What Opponents of Measure 97 Accomplished

Public services in general and schools in particular were looking down the barrel of a gun because of PERS costs.  Measure 97 was a way to shield them.  It would have given time for the legislature to find a legally enforceable reform package, at the expense of someone other than our children.

But Measure 97 failed.  That didn't solve PERS either, the vote against M97 changed nothing about pension obligations or the politics around it.  We're no more likely to reform PERS than we were before the election, or if M97 had passed.

All opponents of Measure 97 did was put our kids are on the firing line. 

Nice going, dicks.

Why Governor Brown is going to fire someone

Here's a challenge for anyone who is not self employed.  I want you to share with me every email coming into or going out of your organization.  Not just yours, but those of everyone who works there.  I promise to keep the emails confidential, unless I decide that something's wrong.  In that case I'll release whatever I want to a newspaper reporter, with however much or however little supporting material I see fit.  I'll also do it anonymously, so you'll have no recourse against me and no way of preventing me from doing it again.

Who's up for it?

I don't think any responsible organization would accept such terms.  Why would they trust my judgment of what is right or wrong?  Even if they trusted my judgment how would they know I wouldn't misinterpret something or misunderstand the context?  And how would they know I'd safeguard sensitive personal or confidential information?

I pose this challenge because that's basically where Oregon's state government is.  A culture of leaking has set in, in which employees are deciding on their own what belongs in public.  Bright red lines have been crossed, such as attorney client privilege.  I don't think any organization could function long under such circumstances.  How do you work in a place where anything you said could be used against you, not in a court of law but in tomorrow's smear piece?

Given that, it shouldn't surprise anyone that one of the first things to happen under Governor Brown is a crackdown on leaking.  If she wants to be in charge, leakers and newspaper reporters can't be.

What Oregon legislators were (and were not) thinking when they passed the insurance exchange

The Oregonian recently ran a story on Michael Cannon and his crusade to screw over the middle class in states that didn't set up their own health insurance exchange.  His challenge to the tax credits people receive now relies on the premise that his understanding of the law is the only possible rational interpretation.  If the law is only ambiguous then he has no case. 

Given that, I wanted to see what Oregon legislators were thinking when they enacted SB99 which created Oregon's exchange.  Did they understand that they were enabling Oregonians to receive tax credits?  The following quotes from Senators and Representatives are from discussions preceding the votes.  Transcriptions and any errors are mine, as is the emphasis.
  
Senate vote on 4/25/11 (SB99 discussion starts at 17:00 mark). 

Senator Morse

… as we all know, the federal patient protection and affordable care act was passed in 2010, which mandates the implementation of state based insurance exchanges by January 1, 2014.  In the event states do not implement an exchange the federal government will do it for them.

Senator Monnes Anderson 

…if Oregon does not develop its own health exchange, insurance exchange, the federal government will create one.  This legislation is our own plan that takes our states' specific needs into account with a consumer driven mission and local control. The health insurance exchange will give Oregonians more health care options, a greater number of affordable plans, and more information about which one will best meet their needs.

Senator Kruse

When we went at this proposal, we made it very clear on the front end that regardless of what happened at the federal level we wanted to create something that would work for Oregon, and that has been our intent all the way through on this is to make something that works for Oregon.  Now knowing full well that at some point in time the feds are gonna define a few things like what an exchange actually looks like from their perspective, what a basic benefit plan actually looks like from their perspective, but colleagues those are things that are undefined at this point in time.  It was incumbent on us to do something Oregon specific because quite honestly I don't want the federal government coming in and running things in the state of Oregon.  So this was our option.

Senator Bates

This act says that starting in 2014 every state has to have an exchange.  If the state doesn't do it the federal government will do it.  And we have some very special things in this state that other states don't have.  Managed care plans in Medicaid.  Different kinds of DCBS systems.  And if we don't have our own actual exchange put together we're going to have trouble making the federal one work and it's going to cost us a lot of money to make it work.  So we need to do this ourselves and we need to do it for Oregon and we need to do it fairly quickly...

...My biggest worry is this goes to the house and dies and we are stuck in 18 months to 24 months from now with a federal exchange that we can't make work in this state without us spending huge amounts of money, to put an IT program together, and to make it wedge into a system we have here in this state that's so unusual and actually more effective.

House vote on 6/17/11 (SB99 discussion starts at 2:43:50 mark).

Representative Thompson

Congress provided funds for early adopters, and indicated that if no action was taken by a state to create the exchange, the federal government would create and operate the exchange on behalf of the state.

