The Dish

National Review decries Obamacare’s “bailouts” for insurance companies:

The bailout provisions of Obamacare are found in Sections 1341 and 1342 of the Affordable Care Act, both of which should be repealed. Doing so will be difficult, but it is not impossible. The first provision bails out insurance companies for costs associated with individual patients when they exceed $45,000. Under this so-called reinsurance program, insurers will be able to push off 80 percent of costs between $45,000 and $250,000 onto a fund financed by a fee of $63 per head on customers of insurance companies and workers covered by self-insuring companies. Given that most of the associated costs will almost certainly be passed on to consumers by insurers, that fee is in effect a tax. And in the event that the fund does not generate revenue sufficient to cover its costs — far from an unlikely scenario — then taxpayers will be explicitly on the hook.

This preemptive bailout was included in the law as a deal-sweetener to induce more insurance companies to participate in the program. It is a good deal for insurers, for whom any opportunity to reassign risk to somebody else is a welcome profit opportunity, but it is a terrible deal for consumers and taxpayers.

The second and potentially even more troubling bailout provision is the one for so-called risk corridors, which asks the insurance company to project their total costs and then picks up most of the difference if losses should exceed those targets. The potential for gaming the system here is obvious and dire, and the potential costs are enormous. Senator Marco Rubio already has introduced a bill to repeal this provision, though it is unlikely to pass. At the very least, Republicans should ensure that the provision, scheduled for sunsetting in 2016, dies on schedule.

Cohn pushes back:

Bailouts typically start with companies taking egregiously irresponsible actions and end with the government forking over mind-boggling sums of money to save them. Think of the savings and loans institutions misleading the public about the state of their finances in the 1980s—or the financial industry making those bad home loans and risky investments a decade ago. Each of those involved grievous management errors, frequently skirting the limits of legality. The federal outlays to save those banks were in the hundreds of billions of dollars.

With Obamacare, the situation is different. Projecting future insurance costs inevitably involves a little guesswork. With a brand new program like Obamacare, it inevitably involves a lot of guesswork. Even the smartest, most responsible actuaries might not get the numbers right … Truth is, no insurer will be sure about its beneficiaries for many months, until the open enrollment period ends and the newly insured have a few months in which to file claims. That makes it impossible to know what kinds of losses, if any, insurers will take. But even if the losses are significant, the taxpayers won’t be in for another Wall Street-style bailout.

Serwer summarizes the Benghazi report released Wednesday:

The report, which the committee approved by a voice vote, concluded that the attacks could have been prevented and makes several recommendations for improving security of U.S. diplomatic facilities in areas where U.S. personnel are likely to face threats. It also faults the State Department for not responding to repeated requests for increased security at the facility, and for ignoring incidents prior to the Sept. 11, 2012 attack that indicated Americans there were at risk. The report also states that Stevens himself rejected two offers from General Carter Ham, the head of the U.S. military’s Africa command, for military protection the month before the attacks. The report concludes that the attacks were “likely preventable” had warnings about the “deteriorating security situation” been heeded.

He points out a few notable debunks. Such as:

Various versions of the talking points do not suggest the White House edited them to cover up references to Al Qaeda or to manufacture evidence of a protest.

Amy Davidson notes that the Benghazi tragedy “was more than a single misjudgment”:

The talking-points controversy was always strangely misdirected—in part because, as this report makes clear, there is a lot that was substantively wrong with the way things were managed in Benghazi.

That is true particularly if the subject of discussion is Hillary Clinton. She does not come out well in this report, in any part, although the Republican minority is more florid in its criticisms. The State Department made mistakes when she was its leader. One of the findings is that nothing changed even when “tripwires” meant to prompt an increase in security or suspension in operations had been crossed, and people in the Department knew it.

Aaron Blake interprets what the report means for Hillary:

The p-word — “preventable” — is what stings most for Clinton. The report says, conclusively, that State’s failures contributed to the deaths of four Americans on Sept. 11, 2012. And Republicans can and will say that people died because of those failures.

At the same time, the report doesn’t detail whether any of these warnings or requests actually reached Clinton’s desk. Had it done so, then she really would have been in trouble. While Clinton was, ultimately, the buck-stopper at State, she is more able to distance herself from the problems identified by the Senate report if it doesn’t specify that she was directly aware of them.

First Read doubts Benghazi will hurt Clinton as much as Bridgegate hurts Christie:

Hillary Clinton has 20 years on the national stage (including a thoroughly litigated presidential bid in ’08) to balance out a bad story, while Christie is still making his first impression on the national stage. And of course, a third difference is that no Democrats believe the worst about Hillary (and might try to take advantage of it) when it comes to Benghazi, while the same isn’t true for Christie. Plenty of Republicans, particularly conservatives who were never enamored with Christie in the first place, do believe the worst about Christie and the bridge.

