Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
If any more evidence were needed for Levinson's point that "it is impossible to describe the Senate as a remotely majoritarian institution," today's health reform debate provides it. Key Senate solons appear steadfastly opposed to a public option. It's a replay of 1994, when Thomas Geoghegan lamented that the "forty senators from the twenty smallest states represent[ed] a population base of 10 percent" and stood as an insuperable barrier to real reform.
As Paul Krugman observes today, "relatively conservative [Senate] Democrats still cling to the old dream of becoming kingmakers, of recreating the bipartisan center that used to run America." They may be at the center of the political spectrum in their states, but they're ignoring the views of the "eighty-three percent of Americans [who favor] 'creating a new public health insurance plan that anyone can purchase.'"
If there was only popular support behind the public option, perhaps the Senate would be properly serving some function of "political conservation." However, a growing consensus of health law and policy experts sees the need for a public option as well. Tim Greaney has been making the case compellingly; here's his latest installment:
In America, health care “delivery” (we should abandon the misnomer ‘system’) is a fragmented hodgepodge of autonomous doctors, hospitals, facility owners, and vendors of technology, pharmaceuticals and equipment. Their lack of interconnectedness and coordination is at the core of most of the quality and cost problems Congress is now confronting. Add to that the fact that “consumer” decisions are filtered through a triple layer of agency (i.e. their employers, doctors, health plans). Moreover, as a result of lax antitrust enforcement and providers’ relentless efforts to gain “leverage”, many hospital and physician markets are now tight oligopolies or de facto monopolies. And one more: information on quality, outcomes and cost is scarce, and in some cases, unobtainable. . . .
Which brings us to the public plan option. Does it correct the myriad market failures and assure an efficient health delivery system emerges? Not by itself. However, if we are going to rely on the market interplay between insurers and providers in many hundreds of markets around the country (like politics, most health services and health insurance are local), then we need some assurance that each market will have vigorous intermediaries negotiating for consumers. . . .
There is no quick and easy way to change health care delivery arrangements that are deeply embedded in institutions and habits. The radical course, I would think, would be to subsidize a vast expansion of health insurance without putting in place institutions capable of improving a badly broken system.
The leading "expert" argument against the public option now is money--or, to be more precise, the arcane scoring system employed by CBO to weigh every conceivable cost of most publicly oriented health reform against a selective account of its benefits to the federal bottom line. Let's leave aside for the moment the general political bias of cost-benefit analysis, the specifically dubious calculation of "survivors' costs," and other contestable accounting methods. The bottom line here from a budget perspective is, as Nathan Cortez puts it, "The Less You Change, The More It Costs." If you really want to see health care costs balloon out of control, follow the Baucus path toward subsidizing private insurers (along with a a fig-leaf "co-op") to continue their present practices.
To understand those practices, I highly recommend Joseph White's article Markets and Medical Care: The United States, 1993-2005. (This article should be to public intellectuals what Atul Gawande's The Cost Conundrum has been for the informed public generally.) White exhaustively describes the role of the market in organizing health delivery over the time period, and concludes that one of its most important effects was to speed the consolidation of insurers and provider groups. Rather than leading to a clash of these titans, market forces led them to join forces against employers and consumers generally:
One might wonder why consolidation among insurers did not allow them to resist the providers’ demand for increased payments. The simple answer is that there were two concentrated parts of the market and one fragmented part. The insurers had to choose between fighting a full-pitched battle with the providers or exploiting their own market power vis-a-vis employers. Raising premiums to employers was a lot easier.