Will GOP finally take down Obamacare with a tax bill?

Lisa Murkowski is pictured. | John Shinkle/POLITICO

Sen. Lisa Murkowski of Alaska said she supports the tax bill, which includes repeal of the individual mandate. | John Shinkle/POLITICO

After spending nearly a year on a failed effort to repeal Obamacare, Republicans on Capitol Hill are on the verge of repealing the law’s individual mandate as a footnote to their rewrite of the American tax system.

At least two of the three Senate Republicans who blocked the repeal effort over the summer have no problem undoing the requirement that nearly all Americans carry insurance — a provision Democrats say is vital to keep the Affordable Care Act afloat.

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John McCain of Arizona and Lisa Murkowski of Alaska said they support the tax bill, which includes repeal of the individual mandate. Susan Collins of Maine has partially pegged her support to assurances from President Donald Trump and Senate Finance Committee leaders that lawmakers will fund a separate Obamacare program that Republicans say will offset the negative effects of repealing the mandate on premium costs. She has not yet said how she will vote on the tax bill.

But those assurances would require House Republicans to fund the program, called cost-sharing reduction payments, which they deride as a “bailout” of insurance companies. House conservatives have opposed the program although some suggest that if tax reform passage depends on that, they might hold their noses and support it.

“If it was on the precipice of succeeding or failing based on that one issue, there may be people taking a big gulp and moving forward,” said Rep. Mark Walker (R-S.C.), who leads the conservative Republican Study Committee. “But I hope we don’t get to that point.”

Senate leaders on Thursday were hesitant to commit to how the cost-sharing bill, a deal crafted between Republican Sen. Lamar Alexander and Democratic Sen. Patty Murray, might be enacted as lawmakers consider short-term measures to fund the government.

“I would expect to see it before the end of the year,” Senate Majority Whip John Cornyn said.

Alexander said Thursday that the bill, which was written to reduce premiums in 2018 and 2019, may be pushed back one year. Collins also wants to enact legislation she wrote with Sen. Bill Nelson (D-Fla.) that would fund a separate program that would help insurance companies that take on the most expensive patients.

The key GOP motivation for unwinding the mandate — the fine would convert to zero dollars, effectively making it moot — is money. Repeal raises $338 billion to plow into tax reform, according to the Congressional Budget Office. The agency has warned that it is considering revising its estimates downward in the future, making it a depreciating asset the GOP is eager to cash in on now.

The politics of repealing the most unpopular part of the health care law is an added bonus. Initially, Republican leaders were skeptical of combining the tax reform bill with the toxic Obamacare debate. But it quickly became clear that Senate Republicans were on board as long as other parts of the law remained intact.

There is an added sense of schadenfreude for Republicans. In 2012, when a challenge to the mandate went before the Supreme Court in a high-stakes case the GOP hoped would bring down the whole law, Chief Justice John Roberts ruled the mandate was a tax and, therefore, constitutional.

“Justice Roberts told us it was a tax so it belongs in a tax bill,” quipped Rep. Michael Burgess (R-Texas).

The support for repealing the mandate contrasts with the debate over the summer as the Senate took up an Obamacare repeal bill that would have gutted Medicaid. At the time, Murkowski and Collins cited significant worries about reducing access to health care in their states.

But repealing the mandate, Murkowski argued in an opinion piece in the Fairbanks Daily News-Miner earlier this month, wouldn’t hurt access.

“It is important to emphasize that eliminating this tax penalty does not take care away from anyone,” she wrote. “Instead, it provides important relief to those who have been penalized for choosing not to buy unaffordable insurance.”

Insurance companies and many health law supporters strongly disagree. Murray calls the tax bill a “sabotage” of American families’ health care.

The mandate is needed, they say, to make sure that people don’t buy insurance only when they get sick. It was designed to counter the health care law’s requirement that insurance companies accept everyone. Without a mandate, consumers could theoretically buy insurance in the ambulance on their way to the hospital.

For that reason, insurers and health care providers have come out strongly against repealing the mandate.

Still, the impact of the mandate hasn’t been as substantial as the law’s drafters anticipated. The fine isn’t as big as is needed to convince people to buy coverage, some economists say.

