Sunday, November 22, 2009

Missing the Point

I'm beginning to think that the Obama administration's decision to try Khalid Sheikh Mohammed in a New York federal court has the same basic motivation as its healthcare reform plan. What ties the two together seems to be a desire to make plenty of work for trial lawyers.

The administration cut off a military tribunal process that was well underway and under which KSM had essentially already pleaded guilty in order to have a civilian trial in New York. Assuming KSM and his four fellow defendants do not plead guilty in that venue (and it's hard to imagine that jihadists such as they would not leap at the opportunity to have such a world stage for airing their beliefs and trying to pick up some new converts), this will make plenty of work for attorneys, much more than a military tribunal would have. It may just be a coincidence, but Attorney General Eric Holder's old law firm, Covington & Burling, has represented no fewer than 17 detainees at the Guantanamo facility.

I resist indulging in any conspiracy theories about that, however. I thought it was a bit silly when it was about Dick Cheney and Halliburton, and it would be silly to make too much of this now. But the Obama administration has a clear bias in favor of making work for trial lawyers in general. In addition to government employees, this is one area where the administration has been successful at keeping and creating new jobs.

A common refrain among people who favor a major overhaul of the healthcare system is that health care in America is the most expensive of any country in the world. They usually add, at the same time, that metrics for healthcare quality show U.S. healthcare way down on the list, despite its high cost. The latter claim is clearly a case of fiddling with statistics. For a while New York Times columnist Nicholas Kristof kept writing that statistics showed that U.S. health care was worse than Slovenia's. Let's use a little common sense. Do you know anyone who has fled to Slovenia, or any other country for that matter, for better health care? American health care is hugely expensive but it certainly isn't of poor quality when compared to other countries.

When you listen to people talk about health care, their first concern is usually the cost of it. A secondary concern is that they may lose it or that other people may not be able to get it. Proponents of Democratic healthcare reform point out correctly that France has a very good healthcare system and that it costs less. But it doesn't follow logically that the Democratic plan will bring American healthcare costs in line with France's. Similar plans adopted by individual states have tended to make health care more expensive. The critical difference between America's and France's healthcare systems (and that of pretty much all other countries) is the amount of money spent on malpractice insurance and defensive medicine. Simply put, no other country makes it as easy to bring huge lawsuits against doctors and hospitals. If you corrected for this, America's and France's health care would cost about the same.

But, despite President's Obama's stated willingness to "talk about" tort reform, Democrats have refused to include anything that would correct this situation in any of their bills. That's not surprising since trial lawyers, as a group, are big contributors to the Democratic Party. But even Republicans don't focus on this enough. They dutifully include tort reform in their check list of ideas to demonstrate that they are not being simply obstructionist, but they don't emphasize the issue as much as they should. And, as Democrats like to point out, Republicans lack credibility on the issue because they had control of the government for years and never made a move to tackle the problem.

If some form of healthcare reform eventually passes the Congress (and it's by no means certain that it will), let's hope that the congressional system makes the result somewhat reasonable. Inevitably, no one will be particularly happy with the final version. It will be too watered down for many on the left, and those on the right will be unhappy about any increase in the burden of government on the private sector, the only place where money to pay for everything can be generated. As for individuals, some will undoubtedly be better off under a new system, but others will have their lifestyles lowered because of higher taxes and the requirement to purchase insurance they may not want. And there is no reason to believe that people will be any happier about the government's arbitrary decisions about what can and cannot be covered than they were with those of private insurance companies.

But the really depressing thing will be that, barring a miracle, this healthcare reform will completely miss the chance to target the one problem virtually everyone can agree on: health care is too expensive.