends where you are on the political spectrum. The GOP has been accusing the administration for months of instituting "de-facto amnesty" even as deportation numbers skyrocketed, while liberals and the Spanish-language press have been attacking the administration for breaking its promises.

Last month the administration finally indicated it would be deferring the deportation of undocumented immigrants who pose no threat to public safety, but in the absence of progress on immigration reform, that may not be enough to fix the president's plummeting poll numbers among Hispanic voters.

Karl Rove's Crossroads Groups Double 2012 War Plan to $240 Million

| Fri Sep. 9, 2011 9:15 AM EDT

Lost in the build-up to President Obama's big jobs speech Thursday night was a bomb of an announcement, first reported by Peter Stone of iWatch News, from American Crossroads and Crossroads GPS, the conservative independent expenditure groups that are two of the heaviest hitters in the political money game. Founded in 2010 with help from Bush guru Karl Rove, the Crossroads groups are now trumpeting a new fundraising target to double their planned haul of $120 million for the 2012 elections. Yes, you read that right: the Crossroads groups say they will raise a whopping $240 million to vanquish President Obama, help GOPers win the Senate majority, and strengthen their House majority.

Here's some context for that $240 million target. In the 2010 election cycle, American Crossroads, a super PAC that discloses its donors, and Crossroads GPS, a 501(c)4 that doesn't disclose, spent an estimated $43 million, according to the Center for Responsive Politics. That same cycle, all outside spending groups, excluding party-affiliated committees, spent just over $300 million.

To help them reach their eye-popping fundraising goal, the Crossroads groups have tapped one of the most successful GOP fundraisers of them all, Mississippi Gov. Haley Barbour. A former DC lobbyist, Barbour helped rake in a record-setting $115 million as chair of the Republican Governors Association from 2009 to 2010.

"Both Governor Barbour and Karl Rove are prodigious fundraisers and brilliant strategists, and we are honored to have them both engaged with us," Steven Law, president of both American Crossroads and Crossroads GPS, said in a statement. "We are reaching high in our fundraising goals because we believe this is going to be a destiny-shaping election for our country."

Michael Beckel, a spokesman for the Center for Responsive Politics (and a Mother Jones alum), a non-partisan group that tracks money in American politics, described American Crossroads as "the top dog" in the 2010 midterm elections. He said that Crossroads' new goal would blow past anything seen two years ago. "It looks like this arms race is ramping rather quickly."

Mixed Bag in South Dakota Abortion Script Decision

| Fri Sep. 9, 2011 5:01 AM EDT

Last week, a federal appeals court upheld portions of South Dakota's controversial "informed consent" law, which requires doctors to read a script to women before performing an abortion. The court rejected other parts of the 2005 law.

The script, which doctors are mandated to read to patients 24 hours before performing an abortion, includes a line stating that the prodedure "will terminate the life of a whole, separate, unique, living human being." The script also contained lines informing women that they have "an existing relationship with that unborn human being" that's protected under the Constitution and state law, and describing the "known medical risks" of abortion—including "increased risk of suicide ideation and suicide."

Planned Parenthood and other providers sued, and in August 2009, a judge threw out those lines, determining that they were "untruthful and misleading." But South Dakota appealed, and under the decision handed down last week, doctors will still have to deliver significant portions of the script. The appeals court agreed with Planned Parenthood that the script's claims about mental and physical health weren't valid. But the court upheld the portions of the bill defining the fetus as a "whole, separate, unique, living human being" and describing the mother's "existing relationship" with that fetus.

The decision is a major win for attorney Harold Cassidy, who filed the appeal to the 8th Circuit. Sarah Blustain profiled Cassidy in Mother Jones earlier this year; the state drew from his legal writings in drafting the law. Anti-abortion groups are celebrating the decision.

Planned Parenthood welcomed the news that the medical claims portion of the script had been tossed out. It's not clear, though, whether the group will continue its efforts to have the other parts of the law deemed unconstitutional.

