Monthly Archives: April 2010

Why Obama Should Pick an Appellate Court Justice to Replace Stevens

With the announcement that Justice Stevens is stepping down from the Supreme Court at the end of the current court session, President Obama has a second opportunity to fill a Court vacancy. When his first opportunity arose last year, I did two things:  first, I offered an “It’s the Fundamentals, Stupid” t-shirt to anyone who could predict the likely nominee.  That contest was won by Conor Shaw who, appropriately enough, is now attending law school at the University of Chicago.  I also argued, in this post, that if Obama really stood for change, he should nominate a politician, as opposed to an appellate court judge, to the Supreme Court.   Predictably, the “change” candidate ignored my advice and instead nominated yet another appellate court judge, Sonya Sotomayor, who was easily confirmed to the Court by the Democrat-controlled Senate.

As I noted then, Sotomayor’s selection and confirmation made it 17 of the last 20 nominees (by my unofficial count), dating back to Nixon’s administration, who were sitting federal appellate judges prior to being nominated to join the Supreme Court.  Here’s the chart I presented then – note that I didn’t include the aborted Harriet Miers nomination (she voluntarily withdrew before the Senate took up her nomination).  Bold-faced type indicates the nominee was a politician:

Nominee Year Appointing President Position Held
Hugo Black 1937 Roosevelt U.S. senator
Stanley Reed 1938 Roosevelt U.S. solicitor general
Felix Frankfurter 1939 Roosevelt Law professor
William 0. Douglas 1939 Roosevelt SEC chairman
Frank Murphy 1940 Roosevelt U.S. attorney general
James Byrnes 1941 Roosevelt U.S. senator
Harlan Stone (C.J.) 1941 Roosevelt U.S. Supreme Court associate justice
Robert Jackson 1941 Roosevelt U.S. attorney general
Wiley Rutledge 1943 Roosevelt Federal appellate judge
Harold Burton 1945 Truman U.S. senator
Fred Vinson (C.I.) 1946 Truman U.S. Treasury Secretary
Tom C. Clark 1949 Truman U.S. attorney general
Sherman Minton 1949 Truman Federal appellate judge
Earl Warren (C.I.) 1953 Eisenhower Governor of California
John M. Harlan 1954 Eisenhower Federal appellate judge
William Brennan 1956 Eisenhower N.J. S. C. Judge
Charles Whittaker 1957 Eisenhower Federal appellate judge
Potter Stewart 1958 Eisenhower Federal appellate judge
Byron White 1962 Kennedy Deputy attorney general
Arthur Goldberg 1962 Kennedy U.S. secretary of labor
Abe Fortas 1965 Johnson Private practice, presidential adviser
Thurgood Marshall 1967 Johnson U.S. solicitor general
Abe Fortas (C.J., withdrew) 1968 Johnson U.S. Supreme Court Associate Justice
Homer Thornberry (withdrew) 1968 Johnson Federal appellate judge
Warren Burger (C.J.) 1969 Nixon Federal appellate judge
Clement Haynsworth (rejected) 1969 Nixon Federal appellate judge
G. Harrold Carswell (rejected) 1970 Nixon Federal appellate judge
Harry Blackmun 1970 Nixon Federal appellate judge
Lewis Powell 1971 Nixon Private practice
William Rehnquist 1971 Nixon Asst. attorney general
John Paul Stevens 1975 Ford Federal appellate judge
Sandra Day O’Connor 1981 Reagan Arizona appellate judge
William Rehnquist (C.J.) 1986 Reagan U.S. Supreme Court associate justice
Antonin Scalia 1986 Reagan Federal appellate judge
Robert Bork (rejected) 1987 Reagan Federal appellate judge
Douglas Ginsburg (withdrew) 1987 Reagan Federal appellate judge
Anthony Kennedy 1987 Reagan Federal appellate judge
David Souter 1990 Bush I Federal appellate judge
Clarence Thomas 1991 Bush I Federal appellate judge
Ruth Bader Ginsburg 1993 Clinton Federal appellate judge
Stephen Breyer 1994 Clinton Federal appellate judge
John Roberts (C.J.) 2005 Bush II Federal appellate judge
Samuel Alito 2006 Bush II Federal appellate judge
Sonia Sotomayor 2009 Obama Federal appellate judge

The key point is that presidents at one time used to select politicians to the Court, but since Nixon’s administration that almost never happens.