“It hasn’t been very effective and doesn’t amount to much. It sounds like more than it is,” said Alexander, chairman of the HELP Committee. “Plus, it is the most unpopular part of the Affordable Care it. So repealing it may not make as much of a difference as people once thought.”

Seung Min Kim contributed to this report.

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Cotton cements his rise under Trump

In 2009, Tom Cotton was a 32-year-old Army veteran running for Congress after returning home to Arkansas to manage his family’s ranch.

Now a freshman senator, Cotton is expected to head to Langley if President Donald Trump decides to nominate current CIA director Mike Pompeo to replace Secretary of State Rex Tillerson, according to two senior administration officials.

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Cotton’s appointment would cement his meteoric rise in Republican politics, the result of qualities that have taken him, in a matter of years, from freshman congressman to the youngest serving U.S. senator to, potentially, the youngest CIA director in American history: loyalty, brains and raw ambition.

He also embodies one of the GOP’s responses to Trump. Having already shared some of the president’s populist leanings, he has worked to co-opt and shape the president rather than rail against him.

An ideological conservative from the American heartland, Cotton came up through the Ivy League and was groomed by some of the country’s leading conservative thinkers, from the Weekly Standard’s Bill Kristol, one of Trump’s leading critics, to the acolytes of Leo Strauss at the Claremont Institute who have been far more supportive of the president.

And Cotton represents a future for the GOP after Trump that welcomes the president’s base but rejects Trump’s tendency toward conspiracy-mongering.

“He is super smart and — this sounds like a backhanded compliment,” said South Carolina Rep. Trey Gowdy, who served alongside Cotton in the House. “It is not intended to be one. There are super smart people that are reluctant to give their counsel and super smart people that are not reluctant to give their counsel, and he is not reluctant to give his counsel.”

Cotton’s relationships in the White House transcend ideology and faction, and he’s been able to leverage pre-existing friendships — such as those with former chief strategist Steve Bannon and chief of staff Reince Priebus — into alliances with Trump’s inner circle. When he visited Trump Tower to interview for national security jobs during the transition, he exchanged phone numbers with presidential son-in-law Jared Kushner, and the two now communicate regularly.

During the campaign, Cotton emerged as one of the few vocal Trump defenders among his Senate colleagues, and in Trump’s first year he has been perhaps the administration’s most important liaison on national security in Congress.

Like Pompeo, he has the sort of résumé that impresses this president, including two Harvard degrees and post-9/11 stints in Iraq and Afghanistan.

The two are close friends — Pompeo, a former House member from Kansas, was the best man at Cotton’s wedding in 2014 — and ideological allies. Both have been outspoken critics of the Iran nuclear deal and advocates for a more restrictive immigration system, views that align with those of the president.

That support of Trump’s agenda, as well as his frequent defense of the president on television, has endeared Cotton to the president and to senior White House officials.

As the president has soured on Tillerson — “He’s weak on everything,” Trump has groused to advisers — he has grown increasingly fond of both Cotton and Pompeo.

Pompeo has developed a close relationship with the president during the daily intelligence briefings he delivers in the Oval Office and is widely seen as the favorite to replace Tillerson. “Rex is not long for this world and when he goes, this is what we wanna do,” said a senior White House aide.

If that happens, and Trump offers the CIA job to Cotton, the daily briefings will fall to him, a responsibility that will afford him an extraordinary amount of face time with the president and access to the West Wing’s inner circle.

He’s already had a hand in shaping the president’s team. It was Cotton, among others, who helped bring retired Marine Gen. John Kelly, now the White House chief of staff, to Trump’s attention during the transition. Cotton had developed a relationship with Kelly, then the head of U.S. Southern Command, when he was serving in the House, and recommended him for a Cabinet position shortly after Trump’s victory.

“I think it was pretty early on that he was pushing Kelly’s name for consideration for really any high-level Cabinet role in the transition, right after Trump won,” said a Cotton aide.

Cotton was among several lawmakers and outside advisers who pushed Lt. Gen. H.R. McMaster as a candidate for national security adviser in the wake of Michael Flynn’s resignation. McMaster, Pompeo and Kelly — then serving as Secretary of Homeland Security — all attended Cotton’s 40th birthday party last spring.