Mexican "Twitter Terrorists" Could Face 30 Years in Prison

| Fri Sep. 9, 2011 5:00 AM EDT

As narco-violence continues throughout Mexico, the government in the Gulf Coast state of Veracruz has taken aim on a pair of unlikely provocateurs. The state is currently pursuing terrorism and sabotage charges against a middle-aged math teacher and a local journalist. Their crime? Spreading false information on Twitter.

On August 25, rumors spread throughout the port city of Veracruz that there had been an attack at an elementary school in nearby Boca del Río. That's when teacher Gilberto Martínez Vero (@gilius_22) tweeted, "They took 5 kids, armed group, total psychosis in the zone." Using the hashtags #Verfollow and #Veracruz, Martínez and reporter María de Jesús Bravo Pagola quickly reached a wide audience of Veracruzanos. Panic ensued as parents raced to pick up their kids and others nearby tried to leave the area, resulting in traffic jams and a number of accidents.

One problem: There was no shooting or kidnapping. After getting in touch with school officials, Veracruz Gov. Javier Duarte de Ochoa attempted to diffuse the situation. By the following afternoon, both Martínez and Bravo had been arrested. Although human rights groups have pushed for their release—the local Amnesty International chapter said the arrest was "unfair and violates their right to justice and freedom of expression"—state officials could push for the maximum 30-year sentence on Martínez and Bravo. On top of that, the state is investigating 15 other people who tweeted similar information during the chaos.

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Obama's Judge Problem

| Fri Sep. 9, 2011 5:00 AM EDT

President Obama is learning why judicial nominations matter—the hard way.

On Thursday, the 4th Circuit Court of Appeals dismissed two lawsuits challenging the Democrats' health care reform law. Four of the twelve judges on the 4th Circuit are Obama appointees, and the three-judge panel that made the decision included two of them. But last month, in the 11th Circuit, a differently constituted panel came to a very different decision on the constitutionality of health care reform. The contrast between the two decisions shows just how important the judicial nomination process is—and how, by moving slowly on nominations, the Obama administration has imperiled its signature legislative accomplishment.

On August 12, a three-judge panel of the 11th Circuit Court of Appeals struck down the portion of the health care law that requires Americans to either purchase health insurance or pay a fine. The decision was 2-to-1, with Joel Dubina, whom George H.W. Bush nominated to the appeals court, and Frank Hull, a conservative Bill Clinton nominee, voting that the health insurance requirement is unconstitutional. Stanley Marcus, a judge who was originally appointed by Ronald Reagan but was elevated to the appeals court by Clinton, provided the lone dissenting vote. 

Many legal experts (and several other courts, including the 4th and 6th Circuits) think the 11th Circuit panel was wrong, and argue the individual mandate is constitutional. But that's not the point: In an important sense, the 11th Circuit decision and future decisions like it are the Obama administration's own fault.

We're Still at War: Photo of the Day for September 9, 2011

Fri Sep. 9, 2011 4:57 AM EDT

Soldiers from C Company, 2nd Battalion, 35th Infantry Regiment, survey the ridgeline after taking sniper fire from an insurgent during Operation Diamond Head in Afghanistan, July 29, 2011. Photo by the US Army.

Map of the Day: Republicans for Austerity—in Voting

| Thu Sep. 8, 2011 3:32 PM EDT

On Thursday, Senator Dick Durbin (D-Ill.) held a hearing on the rash of restrictive voter ID laws being pushed by Republicans all over the country. Voting rights activists have argued the laws will reduce turnout among minorities and the poor.

Republicans' huge midterm victory last November translated into increased control of state legislatures, which they've used to pass new, more onerous restrictions on voting, sometimes explicitly for the purpose of suppressing votes from Democratic-leaning constituencies. Judith Brown Dianis of the Advancement Project called the wave of restrictions the largest effort to suppress the vote "since Reconstruction."

