[EL] ELB News and Commentary 12/13/13
Rick Hasen
rhasen at law.uci.edu
Thu Dec 12 20:44:50 PST 2013
"North Carolina voting changes to go on trial in 2015?
<http://electionlawblog.org/?p=57407>
Posted on December 12, 2013 8:43 pm
<http://electionlawblog.org/?p=57407>by Rick Hasen
<http://electionlawblog.org/?author=3>
Reuters reports
<http://www.reuters.com/article/2013/12/13/us-usa-northcarolina-voting-idUSBRE9BB19120131213>.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>, Voting Rights Act
<http://electionlawblog.org/?cat=15>
"New Obama Advisor Brings Corporate Ties"
<http://electionlawblog.org/?p=57404>
Posted on December 12, 2013 8:21 pm
<http://electionlawblog.org/?p=57404>by Rick Hasen
<http://electionlawblog.org/?author=3>
NYT
<http://www.nytimes.com/2013/12/13/us/politics/new-obama-adviser-brings-corporate-ties.html?ref=politics>:
"Mr. Podesta, named a senior adviser to President Obama, is not
currently a lobbyist and therefore does not have to worry about the
Obama administration's self-imposed ban on hiring lobbyists to
administration jobs. But he will nonetheless arrive at the White House
after having run an organization [, the Center for American Progress,]
that has taken millions of dollars in corporate donations in recent
years and has its own team of lobbyists who have pushed an agenda that
sometimes echoes the interests of these corporate supporters."
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Posted in conflict of interest laws
<http://electionlawblog.org/?cat=20>, lobbying
<http://electionlawblog.org/?cat=28>
#VAAG: "Republican campaign for Va. attorney general raises new
questions about Fairfax ballots" <http://electionlawblog.org/?p=57402>
Posted on December 12, 2013 8:18 pm
<http://electionlawblog.org/?p=57402>by Rick Hasen
<http://electionlawblog.org/?author=3>
WaPo
<http://www.washingtonpost.com/local/virginia-politics/republican-campaign-for-va-attorney-general-raise-new-questions-about-fairfax-ballots/2013/12/11/8518bf96-6134-11e3-bf45-61f69f54fc5f_story.html>:
"Republican Mark D. Obenshain's campaign for attorney general raised new
questions Wednesday about how Fairfax County ballots were handled while
also dismissing the idea that he has already decided to ask the General
Assembly to step into the race."
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Posted in recounts <http://electionlawblog.org/?cat=50>
"Kill the Election Assistance Commission? Two commissioner nominees
languish as Congress mulls axing bedraggled body"
<http://electionlawblog.org/?p=57399>
Posted on December 12, 2013 5:04 pm
<http://electionlawblog.org/?p=57399>by Rick Hasen
<http://electionlawblog.org/?author=3>
CPI reports.
<http://www.publicintegrity.org/2013/12/12/13993/kill-election-assistance-commission>
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Posted in election administration <http://electionlawblog.org/?cat=18>,
Election Assistance Commission <http://electionlawblog.org/?cat=34>, The
Voting Wars <http://electionlawblog.org/?cat=60>
"Campaign contribution limits would double under bill headed to
Michigan Gov. Rick Snyder" <http://electionlawblog.org/?p=57397>
Posted on December 12, 2013 5:01 pm
<http://electionlawblog.org/?p=57397>by Rick Hasen
<http://electionlawblog.org/?author=3>
The latest
<http://www.mlive.com/politics/index.ssf/2013/12/campaign_contribution_limits_t.html>
from Michigan.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
Secretary of State Project 2.0? <http://electionlawblog.org/?p=57395>
Posted on December 12, 2013 5:00 pm
<http://electionlawblog.org/?p=57395>by Rick Hasen
<http://electionlawblog.org/?author=3>
In /The Voting Wars
<http://www.amazon.com/Voting-Wars-Florida-Election-Meltdown/dp/0300182031/ref=sr_1_cc_2?s=aps&ie=UTF8&qid=1329286945&sr=1-2-catcorr>/,
I talk about a group called the "Secretary of State Project," whose goal
was to raise money to elect Democratic Secretaries of State to offices
to fight Republicans in the battles over election administration. The
group received some money from George Soros, and it was demonized by the
right---even after the group stopped functioning (a la ACORN). It may
have been instrumental in helping get Jennifer Bruner elected SOS in Ohio.