Eli Lake focuses on the report’s criticisms of Gen. Dempsey, chairman of the Joint Chiefs of Staff, :

An addendum to a scathing report from the Senate Select Committee on Intelligence on Benghazi signed by six of seven Republicans on the committee singles out Dempsey for “failures in leadership.” Specifically, the six Republicans fault Dempsey for failing to have a plan to respond to an attack on Benghazi given the ample intelligence showing the desire of terrorists to attack Americans there, and for allowing General Carter Ham, who was the combatant commander for Africa Command, to not know the CIA maintained an annex in Benghazi near the U.S. temporary mission.

The Republicans slam Dempsey for failing to send more military support from the region as the attack was unfolding. “General Dempsey’s attempts to excuse inaction by claiming that forces were not deployed because they would not have gotten there in time does not pass the common sense test,” the senators write. “No one knew when the attacks against our facilities in Benghazi would end, or how aggressive the attacks would be.”

And Benen finds that the GOP hasn’t changed its tune:

Given the latest report, which reinforces the previous reports, are Republicans finally prepared to move on to some other alleged conspiracy? Of course not.

Rep. Steve King (R-Iowa) saw the findings of the Senate Intelligence Committee and said, “It should be clear, even to my critics by now, that Benghazi is bigger than Watergate.”

Sen. James Inhofe (R-Okla.) added, “I’m familiar with cover-ups throughout history, the Pentagon Papers, Iran-Contra, all of them. This is gonna go down as the greatest cover-up in history because the president and Susan Rice both knew it was an organized terrorist attack and deliberately sent Susan Rice to tell the American people it was not.”

It doesn’t matter that they’re wrong; they don’t care. They start with the conclusion and try to work backwards to find evidence that satisfies their goal.

Benjy Sarlin profiles Brian Schweitzer, the former governor preparing to run against Obama’s record in the next presidential primary:

Schweitzer’s scorn for Obama has led him to hatch a surprising plan. After turning down a run for Senate this year and settling into a new job as a mining executive, the ex-governor surprised observers by announcing his interest in a possible run for president in 2016. He’s since visited Iowa, the kickoff caucus state, to rail against Obama’s “corporatist” health care law and to criticize Hillary Clinton, the presumed Democratic frontrunner in 2016, for voting to authorize the Iraq war when she was a New York senator.

A Schweitzer presidential candidacy would be a long shot by any measure. He has no national profile and a heterodox political persona that’s served him well in rural, libertarian, and energy rich Montana but doesn’t necessarily sync with the average Democratic primary voter. Clinton, while still undeclared, is such an overwhelming favorite that donors-in-waiting are already competing for territory. But what Schweitzer does have is a message that’s unique in the likely Democratic field. The former governor is gambling that Democrats won’t just want an alternative to Clinton in 2016–they’ll want a complete and total rejection of the Obama presidency.

Ezra questions Schweitzer’s strategy:

More interesting than Schweitzer’s lack of praise for Obama are his extremely specific criticisms.

He loathes Obamacare and believes it should be replaced by a single-payer health-care system. He calls the NSA revelations “un-effing-believable.” He says the Obama administration “just haven’t been very good at running things.” It’s an outline of where one extremely savvy politician thinks the left might be unhappy with Obama — and, by extension, Hillary Clinton.

But Schweitzer didn’t become governor of right-leaning Montana by accident. He’s skeptical of gun control and likes to shoot at things in campaign ads. He’s a big believer in coal production and expanded oil drilling. He’s the sort of red-state Democrat that the party thought was key to its future in 2005 but whose political appeal has been diminished by the rise of Obama’s younger, more multicultural majority.

Bouie adds:

If Schweitzer is an unlikely choice for the Democratic nomination, it has less to do with his low national profile, and everything to do with his pronounced Obama-skepticism. Black voters have their concerns with the Obama administration, but the president is held in high esteem. Which is to say that, if you’re going to distance yourself from the administration, you have to do so without without attacking Obama as a figure. Otherwise, you’ve alienated African Americans and crippled your bid for the nomination.

Kilgore sees Schweitzer alienating the entire party:

At a time when Democrats are frantically trying to hold onto control of the Senate, Schweitzer talked about running for Max Baucus’ seat and then bailed. Next thing you knew, he was talking about running for president. Most Democratic activists think they need a viable Senate candidate in Montana more than they need an openly anti-Obama presidential candidate. From that perspective, Schweitzer looks narcissistic, and that’s not a personality trait likely to ignite a crusade.

Maybe I’m just wrong. I met Schweitzer back when he was running for the Senate in 2000—before he had any national ideological profile at all—and thought he was an odd but intense man afire with self-regard. Some fans out West have long thought he had some personal magic along with the right positioning to win red states. If he keeps going to Iowa, we’ll soon know if that activist-rich state gives him traction—or a strong heave-ho.

Recent Dish on Schweitzer here. 

