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FOCUS: Steve Bannon's Indictment and Arrest Should Worry Trump and His Associates |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=53390"><span class="small">Barbara McQuade, NBC News</span></a>
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Friday, 21 August 2020 11:12 |
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McQuade writes: "The arrest of Steve Bannon on fraud charges should alarm a number of people close to Donald Trump, including the president himself."
Steve Bannon. (photo: NYT)

Steve Bannon's Indictment and Arrest Should Worry Trump and His Associates
By Barbara McQuade, NBC News
21 August 20
Bannon can control how history remembers him with the choices he makes now.
he arrest of Steve Bannon on fraud charges should alarm a number of people close to Donald Trump, including the president himself.
Bannon was arrested Thursday on charges of conspiracy to commit wire fraud and money laundering along with three other men in what authorities said was a scheme to defraud donors funding Trump's proposed wall on the border with Mexico. Each of the two counts in the indictment carries a maximum sentence of 20 years. While sentencing guidelines would likely yield a lower sentence than that, a conviction based on the total amount of $25 million alleged to have been raised by the conspiracy could realistically lead prosecutors to ask for 11 to 14 years.
Most defense lawyers confronting such a serious situation will ask their clients whether they have any information they can trade in exchange for leniency. Defendants who can provide concrete assistance in the investigations of others can reduce their sentences substantially, although a defendant generally must also admit to his own crimes and plead guilty.
As the CEO of Trump's 2016 campaign and later a White House strategist, Bannon is well positioned to have information about a number of possible criminal targets. One of them is Erik Prince, the billionaire founder of the defense contractor Blackwater, who is the brother of Education Secretary Betsy DeVos. Prince appears to have given conflicting statements to the House Intelligence Committee and special counsel Robert Mueller about a meeting he had in the Seychelles islands in January 2017 with a Russian financier tied to President Vladimir Putin. Conflicting narratives suggest that at least one account is false. Intentionally lying about material matters in either proceeding is a crime.
During his House testimony, Prince said that he met by chance in the Seychelles with Kirill Dmitriev, the chief executive of Russia's sovereign wealth fund; that they met only once; and that he did not attend the meeting as a representative of Trump. But Mueller found just the opposite — that their meeting was arranged in advance, that they met twice and that Prince was acting on behalf of the administration for the purpose of forging a new alliance with Russia. According to Mueller's report, another witness, George Nader, sent a text message to Dmitriev saying Prince was "designated by Steve" Bannon to meet him. Prince told Mueller that he sent text messages to Bannon to report on the results of the meeting.
Both Bannon and Prince were the subjects of referrals for criminal prosecution by the Senate Intelligence Committee, which recently completed an investigation into Russian election interference. With the new charges as an incentive, Bannon could provide insight into whether Prince committed perjury in his testimony before the House or the Senate, potentially leading to criminal charges against Prince. Perjury is a five-year felony.
Other people whom Bannon's cooperation could implicate include Donald Trump Jr. and Jared Kushner, who also were the subjects of criminal referrals by the Senate Intelligence Committee in 2019. Trump Jr. testified before the committee in May 2019 that he had had only limited knowledge about a proposed Trump Tower project in Russia, but Michael Cohen, Trump's personal lawyer at the time, testified that he had briefed Trump Jr. on the topic about 10 times. In addition, reports indicate that deputy campaign chairman Rick Gates contradicted the account Kushner and Trump Jr. gave about their meeting with a Russian lawyer in June 2016. Trump Jr. was reported to have been seeking incriminating information about Hillary Clinton.
As a part of Trump's inner circle, Bannon could even have information to share about the president. Mueller's report did not attempt to charge Trump with a crime, but it did document 10 episodes of what could constitute obstruction of justice. Mueller thought it was inappropriate to charge a sitting president or even to say a president had committed a crime.
But once Trump leaves office, he will no longer enjoy such protection. The five-year statute of limitations will not run out on Trump's 2017 conduct until 2022. If Trump were to leave office in January 2021, Justice Department lawyers in the new administration would have plenty of time to file charges. As a White House adviser during the early days of the Trump administration, Bannon was well positioned to observe facts that could be used in an obstruction of justice prosecution of Trump.
Of course, Bannon's value as a witness could be rendered moot by a presidential pardon. Rather than decide whether to go to trial and risk conviction or to plead guilty and testify against others, Bannon would no doubt prefer clemency from Trump to avoid either of those bad choices. But Bannon surely knows that a pardon now would bring a heavy political cost in the run-up to the election.