But then the group disappeared. I tried to get in touch with the
group's leaders in writing my book, but they never responded to my queries.
Now comes word from Aaron Blake
<http://www.washingtonpost.com/blogs/post-politics/wp/2013/12/12/amid-voter-id-battle-democrats-launch-pac-for-secretary-of-state-races/>of
a new attempt along similar lines. From Aaron's story, it does not
appear this effort is linked to the earlier one.
But I expect the new group will be attacked and tied to the old group,
even if there are no actual ties between the two organizations.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>
"The Grinch that stole Elizabeth Warren's Christmas"
<http://electionlawblog.org/?p=57393>
Posted on December 12, 2013 4:28 pm
<http://electionlawblog.org/?p=57393>by Rick Hasen
<http://electionlawblog.org/?author=3>
Paul Jossey writes
<http://dailycaller.com/2013/12/12/the-grinch-that-stole-elizabeth-warrens-christmas/>
for the /Daily Caller/ on the SEC's decision to put off any rule on
political disclosure for corporations.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
Super PACs for Christie to Get Around the Dodd-Frank Rules?
<http://electionlawblog.org/?p=57391>
Posted on December 12, 2013 1:33 pm
<http://electionlawblog.org/?p=57391>by Rick Hasen
<http://electionlawblog.org/?author=3>
Interesting nugget inPlaybook
<http://www.politico.com/playbook/1213/playbook12470.html> today:
*"Many of the bankers [Gov Chris Christie] counts as supporters*
live in New Jersey and are familiar with him from his two campaigns
for governor. But all that familiarity could be at least a technical
problem. When the Dodd-Frank reform measures passed three years ago,
campaign finance laws were broadened to prohibit employees at
investment firms from supporting candidates with whom their firms
might do business. Christie allies told us this can be avoided by
creating a super PAC that will be the repository for Wall Street
money; campaign finance lawyers aren't so sure. ...
This is an issue which has not been on my radar. Looking forward to
learning more about it.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"Ohio voting bill could lead to long lines, voter purges"
<http://electionlawblog.org/?p=57389>
Posted on December 12, 2013 1:19 pm
<http://electionlawblog.org/?p=57389>by Rick Hasen
<http://electionlawblog.org/?author=3>
Zack Roth reports for MSNBC
<http://www.msnbc.com/msnbc/ohio-republican-voting-bill>.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>
Corrected Link to "Jim Crow 2.0?" <http://electionlawblog.org/?p=57387>
Posted on December 12, 2013 1:04 pm
<http://electionlawblog.org/?p=57387>by Rick Hasen
<http://electionlawblog.org/?author=3>
Following up on this post <http://electionlawblog.org/?p=57365>, the
corrected link to the /Perspectives /paper by Keith G. Bentele and Erin
E. O'Brien ishere.
<http://jnls.cup.org/abstract.do?componentId=9122051&jid=%3CjournalId%3E>
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>
"North Carolina Shows Why Voting Rights Act Still Needed"
<http://electionlawblog.org/?p=57385>
Posted on December 12, 2013 1:02 pm
<http://electionlawblog.org/?p=57385>by Rick Hasen
<http://electionlawblog.org/?author=3>
Ari Berman
<http://www.thenation.com/blog/177577/north-carolina-shows-why-voting-rights-act-still-needed>:
A federal judge in Winston-Salem today set the schedule for a trial
challenging North Carolina's sweeping new voter restrictions
<http://www.thenation.com/blog/175441/north-carolina-passes-countrys-worst-voter-suppression-law>.
There will be a hearing on whether to grant a preliminary injunction
in July 2014 and a full trial a year later, in July 2015.
This gives the plaintiffs challenging the law
<http://www.thenation.com/blog/176421/justice-department-challenging-north-carolinas-extreme-voter-suppression-law>,
which includes the Department of Justice, the ACLU and the North
Carolina NAACP, a chance to block the bill's worst provisions before
the 2014 election. Earlier this year, in July 2013, the North
Carolina legislature passed the country's worst voter suppression
law
<http://www.thenation.com/blog/175441/north-carolina-passes-countrys-worst-voter-suppression-law>,
which included strict voter ID to cast a ballot, cuts to early
voting, the elimination of same-day voter registration, the repeal
of public financing of judicial elections and many more
<http://www.ncpolicywatch.com/2013/07/23/the-evil-symmetry-of-the-2013-session/>
harsh and unnecessary anti-voting measures.