As the punditocracy debates the merits of those candidates who are apparently on the current short list, including their sexual orientation, I am tempted to simply rerun my previous post in favor of nominating a politician, rather than still another sitting appellate court judge.  Of those individuals apparently on the current “short list” only Janet Napolitano fits my criteria.  (Yes, yes, I hear you: what about Hillary Clinton?  Don’t you realize she’s challenging Obama in 2012?)

Boiled down to the essentials, my argument is simple:  the Court is, in essence, a political institution.  Justices make arguments that, although based on legal reasoning and embedded within the body of law, are nonetheless at heart debates about political values and that for better or for worse, those rulings tend to track public opinion relatively closely.  The best justices, therefore, are those who are skilled at political reasoning, persuasion and coalition building.  Put another way, we’d rather have a court composed of Sandra Day O’Connors than of Antonin Scalia’s – not because O’Connor has a superior legal mind, but because her opinions tended to exhibit a very pragmatic orientation and were written with an eye toward bridging differences among the Justices.

I’m not the only one to make this argument, of course.  See, for example, this recent Boston Globe editorial.  Rather than make the same point again in the context of the current Court opening, however, I thought it might be more useful if I provided an opposing argument in favor of appointing still another appellate court judge.  (After all, I’m always saying that what sets this political blog apart is my willingness to entertain opposing viewpoints!) Toward that end, see this recent opinion column by Charles Lane on the Washington Post website.  Lane acknowledges that the Court is a political institution. But he notes that justices don’t merely pay lip service to legal precedent – by referencing previous cases and legal doctrine when issuing decisions, justices bolster the Court’s legitimacy as an “impartial” actor whose decisions do not flow strictly from the personal views of its nine members.  I think this is an important point: whenever the Court does venture into the purely political thicket, its members’ motives are already questioned (think Bush v. Gore).  Imagine if a Court of nine politicians overturned the individual mandates contained in the recently-passed health care bill – all hell would break loose.  But that is precisely my point – I can see Scalia, in a strict reading of the law, arguing against the mandates.  In contrast, a politician as justice would be less likely, I think, to jump into this political fray and instead would either decide not to take the case or would defer to the decision of Congress and the President and accept that mandates are constitutional.

Lane also makes two additional points to explain recent presidents’ tendency to nominate appellate court justices that have little to do with their legal background or expertise.  The first is the supply-side to the nomination equation: there are 167 justices sitting on the appellate courts today, compared to only 59 at the end of World War II.  So there is simply more legal talent out there from which to choose nominees.  Second (and this is Napolitano’s problem), in the post-Bork politicized confirmation era, it is simply much more difficult to confirm a politician because they possess an extensive paper trail that can be used against them.  In Lane’s words, “Politicians who, by definition, talk, write and cast votes on just about any issue under the sun are especially vulnerable.”  O’Connor, although a former state legislator, benefited by the historic nature of her selection by Reagan to be the first woman justice on the Court.   To be sure, appellate court justices have a voting record as well, but they can defend that record, Lane notes, by saying their rulings reflect the constraints imposed by adhering to statute or previous court decisions.  This, by the way, may be what undermines Elena Kagan’s chances; although supposedly the current front-runner for the nomination, she may be handicapped by some of her decisions on legal cases while serving as Obama’s Solicitor General.

There is an additional factor at play here: Obama’s pragmatic streak. For all the talk about bringing change to Washington, he has been a remarkably conventional decisionmaker in terms of adhering to precedent and pursuing, whenever possible, a middle course of action. It may be expecting too much to believe he will break the string of 11 straight appellate court nominees. If he does, it will likely be because another pragmatic political factor, such as a desire to nominate an African-American woman, for example, trumps his inclination to play it safe by selecting an appellate court judge.  In the end I expect him to pick the most liberal woman he can get through the Senate – that is, one who does not provoke a Republican filibuster.  Who might that be?  I’m open to suggestions.

Health Care Legislation: Is It Like Social Security and Medicare?

Several more polls have come out indicating that majority of the public continues to oppose the recently passed health care legislation, a further indication that the Obama-led post-passage publicity blitz has not turned public opinion around on this issue.  Instead, it appears that public opposition has solidified at about 52%, with support hovering 5-10% below that, depending on the poll.