Representative Cannon

The choice we have today is whether to allow the bureaucrats in the Hubert Humphrey building in Washington to design a health insurance exchange or to put Oregonians to work designing a health insurance exchange that works for Oregonians.  That's the issue.  By adopting SB99, we don't know precisely what this exchange will look like, it's several years from being operational, but at least we'll give ourselves the chance to move forward with an Oregon solution to the national problem of health care and affordability and accessibility.

Representative Thompson (speaking a second time)

...We also know that in January of 2013 the feds are going to move in and do an exchange.  This is not a question of whether or not we have an exchange, whether you like it or not.  It's in the federal law that that's what's going to happen.  They have the right to do that in January and we don't even meet in our long session until February to do anything additionally about this.  So the stakes are relatively high.  The issues of tax credits and navigators and what not are not really germane to this discussion.  That's in the federal legislation.  We're going to get all of that when the feds come in and do their plan for us.  I wish I could wave the magic wand and give a tax credit to anybody who buys insurance anywhere for their employees.  We can't do that.  But the feds did do it.  And they set it up with rules.  We can tuck those rules into our bill and use them, in our plan, or not.  But it's in the federal legislation and your vote today doesn't affect whether or not certain individuals will get tax credits for using an exchange or not.  They're going to get the tax credit because the federal will take precedence over ours if we don't do anything.

A total of 13 Senators and Representatives spoke before the votes.  None of them suggested they thought this would impact tax credits.  Two supporters of the law, one a Democrat and the other a Republican, talked explicitly about what would happen if Oregon didn't build an exchange.  If anyone was going to talk about the impact on tax credits, they would.  What they said speaks for itself.

I think this proves that as a factual matter, neither Republicans nor Democrats in the Oregon legislature held Michael Cannon's interpretation of the ACA.  And to accept Cannon's case, it isn't enough to say they just had different interpretations.  One has to say that the Oregon legislature, both Republicans and Democrats, held to an irrational interpretation of the ACA.

In a comment under the Oregonian story, Steve Buckstein describes a meeting months after these votes where Cannon tried to get Oregon legislators to reject building their own exchange even though this would deprive residents of tax credits.  There are some problems with that story (the timing makes no sense), but if it's even half right I think it says a lot about Michael Cannon.  He sought to strip Oregonians of tax credits, and as a consequence access to health care, in order to score political points for the Republican Party.  Think about that for a second.

The Oregon legislature was wrong about a lot of things when it came to Cover Oregon.  But as wrong as they were, I trust them a hell of a lot more than I trust someone like Michael Cannon.

Consumer choices vs. Community choices

I came across this quote in Ravitch's book.  It's part of a discussion of school choice, but I think it applies to Oregon measure 90 as well.  Emphasis mine:

The market undermines traditional values and traditional ties;  it undermines morals, which rest on community consensus.  If there is no community consensus, then one person's sense of morals is as good as the next, and neither takes precedence.  This may be great for the entertainment industry, but it is not healthy for children, who need to grow up surrounded by the mores and values of their community.  As consumers, we should be free to choose.  As citizens, we should have connections to the place we live and be prepared to work together with our neighbors on common problems.  When neighbors have no common meeting ground, it is difficult for them to organize on behalf of their own self-interest and their community.

What is the top-two concept but an attack on political parties?  And what are political parties but the vehicle by which residents organize and collaborate for political activity?  I think parties are exactly the common ground Ravitch references above.  Without that common ground, we're just a bunch of individuals screaming in the wind.

Elected Officials are not Cheeseburgers

I think there are multiple reasons to dislike this Oregon's ballot Measure 90, which would create a top two primary.  It essentially discards our current system by doing away with primaries as we know them, moving the real election to May, and relegating November to a mandatory runoff.  It tosses out a century of work at opening party primaries, replacing them with an amorphous endorsement process whose value is unclear.  If current party primaries are bad because of limited participation, how much worse will an endorsement process be which has no rules or customs?  If most people don't vote in the pre-election now how many will vote in the pre-pre-election?  And for what?  To tread water on overall voter participation?

But I want to focus on one particular aspect of arguments for Measure 90, the idea that it increases competition and that this is unambiguously good. A recent Oregonian editorial was dedicated to the concept, and it's a common element in arguments for the measure.  But is it right?  Is an uncompetitive election necessarily bad?

We have good reason to take the idea for granted.  For most consumer decisions it holds true, having more choices allows a more specific decision that better aligns with our preferences.  The more restaurants that serve cheeseburger, the more likely it is that one of them serves the exact combination of product and price that you want.  But are elected officials like cheeseburgers?  Not really.

