It looks now like the regressive majority on the Supreme Court is poised to overturn Barack Obama’s signature legislative achievement, his health care bill.
That is so fitting.
More than that, it is also a reminder of just how sick this country truly is. Imagine that the lab returned the results from your battery of blood work tests, and all the indicators were screaming out “Danger!” and “Broken!”. That’s us, baby. Get this patient to the ER!
What a total disaster.
The first indicator of how unhealthy we are as a country – literally and figuratively – is the fact that we still don’t have universal health care here in the wealthiest place on Earth. It’s been more than century since the welfare state – a system in which the national government assumes responsibility, as an agent of the national will, for guaranteeing certain benefits and protections to its citizenry – was invented, and, unlike every other developed country in the world, the richest one still doesn’t come close to having universal care for our public, including millions of children. It’s a crime – there’s no other word for it – of astonishing proportions . But it gets worse. We pay more than half-again per capita above the cost of the next most expensive system in the world, and still one-sixth of our population remains completely uninsured, with many more poorly insured. Nice.
By the way, it’s worth noting that the guy who originally launched the welfare state was none other than the regressive and aggressive old Prussian chancellor himself, Otto von Bismarck. Golly, I don’t mean to be critical or anything, but you know you’re hurting when your country’s politics are to the right of the “blood and iron” father of the German Empire. Just saying...
I’ll hold my gauze-packed nose in a vise-grip and give Obama a little bit of credit for addressing the issue. But the way he went about it constitutes the original sin that will have brought us to the place of almost complete disaster after the rump Court finishes its ideological hijack. To begin with, Obama looked at the existing disaster of regressive health care policy – the joys of commercializing and profitizing the public’s need for medicine – and then decided to promulgate the next most conservative option he could come up with, one which commercializes and profitizes medicine even more. He could have gone for single payer – that is, Medicare for all – which is only the system employed by just about every other developed country in the world, all of whom, naturally, are more highly ranked by the World Health Organization on delivery of health care. Yes, yes, I know. All the Obama apologists out there say this was politically impossible. Maybe that’s true. But maybe it’s not. The presidency is all about persuasion. If the punk Bush could sell the insane Iraq war, which in fact he did to an originally skeptical public, perhaps Obama could have talked sense to America about health care, and moved people enough to force action out of Congress. Or, short of that, he might at least have demanded that the public option be part of the legislation, the next best choice.
What he did instead was to pretend to care about a public option, in order to keep stupid liberals on board, while he cut a secret deal with the parasitic insurance industry guaranteeing their profits and promising there would be no public option in the bill. That isn’t reckless surmise. Tom Daschle, Obama’s political mentor and health care point man, wrote that the president did just that. Then he adopted a model for his plan that was so conservative it had originally been put forth by the Heritage Foundation, was a plank in Bob Dole’s 1996 presidential campaign, and had already been implemented by Mitt Romney (who, in case you hadn’t heard, is a Republican – though he can be whatever you need him to be, as long as you make him president) in Massachusetts, in addition to being blessed by that bastion of progressivism, the insurance industry. Hey, what’s that old line about reposing with canines...?
Obama compounded his sell-out to the one percent by not selling his legislation to the ninety-nine percent. Polls show that most Americans don’t understand the legislation – today, three years after the extended sausage-making process that produced it – and most favor repeal. What’s astonishing about that latter fact is that, even though the bill is deeply flawed, it provides pretty much nothing but good news for American citizens. Opposing it – unless you’re opposed to the 99 percent getting a fair shake (hmmm?, who could those opponents be?) or you’re just dead-set on seeing this president fail (hmmm? again) – is like opposing free chocolate sundaes or bonus checks from your employer. When you can’t sell Christmas to a six year-old, maybe you should get out of the Santa business, eh?
Obama appears to have also been the last person in America to understand the vicious nature of today’s so-called conservatives. Generally, I think his incompetence as president is overstated. Too often, it’s the excuse suckered liberals give themselves for the cognitive dissonance they experience when they look at how corporate and conservative and militant and statist their hero’s actual policies are. But health care may be a case where this is an accurate portrait. I suspect he was actually dumb enough – as if he, like Sarah Palin, had simply not been paying the remotest attention to the government shutdowns, the impeachment of Clinton, the 2000 election, the Swiftboating of John Kerry and Max Cleland, and the rest of American history these last thirty years – to believe that he could find some moderate Republicans, compromise with them and get their vote. And I also think he is the most inept owner of the bully pulpit since George III. All during the year (year!) of legislating health care, this administration completely ceded the high ground, low ground, and everything in-between ground to the bellowing, foaming-at-the-mouth, blatantly lying (remember death panels?), corporate-sponsored, Koch Brothers-funded, Tea Party idiot right. And all during this last year they’ve done exactly the same thing while the four or six or ten Republican presidential candidates running at any given time have trashed the bill relentlessly, with nary a counter peep from Barack and his communications wizards. Gee, is it shocking under those conditions that the American public doesn’t understand the bill, or that they oppose it? Is it such a leap to imagine that such public sentiments have given license (as if they needed it) to the same five hacks-in-black-robes who gave us Bush v. Gore and Citizens United to legislate from the bench as the most activist court in perhaps all of American history and strike down the legislation wholesale?