Despite the public opposition, supporters of the health care bill have comforted themselves by noting that previous efforts to expand the social welfare safety net, particularly with passage of the Social Security and Medicare programs, also engendered highly divisive debates but that, once enacted, both pieces of legislation developed deep bipartisan support. As John Dingell, a Democrat representative from Michigan who has long advocated for health care reform told a radio audience: “But remember, the same charges were made by the same people about Social Security and Medicare, and those have worked out to be two of the great and most popular social programs in the history of the country or anywhere else.”

The problem with this argument is that the historical analogies aren’t quite appropriate.

To begin, although debate on both Social Security legislation in 1935 and on Medicare in 1964-65 was heated, in the end both pieces of legislation passed quickly and with bipartisan congressional support. According to the Social Security website, “The Ways & Means Committee Report on the Social Security Act was introduced in the House on April 4, 1935 and debate began on April 11th. After several days of debate, the bill was passed in the House on April 19, 1935 by a vote of 372 yeas, 33 nays, 2 present, and 25 not voting. (This vote took place immediately followed a vote to recommit the bill to the Committee, which failed on a vote of Yea: 149; Nay: 253; Present: 1; and Not Voting: 29.)

The bill was reported out by the Senate Finance Committee on May 13, 1935 and introduced in the Senate on June 12th. The debate lasted until June 19th, when the Social Security Act was passed by a vote of 77 yeas, 6 nays, and 12 not voting.”  In the House 88 Republicans supported the bill while 15 opposed it – the same number of Democrats in opposition, as it turns out. In the Senate, 16 Republicans supported Social Security while only 5 opposed the bill. The conference bill reconciling the House and Senate versions of the legislation was then passed on a voice vote due to the large bipartisan support.

Moreover, the politics of health care differ from that of social security. In lobbying for the social security legislation, FDR deliberately misrepresented the program as an “insurance” plan; as he described it, workers put in a portion of their earnings into the social security program which they could then retrieve when they retired.  In fact, workers do not get their money back when they retire – the program is instead an intergenerational income transfer plan, whereby today’s workers fund current retirees. (That’s why, with a growing elderly population and dwindling workforce, the program’s current spending rate can’t continue without some modifications of revenue sources and/or eligibility requirements.) Moreover, because the program is funded through a “hidden” payroll tax, people tend not to feel the fiscal pain of contributing as acutely as they would if they paid a separate tax to fund social security.  Because the redistributive impact of the financing is hidden, and because everyone contributes to the program and receives benefits, Social Security has broad and deep support, as George Bush discovered when he tried to alter the funding mechanism in 2005.   It’s not clear to me that health care costs will be so easily disguised, nor that the legislation will be viewed as a middle-class entitlement.

Medicare had similar bipartisan support, passing the Senate by a vote of 70-24 and the House by 307 to 116.  And, as with Social Security, a majority of Republicans in the House supported the bill, by 70-68. In the Senate, opposition among Republicans was stronger, but nonetheless Medicare received 13 Republican votes in favor versus 17 against.

As with Social Security, it is funded by a somewhat hidden payroll tax, and everyone is eligible to access its benefits.

Moreover, according to the Gallup poll, 65% of the public approved of the Medicare legislation in January, 1965.  (I don’t have similar public opinion polling data on Social Security from 1935, and am not sure it even exists.)

I don’t need to remind you that the recently passed health care legislation received nary a Republican vote in favor, and that it has never achieved even 50% support among the public. The following table compares the votes on the three pieces of legislation:

Legislation House Vote Senate Vote Republican Support in House Republican Support in Senate
Social Security 372-33 77-6 81-15 16-5
Medicare 307-116 70-24 70-68 13-17
Health Reform 220-207 (the “fixed” bill) 56-43 0-179 0-40

More problematic, however, is that the politics of health care is likely to differ from that of Social Security or Medicare.  In fact, most Americans currently have health care insurance, and roughly 80% of them are largely satisfied with that coverage.  The worry for supporters, like Dingell, of the health care bill is that Americans will perceive it as imposing costs on them to expand health insurance coverage to an additional 30 million people, some of whom voluntarily choose not to be insured.  Moreover, the costs of health care reform depend in part on “reforming” Medicare – a program with strong public support.  If the public perceives that the price of health insurance means a reduction in Medicare services, or declining participation by hospitals and doctors, opposition to the health care plan will grow.  A similar backlash could develop when taxes on so-called “Cadillac” health insurance plans are levied to fund the health care reform program.