He has also defended the president against the seemingly indefensible, including the president’s Inauguration Dayspeech at CIA headquarters, which he used in part to recount his election victory, and his refusal to release his tax returns.

Elected to Congress in 2012, Cotton never behaved like a newbie who had much to learn from his longer-serving peers. In the House, he led the conservative opposition to the Gang of Eight immigration bill and was responsible, in part, for the fact that it never got a vote on the House floor. Just two years after his election to the House, he decided to run for Senate against longtime incumbent Mark Pryor, routing him by 17 percentage points.

He hasn’t hung back in the Senate, either. Just months into his new job, he circulated an open letter to Iranian leaders warning that any agreement they reached with the Obama administration that wasn’t approved by Congress was “nothing more than an executive agreement between President Obama and Ayatollah Khamenei.” Democratic lawmakers and several political observers decried the letter — which was co-igned by 46 Republican senators — as a circumvention of the duties of the secretary of state.

Within the intelligence community, Cotton is viewed as a political grandstander who might lack the experience to lead a workforce largely older and more experienced than he is. It’s also a post, some said, that has left many of its occupants politically bruised no matter how much experience they have brought to Langley.

Among Cotton allies, views on his possible elevation to the Trump Cabinet are mixed. Some cheer it as a promotion that offers a natural jumping off point for a man whose presidential ambitions are a poorly kept secret.

“The Senate is a horrible place, who would want to spend their life there?” said one Cotton ally. “Six years ago, he was a kid looking for a job and running for a House seat. People who are head of the CIA have a history of being vice-presidential nominees and going on to serve as presidents.”

Just one CIA director — George H.W. Bush — went on to serve as vice president and then as president, though others, including Leon Panetta and Robert Gates, have gone on to serve as secretary of defense.

Others close to Cotton fret that, if he is offered the job and is confirmed by the Senate, he would be giving up an influential perch in Congress and tying his reputation to an administration whose future is uncertain.

The Bush administration’s enhanced interrogation program — something Cotton has vocally defended — left George Tenet, Porter Goss and Michael Hayden politically wounded, and the Obama administration’s liberal use of drones took a similar toll on John Brennan, one of Obama’s agency directors.

Trump has also shown a willingness to cast blame on the agencies when crisis strikes — a reality for which some inside the CIA and elsewhere in the intelligence world have already braced.

For the GOP, which has faced a number of special elections after the president tapped several Republican lawmakers to serve in the administration, Cotton’s potential nomination would add an additional stresser to the 2018 midterm elections. Under Arkansas law, Gov. Asa Hutchinson would appoint an interim senator to serve until then, but Arkansans would elect a new senator in 2018. Cotton is not up for reelection until 2020.

Though Republicans have prevailed in the special elections held to fill posts vacated lawmakers who have joined the administration, they have caused a collective headache for the party. Montana Rep. Ryan Zinke’s confirmation as interior secretary left the party with Rep. Greg Gianforte, who assaulted a reporter on the eve of his election; the party poured millions of dollars into Georgia to save the House seat long held by Tom Price, only to lose him as Secretary of Health and Human Services amid a private-plane scandal; and longtime Sen. Jeff Sessions’ confirmation as attorney general has the party shuddering at the prospect of Roy Moore’s election in Alabama.

Republicans say they are determined to be more aggressive if another opening appears, jumping in early to back a candidate acceptable to the establishment and palatable to the right-wing base. Someone, in other words, who looks something like Tom Cotton.

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Pelosi convenes sexual harassment reform meeting

Nancy Pelosi is pictured. | Getty

As Democrats grapple with the political quandary of trying to seize the high ground on harassment while some of their own members fall prey to misconduct scandals, House Minority Leader Nancy Pelosi kept the spotlight on potential policy remedies. | Chip Somodevilla/Getty Images

House Democrats on Thursday held the first in a planned series of meetings about strategies to use the national reckoning with sexual harassment as a springboard for reform of Capitol Hill’s workplace policies.