Bannon joins a long list of Trump associates who have been charged with crimes: Gates, 2016 campaign chairman Paul Manafort, former national security adviser Michael Flynn, campaign adviser George Papadopoulos, Cohen and adviser Roger Stone. (Trump commuted Stone's sentence just before he began serving it.)
For someone who campaigned on a promise to "drain the swamp," Trump has shown uncommonly poor judgment in choosing associates. A pardon of Bannon would only amplify that message and expose Trump to additional allegations of a cover-up. A more likely scenario is the one that played out with Stone — wait on a pardon until absolutely necessary, at least until after the election. With Bannon unlikely to face trial until after November, Trump can wait and issue a pardon when he no longer faces judgment from voters.
But Bannon holds some cards here, too. If he has incriminating information about Trump and associates, he can choose to share it regardless of whether Trump grants a pardon. Bannon can control how history remembers him with the choices he makes now.

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The Senate Russia Report and the Imperative of Legal Reform |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=53468"><span class="small">Bob Bauer and Jack Goldsmith, Lawfare</span></a>
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Friday, 21 August 2020 08:13 |
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Excerpt: "The final report on Russian electoral interference by the Senate Select Committee on Intelligence notes 'several ways in which hostile actors [are] able to capitalize on gaps in laws or norms and exert influence.'"
Former Trump campaign adviser Paul Manafort and his lawyer arrive at the U.S. District Court for the District of Columbia for a hearing on May 23, 2018. (photo: Victoria Pickering/Flickr)

The Senate Russia Report and the Imperative of Legal Reform
By Bob Bauer and Jack Goldsmith, Lawfare
21 August 20
he final report on Russian electoral interference by the Senate Select Committee on Intelligence notes “several ways in which hostile actors [are] able to capitalize on gaps in laws or norms and exert influence.” And it highlights in particular the problem posed by “a campaign’s status as a private entity intertwined with the structures of democracy.” The report calls on campaigns to build protections against becoming channels for illicit foreign state influence. It urges future campaigns to “perform thorough vetting of staff, particularly those [with] responsibilities that entail interacting with foreign governments”; “ensure that suspicious contacts with foreign governments or their proxies are documented and can be shared with law-enforcement”; and reject the “use of foreign origin material, especially if it has potentially been obtained through the violation of U.S. law.”
In other words, the committee urges campaigns to adopt various protective practices, perhaps with the expectation that, if adopted widely enough, they will establish norms. To the extent that the committee considers legal reforms, it recommends only a “thorough review” of “a patchwork of overlapping and ill-defined prohibitions.” It focuses on laws enacted for the criminal enforcement of the Foreign Agents Registration Act (FARA), which imposes registration and reporting requirements on those seeking to influence public policy or opinion on behalf of foreign principals. But it does not do so in a way that addresses strategic political alliances between foreign nationals and U.S. campaigns for the purpose of influencing the outcome of a federal election. Apparently, there was no bipartisan support for moving reform in this direction.
Our forthcoming book on institutional reform of the presidency devotes its first substantive chapter to the problem of these kinds of political alliances. One of our proposed reforms would revise a FARA-related statute that the committee cites as among the “overlapping and ill-defined patchwork” of prohibitions.
Section 219 of the federal criminal code prohibits any “public official” from acting as the agent of a foreign principal required to register under FARA. Any violation is subject to a fine or imprisonment, or both. The notion behind this law is straightforward: A public official should act only in the interests of the U.S. government, not another government.
However, § 219 does not specifically address the involvement by a candidate, including a public official-candidate, with a foreign national in collaborative political campaign activity. FARA contains a definition of “political activities” that an agent might undertake for a foreign national, but it does not clearly include activities that are campaign related or for an election-influencing purpose. It aims instead at capturing those activities concerned broadly with the formulation, adoption or alteration of U.S. policy, or the promotion of a foreign government’s or party’s interests, policies or relations.