• The decision to buy a cheeseburger is individual, one person makes the choice and immediately gets what they asked for.  Elections are a community decision.  Votes are cast by individuals, but they are cast for one office and only one individual wins.  In the end everyone will be served the same thing.
• The timing of the decision to buy a cheeseburger is entirely at individual discretion.  One can buy cheeseburgers as often as one wants, it can be centennial or hourly or anywhere in between.  Elections are on fixed schedules and the decision generally lasts for a fixed term.
• Cheeseburgers have a price constraint.  That constraint overrides any other preference, one cannot buy what one cannot afford.  The price constraint doesn't apply to voting, there is no cost to choosing one candidate over another.

Put those elements together and think about what a cheeseburger decision would look like if it had the same properties as an election.  Communities would decide by majority rule what cheeseburger everyone would have to eat, over a term of years.  They would have to make this decision without a cost constraint, so any topping, ingredient, style, or quality level would be allowed.

That would be a miserable decision even for just a married couple.  It would be miserable because in effect the only reason one couldn't get their "dream burger", one that matched exactly to what they wanted, would be the constraint of getting their spouse's agreement.  And the spouse would have the exact same problem.  Now expand the voting pool to an entire community and you can see why elections are contentious, even violent, things.  Unlike the individual's decision to buy a cheeseburger, I think communities need some structure to effectively reach a decision.  That's where parties and primaries come in.  They facilitate coalitions and compromises, they provide organization to what would otherwise be a war of all against all.

As an example of how this plays out consider approval ratings.  Who would you guess has higher ratings, an incumbent running unchallenged or a newly minted freshman who won a narrow victory?  Which election did the public feel better about, George W Bush's ultra-narrow victory in 2000 or the dominant wins by Reagan in 1980 or Obama in 2008?  The closer an election, the more competitive it is, the more people necessarily are unhappy with the outcome.

When measure 90 supporters uncritically support competition they are using the wrong model.  Elections aren't consumption decisions, elected officials aren't cheeseburgers.  An election is much more like a hiring decision, the community is hiring someone to do a job.  Competition isn't totally irrelevant to making a good hire, but it's significance depends on the circumstances:  is it an open position or already filled?  If the latter is the person competent?  Are they so incompetent that it warrants firing them in favor of an unknown?

Looking at it that way it's easy to see why many elected offices aren't always competitive, it's because voters are reasonably good at filling them.  What's wrong with that?

Why are we still talking about the CRC?

Generally speaking, you don't loan out money you're banking on getting paid back without collateral.  That's because people who don't put up collateral, who don't have any disincentive against walking away from their debt tend to walk away from their debt.

Applied to the CRC, if we think we need Washington support to build the CRC than we must have collateral to ensure their support.  That can come in the form of direct funding up front or it can be irrevocable collection rights against Washington citizens to the same effect, whatever.  What matters is that it's skin in the game, a reason for Washington to not walk away when the bridge is built but the bonds are only half paid off leaving Oregon holding the bag.

With that in mind it's hard to understand what Governor Kitzhaber is thinking.  How likely is Washington to put up collateral if they think Oregon can be suckered into going it alone?  Every step Oregon takes toward building the bridge without Washington support validates their inaction and makes their support on the next step less likely.  The path Kitzhaber is following  doesn't lead to a bridge supported on both ends.

If we really want Washington support we ought to give them a reason to give it.  The screamingly obvious one is to walk away from the CRC.  If the Feds are as loose with money as Kitzhaber's plan requires, a year isn't going to matter.  The only risk is that Washington might judge the benefit of a new bridge not worth its cost.  If that's the case aren't we better off finding that out now rather than 10 years and hundreds of millions of dollars in unsecured debt later?

Messing up Cover Oregon is not an argument for single payer

Tim Nesbitt writing in the Oregonian suggests the state's problems with the exchange give reason to support single payer.  I don't think so.

Imagine going into a new restaurant in which you are a part owner and ordering  a meal.  Every few minutes the manager comes over and says it will be ready in another few minutes, but the meal doesn't come.  Finally, he apologizes and says that they hired a third party vendor to run their kitchen, and while they've tried their best to ensure that the vendor fulfilled the contract it just isn't getting done.  In order to be served the manager suggests you,

1. Go to a food fair where there will be other chefs to prepare a meal
2. Hire your own chef

3. Do your own cooking and buy direct from grocers.

There are a lot of ways people might respond to that.  One might swear never to eat there again.  One might tolerate the problems in the short term, hoping for eventual improvement.  One might want to fire the manager, telling him and his cowboy boots to take a walk.  And one might try to shut down the whole restaurant, though that is a bad idea for reasons that don't fit into the analogy. 

But what I don't think people would do, what appears to me highly counter-intuitive, is to conclude that we should shut down every alternative kind of food distribution and trust this manager whose incompetence is proven to oversee delivery of all food to everyone for every meal. 