House Minority Leader Nancy Pelosi (D-Calif.) convened the meeting as she and other caucus members began calling for the resignation of Rep. John Conyers (D-Mich.) following multiple allegations of sexual harassment against him. As Democrats grapple with the political quandary of trying to seize the high ground on harassment while some of their own members fall prey to misconduct scandals, Pelosi kept the spotlight on potential policy remedies.

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“We are at a watershed moment in the nationwide fight against sexual harassment, discrimination and retaliation,” Pelosi said in a statement. “Members of Congress have a moral duty to the brave women and men coming forward to seize this moment and demonstrate real, effective leadership to foster a climate of respect and dignity in the workplace. We will help transform this moment of truth into an opportunity for action.”

Among the outside attendees at Thursday’s meeting were victims’ advocates and specialists in survivor compensation, according to a Democratic aide, who added that future meetings will touch on handling of harassment claims in local government as well as the private sector.

A source familiar with the meeting said that the American Association of Justice Trial Lawyers and the National Women’s Law Center were among the groups represented. Lawmakers in attendance were Reps. Jackie Speier (D-Calif.), Brenda Lawrence (D-Mich.), Bob Brady (D-Pa.), Zoe Lofgren (D-Calif.), Jamie Raskin (D-Md.), James Clyburn (D-S.C.), Ann McLane Kuster (D-N.H.), Carolyn Maloney (D-N.Y.), Linda Sanchez (D-Calif.), and Lois Frankel (D-Fla.), the source added.

Pelosi also hailed Speier for serving as a chief author of broader legislation overhauling the Hill’s harassment system and for helping secure passage of a resolution this week that requires all House members and aides to take anti-harassment training. Among the topics discussed Thursday, Pelosi said, was “possible additions” to Speier’s bill.

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Is It Ever OK for Journalists to Lie?

James O'Keefe, of Project Veritas, speaks at on the Southern Methodist University campus in Dallas, on Wednesday.

James O’Keefe, of Project Veritas, speaks at on the Southern Methodist University campus in Dallas, on Wednesday. | AP Photo

Fourth Estate

What the latest Project Veritas flop can teach us about undercover media work.

Project Veritas went undercover and got buried in its own muck this week. Although the organization garnered few defenders inside or outside of journalism, its nutty ploy reprised the century-and-half-old debate over the uses of this kind of deception in reporting.

Veritas had previously punk’d lefty activist groups and non-journalistic employees at NPR. But in its attempted sting of the Washington Post, Veritas went directly at the paper’s reporters with a female operative selling the fictitious story that she had been impregnated by Alabama senatorial candidate Roy Moore as a teenager. The Post’s reporters saw through her flimsy deceptions, counter-stinging her and Veritas with a bundle of fine reporting and thus proving the opposite of the organization’s hypothesis: The Post had no overwhelming bias against Moore, and it exercised skepticism and thoroughness in reporting an allegation brought to its attention.

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While outrageous, the depth of Veritas’ undercover deceptions is not unprecedented, even in contemporary journalistic circles. In 2007, investigative journalist Ken Silverstein went undercover for Harper’s magazine as a business executive who intended to hire lobbyists to skirt the law in helping him reform Turkmenistan’s poor international image. In 1992, ABC News producers told Food Lion a passel of lies to secure jobs at the supermarket so they could film a story about the chain’s substandard health practices. In 1963, Gloria Steinem submitted a fake name and Social Security number to get a job as a Playboy bunny for her exposé in Show magazine.

In the most famous journalistic sting of the past half-century, the Chicago Sun-Times purchased a bar in downtown Chicago, renamed it the Mirage Tavern, and turned it over to reporters to run as a “honey-pot” for crooked city and state inspectors seeking payoffs. The resulting 25-part series, published in 1978, was nearly awarded a Pulitzer Prize until the board, spurred by objections by Washington Post Executive Editor Ben Bradlee, blocked the honor on the grounds that its methods were too unethical to merit an award.