For all these reasons, I think that efforts to compare health care with Medicare or Social Security are not very useful historical analogies – their politics and substantive components are very different.

Instead, when we think about the possibility of repealing health care, the historical analogy that may be a better – although by no means perfect – fit is welfare reform.  In 1996, the Republican-controlled Congress passed and Democrat President Bill Clinton signed into law a bill that replaced the decades-old Aid to Families with Dependent Children (AFDC) program with a new block grant program to the states that imposed work requirements on aid recipients and made major cuts to food stamps and assistance to legal immigrants. The legislation was bitterly opposed by liberals who saw it a racially-tinged attack on the poor, but Clinton, after long internal debate, ultimately supported the welfare reform bill.  He did so in part because of Republican threats to pass a more draconian bill, but also because of public opposition to the AFDC welfare program and because the cost of the program (although actually quite small compared to Social Security or Medicare) was viewed as unacceptable in an era of budget deficits.  (Incidentally, most policy specialists now view welfare reform as largely an effective program).

To be sure, this analogy has its own flaws: health care is likely to be much more costly than welfare reform but it is also possible – if the CBO projections hold – that it will not adversely impact the deficit.  And it’s not clear to me that health insurance is viewed in the same way by the public as “welfare” – for many people, health insurance is a fundamental entitlement in a modern industrialized society, whereas “welfare” continues to be viewed by some as a government “handout” to the “undeserving” poor.

Whether health care legislation faces a fate similar to the AFDC program, I think, will depend on several factors:  its budgetary implications, the impact on Medicare, the degree to which the general public views the program as primarily benefiting a “less deserving” subset of the population as opposed to a middle-class entitlement, and whether Republicans – if they regain congressional majorities – can craft a more palatable alternative health reform proposal.  If so, we may see an effort to “mend” health care legislation, rather than to “end” it.

We Have Seen the Tea Party, and It Is Us

Demographically, that is.

Gallup has released a random survey of those who support the Tea Party movement and the findings help dispel the notion propagated on some web sites that the group consists largely of Chevy-driving bitter white males who can’t spell. In fact, as this Gallup table indicates, Tea Partiers are, in terms of age, education, employment and race, almost indistinguishable from a cross-section of all Americans.

They are slightly more male, and slightly more affluent, than a comparable sample of Americans.  But what really distinguish the Tea Partiers are their political views.  As the following table shows, they are more likely to be Republican, and more likely to hold conservative views, than the comparison group.  Interestingly, however, about half of the movement’s support comes from non-Republicans (assuming we treat independents as true independents.)  So this is clearly not a purely partisan movement.

All told, some 28% of those surveyed say they support the Tea Party movement, making it as, or more, popular, right now, than the Republican Party, according to some polls.  Interestingly, the number of independents who support the movement are about the same proportion as in the population at large.

Now, there are a couple of caveats to keep in mind in interpreting these results.  First, these are people who claim to support the movement.  It may not reflect the more activist element that actually shows up to Tea Party rallies.  Second, as with any poll, question wording can skew results.  In this case, Gallup asks about Tea Partiers’ views on abortion. However, by limiting the choice to either “pro-life” or “pro-choice”, Gallup fails to tap into the more nuanced views most Americans, including I’m guessing Tea Partiers, have regarding abortion.  Few Americans characterize themselves as purely “prochoice” or “prolife” if given a broader range of options.

Nonetheless, the survey is a welcome first step in trying to understand an increasingly influential political movement, one that may be in a position to shape results in the upcoming midterm elections.  To this point, media opinion pieces (as in New York Times‘ columns here and here) have tended to portray the movement as agglomeration of right-wing antigovernment types mingling with the bitter bible thumping crowd.  But, as the Gallup data indicates, it’s clear that the movement is more widely-based.  It appears to be tapping into a deep-seated unease that cuts across economic and educational lines, one predicated on worries about the economy and about “bigness” – big banks, big corporate bailouts, big government health programs and, most worrisome – big debt in general.  At this point it is unclear to me whether this loose and as yet unfocused social movement will translate into an effective political force that influences the 2010 midterm elections, and the following presidential election.