A separate statute, the Federal Election Campaign Act (FECA), restricts the financial relationship between a campaign and a foreign national by prohibiting foreign national “contributions” or “expenditures.” As Special Counsel Robert Mueller details in his report on the Russia investigation, however, it is unclear whether the FECA reaches information of uncertain market value that passes from a foreign national to a campaign as part of an understanding or alliance entered into for an election-influencing purpose. The issue came up in connection with the famous June 2016 Trump Tower meeting between the Trump campaign senior management and a delegation from Moscow that offered what it viewed as derogatory information—“opposition research”—about Democratic presidential candidate Hillary Clinton. Mueller concluded that he could not bring a prosecution under the FECA because, among other reasons, it was unclear whether and when this kind of information constituted a “thing of value” that should be treated like a prohibited cash contribution.
To address the gap between FARA and the FECA, and to expressly ban influence operations like the June 2016 Trump Tower meeting, we propose that § 219 be amended to prohibit strategic political relationships between a campaign and a foreign national. The amendment to FARA for these purposes would focus on the relationship established between the campaign and the foreign power. It would thus obviate the need to determine whether and when a campaign received a “contribution” under the FECA measured in monetary terms or by reference to the market.
Our proposed reform would achieve its goal by amending key definitions under the current § 219. The president would be included within the definition of “public official,” as would candidates for president or Congress. Such individuals would all become “agents” of the foreign principal upon soliciting, or agreeing to a foreign national’s specific and unambiguous request for, collaboration in campaign activities. These amendments would reflect the view that a campaign that collaborates with a foreign national and serves the foreign national’s interests is appropriately treated as an agent of a foreign principal.
To make clear FARA’s applicability to campaign-related activities, the “political activities” governed by the reformed statute would explicitly reach “communications, actions or agreements with a foreign principal for the purpose of influencing any election to federal, state or local office.” A candidate or campaign, or anyone authorized to act on their behalf—such as campaign personnel—could not solicit these political activities, and their acceptance of an offer of support from a foreign national would also trigger the prohibition.
This reform would address an episode like the 2016 Trump Tower meeting. The committee found that at least one Trump campaign official (Donald Trump Jr.) intended to receive from the Russian participants in the meeting “derogatory information that would be of benefit to the Campaign from a source known, at least by Trump Jr., to have connections to the Russian government.” One of those attending the meeting, Trump campaign chairman Paul Manafort, had a “close and lasting relationship” with a Russian intelligence officer with whom he shared confidential, strategic campaign information. These facts should be sufficient to establish a ground of liability under our proposed reform.
The Trump campaign’s involvement with Russia is not the only example of how this reform might operate. If such legislation had been on the books at the time, it would have applied as well to Republican presidential candidate Richard Nixon’s use of secret channels to persuade the South Vietnamese government to stall peace negotiations and deny an agreement on the eve of the 1968 election that would have been politically advantageous to Nixon’s Democratic opponent, Vice President Hubert Humphrey. This, too, did not involve a political contribution or expenditure—certainly not in any conventional sense—but its “value” to Nixon was immeasurable. It was also an egregious example of how this kind of strategic political alliance can enable a highly consequential—perhaps even decisive—foreign interference in the electoral process.
In our book, we note that the reform we propose should include some common-sense exceptions for routine engagements by foreign governments with presidential campaigns. Candidates seeking to burnish their foreign policy credentials travel overseas during the campaigns, and foreign governments accommodate and welcome them. Those governments also seek to understand the policy positions staked out by aspirants to the Oval Office, and to share their own perspectives on policy questions. But these contacts are not typically covert and do not entail an offer of campaign support. In these cases, the governments express no preference and offer no assistance or information to one campaign that it does not make available to the other.
These exceptions should answer First Amendment concerns over the proposed prohibition. The reform does not bar all contacts or communications between a foreign national and a campaign. It targets a foreign national’s “specific and unambiguous” offer of campaign support. Moreover, we propose that the Department of Justice’s enforcement authority include the issuance of advisory opinions on the application of the law to specific factual circumstances. Campaigns seeking guidance may obtain it. This structure would situate the prohibition well within the generous boundaries for the regulation of foreign national campaign activity outlined by then-Judge Kavanaugh in the D.C. Circuit in Bluman v. Federal Election Commission (2011), a decision summarily affirmed by the Supreme Court.
Finally, our book proposes other reforms as well—a requirement that campaigns notify federal law enforcement of foreign government contacts involving an offer of campaign support, and clarification that information useful to a campaign that a foreign national provides, such as “opposition research,” is a contribution—that is, something of “value” to the campaign. We focus here on reform of § 219 because this proposal, we hope and believe, addresses a major problem revealed in 2016 (and, before then, in 1968) that falls between the regulatory cracks. For a problem like this, the promotion of best practices and the stimulation of norms should be established by clear criminal prohibitions.