I'm glad the Medicaid rollout and CCO's are going strong, but lets be honest.  It's relatively easy to get buy-in from people whose only option is nothing.  More than three quarters of Oregonians not already on Medicaid and Medicare had insurance in 2011.  They have options, and the state's handling of Cover Oregon provides little reason to give them up.

Special Sessions comment

I was irked by today's op-ed lauding Oregon's recent special session as a model for the future. Below is a comment on the story, with the intended formatting. The O's commenting system has a grudge against paragraphs. 

Special sessions are a poor way to run a government.

The recent special session was the embodiment of "quick and dirty" solutions.  It valued short term results- a short term boost and in revenue, a short term boost in school funding- in return for long term, unknown liabilities.  How much of the PERS reform will survive court challenge?  What impact will the tax cut on S corporations have if businesses reorganize so as to take maximum advantage of it?  And in the mix of that short term thinking was pure pork:  a GMO bill that had nothing to do with taxes, nothing to do with education, and that in no way was an emergency requiring immediate intervention.

Oregon may well face an extended period of relative scarcity, where tough decisions that cross traditional interests become routine.  But that makes it more urgent to make such decisions carefully, with full consideration of costs and benefits and long term outcomes.  There are times when leaping before you look may be a good thing.  The management of long term contingent liabilities is not one of them.

Deliberation not only allows for better decisions, it allows the public through its legislative representatives to take ownership of those decisions.  That matters if one believes in democracy and self-government.  What good is a compromise reached only because legislators didn't vote their conscience?  Plus it improves the chances of continuity, and that efforts at reform will be sustained until the underlying problem is solved.  The governor now says PERS reform is off the table.  Is PERS no longer a problem?  Is school funding no longer a problem?

Instead of careful deliberation backed by citizen support what we got in the special session was a plate of spaghetti thrown at the wall.  We can and should do better.

An open letter to Governor Kitzhaber

Governor Kitzhaber,

I'm writing to express disappointment with your use of the power to call the legislature into special session.  Twice now you have called for sessions based not on emergencies but based on political advantage.  I believe the outcome of these sessions is poor legislation with inadequate consideration of long term goals and consequences.

Last year, a few weeks before Christmas you called the legislature into special session to provide a tax perk to Nike.  Reporting in the Oregonian shows that you were in active discussions with Nike several months prior to December.  You had ample time to advise the legislature of Nike's request and to allow a more deliberate and public discussion of the costs and benefits of Nike's proposal.  You chose to call a special session not out of need but out of convenience.  After being called, the legislature faced a fait accompli.  There was no time to consider alternative mechanisms that could accommodate Nike and other businesses, the legislature's choice was to accept the demand or risk driving the underlying investment out of state.  

The resulting legislation had immediate negative consequences as other large employers wondered why they hadn't received similar consideration.  And the long term consequences of the Nike deal- a 30 year dispensation from state tax law backed by an insurance contract underwritten by the state- are utterly unknowable.  No one knows what state tax law will look like 30 years from now or what liability this created for Oregon.  Fortunately, the legislature was wise enough to include a sunset provision that voided this power without additional legislation.  In the 2013 session there was not even a proposal from either party to renew this power unaltered.  That strongly suggests that when the legislature had time to think about it they found the "Nike Bill" to be a bad idea.

The current special session, called for September 30th, is only marginally better grounded.  The "grand bargain" of PERS reform and tax changes was actively considered in the 2013 regular session.  But that just shows that the use of an emergency session is even less justified.  Neither PERS nor taxes are new.  Neither PERS nor taxes is going away.  So why can't a grand bargain wait until next year?  

The nominal reason, to provide immediate funds for the current school year, is poorly considered.  It is well known that public employee unions will challenge any changes to PERS in court, including those already passed in 2013.  What happens when the court, as is quite possible based on past experience, overturns some portion of the reforms?  What happens to schools which spend money this year that they don't actually have?  It has been a longstanding complaint of districts that their budgets are unstable, leading to constant cycles of hiring and firing teachers.  Your use of the special session here ensures that problem will continue.

The short term education dollars bought with a special session may prove more costly in the long term.  In my school district, it is estimated that the grand bargain would provide an additional 40 teachers this year.  That's nice, but there are 78 schools.  Given ludicrously high class sizes, an extra half-teacher per school isn't an adequate remedy.  Getting class sizes down to something reasonable will require a larger conversation with teachers about the connections between compensation, class sizes, work environment, and ultimately their work output.  Even great teachers become bad teachers when classes are too big.  Having that conversation requires a great deal of trust and respect, it requires that the public and teachers speak and hear each other.  Rushing PERS changes through the legislature and depriving unions of input makes that conversation less likely.