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Posted in Department of Justice <http://electionlawblog.org/?cat=26>,
election administration <http://electionlawblog.org/?cat=18>, The Voting
Wars <http://electionlawblog.org/?cat=60>
"Partitioning and Rights: The U.S. Supreme Court's Accidental
Jurisprudence of Democratic Process"
<http://electionlawblog.org/?p=57383>
Posted on December 12, 2013 12:51 pm
<http://electionlawblog.org/?p=57383>by Rick Hasen
<http://electionlawblog.org/?author=3>
Jim Gardner has posted this draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2365894> on SSRN.
Here is the abstract:
In democracies that allocate to a court responsibility for
interpreting and enforcing the constitutional ground rules of
democratic politics, the sheer importance of the task would seem to
oblige such courts to guide their rulings by developing an account
of the nature and prominent features of the constitutional
commitment to democracy. The U.S. Supreme Court, however, has from
the beginning refused to develop a general account -- a theory -- of
how the U.S. Constitution establishes and structures democratic
politics. The Court's diffidence left a vacuum at the heart of its
constitutional jurisprudence of democratic process, and like most
vacuums, this one was almost immediately occupied. But the Court
filled its jurisprudential hole not primarily by invoking principles
of democracy -- even unstated ones -- but by doing instead what
reluctant decision makers often do: by reaching for whatever is
handy. This reaction took two main forms. First, in the absence of a
pertinent theory to guide it, the Court fell back on habit,
specifically a habit, developed in its earliest cases, of solving
problems of political power and representation by partitioning the
electorate -- that is, by ordering it subdivided. By resorting
reflexively to this approach, the Court soon came to treat
partitioning as the preferred solution to most problems of
democratic representation. Second, the Court reached for the tools
of decision that were most ready at hand, and those tools were
individual rights, initially equal protection, then the freedoms of
speech and association. But because these tools were ill-suited to
the task, the Court ended up stretching First Amendment analysis in
these cases beyond its plausible bounds and purposes. A well-ordered
democratic state needs a thoughtful and deliberate jurisprudence of
democracy and democratic practice. Instead, the Court has provided
an accidental, haphazard jurisprudence of habit and availability.
Looking forward to this!
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Posted in theory <http://electionlawblog.org/?cat=41>
Judicial Watch Brings Out Big Guns in North Carolina Voting
Challenge <http://electionlawblog.org/?p=57381>
Posted on December 12, 2013 12:49 pm
<http://electionlawblog.org/?p=57381>by Rick Hasen
<http://electionlawblog.org/?author=3>
Former DOJ voting section lawyers Robert Popper and Chris Coates are
leading a team
<http://finance.boston.com/boston/news/read?GUID=25882526>trying to
intervene against DOJ in the North Carolina Voting Rights Act lawsuit.
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Posted in Department of Justice <http://electionlawblog.org/?cat=26>,
election administration <http://electionlawblog.org/?cat=18>, The Voting
Wars <http://electionlawblog.org/?cat=60>, Voting Rights Act
<http://electionlawblog.org/?cat=15>
"Data Show Improvements in Election Administration in States Using
ERIC" <http://electionlawblog.org/?p=57379>
Posted on December 12, 2013 12:19 pm
<http://electionlawblog.org/?p=57379>by Rick Hasen
<http://electionlawblog.org/?author=3>
Pew Data Dispatch.
<http://www.pewstates.org/research/analysis/data-show-improvements-in-election-administration-in-states-using-eric-85899526497>
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Posted in election administration <http://electionlawblog.org/?cat=18>
"Public Financing: No Cure All" <http://electionlawblog.org/?p=57377>
Posted on December 12, 2013 12:13 pm
<http://electionlawblog.org/?p=57377>by Rick Hasen
<http://electionlawblog.org/?author=3>
Jeff Milyo and David Primo oped.