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Will Kamala Harris Act Boldly on Climate Change? |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=35861"><span class="small">Bill McKibben, The New Yorker</span></a>
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Thursday, 20 August 2020 12:51 |
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McKibben writes: "We're in the Kamala Harris era now, and so far, so good."
Kamala Harris. (photo: Getty)

Will Kamala Harris Act Boldly on Climate Change?
By Bill McKibben, The New Yorker
20 August 20
e’re in the Kamala Harris era now, and so far, so good. Of the four people on the major-party Presidential tickets, she appears to be the most energetic and normal. I’ve never met Harris, but I did spend a number of days sitting next to her sister Maya when we both served on the 2016 Democratic platform-drafting committee. Maya Harris was tack-smart and tightly focussed, which appears to run in the family. Listening to Joe Biden speak, I feel a constant mild apprehension about what may emerge; Harris relaxes me.
Given the very real possibility that she’ll be at or near the pinnacle of our politics for somewhere between four and sixteen years, it’s worth asking how she will handle the gravest crisis that looms over our planet. That’s not the same as asking if she should be elected, because, on climate issues, a shrink-wrapped pallet of frozen Ore-Ida French fries would be a vast improvement on the incumbent. But it’s going to take an unflinching, unrelenting effort to transform America’s energy system and lead a similar process globally. Is she committed to that?
Her defenders point to a number of powerful statements that she made over the course of her Presidential primary campaign. She’d eliminate the filibuster to pass a Green New Deal. She’d tell the Department of Justice to investigate oil and gas companies. “When you take away that money because you take them to court and sue them, as I have done, it’s extraordinary how they will change behaviors,” Harris said. “Maybe this is the prosecutor in me. They have to be held accountable.” Harris has been particularly outspoken about environmental injustice: just six days before she got the V.P. nod, she joined Alexandria Ocasio-Cortez to introduce the Climate Equity Act, which, as the Times explained, “would create a dedicated Office of Climate and Environmental Justice Accountability within the White House and require the federal government to rate the effect that every environmental legislation or regulation would have on low-income communities.”
If there’s a rub, it’s that, to date, she hasn’t been that eager to really stand up to power on this issue. During a forum last year, Harris said that she had sued ExxonMobil over its climate denial, but that’s not true. After investigative reporters showed that company executives had spent decades lying about their knowledge of climate change, many state attorneys general announced investigations. Only two, however, actually went to court: New York, under Eric Schneiderman and his successors, and Massachusetts, under the very gutsy Maura Healey. Harris, in California, investigated but never pulled the trigger—a grave disappointment to environmentalists, who knew that the country’s most economically powerful state would have been a useful ally.
Such reluctance is not admirable, but it is perhaps understandable: California is an oil state, if less so than it used to be, and the big oil companies are major players in its politics in a way that isn’t true in New York or Massachusetts. Harris sued oil companies in California for local pollution, but those aren’t existential attacks on the industry, the way the climate litigation against ExxonMobil would have been. So she punted, in the best case because she wanted to live to fight another day. What will she do if she becomes Vice-President? I imagine that her courage will depend on the climate movement’s success in eroding the political power of the oil companies. The weaker the fossil-fuel conglomerates become, the less scary they are. (Oil barons understand this, which is why they’re spending large sums to reëlect Trump). My guess is that Harris is a run-of-the mill politician, who will go where the footing is easiest. That’s less attractive than principled and unbending leadership, because that means movements can’t demobilize after Election Day. The pushing never ceases. (I’m a Bernie guy.)