Historically, the Tea Party movement fits well with a long American tradition of anti ”bigness”-based social movements dating back to Jacksonian democracy and opposition to a U.S.-chartered bank during the 1830’s through the agrarian-based populist movement of the 1890’s and the “share-the-wealth” Townsend movement of the 1930’s and up to the anti-tax revolution of the late 1970’s.  Perhaps the most recent comparable movement was that led by Ross Perot who, as the head of the Reform Party,  used voter outrage over government spending and budget deficits to win nearly 20% of the popular presidential vote in 1992.  In this respect, the Tea Party movement is certainly not new, and indeed is distinctly American.

The problem with sustaining such movements is that their antigovernment sentiment makes it difficult for members to take the steps, such as organizing to run candidates, which are required to transform a movement fueled by voter outrage into an institutionalized party or make sustained policy changes. In this respect, the antitax movement spawned by property tax rollbacks in California and Massachusetts is an exception to the rule; it resulted in an enduring shift in how states raised revenue, and helped lay the basis for the Reagan era.   History suggests, however, that if the Tea Party movement continues to grow, the passions that fuel it will likely be coopted, perhaps in watered-down form, by one of the two existing parties.  At this point, Democrats have to worry that the anti-incumbent, anti-government sentiment driving Tea Party activism will most directly target them in 2010. For Democrats, the best way to defuse that anger, and weaken the movement, is to hope that the early signs of economic recovery are a harbinger of better things to come.

If conditions do not improve, however – if the economy remains mired in slow growth and high unemployment, I expect the next phase in the Tea Party movement will be to coalesce around a figurehead who can embrace its ideals and compete in the 2012 presidential elections.

And who might that be?  I can’t see the future.   But I can see, when I look out my back door in Ripton, the distant shores of Alaska.

The Uzi and Me (Or, the Mysteries of the Internets)

James Fallows, the former Carter speechwriter and current Atlantic magazine columnist, has written a couple of recent columns that use Richard Neustadt’s argument in his classic work Presidential Power to analyze Obama’s handling of health care.  Fallows’  basic point is that Obama’s success in getting health care passed will increase his influence on subsequent legislative outcomes.  I’m currently writing a longer post that responds in part to Fallows’ analysis, which I think overestimates Obama’s ability to influence the legislative process – a mistake that the media makes about presidents in general.

But I wanted to briefly note an interesting aspect of writing a blog in the internet age that became apparent because of  Fallows’ column.  In his most recent Neustadt-inspired analysis, Fallows cites, among other works, my co-edited volume (with Beth Neustadt) on Neustadt’s role as Guardian of the Presidency.   He also links to my blog post dating back to President’s Day when I posted my annual tribute to Neustadt’s influence on the study of the presidency.

Whenever another widely read blog links to mine, I get a temporary uptick in readers, and it’s always interesting to see on which blog posts of mine they click.  Not surprisingly, given Fallows’ large viewership, I had a larger than typical surge of hits over the last week.  Naturally,  I wondered which of my trenchant, incisive political analyses attracted the most attention. Was it my early claim that Obama would bring little change to presidential politics, particularly in foreign policy? My prescient pre-election forecast predicting who would win the presidency?  My prediction of a continuation of partisanship, rather than the promise of bipartisanship on which Obama had campaigned?

No.  By far the most popular post these first-time readers clicked on was my story about the census bureau “troll”.   For reasons that I cannot quite fathom, readers of the UziTalk Forum dealing with – yes – Uzi submachine guns apparently found my post particularly interesting. There were 32 hits from this forum alone in the span of a day.   Keep in mind that the typical post  on the Uzi Forum goes something like this:  “Do any of you guys have experiences with Hi-Desert Dog besides the one in this thread? I’m about to spend some $$$ on him for a Sig conversion with threaded barrel, and want to have some more barrels threaded at the same time. Any input is appreciated.”

The internets is a strange world.

Tomorrow I’ll explain why the media’s analyses of Obama’s role in passing health care legislation perpetuate a common misreading of presidential power.