<http://www.timesunion.com/opinion/article/Public-financing-no-cure-all-5056247.php?forceWeb=1>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
Justin Levitt: Don't Ignore Bush v. Gore Bar Mitzvah
<http://electionlawblog.org/?p=57375>
Posted on December 12, 2013 12:08 pm
<http://electionlawblog.org/?p=57375>by Rick Hasen
<http://electionlawblog.org/?author=3>
Here
<http://www.psmag.com/politics/broken-election-system-becomes-teenager-71414/>,
at /Pacific Standard./
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Posted in Bush v. Gore reflections <http://electionlawblog.org/?cat=5>,
election administration <http://electionlawblog.org/?cat=18>, The Voting
Wars <http://electionlawblog.org/?cat=60>
How Congress Works (And the ObamaCare Subsidies Lawsuit)
<http://electionlawblog.org/?p=57343>
Posted on December 12, 2013 7:03 am
<http://electionlawblog.org/?p=57343>by Abbe Gluck
<http://electionlawblog.org/?author=15>
Many thanks to Rick for inviting me to contribute. It's that crazy time
of year when time is short, but I could not resist beginning my blogging
gig with a couple of quick posts about the pending Obamacare health
exchange lawsuit, which should be decided within the next week or so by
a district court in Washington D.C.(Judge Paul Friedman), and followed
by several similar decisions in suits pending in Virginia, Oklahoma and
Indiana. The case is incredibly important---if the challengers win,
consumers on more than half of the Obamacare health insurance exchanges
will receive no tax subsidies to help cover the cost of insurance, an
outcome that will devastate the operation of the Act. The case, in my
view, is also incredibly weak. And perhaps most significantly for law
professors, the case shows us just how much lawyers and courts have to
learn about the legislative process. This post will offer some
"Congress 101," and explain how an understanding of the ACA's
legislative process should have put this case to bed long ago. In my
next post on this subject, I will tackle some of the other issues in the
case, including some interesting /Chevron/ arguments.
A quick summary of the case, for those not up to speed: The health
reform statute, the ACA, sets up new insurance marketplaces (like
Expedia for health insurance) and provides generous subsidies to
individuals and families with incomes up to 400% of the federal poverty
level to help them buy insurance in those marketplaces, which are called
insurance exchanges. The statute makes states the default operators of
those exchanges but if a state chooses not to operate one or fails to,
the federal government steps in. As most readers know, more than half
of the states have decided not to operate their own exchanges, and so
the federal government is doing so (how it's doing in that regard is
another important story, but one not relevant here).
****What is relevant here is that the ACA is a very badly drafted
statute. And it's badly drafted for a simple reason that turns out to
be important to understanding how the pending litigation should be
resolved: Because Senator Ted Kennedy died in the middle of the
legislative process and was replaced by Republican Scott Brown, the
statute never went through the usual legislative process, including the
usual legislative clean-up process. Instead, because the Democrats lost
their 60^th filibuster-preventing vote, the version that had passed the
Senate before Brown took office, which everyone initially had thought
would be a mere first salvo, had to effectively serve as the final
version, unchangeable by the House, because nothing else could get
through the Senate. In the end, the statute was synthesized across both
chambers by an alternative process, called "reconciliation," which
allows for only limited changes but avoids a filibuster under Congress's
rules. Keep this in mind and read on....
So, the statute is sloppy. It has three section 1563s, for example, as
Tim Jost has pointed out. The section at issue in this case, the one
introducing the tax subsidies, is another example of the sloppiness. It
states that the subsidies shall be available to individuals enrolled in
insurance "through an Exchange established by the /State/ under section
1311" of the Act (emphasis added). The challengers argue that this text
clearly excludes individuals enrolled through federally-operated
exchanges from receiving the subsidies. Section 1321 of the Act,
however, further discusses the state exchanges and sets forth the
process for the federal government to step in when the states fail to
operate them. In such case, the Act provides, HHS shall "establish and
operate /such Exchange within the State/" (emphasis added). The
Government points to this and other language to argue that when the
federal government operates a state exchange it stands in shoes of the
state exchange and is "such an exchange" for purposes of the Act. At a
minimum , the Government argues, the statute is more than sufficiently
ambiguous to trigger agency deference.
There are other provisions that bear on the issue, most importantly 26
U.S.C. 36B(f)(3), which requires the exchanges to provide information
about the tax subsidies for each consumer both to the consumer and to
the federal government. That section directs its reporting requirements
to /both/ "[e]ach Exchange ... under section 1311(f)(3) [the state
exchanges] or 1321c [the /federal/ exchanges]." In other words,
36B(f)(3)assumes that the federal exchanges will also be reporting
information about tax subsidies---a requirement that is arguably
nonsensical if consumers on federal exchanges are not eligible for those
subsidies.