The profession has yet to chisel the accepted rules of undercover reporting into stone, but a consensus has formed in recent decades that basically prohibits the direct telling of lies to get a story. So, when presumed Veritas operative Jaime Phillips allegedly lied to the Post about Moore getting her pregnant, and urged the reporters to write the story, she crossed the line. But what she’s alleged to have done—lied in the service of a story—is not without precedent in modern journalism. Reporters have posed as high school students, enlisted in the Ku Klux Klan, faked insanity to be admitted into mental hospitals and donned disguises while chasing stories. Jessica Mitford repeatedly pretended to be shopping for funeral services for a dying aunt while doing the research for The American Way of Death. In All the President’s Men, Bob Woodward and Carl Bernstein confess to having lied to sources and to having impersonated one of the figures they were investigating.

Such underhanded practices are largely frowned upon these days as unethical. But lying is often the lazy, unimaginative way to get the story. Did ABC News producers need to lie on their Food Lion job applications (giving false references and misstating their educational and employment backgrounds)? Probably not. In his working-inside-a-prison exposé, Mother Jones reporter Shane Bauer kept on the kosher side of ethics by using his real name and his genuine Social Security number in his job application, while listing the magazine’s parent organization, the Foundation for National Progress, in the employment history section. Tony Horwitz did the same for a 1994 Wall Street Journal story about a poultry processing plant, giving the newspaper’s parent corporation, Dow Jones, as his employer.

A second kosher rule of undercover reporting dictates that a reporter may not create the very conditions he then exposes. In the Silverstein and Mirage Tavern examples, journalists created opportunities for unethical and criminal behavior that might not otherwise exist. A less morally compromised version of the Mirage story would have had the Sun-Times detecting the same crimes but bars not owned by the paper. Proponents of aggressive undercover reporting justify their methods by insisting that some kinds of investigative work can’t be done unless reporters insert themselves as fake players in the process. They’re probably right. It’s difficult to report on how sleezy lobbying and influence-peddling can be unless you insert yourself in the story. But if the press starts sanctioning the telling of lies and staging scenarios to get stories, what’s the next step? Wiretapping? Break-ins? Extortion? The employment of call girls? Other assorted dirty tricks? All of these methods would reap rich results, but at a cost that’s morally prohibitive. (And sometimes legally, too—just ask Andy Coulson.)

Lying and breaking the law are rightly considered the dark arts of journalism. But that doesn’t mean reporters must pretend to be Boy Scouts in their work. Nearly every journalist practices “deception lite” techniques that don’t rise to lying, lawlessness or even misrepresentation. For instance, when interviewing, some journalists bluff their targets or play stupid to get subjects to volunteer information. Totally legit. Others deliberately create uncomfortable silences for their subjects to fill. Observing people in a public place without first making an introduction? OK. Entering an unlocked office or workplace during business hours without first requesting formal permission? Sure. Pretending to have been impregnated by Roy Moore decades ago? No.

Soiled by its failed attempt to prove that the Washington Post is a corrupt news organization, what can Project Veritas do to redeem itself? To begin with, it could surrender its hidden cameras, its disguises and other concealments and the aliases it gives some of its operatives. The established rules of journalism aren’t that oppressive. Even the high priests of journalistic ethics at the Poynter Institute allow for pure deception, high misrepresentation and hidden cameras in reporting. The circumstance must be isolated; the information gathered must be profound; all other alternatives must have been exhausted; the journalists must be willing to disclose their deceptions and justify them; and the harm prevented by the scoop must outweigh the harm caused by the deception.

Whatever the Washington Post’s faults and biases—and they exist—the levels of dishonesty and cheating used by Project Veritas may have contaminated the group beyond salvage. In general, you can almost never trust a liar. In specific, you can never trust an organization whose first choice is to lie.

******

Disclosure: Ken Silverstein is a friend. Brooke Kroeger wrote a whole book about undercover reporting, which I reviewed in 2012. See also Kroeger’s splendid database on undercover reporting. Send notes from undercover assignments to Shafer.Politico@gmail.com. My email alerts do overcover reporting only. My Twitter belongs to the Boy Scouts. My RSS feed recently joined the Satanic Boy Scouts.

Jack Shafer is Politico’s senior media writer.