Which brings us to even deeper maladies being suffered by the body politic. This debacle demonstrates in full the degree to which the American political system is completely broken. But, alas, not in the way people think, which leads to the possibility (and, given the events of the last thirty years, the likelihood) that in the coming years we will simply compound our problems in response to these indicators, by simply going further in the direction of our systemic carnage, rather than running as fast as we can the other way. There are four main issues here, and none of them are peripheral or symptomatic – each of these go to the core dysfunctionality of the American political system. They are: the American presidential system, its electoral system, the extensive use of judicial review, and the kleptocratic ownership of the state.
Americans revere their Constitution, but they mostly don’t know why. Just like we grow up Catholics or Mets fans or anti-communists, we just by-and-large think what we’re told to think and do what we’re told to do, never stopping to ask the big Why? questions. As a political scientist, I do admire certain feats of engineering embodied in the Constitution, and the clever solutions these provided to otherwise intractable problems at the time of the Founders. And as a citizen, I admire parts of the document – such as the Bill of Rights – very much, especially given the era from which they emerged.
However, one of the handful of most salient ideas of the Constitution is a bad one, as has becomes increasingly evident in our time for anyone who cares to look. This is the notion of separation of powers, along with the twin concept of checks and balances. I suspect most Americans don’t even realize that you don’t have to structure your political regime this way in order to have a democracy, and in fact, most democracies don’t. They use a parliamentary system instead, rather than our model, which is referred to as a presidential system. What’s the difference? Well, in a parliamentary system, you have one singular government responsible for governing. The executive function (prime minister and cabinet) emerges directly out of the legislative function (parliament) to which it is permanently fused, and, meanwhile, there typically is no judiciary with the power to speak to legislative matters. That means, quite simply, that the undivided government governs, unimpeded by anything other than the criticisms of the media and the opposition, and how its work plays with public opinion. It gets things done – none of the divided government plaguing the American system so badly today – and if the public approves, it gets another term. If not, it doesn’t.
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It’s a simple straightforward concept that fully embodies the notion of responsible government, thus permitting accountability and, ultimately, real functioning democracy. Contrast that with the American system. Is there anybody in the US who isn’t unhappy with the current government? Maybe that one guy in Nebraska, but he’s been off his meds for years now. Or the woman in Florida with the sixty-seven cats. Otherwise, though, the remaining three hundred million of us are pretty much sickened by Washington. So what do we do? Well, throw the bums out, of course, and replace them with some new bums. But think about what that would mean today. We would be replacing a Republican House with a Democratic one, a Democratic Senate (with an insufficiently large enough majority to do anything) with a Republican Senate of the same gridlocked structure, and a right-wing Democratic president with a Republican president. Wow! That’d be a relief, eh?! What a difference that would make! What a prescription for boldly launching the future!
We are, of course, a million miles away from shredding the worshiped Constitution (and a change of this magnitude to such a core item would indeed represent something of a shred, starting with Articles One, Two and Three), and even further from possibly imagining that foreign people – let alone those squishy European bastards who inconveniently live healthier, happier and longer lives – could teach us anything about anything. But, that said – since we’re just talking among friends here – one of the greatest gifts we could give ourselves at this point would be a parliamentary system and the gift of responsible government. Then, when we’re not happy with any particular government we’ve got, we can make a change at the ballot box which might actually result in a genuine change of direction.
Assuming, that is, that there is an alternative to be chosen. If, on the other hand, you have an electoral system like ours, you can have parliamentary government and yet may still be left with only two parties to pick from. Worse still, on fundamental issues like foreign policy and the distribution of wealth in the society, the parties may be identical enough (or just owned enough) so as to offer no real choice at all. Hello! Can you say “America 2012”? There are a lot of systemic reasons for this duopoly we’ve produced in American politics, but the chief one is our use of the winner-take-all district model electoral system – which will tend to produce two dominant parties over the long-haul wherever it is employed – instead of a proportional representation system, which does not. Again, god forbid Americans should learn anything from anyone else, but if we did stoop that low, we might want to think about revising our electoral system (which would not require Constitutional amendment). It would do us a world of good, not only by giving us multiple and genuine choices at the ballot box, but also by injecting alternative ideas into our poverty-stricken political discourse.