Emily Bazelon expects the Supreme Court to rule in favor of the plaintiffs in McCullen v. Coakley, a case pitting anti-abortion activists against a Massachusetts law that prevents them from approaching abortion clinics:

In Massachusetts, abortion critics who are trying to talk women out of going through with the procedure—you can call them “protesters” or “counselors,” depending on your point of view—have to stand 35 feet from a clinic entrance or driveway. The Supreme Court heard a challenge to that law today in which the picture-perfect lead plaintiff is a regular Boston protester, Eleanor McCullen, a friendly grandmother type who stresses how “gentle” her persuasion tactics are, and odds are more than good that the buffer zone in Massachusetts is on its way out. If that happens, free-speech as well as anti-abortion advocates will claim it as a victory for the First Amendment. The clinics and the women they serve will have to deal with more hassle and heartache, and maybe more danger, abortion-rights advocates worry.

Dahlia Lithwick also doubts the law will survive:

Coakley is a tough case for free speech purists, as it certainly appears to suppress only one viewpoint on public sidewalks. The ACLU nevertheless came out in support of the Massachusetts speech bubble, arguing that it’s needed to protect another, competing right: the right to terminate a pregnancy. But the Roberts Court has proven itself far more speech-protective and significantly less choice-protective than the Rehnquist Court that decided Hill. The majority in Hill believed that the right to be left alone and free from unwelcome messages trumped the rights of the protestors to say what they wished. The Roberts Court is more solicitous of the right to be heard, regardless of the preference of the listener to be left alone.

Noah Feldman argues that the law should be upheld:

[T]wo reasons suggest that the court should uphold the law. First, there is the reality that pro-choice activists do often have a presence at clinics. Admittedly, they are generally there to escort patients who might otherwise be intimidated passing the pro-life gantlet. But the fact that the pro-choicers aren’t acting as counter-protesters doesn’t detract from the free-speech component of their actions. If the pro-lifers are moved out to 35 feet, the pro-choicers will be, too — and a fair application of the law would not let them accompany clinic patients into the buffer zone. Because both sides are speaking, the law really can plausibly be described as neutral between them.

Second, under current constitutional norms, protesters at a wide range of public events are often moved to different locations in order to allow for the free flow of traffic.

Marcotte says the law is important for the safety of these clinics’ workers and patients:

Charles Cook calls this a spurious argument:

The court did not consider itself to be judging the constitutionality of an anti-intimidation or anti-protest law. Instead, it believed that it was determining the question of how far wholly non-violent speech — including silent prayer and the holding of signs — may be restricted. This is a reasonable question. What is not reasonable is the claim that blanket limits on free speech are necessary in order to prevent intimidation, murder, violence, and the physical blocking of entrances. Why? Because all of those activities are already illegal, both under Massachusetts law and, in some cases, under federal law. Because there are no areas in which intimidation, murder, violence, or physical restraint are permissible, there is no need for “zones” in which they are not.

Trevor Burrus also focuses on the free speech issue:

Despite the controversial subject matter, this case is not about abortion. It’s about the First Amendment. Both pro-lifers and pro-choicers must see past the polarizing issue of abortion and focus instead on the freedom of speech and freedom of peaceful public presence issues underneath. Pro-choicers should stand against this law in the spirit of the maxim, usually attributed to Voltaire: “I may disagree with what you say, but I will defend to the death your right to say it.” After all, the law is so broad that if a pro-choicer wanted to stand within 35 feet of a Massachusetts abortion clinic and repeat that maxim, they would be breaking the law.

Scott Lemieux points out that the law as written is content-neutral:

The challengers to the buffer zone have a superficially persuasive argument that the Massachusetts law lacks the content neutrality the First Amendment requires. Presumably, the law is most likely to affect opponents of reproductive rights—supporters of abortion rights are unlikely to try to interfere with women heading into an appointment—and in this way can be seen as targeting anti-abortion speech. This argument, however, is not terribly convincing on further inspection. Certainly, the law does not target solely anti-abortion speech on its face; as Justice Ginsburg put it, the law is “not content [based]—it’s not based on speech about abortion. It’s that you can’t speak about anything.” And, as Massachusetts assistant attorney general Jennifer Grace Miller noted, the law would not only apply to anti-abortion speakers even in practice: in one case in the record, “[y]ou had the Pink Group, which is a pro-choice organization, pushing and shoving and jockeying for position.” As debate takes place near health clinics, there may be circumstances in which groups of abortion rights supporters might impede access, and the law would apply to them.

Wendy Kaminer appreciates the emotional resonance of the case to pro-choice activists but comes down firmly against the law:

Legal arguments against the law came easily; from my perspective, its unconstitutionality was clear. But putting aside emotional support for it was hard. Violence against abortion clinics was becoming a very scary fact of life back then. Opposing a buffer zone asked too much of women, especially young women and teenagers seeking abortions in a climate of fear, supporters of the buffer zone argued. In fact, we were asking a lot of them, but no more than what civil liberty demands of us all – a certain stoicism. Besides, absent an expansive buffer zone, women would not be deprived of all legal protection. Federal and state laws prohibit protesters from impeding access to clinics, and, as Harvey Silverglate points out, Massachusetts has longstanding penal law prohibiting harassment and disturbance of the peace.