Under the proposed 50/50 formula, utilities that are more coal dependent will need to purchase even more allowances than they would have if all allowances were allocated based on emissions.

Well, yeah. And under the current proposed 50/50 formula, the coal burners would also have to purchase more allowances than if Congress did nothing at all. But the whole point of the bill is to discourage the use of high-emission energies like coal by making them less affordable than cleaner alternatives. Sheppard explains further why the lawmakers’ argument makes little sense in the context of the global warming debate:

Of course, this would work against the entire logic of the proposed scheme, which is to offer utilities financial incentives to switch to lower-carbon fuel sources. [...]

Right now, the climate bill needs all the votes it can get from Democrats. So enviros worry that concessions to this bloc could ultimately result in a deal in which coal plants suffer no real penalties for the carbon they pump into the atmosphere. “Dirty coal polluters know their days are numbered and are lobbying for the largest piece of the pie they can get,” said Jason Kowalski, policy coordinator at 1Sky. “It goes against the spirit of this legislation to reward the polluters that caused this problem in the first place.”

Signing on to the letter were Democratic Sens. Carl Levin (Mich.), Debbie Stabenow (Mich.), Russ Feingold (Wis.), Herb Kohl (Wis.), Tom Harkin (Iowa), Al Franken (Minn.), Amy Klobuchar (Minn.), Byron Dorgan (N.D.), Kent Conrad (N.D.), Roland Burris (Ill.), Sherrod Brown (Ohio), Michael Bennet (Colo.), Mark Udall (Colo.) and Robert Byrd (W.Va.).

Indeed, as The Washington Post reported over the weekend, that failure to lend a financial hand for the sake of fixing the broken health care system has made the industry few friends on the Senate Finance Committee, which has proposed $40 billion in fees on medical device makers over the next decade, when those companies are estimated to pull in $2 trillion.

Yet, this being Washington, even that proposal is getting pushback from lawmakers representing states where medical device makers are most concentrated. From the Post:

Democrats and Republicans from Minnesota, Indiana, New Jersey and other states with prominent medical device operations are rallying to oppose the proposed fee, which would collect $4 billion annually from the $130-billion-a-year industry. Fourteen Democratic senators sent a letter to Senate Majority Leader Harry M. Reid (Nev.) and other top Democrats last week, urging them to “moderate” the levy, which they said will “threaten the existence of some manufacturers” and cause “significant job reductions” for those that remain. Five GOP governors also have weighed in with objections.

“The issue here is that these are very good jobs in our state and in our country,” [Sen. Amy] Klobuchar [D-Minn.] said in an interview, acknowledging that she is among a group of “strange bedfellows” rallying around the industry. “You want to be very careful when you start assessing taxes on an industry like this.”

And herein lies what’s perhaps the most significant hurdle facing the Obama administration as it attempts to fix health care this year. The medical-industrial complex is a $2.3-trillion-a-year behemoth. And even the most wasteful of that spending creates jobs somewhere, thereby producing a perverse incentive for congressional lawmakers to protect regional interests at the expense of national ones. The device makers are only one tiny sliver of that much larger trend. But they should be careful. Regional protectionism has its perils.

That’s the intro. Here’s the point.

Yesterday, as the Senate Judiciary Committee was examining an antitrust exemption enjoyed by private insurers, Sen. Al Franken (D-Minn.) pointed to the Anthem lawsuit as yet another in a growing list of reasons for Congress to inject some additional competition into the ever-consolidating health insurance industry.

“I’m not aware of any industry that is entitled to any guaranteed margin of profit, are you?” Franken asked Christine Varney, assistant attorney general in the Justice Department’s antitrust division.

“No, I’m not,” Varney replied.

The Minnesota Democrat is supporting not only a proposal to repeal the industry’s antitrust exemptions, but also another to create a public insurance option to compete with private companies.

Statistics provide the basis for Franken’s concern. Wellpoint is by far the largest private insurer in Maine, representing 78 percent of the marketplace, according to a 2007 survey conducted by the American Medical Association. When Aetna plans are considered in the equation, only 12 percent of the state’s private insurance market is left under the control of other competitors.