Emergency legislation should address what is truly an emergency and nothing more.  That is not how you've used your power to call special sessions, and in my view your use of that power has hurt the state more than it helped.  I urge you to use greater discretion, and have more respect for the legislative process.

Oregon's State Body Tort Cap

Generally speaking, I don't like lawsuits. I think they are to civil justice what personal firearms are to criminal justice. They can serve individual needs, but they make no allowance for community interest and not infrequently the two work at cross purposes. Medical malpractice is a good example.

Lawsuits allow select individuals to recover some damages, but they also encourage providers to take a pre-emptive "defensive" stance when adverse events occur. Instead of analyzing errors and broadly distributing lessons learned providers have incentive to clam up and hope no one notices. The consequences are visible in statistics. The IOM estimated at least 44,000 deaths per year are caused by preventable medical errors but fewer than 5,000 payments per year for fatalities are logged in the National Practitioner Data Bank, a registry of medical malpractice payments. I think the community would be better served by encouraging processes that reduce errors, even if that alters the way individuals seek recovery. Oregon's new malpractice reform is a modest step towards that goal.

Having said that, there are times when individual interests do trump community interests. The constitution enshrines the principal that people cannot be arbitrarily punished or have property seized without due process. Even if the community overwhelmingly supports such an action and even if the community would overwhelmingly benefit from it, in the absence of due process such a taking violates the core individual rights that we grant ourselves. 

I don't see how those rights can be honored by the current tort cap which limits recoveries even for specific economic damages. It imposes arbitrary and unlimited costs on individuals without process or appeal. I say it with a grimace, but I think Mr. Pope is right.

Oregon Med Mal Reform

A followup to my critique of Public Citizen's complaint about Oregon's Medical Malpractice reform.  I said that the world outside the National Practitioner Data Bank is much larger than the world inside it.  For a vivid illustration of how much bigger it is, see this post from Adrianna McIntyre at Incidental Economist.  Around 3%-4% of hospitalizations result in injuries due to medical care, and 1% result in injuries due to substandard care.  Of the Injuries due to substandard care only 2% result in medical malpractice claims.

Reversing that, for every medical malpractice prompted by an injury caused by substandard care during a hospitalization, there are 50 injuries caused by substandard care that didn't prompt a claim plus another 100 - 150 injuries caused by standard care.

Public Citizen worries about the information lost by decreasing the number of claims entering the little green slice that represents the medical malpractice system.  In a world where that reporting could be maintained cost-free, sure we'd be better off with it.  But is maintaining current reporting so important that it's worth discouraging reforms that would increase reporting and scrutiny of the vast world now outside the medical malpractice system?

A response to a question...

posed by Nick Budnick in comments on Oregon's new medical mediation law helps bad doctors, national group says

The story is about how Public Citizen is critical of a Disclose and Compensate tort reform program Oregon enacted earlier this year.  The question asked how to weigh the potential loss of reporting of some incidents to the National Practitioner Data Bank(NPDB) state medical board as a result of them being settled through mediation. [alas, I misunderstood the question!]  My response:

Public access to the NPDB doesn't include names of physicians.  Access to that information is generally restricted to hospitals  and credentialing organizations.  Given that, I wouldn't call those reports "public information."  Weighing their value requires knowing how those reports get used in real life, and I don't know that (maybe a future story?)

But I'll speculate that how those reports get used is on second hand decisions:  Should we renew so and so's credentials?  Should we revoke them?  Should we hire or grant privileges?  Except for the case where a facility is reviewing an incident which happened on their premises (and in that case they shouldn't need an NPDB report to tell them what happened)  none of those decisions can influence the process that lead to error, assuming there was one.  They are go / no-go decisions about a specific person and they only effect errors to the extent those individuals are personally responsible for them.

There are really bad doctors and having a process that can get rid of them is a good thing.  But most doctors aren't really bad and most adverse events aren't attributable to a single individual.  Keying off Merwin's comment below most doctors are neither superheroes nor super villains, they're regular people typically working in complicated, interdependent systems.  A malpractice monitoring system that only catches super villains isn't that helpful.

Consider some statistics.  Over the last 10 years there were on average 14,787 medical malpractice payments reported to the NPDB each year.  For the sake of argument let's suppose each and every one of those involved a death.  Well, the IOM estimates there are 44,000 preventable deaths caused by medical errors each year, just in hospitals.  So even using charitable assumptions there are two preventable deaths outside the NPDB system for every one that makes it in.  And when you use less favorable assumptions- fewer than a third of NPBD med mal payments involve a fatality and estimates of preventable deaths due to error go much higher- it's clear that the world outside the NPBD system is  a lot bigger and no less consequential than the world inside it.