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Why the ‘fix’ to Congress’s sexual harassment policies could backfire

As allegations of sexual harassment have reached the halls of Capitol Hill, Congress is turning its attention to its own sexual harassment policies, which let lawmakers to use government funds settle harassment complaints in secret. Though the accusations against Rep. John Conyers have made the biggest headlines, Congress’s Office of Compliance has paid out $17 million over the past 20 years in 264 settlements for various infractions, including sexual harassment. House Republicans have introduced a bill to publicize the names of lawmakers who reach any such settlements and to prohibit settlements from using taxpayer money.

The change is pitched as a reform to bring transparency and accountability to a secretive process that lets perpetrators get away with bad behavior. But as a civil rights lawyer whose firm has represented numerous victims of discrimination and harassment, including victims employed by members of Congress, I can assure you that this proposal is dangerous. Whether intentional or not, the bill punishes victims of harassment who would come forward in the future and who have come forward in the past and would make it less likely that victims would come forward to make claims in the future.

The legislation makes two major changes. First, the proposal would retroactively eliminate the confidential nature of settlements that have been made in years past, an effort to expose lawmakers who have acted inappropriately. But this change would hurt the victims as much or more than the lawmakers. The victims often desire that confidentiality because it protects them from the media frenzy that follows when members of Congress are the subject of discrimination and harassment lawsuits. Confidentiality also helps those victims get their next jobs after (hopefully) extricating themselves from the discriminatory harassing environment. The Constitution frowns on retroactive laws such as this because they overrule the expectations and settled legal rights of both parties. My clients expected that these settlements would stay private; in some cases, they wouldn’t have agreed to the settlement if they knew it would eventually become public. It is a breach of trust for Congress to change the rules around the settlement now and force these victims into the public sphere.

Second, and more important, the proposal prohibits taxpayer money from being used to pay settlements or verdicts against members of Congress who discriminate or harass their employees. While that may satisfy a knee-jerk need to hold lawmakers personally responsible for discrimination and harassment, it likely deprives victims of the chance of ever recovering the damages to which they are due.

Members of Congress rarely have the hundreds of thousands of dollars that are typically paid out in meritorious discrimination and harassment claims. If enacted, the law would effectively require victims to chase lawmakers to their home district to attempt to have local federal or state courts recognize the lawmakers’ liability and then go through byzantine debt collection proceedings, such as attempting to freeze assets and bank accounts and garnish the lawmakers’ wages in order to collect. In many cases the proposed law would leave the victim with an empty and unenforceable judgment or settlement because the Congressperson simply does not—and never will—have the financial means to pay.

Even on a theoretical level, this proposal doesn’t make sense. In law, the concept of respondeat superior holds that the employer is responsible for the actions of its employee when the employee causes harm to others. The concept has been a part of our legal system since its inception, and it can be traced in early Roman and Germanic Law and the English Common Law. We do not sue the fast food cook for the nail in our hamburger, nor do we sue the delivery driver for running us over in the cross walk. And we certainly do not sue the pilot of the plane that crashes for our lost loved ones. This makes sense on two levels: First the delivery driver, or the airline pilot, or the fast food cook would not be in the position to hurt us unless the employer hired them, trained them (or failed to train them) and gave them the tools or authority that they used to hurt us. Second, the employee is rarely in a position to make the victims whole by paying them damages and otherwise compensating them for the harm done.

In the context of Congress, the American people are responsible for placing lawmaker in the position to discriminate against and harass their victims. A lawmaker would not be harassing his or her staff if we had not elected that person in the first place. Every lawmaker is our employee. Under respondeat superior, we—the public—are responsible for paying any penalties for a lawmaker’s inappropriate behavior. If we do not want to have to pay the damages, then—just as we expect employers to hire and train their employees responsibly—we should do a better job choosing and training the lawmakers we elect.

If Congress wants to force lawmakers to personally pay any harassment settlements, lawmakers could be required to repay the treasury for any damages and settlements that are funded by taxpayer dollars. In fact, such a policy could be an additional deterrent to discrimination and harassment while making the public (not the victim) the debt collector against the offending lawmaker. Most importantly, this reform would still ensure that the victims receive the justice they deserve.

Les Alderman is a founding member of the Washington D.C. law firm of Alderman, Devorsetz & Hora PLLC.

Authors:
Les Alderman

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