When politicians are weathervanes, you need to make the wind blow. And the wind is blowing in Washington and in the Atlantic, where, last week, we reached the letter “K” in the hurricane naming list ten days earlier than ever before. Earlier this week, for instance, there was a kerfuffle after the D.N.C. dropped from its platform a pledge to end fossil-fuel subsidies. Within twenty-four hours, a spirited response from disappointed environmentalists produced a new pledge from the Biden campaign that his commitment hadn’t wavered, and that he indeed planned on “rallying the rest of the world” to do likewise. That’s politics in action. Or consider one closely watched Democratic Senate primary: on September 1st, Massachusetts voters will decide between the incumbent, Ed Markey, and the challenger, Joseph Kennedy III. When the race began, Kennedy had a big lead in the polls, based largely on his last name and his Disney Hall of Presidents resemblance to its most famous bearer. But Markey (whom I admire, and have worked with on environmental legislation) fought back. And he did it largely on the strength of his climate credentials. Markey is the Senate sponsor of the Green New Deal, and his House counterpart, Ocasio-Cortez, cut a nifty ad for him. The latest polling shows that the seventy-four-year-old has moved ahead of the thirty-nine-year-old political scion, largely thanks to a fifty-one-per-cent lead among eighteen- to twenty-nine-year olds. Teen Vogue, which has become must-read political journalism, wrote that Markey is “the subject of countless stan accounts. His outfits go viral. Teens cling to his every word.” (Note to Joe Biden.) The Sunrise Movement—the group of under-thirties who organized the sit-in at House Speaker Nancy Pelosi’s office that served as a coming-out party for the Green New Deal—produced a YouTube video for Markey last week, which may be my favorite political ad of all time. (Watch till the end for one of the best knife twists in campaign history). If Markey wins, he will go back to the Senate a national progressive hero; more to the point, he will have demonstrated that truly taking on climate change can pay off politically. That lesson won’t be lost on anyone, Harris included.
Passing the Mic
Michelle Wu has been a Boston city councillor since 2013, when (at the age of twenty-eight) she became the first Asian-American woman to hold the job. In 2016, her colleagues elected her city-council chair, and she was the first woman of color to hold that post. She recently introduced plans for a city-scale Green New Deal—and her team is working to make it a template for cities worldwide.
If we don’t do anything about climate change, what’s Boston going to look like in fifty years? Give us a little tour of the city’s landmarks and neighborhoods.
Thanks to local researchers, we have a pretty clear picture of where we’re headed under business as usual. Most of Boston’s downtown area was created through huge landfill projects in the eighteen-hundreds, so we’re really vulnerable to flooding, as storms intensify and the ocean takes back this low-lying, man-made land. By 2070, with more than three feet of sea-level rise, you’ll be paddling the Freedom Trail by kayak. During Nor’easters, Boston Harbor will spill over nearly a mile to the Chinatown Gate. But what should really move us to action is the suffering and displacement we’d face in our neighborhoods. As luxury condo buildings of the Seaport and other areas are abandoned, because they’ll be underwater every day at high tide, safe and dry areas will become unaffordable for many. When every day of summer is hotter than ninety degrees, outdoor workers and residents who can’t afford air-conditioning will face extreme risk. Already wide racial and economic disparities will grow, as communities of color and low-income families bear the brunt of these costs and injustices.
You’ve put racial justice front and center in addressing the city’s environmental future: explain the rationale.
We see across the world that the destructive impacts of climate change always fall squarely on historically marginalized communities, and Boston is no different. COVID-19 has exposed how concentrated and compounding these injustices are. Black and brown communities and low-income families have been devastated by the virus, owing to preëxisting health disparities from more exposure to pollution, less stable housing, unhealthy working conditions, and greater risk of exposure as essential workers. The roots of this public-health crisis are the same as the climate crisis: a political and economic system built on structural racism and injustices that threaten us all, because each person’s health and well-being is so deeply intertwined with that of the entire community. In other words, climate justice is racial and economic justice. Creating truly resilient, sustainable communities means eliminating poverty and dismantling systemic racism.
And what are the barriers to making this happen? Is Boston ready for this or are we just too tired and set in our ways?
Boston is a city that can seem set in its ways, as we’re fiercely loyal not just to our sports teams but also our history and traditions. That can make old-guard Boston skeptical of big changes, and allow political leaders to avoid important fights. But we also have a rich legacy of activism and civic trailblazing. We celebrate Boston being home to the first public school, public park, and public library in the country. And I’ve found that when we push to reimagine what’s possible for the public good—such as fare-free public transportation—these ideas can be embraced by a broad coalition as a point of civic pride. So I’m hopeful and determined for Boston to meet the moment as a leader on climate justice.
Climate School
Kate Aronoff’s trenchant interview with the Cornell University law professor Saule Omarova outlines her bold plans for a National Investment Authority, which would work like a public option for individual investors, letting them fund crucial infrastructure projects instead of just handing money over to BlackRock. It sounds like something F.D.R. might have conceived, in a situation where there are huge quantities of money sloshing around stock markets during a time of enormous social need.