Meanwhile, if we return to the separation of powers problem again for a moment, we encounter another severe problem which is a natural artifact of that system. If you’re going to have separate branches of government, each with the capacity to check and balance against each other, that means your judiciary pretty much needs to have the power known as judicial review in order to be a meaningful player in that contest. This term refers to the capacity to strike down legislation produced by the other two branches. Again, this is – especially to the degree with which it is practiced here – a fairly peculiarly American idea. In most other democracies, parliament rules. Period, full stop. Not here.
Does judicial review makes sense? I can see two domains where it does, though often (like now) only in a theoretical sense: civil rights and civil liberties. Stupid and angry politicians, often reacting to the stupid and angry sentiments of the public, almost never fail to relieve minorities of their rights and deny individuals the human rights (little things like due process, and so on) they are otherwise entitled to possess. All too often, in short, it’s just plain politically popular to be mean and bigoted and ‘legally’ violent, and democratically elected governments will readily oblige a lathered up public (when politicians aren’t in fact whipping up voters themselves – remember McCarthyism? the war on drugs? gay marriage?). Who will stop them from doing this? Theoretically (meaning, only if they happen to be so disposed – just the opposite of our condition today with the regressive majority on the Supreme Court), courts populated by justice-seeking and principle-protecting judges will do so, judges who also happen to be insulated from the public wrath by lifetime terms. They can afford to stand on lofty principles when the political branches are assembled into a lynch party. There is definite wisdom to this concept, though no guarantees. Do you see Justice Scalia, for example, slapping down Congress for depriving African Americans or women of their Constitutionally-guaranteed rights? I rest my case.
Apart from those two areas, however, I would argue that the very notion of judicial review is a disaster, because it is profoundly undemocratic. That was perhaps never more evident than it is now, as the rump majority of this extremely activist Court is preparing to fully legislate from the bench – in full contradiction of their own fervently argued ‘principles’ of federalism and judicial restraint from previous cases no less – by overturning not just the individual mandate part of Obama’s bill, but all of it. And apparently – judging from Scalia’s comments – they’ll be doing so without even reading the legislation, and certainly without understanding it. I see little difference between such a governing structure and the essence of monarchy. In both cases you have political decision-makers who have not been chosen by the public, serving life terms, making legislative decisions in secret, unaccountable and nonreplacable, making policy on high and dictating it to the masses without fear of consequence. What possible relationship does that bear to anything one could plausibly label as democracy? The question answers itself. It also therefore reminds us that the third major political malady infecting our system is the expanded and profoundly undemocratic notion of judicial review.
Notwithstanding these structural handicaps, the American political system has nevertheless been moderately successful at negotiating the rocky shoals of policy-making over the last two-plus centuries. There have been, to be sure, some glaring inadequacies and the occasional near-fatal meltdown. But people ultimately vote with their feet, and something chronically broken would ultimately be unlikely to have seen that many candles on its birthday cake. In that same two hundred year-plus time period, for example, the French have had five republics (along with several iterations of empires and monarchies). But after one false start (the Articles of Confederation), the American regime has remained more or less intact for more than twenty decades, though it is manifestly broken today. Calling the federal government dysfunctional would be an act of charity.
But there is one last peril that threatens American democracy today, to a degree not seen for at least a century, and to the extent that the term democracy itself becomes a rather dubious appellation for the system we live under. Let’s just be honest, shall we? – if for no other reason than the refreshing novelty of doing so: Fundamentally, the representatives in our ‘representative government’ don’t represent you and me. They represent the one percent. You can play all the games you want about how campaigns are funded, and spin all the tall tales you need to about how money ‘only’ buys access, not Congressional votes, but the real system of pay-to-play is transparently obvious to anyone willing to risk even a sidelong glance at the emperor’s new clothes. It’s just that simple and just that broken. The only place American representative democracy exists anymore today is in eighth-grade civics textbooks.
General governance mechanics are important, as I’ve noted at some length above, and there are campaign finance systems that are way better than others at promoting true democratic representation, to be sure. But at the bottom of the pile of political engineering problems lies human nature. If we allow greed to control our public sphere, we will wind up with a government representing the one percent and not the ninety-nine percent. Indeed, it will be a government very much intentionally governing at the expense of the ninety-nine percent. We will wind up with a political system that is completely dysfunctional, except for purposes of the wholesale transfer of wealth upwards. We will wind up with policies in every domain – from national security to tobacco policy to guns, prisons and taxes and far beyond – that reflects the needs of the special monied interests over the public interest. And we will end up with a health care system whose purpose is not to provide health, but rather to enrich insurance and pharmaceutical corporations.
Hey, what the hell am I doing, saying “We will...”? Strike that.
Welcome to America, 2012.
Here’s to your good health.