Why a Slim Majority of the Public Opposes the New Health Care Bill

The full impact of the recently passed health care legislation will not be felt for a number of years, with most of the provisions not kicking in until 2014, but in the short term opposition to the legislation can be found among three broad ideological groups: those on the Right, those on the Left – and those in the Center.  As I noted in earlier blog posts, during the year long run-up to passage of the bill, public support for health care reform gradually dropped.  Today, according to most polls I’ve seen, the public continues to oppose the newly-minted law, despite the campaign-style effort by Democrats and Obama to rally support for it. Thus, pollster.com’s latest composite poll of the polls lists 51.6% against reform with 40.2% supporting, a margin that has slightly widened since health care passed.

That those on both the Left and the Right remain opposed to the bill ought not to be surprising.  When this debate first began last summer, I gave several talks in which I predicted that rather than fundamental health care reform, Congress was far more likely to pass insurance reform.  In many respects, this is exactly what occurred; this is a very conservative piece of legislation. Essentially, it expands health care coverage to an additional 30 million people, and pays for that through a series of tax hikes, mainly by taxing investment income on the highest income earners and by taxing health care plans that offer extensive benefits. Combined with a projected decrease in spending on Medicare (more on that below), the CBO projects that it will be costly, but largely revenue neutral, if not a deficit reducer.   Rather than restructure how health care is provided in the United States by, for example, expanding government-run programs or creating a public option, the legislation maintains the existing fee-for services, employer-based system now in place.  Not surprisingly, conservatives oppose what they see as essentially a costly redistributive program, funded by tax increases, designed to expand health care coverage. Liberals, on the other hand, see this as essentially a giant subsidy for insurance companies, hospitals and doctors who stand to reap millions in profits because of the insurance mandate and increased demand for services.  According to projections, private insurance plans could see enrollment jump by 16 million, with the rest of the newly-insured eligible for coverage through state-run Medicaid programs.

To be sure, it is not clear that insurance companies will make out as well as liberals fear.  The provisions for state-supervised “exchanges”, through which some insurers would be required to sell policies to individuals and small businesses, means that the insurance industry will be far more heavily regulated than before. (Consumers who are not insured through their employer can make use of these exchanges.) The worry, for insurance companies, is that if healthy people opt to pay a penalty, rather than sign up for health insurance, companies will be left paying out much higher benefits because of a higher risk pool. This is precisely what happened in Massachusetts – many healthy people opted to pay the minimal penalty rather than pay for health insurance, and insurance companies sought to raise rates in response. Hence the mandates in the federal bill requiring most people to purchase health care insurance.

Those mandates, however, while perhaps economically necessary, run against the grain of American political culture and may pose a legal difficulty as well (although I suspect the courts will stay out of this area entirely.)  Simply put, Americans do not like to be told by the government to do something, especially when it is to benefit a portion of the electorate – largely low-income workers – who lack political clout.

But there is a bigger problem with the legislation, in my view, one that primarily accounts for the lack of support among centrists as well.  Most economists that I have read believe that the legislation will expand demand for health care services, but without putting a huge dent in escalating health care costs. I have noted repeatedly in this blog that the vast majority of Americans – over 80% by most polls – are satisfied with their current health care coverage. Support for reform was largely predicated on the assumption that reform legislation would contain escalating health care premiums and expenses.  The big question is whether this current legislation will do so.  Most economists don’t think it will – and that’s why many moderates oppose it. The biggest unknown centers on whether the government can achieve the reduction in Medicare payments and costs that formed the basis of the CBO projection that this bill will be revenue neutral.  Even the CBO qualified its assessment, by noting: “It is unclear whether such a reduction in the growth rate of [Medicare] spending could be achieved, and if so, whether it would be accomplished through greater efficiencies in the delivery of health care or through reductions in access to care or the quality of care.” 

If seniors perceive that the savings come through a reduction in Medicare services, opposition to this plan is likely to grow.  Similarly, if hospitals calculate that a reduction in government reimbursements for Medicare services make their participation in the program unprofitable, they may opt out of the program entirely.  Both spell bad news for the future of this legislation.

My broader point is that most of the public – even many who support the expansion in coverage – don’t believe this bill will control costs, as this recent Gallup Poll indicates:

At this point, I don’t see these numbers changing until voters see health care costs going down.

Of course, it is impossible to fully discuss all the permutations of this bill in a single blog post, particularly when its most important provisions won’t go into force – if at all! – for several years.  (This site is one of several that provides a good overview.) But in my next post, I want to address five issues related to health care that I think have been underplayed in the media coverage so far, but which will go a long way toward determining whether Obama and the Democrats get any political mileage from this bill.