Obvious but important: a new study from Climate Central found that as temperatures rise, so does demand for air-conditioning. It projects that, by 2050, demand for air-conditioning will rise in the United States by fifty-nine per cent—and far more than that around the world. That is why we need highly efficient air-source heat pumps, which also cool air, and why we need enormous amounts of renewable electricity to power it all.
Scoreboard
Big number on the board this week: a hundred and thirty degrees Fahrenheit (54.4 degrees Celsius), which is the highest reliably recorded temperature ever on planet Earth. It happened over the weekend, in California’s Death Valley, which is also the place where the nominal Earth temperature record of a hundred and thirty-four degrees Fahrenheit was set, in 1931. That number, though, has been disputed ever since, and the great weather historian Christopher Burt published a lengthy investigation, in 2016, proving it could not have happened. For now, a hundred and thirty degrees is the mark—but don’t expect it to last.
Jules Pretty, an agronomy researcher at the University of Essex, has released a new study showing that there are now roughly eight million small groups of farmers around the world, teaching each other how, for example, to grow rice without pesticides.
Extraordinarily bad fire news from across the planet. In the Amazon, fires are burning at a rate not seen for a decade. In Siberia, fires may be burning at a rate we’ve never previously seen—and the heating, drying region may be on the verge of moving into a new and extreme “fire regime.” In Colorado and elsewhere in the American West, this year’s fire season has begun in earnest. The forests surrounding Hanging Lake—one of the state’s premier tourist sites—almost burned. The fourteen-year-old climate activist Haven Coleman reports via Twitter: “Even inside my house it's hazy. . . . Feels like I’m being cornered, trapped. Stuck home since there’s COVID everywhere, but NOW my home is becoming unbreathable. Everything sucks. Ugh.” Indeed. By midweek, evacuations were under way in California, where fires were threatening the city of Vacaville and other parts of Napa and Sonoma.
The two-thousands were, officially, the hottest decade on record, up 0.39 degrees Celsius from the previous decade, which is a huge change in ten years’ time. It’s an urgent reminder that the next decade may be our final chance to take serious climate action.
A new study in Nature confirms that the effect of the pandemic on the planet’s temperature was negligible—greenhouse-gas emissions fell, but much of the smog that tends to cool the planet also disappeared. “These results highlight that without underlying long-term system-wide decarbonization of economies, even massive shifts in behaviour, only lead to modest reductions in the rate of warming,” the authors wrote. They also, however, noted some good news: “Pursuing a green stimulus recovery out of the post-COVID-19 economic crisis can set the world on track for keeping the long-term temperature goal of the Paris Agreement within sight.”
Warming Up
The Ed Markey ad that I hailed above plays a version of the Dylan song “All Along the Watchtower” in the background. (There’s also some Nine Inch Nails.) Just for reference purposes, and because it blazes like few other songs, here’s the definitive Hendrix rendition of “Watchtower.”

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Joe Biden's Obamacare Opportunity |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=46096"><span class="small">Dylan Scott, Vox</span></a>
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Thursday, 20 August 2020 12:49 |
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Scott writes: "America has been better off because Obamacare was the law of the land when Covid-19 struck."
Joe Biden. (photo: Scott Olson/Getty)

Joe Biden's Obamacare Opportunity
By Dylan Scott, Vox
20 August 20
The 2010 law gave health coverage to millions but left million of others uninsured. Biden could finish the job.
merica has been better off because Obamacare was the law of the land when Covid-19 struck.
When millions of people lost their jobs this spring, many of them could turn to the law’s insurance marketplaces, where they could purchase coverage with the help of premium tax subsidies created by the law. Others qualified for Medicaid in the states that have chosen to expand the program through the law. The Affordable Care Act created a new safety net, and it was there for people in a crisis.
But not for everybody. The law is flawed, and it has been weakened by Republican obstruction. More than 2 million people remain uninsured because the state they live in has refused Medicaid expansion. Some people who lost their jobs in the coronavirus crisis won’t be eligible for health benefits because of it. The Trump administration refused to reopen Obamacare enrollment in the spring, leaving the uninsured with no options in the middle of the worst infectious disease outbreak in a century.
The ACA had brought the uninsured rate to historic lows by the end of the Obama presidency — but the US still had a much higher share of people without basic medical coverage than any other developed economy. Then Donald Trump entered the White House, tried to repeal the law completely, and, when he failed, weakened it through administrative action. Then the coronavirus pandemic hit, with a damaged safety net capable of partially, but not totally, protecting Americans from the worst economic crisis since the 1930s.