Oregon's reform is an acknowledgment of that reality, and intended to encourage institutions to dig deeper into adverse events to better understand why they happened and prevent their recurrence.  It's meant to impact the broad middle ground where most practice is, not the narrow extreme.  And where a provider is at the extreme you have to consider the chance they wouldn't resolve in mediation and they'd get reported to the NPDB anyway.

Opinions will vary, but to me the NPDB issue looks like a small cost for a potentially large gain in patient safety.  I'm surprised and disappointed Public Citizen objects to that.

Liberal Portland?

I came across a comment on Portland Transit that got me thinking.  Written by a self-described opponent of density in the city, the author claimed that such opposition did not imply they were right-wingers.  As evidence, they pointed to the overwhelming popularity of the Democratic Party in neighborhoods which had also taken strong stands against density.  I think the answer to that is a well-worn disclaimer:  Past experience may not be indicative of future results.

Corey Robin described conservatism as,

… a deliberate, conscious effort to preserve or recall "those forms of experience which can no longer be had in an authentic way."  Conservatism "becomes conscious and reflective when  other ways of life and thought appear on the scene, against which it is compelled to take up arms in the ideological struggle."  Where the traditionalist can take objects of desire for granted- he can enjoy them as if they are at hand because they are at hand- the conservative cannot.  He seeks to enjoy them precisely as they are being- or have been- taken away.  If he hopes to enjoy them again, he must contest their divestment in the public realm…  As soon as those objects enter the medium of political speech, they cease to be items of lived experience and become incidents of an ideology.  They get wrapped in a narrative of loss- in which the revolutionary or reformist plays a necessary part- and presented in a program of recovery.  What was tacit becomes articulate, what was fluid becomes formal, what was practice becomes polemic.

Movements to erect barriers to ethnic and economic diversity in Portland (parking requirements), and to make living in and maintaining the past a condition of residency (neighborhood preservation districts), embody the essence of conservatism.  They are fear of the new, fear of strangers, and fear of change writ large.  If Portlanders embrace such causes I think a political shift to reflect conservative values is inevitable.   

To pick on the most vivid example, Amanda Fritz cannot continue demanding a housing density of 20 units per acre in urban growth boundary expansion areas where infrastructure and amenities are by definition non-existent, while at the same time fighting to preserve a density of less than 7 units per acre across most of inner east Portland.  Either she changes her tune or she destroys her credibility so much that functionally she says nothing at all.  Likewise if you think it is impossible to live without a car and therefore parking is necessary for a basic quality of life, why fund public transit at all?  A more effective use of public resources would be to ensure that everyone simply had a car.

One way or another, our political actions will align with our political values.  Our "talk" and our "walk" can't go in different directions indefinitely.

HB 2800 (CRC): A letter to my State Representative

Representative [ ],

I'm writing to express my great disappointment with the news that you will support HB 2800, endorsing construction of the Columbia River Crossing.  That highway project will have long term adverse consequences for the district, for the city of Portland and the state of Oregon.  The project benefits you cited are of marginal value:

- Light rail to Vancouver benefits Vancouver, not us.

- As a tool for managing demand tolling is inferior to existing capacity constraints.  Do you really mean to say you support building a new bridge because it will lead to fewer vehicle trips than occur now?  We should embark on the most expensive capital project in Oregon history so that it can provide less than existing service?  Can you look at yourself in the mirror and say the CRC will be a disincentive to suburban sprawl?

- The construction industry will indeed benefit from spending 450 million dollars.  But what does that have to do with the CRC?  $450M would benefit the construction industry just as much if it were spent on seismic upgrades to our schools.  Or on building a better tsunami evacuation system.  Or on rewiring our electrical system to better integrate renewable energy.  Or any number of pressing infrastructure needs that you know better than me.  Why not spend that kind of money on something that brightens our future rather than darkens it?

The supposed conditions you cited for your support are small comfort.  You claim your support was conditional on tolling I-205, and two paragraphs later admit there will be no tolling on I-205.  What stock can we put in those conditions when they don't even last through your email?  Why should we believe you will react tomorrow to what is plainly obvious today?

Supporting HB 2800 while hiding behind conditions you won't or can't enforce is passing the buck.  It puts us in the position of waiting for someone else to do the right thing and pull the plug on this project.  That is not what I sent you to Salem to do.

An Open Letter to my State Senator

Written in response to a general solicitation for feedback on the Economic Impact Investment Act.