The Lawyers' Committee for Civil Rights has produced a map showing how many states are in the process of passing such laws:

What the map doesn't show is that five states, Florida, Georgia, Tennessee, Ohio, and West Virginia, have actually curtailed early voting as well. As Ari Berman reported, some of these ban voting on "the Sunday before the election—a day when black churches historically mobilize their constituents."

"Americans are killed by lightning more often than they are victimized by fraud that voter ID would do something to stop," said Justin Levitt, a professor of law at Loyola Law School. "We've amputated a foot to stop a potential hangnail." The Brennan Center for Justice estimates that nearly ten percent of eligible voters lack the kind of photo ID required by these voter ID laws.

Republican defenders of voter ID laws claim that higher black turnout in Georgia during the 2006 and 2010 elections proves that voter ID laws don't suppress the minority vote—an argument repeated by minority witness Hans von Spakovsky in his Senate testimony Thursday. But in states without such restrictions, the increase in black turnout was actually much larger. Von Spakovsky's analyses would "fail statistics 101 at just about any college in the country," Levitt said.

Rep. Todd Rokita (R-Ind.) tacitly acknowledged that instances of in-person voter fraud are few and far between, and prosecutions are even rarer. But, deploying the economic buzzword of the day, Rokita argued that "it's not a matter of how many cases or convictions there are gentlemen, it's about confidence." Rokita suggested that more voter ID laws would increase turnout, saying that "we want to instill confidence in the process to turn up turnout."

It's the GOP's economic austerity argument applied to voting: Make it harder to vote, and more people will vote. 

Health Care Ruling Takeaway: Virginia AG Ken Cuccinelli Is a Bad Lawyer

| Thu Sep. 8, 2011 2:52 PM EDT
Ken Cuccinelli, the attorney general of Virginia.

Tea partiers love Virginia Attorney General Ken Cuccinelli. A rock star who frequents their events, he speaks the tea partiers' language, especially when it comes to invoking the Constitution as the basis for opposing everything from President Obama's health care reform law to environmental regulations on climate-changing emissions. But Cuccinelli seems to have studied the Constitution the way most tea partiers have—in someone's living room. Because when it comes to actually practicing law, in real courts where the Constitution is really put to the test, Cuccinelli is a bit of a disaster.

Today, the 4th Circuit Court of Appeals, one of the most conservative appellate courts in the country, threw out Cuccinelli's lawsuit challenging Obama's Affordable Care Act and its individual mandate. The 4th Circuit never really got to the constitutional issues of the health care law because it found that Cuccinelli and the state of Virgina did not even have standing to bring the case. The individual mandate, the court found, "imposes no obligations on the sole plaintiff, Virginia," meaning that Virginia had no injury nor future harm that might be remedied by the intervention of a federal judge.

It's a classic example of something Cuccinelli should have learned in Civil Procedure 101: Just because you don't like a law doesn't mean you have the right to go to court and get it struck down. You have to be affected by the law somehow, and it was clear from the very beginning that Cuccinelli and Virginia were not. And if Cuccinelli is hoping the U.S. Supreme Court might come to his rescue on this one, he's probably dreaming. While you never know with the Roberts court conservatives, who have proven far more political than consistent, stalwart conservatives like Antonin Scalia.  Roberts himself has been extremely harsh with plaintiffs on standing issues. (See Robert's dissent in Massachusetts v. EPA, a case challenging the EPA's inaction on climate change.)

But Cuccinelli's legal work isn't, of course, about the law. It's about politics. His concern with constitutional issues is rather selective. Otherwise, how to explain his office's defense of local law enforcement officials in the state arresting gay men under sodomy laws the Supreme Court declared unconstitutional eight years ago? Or his legal opinion that state universities have no legal right to protect students and staff against anti-gay discrimination, despite the 14th Amendment's promises of equal protection under the law? Or what of his waste of taxpayer dollars suing over the health care bill in a case he had no legitimate right to bring? The health care lawsuit won Cuccinelli fans across the country, who will no doubt come in handy when he needs to raise money when he runs for senator or governor down the road. All of that might make him a good politician, but it still makes him a bad lawyer.