US health care has demonstrably improved since Joe Biden last co-headlined a Democratic National Convention in 2012. But the ACA’s aspirations — to make health care coverage a right — have not been fully realized. There is still work to be done.
If Biden beats Trump in the November election and becomes president in January 2021, he will be charged with finishing the project of universal health care started under President Obama. He will likely assume office in the right moment to make big changes — not unlike when he was sworn in as vice president in 2009.
The question will be whether he has the will and opportunity to do it.
How Joe Biden’s health care plan builds on Obamacare
Obamacare’s successes are self-evident. The US cut its uninsured rate roughly in half, from about 16 percent in 2010 when the law was passed to about 8 percent when Obama and Biden left office, according to Census Bureau data. About 11.4 million people enrolled in coverage through the law’s marketplaces for 2020, the vast majority of them eligible for the tax subsidies created by the law, and 12.5 million people qualified for Medicaid expansion in the nearly 40 states that extended eligibility to childless adults with incomes near or below the federal poverty level. Several million more young people under age 26 have been able to stay on their parents’ health insurance under the law.
Research has shown that Medicaid expansion literally saved lives. Medical bankruptcies have dropped since the law passed.
The ACA’s political resilience is best attested by the failures of Trump and congressional Republicans to repeal it in 2017. The rules that banned insurers from discriminating against people with preexisting conditions and required plans to cover certain essential health benefits like prescription drugs, maternity care, and mental health treatment proved to be too popular to undo. So was the requirement that insurers cover preventive services, including birth control, at no cost. Cutting Medicaid was indefensible with millions more Americans relying on its benefits.
But Obamacare has not delivered universal health care in America. Medicaid remains only partially expanded; 12 states are still holding out because of Republican opposition to the law. Many people signing up for ACA marketplace plans still have significant deductibles, which means they could end up paying thousands of dollars out of pocket every year on health care. For many of the Americans who make too much money to qualify for the ACA’s tax credits, premiums are unaffordable. The US uninsured rate ticked up to 8.5 percent in 2017, the last year for which census data is available, meaning 27.5 million people still don’t have coverage.
Biden’s health care agenda is very intentionally designed to patch up those holes. The law’s underlying structure is sound, he argues, and it established the foundation for more reform.
“The quickest, fastest way to do it is build on Obamacare,” Biden said at the first debate of the Democratic Party, back in June 2019. “To build on what we did.”
He would create a new government insurance plan to be sold on the ACA markets. The 2 million or so people currently stuck in the Medicaid expansion gap would be automatically enrolled, for free. Obamacare’s tax credits would be enhanced, pegged to more generous insurance, and eligibility for government assistance would be available to anybody. Nobody would pay more than 8.5 percent of their income on insurance premiums.
Obamacare was supposed to help sever the link between health insurance and work, making it easier for people to change jobs or start their own business because they could buy insurance on the marketplace. There are anecdotes of people taking advantage of that opportunity, but restrictions written into the law on who qualified for coverage and financial assistance slowed down any large-scale shift. Biden’s public option would be available to the 150 million people who get insurance from their job, potentially opening the door for millions of Americans to join a government health program of their own volition, another step toward realizing the law’s vision.
“Extending a public option and premium subsidies to people with employer coverage is possibly the most powerful and underappreciated part of Biden’s plan,” Larry Levitt, executive vice president at the Kaiser Family Foundation, told me. “The largest number of Americans get their health insurance through an employer, and this starts to address their affordability concerns in a way the ACA never has.”
Biden could also reverse the administrative actions taken by Trump — cutting outreach programs, loosening regulations where possible — that have undermined the ACA and likely contributed to the recent uptick in the uninsured rate.
His plan still wouldn’t quite achieve universal coverage, by the Biden campaign’s own admission. Undocumented people living in the US would be left out, for starters, and some people who likely find health insurance to still be unaffordable. But the campaign estimates 97 percent of Americans would have health insurance under those reforms.
In the primary campaign, that would have been an opening for attack; Sen. Bernie Sanders (I-VT) repeated over and over again during the campaign that his single-payer Medicare-for-all plan would cover every single person and almost completely eliminate out-of-pocket costs. Biden’s plan fell short of those maximalist ambitions.