Thank you Senator [] for the opportunity to comment on the Economic Impact Investment Act.  I'm deeply disturbed by the prospect of Oregon being bound for forty years through a law enacted with barely a week of consideration and review.  The process chosen by the governor for bringing forth this legislation guarantees that no one can honestly say they know what they're doing.

With that in mind, some suggestions:

• This legislation should be a prelude to a law that can receive due and appropriate consideration in the 2013 session.  Emergency legislation should enable the governor to address what is truly an emergency and nothing more.

• Toward that end, this legislation should include a sunset clause.  If the 2013 session doesn't see these powers as necessary than they are not necessary.

• I make a living forecasting long term contingent liabilities, and I can tell you with some confidence that no one knows anything about what Oregon's economy will look like in 2050.  That is even more true when considering the fortunes of a single company, even one the size of Nike.  There is no good reason, either for businesses or the state of Oregon, to make promises about their conduct that far into the future.  Any dispensations granted as a result of this legislation should be limited to 20 years at the most.

Finally, a word of caution.  It may be tempting to look at locking in the status quo as a small thing.  But this legislation and the process by which it is enacted will set a precedent.  Who will come calling and what they will demand next Christmas?

A question for Representative Conger

The CCO bill was finally passed, but the Exchange bill is still in a holding pattern.  The Lund Report caught a powerful statement by Representative Jason Conger (R-Bend), talking about the CCO bill (emphasis mine):

After listing many of those complaints about the legislation, Rep. Jason Conger (R-Bend) said “to do nothing is simply unacceptable,” adding that “it required leadership” to get the bill to the House floor for a vote.

“I don’t mean the twisted, pathetic concept of leadership that values political positioning and partisan gain over good policy,” he said. “I mean real leadership, to do the hard work that is required to address big issues that matter to Oregonians who are not in this building, to the rest of the state besides us. There is risk involved in passing this bill. But I believe that I know I was sent here to address those kinds of problems—like jobs, and yes, healthcare…despite the risk in the bill, I will be voting yes.”

 I'm impressed to see someone buck party for conscience in the way Conger did, especially because passage of the CCO bill was a near certainty once it came to a vote.  He could have just voted for it and held his peace, as 22 (of 30) other Republicans did.  Saying what he did took guts...  So why tolerate the stonewalling on the Exchange bill?  If Conger thinks people sent him to the legislature to work on the problem of health care, how is spiking the Exchange bill part of the solution?

Real Tort Reform

I don't have time now to do a full write-up of what I think tort reform should look like and why, and to my surprise I discovered I don't need to.  I guess I'm not the first person to think that a workers comp style process is applicable to Medical Malpractice.  Closer to home, I found that Jack Roberts had written about this very concept back in 2009 in the O (emphasis mine):

Other proposals are more specific to medical malpractice, such as specialized health care courts and safe-harbor practices to protect doctors from liability even if something goes wrong. But maybe it's time to consider a more radical reform, such as a system of no-fault insurance for medical malpractice similar to the workers' compensation system.

Since the adoption of workers' comp laws early in the last century, workers injured on the job are covered without regard to whether the injury was caused by the negligence of the employer, a co-worker, the worker himself or simply bad luck. Injured workers have their medical bills and other out-of-pocket costs covered as well as receiving compensation for loss of income and certain general damages in accordance with an established schedule. In return, they give up the right to bring an individual lawsuit against their employer and with it the hope of winning a lottery-size award or settlement.

Applied to medical malpractice, such a system would compensate any patient whose surgery or other treatment (or lack of treatment) resulted in an adverse result, whether or not the doctor, hospital or nurse was at fault. It could redirect resources currently spent finding fault to compensating patients who have been harmed. And it would recognize that even where medical providers have performed their jobs badly, large jury verdicts are not paid by the wrongdoers but shared by everyone through the insurance system.

 To get a sense of how much more efficient workers comp is at delivering benefits than med mal, let's look at Oregon state wide experience:

ALAE are expenses that can be directly attributed to a specific claim.  So the cost of a court filing for instance is particular to a claim while the cost of a claims department generally is not.  In practice, for these lines ALAE is mainly defense counsel.

What these figures show is that from 2003 to 2010 only half of the med mal premium dollars went to indemnity payments to claimants.  The rest was chewed up by defense costs, overhead and profit.  In contrast only 13% of the Workers Comp premiums were diverted in this way.  The difference is even more striking when you realize med mal claims are much more likely to have a plaintiff's attorney involved than workers comp, and they are paid from indemnity proceeds.  So not even half of the med mal premium money actually reaches patients suffering harm.

A lot of ink has been spilled on the extension of a tort cap, but I think all of the above shows that we need to ask a deeper question.  Does the way we've structured Medical Malpractice liability make sense?  As our experience with Workers Compensation shows, alternate structures exist that have far less costly processes for adjudication.