Industry representatives say that high market concentration is no sign of depleted competition. University of Arkansas professor Lawrence Powell told lawmakers Wednesday that such concentration “is not necessarily by itself indicative of a lack of competition. It could also be a sign of efficiency.”

Powell, testifying before the Judiciary Committee on behalf of the Physician Insurers Association of America, maintained that if one company controlled 90 percent of a regional market, “then somebody else is controlling 10 percent. And there’s hundreds of other companies that could come in and take a share if they could do a better job.”

Yet there is also evidence that market dominance has allowed companies to hike prices without much fear of being low-balled by competitors, which hardly exist. In Maine, for example, individual insurance premiums jumped nearly 88 percent in the eight years between 2000 and 2007, according to a 2008 report from Families USA, a consumer health care group. Meanwhile, median earnings increased by less than 17 percent over that same span, Families found.

Returning to the topic of Anthem’s lawsuit against the state, Franken asked Varney whether market consolidation “has fostered this company’s, I guess, brazen behavior at the expense of beneficiaries’ pocketbooks.”

“When you don’t have to compete,” Varney replied, “you can get pretty big profit margins.”

In a statement, the lawmakers cite the reasoning behind the proposal.

Under current law, possession of five grams of crack cocaine (roughly the weight of two sugar cubes) triggers a mandatory minimum five-year prison sentence, while trafficking 500 grams (approximately one pound) of powder cocaine triggers the same sentence. The so-called 100:1 sentencing disparity has been in place since 1986. The Fair Sentencing Act would eliminate the disparity, treating crack and powder cocaine equally.

Sen. Richard Durbin (Ill.), the upper chamber’s second-ranking Democrat, said passage of the bill is long overdue.

The sentencing disparity between crack and powder cocaine has contributed to the imprisonment of African Americans at six times the rate of whites and to the United States’ position as the world’s leader in incarcerations. Congress has talked about addressing this injustice for long enough; it’s time for us to act.

Other sponsors of the bill include Democratic Sens. Patrick Leahy (Vt.), Arlen Specter (Pa.), Chris Dodd (Conn.), John Kerry (Mass.), Al Franken (Minn.), Ted Kaufman (Del.), Russ Feingold (Wis.), Ben Cardin (Md.) and Sheldon Whitehouse (R.I.).

In July, the House Judiciary Committee advanced a similar bill, sponsored by Rep. Robert Scott (D-Va.).

The role of the limited antitrust exemption provided by the McCarran Ferguson Act is to increase competition by promoting the characteristics of competitive markets described above.  From all indications, the law has been remarkably successful in achieving this objective.  Numerous studies conducted by academic and government researchers find that insurance markets are highly competitive (e.g., Joskow, 1973).

The age of the study wasn’t lost on Sen. Sheldon Whitehouse (D-R.I.), who was quick to challenge Powell about his dated citation. That exchange:

Whitehouse: “Do I have the date of that article correct — it’s 1973?”

Powell: “Um, I believe so.”

Whitehouse: “And so, necessarily, any of the data on which that article would rely for that conclusion would be pre-1973 data, correct?”

Powell: “Um, for that article, I would suppose it is … I also cite two of my own studies earlier in the testimony, that are much more recent.”

Next to question Powell was Sen. Al Franken (D-Minn.), who asked the professor whether the highly concentrated insurance market — in which single companies can dominate in many regions of the country — is indicative of healthy competition.

“Do you believe having 90 percent of a market dominated by a single insurer meets your definition of a competitive market?” Franken asked.

“First of all, I’ll say that I’m not aware of that 90 percent number,” Powell responded. “I’ll take your word for it.”

Said Franken: “This is post-1973.”

Amendments proposed by Sen. Richard Durbin (D-Ill.) that would have required that the target of a National Security Letter have some alleged connection to terrorism, and by Sens. Russ Feingold (D-Wis.) and Arlen Specter (D-Pa.) that would have eliminated the “lone wolf” provision that allows surveillance of suspects with no suspected link to a known foreign terrorist organization, were defeated.