But now we’re heading into the general election, where the alternative is Donald Trump, whose Justice Department is suing to overturn Obamacare entirely. It felt like an important moment for party unity when Sanders, in his remarks on the Democratic National Convention’s opening night, extended some warm words for Biden’s health care plan.
“As you know, we are the only industrialized nation not to guarantee health care for all people,” Sanders said. “While Joe and I disagree on the best path to get universal coverage, he has a plan that will greatly expand health care and cut the cost of prescription drugs.”
Democrats want to run on health care in 2020. Midway through the second hour of the party convention’s second night, actor Jeff Bridges narrated an extended video on Biden’s commitment to health care. The nominee himself spoke via video call with several patients about their medical experiences.
ALS activist Ady Barkan, an outspoken advocate for single-payer health care, punctuated the primetime package, a living portrait of the issue’s importance.
“We must elect Joe Biden,” Barkan said, through a computer because the disease has taken his natural voice. “Each of us must be a hero for the community. For our country. And then with the compassionate and intelligent president, we must act together and put on his desk a bill that guarantees us all the health care we deserve.”
Biden will have to prioritize health care — and he’ll need Democratic majorities in Congress
Biden’s promise, the contrast he drew with Sanders in the final days of the Democratic primary campaign, was he could get a health care reform bill passed through Congress.
“We can do that now. I can get that passed. I can get that done, if I’m president of the United States of America,” he said at the last primary debate in March, facing Sanders one on one. “That will be a fundamental change, and it happens now.”
January 2021, after a year of unprecedented turmoil from compounding medical and economic crises, would provide an opportunity for a President Biden to pursue aggressive reforms. As Vox’s Ella Nilsen reported, the Biden campaign has concluded that a return to normal is no longer sufficient after the Covid-19 pandemic. A sweeping agenda is needed in this moment.
The evolving politics of health care could make the public more receptive to new reforms. This summer, voters in Republican-led states like Missouri and Oklahoma have elected to expand Medicaid coverage through the ACA. The law’s net approval rating (+15 in the latest Kaiser Family Foundation poll) is near its all-time high.
“Many of the biggest coverage expansions both in the US and in similar countries happened in the context of wars and social upheavals, as well as financial crises. One theory is that those circumstances redefine social solidarity, thus expanding views of the role of government,” Cynthia Cox, director of the Peterson-Kaiser Health System Tracker, told me earlier this year. “I think one factor that will determine the permanency of these changes is how long this disruption continues. The longer this goes on, the more likely this social solidarity becomes ingrained.”
This has been a consistent finding in social science for decades. Jacob Hacker, a Yale University political scientist, and his colleagues found this to be true in research they conducted after the Great Recession. Personal experiences with economic insecurity during that crisis led to a shift in policy attitudes of a magnitude that they said “rivals partisanship and ideology.” People who experienced more profound personal shocks ended up supporting a bigger government role in mitigating their economic risks.
As Hacker put it: “The middle and working classes lose their lives, the rich and business at least have to lose their money.”
But even if Biden is thinking bigger now, he’ll need a Democratic Congress to pass most of his health care agenda. Democrats would have to hold on to the House and flip at least three Republican-held Senate seats to take control of that chamber.
And that’s when the really difficult work would commence.
As president, Biden and congressional Democrats would first have to decide whether to eliminate the Senate filibuster or try to pass a health care bill through the self-limiting process of budget reconciliation. As Vox’s Ezra Klein reported a year ago, after interviews with influential Senate Democrats, that is far from a settled question within the caucus.
Then the party would have to agree on the legislation itself. As the Hill reported recently, the existing disagreements could lead to Democrats starting small on health care reform — even leaving out Biden’s public option at first and sticking strictly to some smaller improvements to the ACA. Key Senate Democrats sounded on board with an expansion of Medicare eligibility and a public option in their interviews with Klein, but there are a lot of details still to be worked. out. And anything short of a significant expansion of public health insurance would surely be a tough sell for progressive Democrats who already believe Biden’s plan doesn’t do enough.
This is where Biden’s self-professed prowess as a congressional dealmaker would come into play. He would have to decide how hard to push.
But it all starts with Biden beating Trump in November, to give himself the opportunity to build on the Obama-Biden administration’s health care legacy.
“What happens in November?” Hacker said. “The answer to that question is going to influence what’s possible in terms of large-scale health policy changes as much as anything else.”

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