What Opt-In Does

Nick Christensen does a write-up on how Metro councilors view Opt-In, a registration-required online survey tool.  I think this gets at what this service really does, and what it replaces:

Metro spent $76,000 on Opt In in 2011, generating  more than 20,000 responses – about $4.50 per completed survey.

By comparison, said a staff report for Tuesday's work session, Metro spent about $400 per open house attendee during the 2010 roll-out of then-Metro chief operating officer Michael Jordan's growth and policy recommendations; those numbers soar to $2,800 per completed survey at each of those open houses. The agency also spent $35 per attendee at the dozens of stakeholder meetings Jordan attended.

Opt-in is a new way of connecting with citizens, in a way that allows two way communication- both Metro and citizens learn from the interaction.  And look at the number of people reached, a recent survey had 4,000 respondents.  How many public meetings or open houses have you seen that attracted 4,000 people?  How about a meeting where 4,000 people got to get up individually and express their view?

Some councilors expressed concern that their hands would be tied by the surveys.  How could they justify a vote that went against "majority opinion?"   Even aside from concerns about the opt-in demographics, councilors have a pretty solid excuse:  Voters elected them, not a survey.

The people who should be nervous are the interest groups who make up most of the participants at conventional public meetings.  They are the people most motivated to attend, and most likely through pooling and coordination to have a representative available to attend a meeting at 9am on a weekday.  Most individuals don't have the time or interest for that.  That dynamic gives interest groups a dominant role in reflecting "the public", quite independent of how much popular support their positions actually have.  As Metro President Tom Hughes said,

"Public hearings are an avenue for getting public input, but they're imperfect at best," Hughes said. "They're usually repetitive, not very helpful and usually the people who show up are the people who are absolutely directly involved – you don't get a sense of what the public wants."

Opt-in offers a potential check on interest groups, it creates an opportunity for a truer test of the popular will.  Whether it fulfills that potential depends on participation.  If the only people who sign up are the same people who would otherwise be represented by interest groups, nothing changes.  So if you're a Metro resident not already signed up, please consider it.  Especially if you disagree with me.

Oregon Republicans disappoint

Right after I write about why Democrats should compromise on the CCO bill, Republicans prove me wrong.

A coalition of 30 Republicans and 1 Democrat in the state House of Representatives blocked approval of Oregon's health insurance exchange this morning, prompting concern that bills are being taken hostage to leverage other votes in the month-long 2012 Legislature...

[A Republican house leader] said questions had arisen in a recent caucus meeting of House Republicans over what commitments existed over federal funding of the program, as well as the potential for a change to the legal status of federal health care reforms, currently under consideration by the U.S Supreme Court.

In contrast to tort reform and the CCO bill, this looks like a straight forward attempt to spike the Health Insurance Exchange.  That would put Oregon in league with the other red states that are standing around waiting for a federal exchange to be dropped on them.  Thing is, only in the most sheltered, isolated, reality deprived imagination could today's Oregon be conceived of as a red state.  Efforts like this ensure it never will be.

CCO Bill and Tort Cap

The Oregon Legislature is trying to figure out whether or not to include a tort cap in the CCO bill.  The stakes are high, as legislators are expecting up to $2.5 billion in federal aid if the CCO bill passes.  I don't know the politics well enough to guess what would happen if a CCO bill doesn't pass in this session.  Maybe the federal money will still be there next year, maybe not.  But since the state already banked savings resulting from CCO's in the current biennium budget, it doesn't really matter.  The bill needs to pass.

For that reason I think Democrats need to hold their noses and pass the bill with the tort cap included.  While it is true that Republicans are engaging in hostage taking and you risk encouraging such behavior by giving in, there are some mitigating factors.

• One of the central purposes of CCO's is to save money by reducing unnecessary or ineffective care.  The tort cap may be politically undesirable and only marginally effective, but however slightly it still promotes the goals of the CCO.  Tacking this on isn't as irresponsible as would be say, a demand for PERS reform or tax cuts.
• Passing the CCO bill with a tort cap does not forestall pursuing more effective tort reform in the next session.  Passage of a more comprehensive reform which affected all providers state wide would render the CCO compromise moot.  And make no mistake, there is ample reason to pursue tort reform quite apart from CCO's.

 Given the money at stake and the relatively small compromise needed, legislators would be grossly negligent if they fail to pass this bill.  Jawbone and posture all you want.  Call out the fine 15 for committing to the proposition that $20M in annual savings is worth more than $2.5B, a trade that takes 125 years to pay off.  But at the end of the day, we need this bill.  Get it done.