Much of the justification cited by Senators who supported the broad surveillance powers contained in the bill was based on classified briefings from the FBI and Justice Department. Feingold, who drew different conclusions from those briefings, lamented that the information about how the Patriot Act has been used remains classified.

Sen. Al Franken (D-Minn.), who in the past has expressed concerns that parts of the Patriot Act violate the Fourth Amendment’s “search and seizure” clause, didn’t say a word at the markup session. He voted in favor of the Leahy-Feinstein bill renewing the expiring provisions of the Patriot Act.

Update: Here’s the final committee vote:

Aye: Kohl, Feinstein, Schumer, Cardin, Whitehouse, Klobuchar, Kaufman, Franken, Kyl, Cornyn

Nay: Feingold, Durbin, Specter, Sessions, Hatch, Grassley, Graham, Coburn

I asked Pawlenty whether he and his PAC would push for voter registration reform along the lines of his own state’s fairly straightforward process, which allows registration up to and including Election Day. (Thanks to my colleague Graham Moomaw for typing it up.)

“One potential corrosion of our freedom and liberty is to have the democratic system, the election system, being undermined or becoming even partially fraudulent or lacking in credibility,” said Pawlenty. “We have electronic scanners in Minnesota. The ballots that were cast last time through the scanners were 99.9 or so percent accurate. There were no problems with them and the individuals who cast those ballots had to present themselves at a polling place in person and with at least some, you know, screens around identification and proper voting.”

Pawlenty went on to say that “all the problems in Minnesota in the Franken-Coleman [Senate] race related to the absentee ballot process.”

“I’ve been told that in 2006 there were 12,000 absentee ballots cast in our state,” said Pawlenty. “That’s a high number based on a historical number, so keep that in mind, 12,000 in 2006. In 2008, there were almost 300,000 absentee ballots cast in our state. Now this is a process where people are supposed to use absentee ballots because they’re unavailable in their voting area on Election Day because they’re out of the state, they’re on business travel, or they’re medically or physically unable to show up. So you can see in a presidential race, you know, an increase of say 10 percent or 20 percent or something like that from 2006. But what you saw is approaching this 3,000 percent increase, in absentee voting in Minnesota … obviously something very extraordinary occurred and what occurred is you had grassroots organizations come in here and use the absentee ballot process as a substitute for voting by mail. And, almost all of the problems … in the Franken-Coleman case come out of these absentee ballots.”

Pawlenty circled back to my question about whether his own state’s voter registration system should be a national model. “Same-day registration in Minnesota would be fine if we had more stringent identification requirements,” he said, “specifically photo ID. We don’t require, and we should require in Minnesota, photo ID. So it’s not that the timing or the day of it is the problem. It’s making sure that we welcome any legal person who’s entitled to vote, to vote. We just need to make sure it’s appropriate. Now, we don’t have a history or tradition in Minnesota of a lot of voter fraud or these kinds of concerns but this Franken-Coleman experience, particularly as related to the absentee ballots, gives us pause. So, it’s not so much a same-day registration issue as it is making sure the registration, and the identification that goes along with it, is rigorous and appropriate.”

I told Pawlenty that I’d asked the question in the context of him hiring Sara Taylor to work for his campaign, and wondered whether he agreed with the priority she, and the Bush administration in general, placed on poring over voter rolls for alleged registration fraud.

“Absolutely,” Pawlenty said. “We should aggressively, at the state and federal level, enforce voter fraud concerns and to aggressively investigate and enforce voter fraud concerns. Because if we allow any corrosion to the integrity of the system, it calls into question the entire credibility of the results of the election and ultimately the pillars of the democracy. It is extraordinarily important. It goes to the core credibility and acceptance of our democratic system. And if people are going to question the outcome and say it was derived by fraud, as opposed to the will of the people, you’ve undermined a core tenet of democracy. It’s very concerning. Now, so to answer your question, we should make it a critical priority.”