My view is that whatever you believe about the merits of these
respective textual arguments, a basic understanding of the ACA's
legislative process makes clear that Congress intended for the subsidies
to be available on the federal exchanges. I think the statute is sloppy,
but I think its meaning is plain---and not because I am relying on fuzzy
notions of statutory purpose. Rather, there are formalist, structural
features of the legislative process that make this case an easy one.
(For more about the unforgivable ignorance of lawyers and courts about
how Congress works, see my two articles, /Statutory Interpretation from
the Inside---An Empirical Study of Congressional Drafting, Delegation
and the Canons: I and II/, 65 Stan. L. Rev. 901,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2244952, and 66 Stan.
L. Rev. (forthcoming 2014),
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2358074(both with
Lisa Bressman)).
1. *Why Understanding the ACA's Use of Reconciliation Should End This
Litigation*
Mostly absent from the briefing for either side in the case is the fact
that the section in the bill that most clearly provides for both state
and federal exchange subsidies---the information reporting requirement
in section 36B(f)(3), quoted above---was added during the
Reconciliation//process. The other sections in dispute were added in
the earlier, Ted Kennedy, Senate draft. In contrast, 36B(f)(3) came in
months later. That subsection makes clear the assumption that the
subsidies would be available on the federally-operated exchanges as well
as on the state exchanges. Let me explain now why the fact that
36B(f)(3) came in through Reconciliation should be the ballgame.
As noted, the Reconciliation process was the House-Senate
bill-synthesizing process that was used in the ACA instead of the usual
Conference Committee process. Everyone who follows Congress knows that
the Conference stage is the /most important stage/ of the legislative
process. Even the courts, which are generally ignorant about the
legislative process, acknowledge this fact about the importance of
Conference. It's the key stage for two reasons. First, it's where the
critical compromises get worked out across the two chambers. And
second, it is the /last /stage of the process. In the case of the ACA,
Reconciliation took the place of Conference, and Reconciliation was
particularly important because the two chambers did not have their usual
back and forth during the ordinary legislative process (again, because
everyone was stuck with Kennedy version of the Senate-passed bill).
Reconciliation was the only way, in the ACA story, that the two chambers
reached a final agreement. It was the critical moment, and the
provisions added then are where the courts should focus their attention,
and where any ambiguities should be resolved.
The counterargument, of course, and one the challengers make, is that
Congress could have done more to clarify its intentions during that
Reconciliation process. Sure, that would have done everyone a big
favor. But even assuming that the special rules of Reconciliation
(which only allow certain budget-related changes) would have permitted
such clarifying changes, that kind of negative inference makes little
real-world sense --not only because of the exceedingly messy context of
the ACA's drafting but, more importantly, because there is /zero
evidence that anyone thought there was anything to clarify/. Because
both chambers were certain that the subsidies applied to the federal
exchanges, there was no reason to focus the chambers' final-stage
political efforts on uncontroversial provisions.
And it is implausible that there was any doubt on the part of House that
the federal exchanges would receive the subsidies. Recall that the House
wanted /all/ of the exchanges federally run and only acceded to the
Senate, state-led, default version because of the Ted Kennedy situation.
Given the House's reluctance to make that compromise in the first place,
it is unthinkable that the House would have silently---without any
commentary in media, on the floor, or in proposed reconciliation
amendments---accepted a compromise that so greatly disadvantaged the
federal exchanges that were its priority all along. It is of no small
moment that the Reconciliation bill originated in the House, and is
where the House got to put its imprint on the legislation. The language
about the federal and state exchanges added as part of that bill cannot
be read as anything other than as confirming the common understanding
that the subsidies would be available on both types of exchanges.
**2. The CBO Canon: Construe Statutory Ambiguities Consistent with the
Assumptions of the Budget Score**
When these cases were first proposed last year, I posted here
(http://electionlawblog.org/?p=36795
<http://electionlawblog.org/?p=36795%28%28http://balkin.blogspot.com/2012/07/cbo-canon-and-debate-over-tax-credits.html>)
an argument that Congress's intent to give subsidies to the federal
exchanges was evident from the simple fact that the budgetary estimate
for the ACA---which was a central part of the legislative
process---assumed that those subsidies would be available. More
generally, I proposed a new "CBO Canon" of statutory interpretation: a
default interpretive presumption that ambiguous statutes should be
construed consistent with the assumptions underlying the Congressional
Budget Office's estimate of the financial impact of the legislation.
This proposed rule is especially relevant for statutes like the ACA, for
which the President set a budgetary goal and news outlets repeatedly
reported that the statute was tweaked over and over again to get the
numbers just right.
No Supreme Court case has ever utilized the CBO score in this manner,
but all of the Supreme Court's statutory cases claim to be about
effectuating the legislative bargain. The challengers in this case also
have claimed that the purported omission of the subsidies for the
federal exchanges was /intentional/---that is, they are not trying to
take an advantage of something they claim to be a mere drafting error.
My recent empirical work with Lisa Bressman strongly suggests that
congressional drafters rely on the budget score enormously in making
their deals---indeed, much more so than they rely on the judicial rules
of statutory interpretation and often even more than they rely on close
readings of the statutory text itself. In other words, if the idea
really is to effectuate the congressional deal, as the challengers
claim, the courts should construe statutory ambiguities in a way
consistent with the assumptions made by CBO during the drafting process.
The government and /amici/ have picked up the CBO argument in this case,
including providing a letter to Congress from CBO director Douglas
Elmendorf testifying to CBO's initial and ongoing understanding that the
subsidies would not be for the state exchanges alone. Opponents have
offered nothing as a counterargument except for the fact that CBO's
initial calculation assumed, as did most others policymakers, that most
of the exchanges would be state operated (because that is what the
federalists now opposing the ACA wanted!).****But that does not change
the fact that CBO never understood the subsidies to be for the state
exchanges alone. And we have more evidence that Congress, the
President, and the public all knew, followed and relied on that CBO
estimate throughout the ACA drafting process than we have that any of
those players were focused on the kind of hyper-technical textual
arguments---made in the context of a 2,000 page statute---on which the
challengers hinge this case.
*3. The Legislative History is Irrelevant*
The challengers also make a legislative-history based argument that
likewise falls by the wayside once one understands the ACA's legislative
process. They cite a stray remark by Senator Baucus in September 2009
explaining that the Finance Committee had jurisdiction over the bill (in
addition to the Health, Education, Labor and Pensions Committee) because
subsidies operate as tax credits. As an initial matter, the Baucus
comment had nothing to do with differentiating between the state and
federal exchanges---it was an explanation of why the Committee had
jurisdiction over amendments relating to health insurance coverage even
as it would not have jurisdiction over medical malpractice amendments.
But even if it were relevant, it tells us nothing about whether the
subsidies might be offered on one, the other, or both. (Read the
transcript for yourself:
http://www.finance.senate.gov/hearings/hearing/download/?id=c6a0c668-37d9-4955-861c-50959b0a8392.)
) More importantly, it is simply not true, as the challengers claim,
that also including subsidies for the federal exchanges would somehow
have deprived the Finance Committee of jurisdiction over the ACA. There
is zero evidence for any such argument in the record or in the rules of
the Senate.
Of greater general importance, a stray comment early in the drafting
process of a statute with a legislative process as unorthodox as the
ACA's has no place in the judicial decision-making process. Our recent
empirical work suggests that congressional insiders would agree.
Legislative history has an important place in the statute-making process
when the legislative history represents a consensus, is the product of
deliberation, and is tied to the text of the ultimate legislation. It
has less relevance and is less reliable when the statute goes through a
process so unpredictable that even its sponsors could not have charted
its ultimate path. (The challengers out-of-context use of the Baucus
comment is proof positive of the risk of legislative-history
cherry-picking in general, but is all the more risky in messy statutes
like this one.) And this same risk goes for any other stray comment that
either side might find.
There's a lot more that could be said about how little we understand the
legislative process and how important it is---both to this litigation
and, more generally, to most legal questions that we now face. Nor have
I attempted to comprehensively chronicle each of the challengers' more
minor arguments in this kitchen-sink of a case, or to talk about how
this case is yet another illustration of the specially divisive politics
of health reform. But I'll leave it here for now, and return in a
future post with some thoughts about the /Chevron/ arguments, which are
likely to be decisive.
[cross-posted at Balkinization]
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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