ACORN claimed to have registered 48,000 new Minnesota voters. If just 1% were ineligible but cast ballots, or had ballots cast for them illegally, and survived the recount process … that’s 480 votes, almost certainly overwhelmingly cast for Franken.

Let’s look at this.

First, the story Kaus links to is actually a column by the conservative Katherine Kersten, whom the paper refers to as “a Twin Cities writer and speaker,” and who limns the column with attacks on the “liberal agenda.” Kersten has no proof that any illegitimate votes were cast, only that “Minnesota’s laws on proof of voter eligibility are notoriously loose.”

Second, “surviving the recount process” in Minnesota was more difficult than it sounds now. Ballots were counted once and recounted twice, and challenged ballots were counted in a hearing that was streamed live. Republicans had a lot of time, and a lot of incentive, to make the cause that thousands of ballots were illegitimate. They made their case. They narrowly lost.

Franken doesn’t have to face voters again until 2014, so the attempt to smear him here is just a way of draining the ACORN story for all it’s worth and casting illegitimacy on the Democrats’ Senate majority. It’s one thing for, say, Newsmax to engage in this; I am mystified as to why Kaus would do it. From arguing that the 2000 election was stolen from Al Gore by blocked recounts to arguing that ACORN maybe, kinda-sorta, might have registered an illegal voter in Minnesota. Strange.

Update: Todd Herman, who runs new media at the RNC, heartily endorses the ACORN-Franken conspiracy.

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Franken, who opened by acknowledging that unlike most of his colleagues in the Senate, he’s not a lawyer, but according to his research “most Americans aren’t lawyers” either, said he’d also done research on the Patriot Act and in particular, the “roving wiretap” provision that allows the FBI to get a warrant to wiretap a an unnamed target and his or her various and changing cell phones, computers and other communication devices.

Noting that he received a copy of the Constitution when he was sworn in as a senator, he proceeded to read it to Kris, emphasizing this part:  “no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

“That’s pretty explicit language,” noted Franken, asking Kris how the “roving wiretap” provision of the Patriot Act can meet that requirement if it doesn’t require the government to name its target.

Kris looked flustered and mumbled that “this is surreal,” apparently referring to having to respond to Franken’s question. “I would defer to the other branch of government,” he said, referring to the courts, prompting Franken to interject: “I know what that is.”

Kris explained that the courts have held that the law’s requirements that the person be described, though not named, is sufficient to meet the demands of the Constitution. That did not appear to completely satisfy Franken’s concerns.

Today’s Judiciary Committee hearing has so far proceeded much the way yesterday’s House Judiciary Committee subcommittee hearing did, with Democrats (except the Justice Department witness) expressing skepticism that the current law adequately protects Americans’ civil liberties and Republicans emphasizing the need to have all possible tools for law enforcement available because another major terrorist attack could occur at any time.

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President Obama is slated to address a joint session of Congress on Sept. 9 to lay out more detailed demands for health care reform, ABC News reported today. The move — which came on the heels of a written invitation from House Speaker Nancy Pelosi (D-Calif.) and Senate Majority Leader Harry Reid (D-Nev.) –  is intended to quell complaints from congressional lawmakers that the White House has been neither forceful nor specific enough to get the job done.  Ironically, the failure of the Clinton administration’s health reform effort 16 years ago is commonly attributed to this same approach of the White House presenting too many policy details to the legislative branch.

Despite reports that Obama won’t insist on a public option, conservatives are skeptical that the provision is dead. Rep. Phil Gingrey (R-Ga.) took to the airwaves Wednesday urging the White House to veto any proposal that contains a public option or “anything that smacks of a public option, like a co-op.” And Rick Scott, head of Conservatives for Patients’ Rights, issued a statement saying that he’ll believe the public option is dead when he can stick a fork in it. “We’ve heard this song and dance before,” Scott said, “and the White House was all too quick to backtrack.”

Meanwhile, some Democratic senators are also getting more specific about their health policy views. Sen. Blanche Lincoln (D-Ark.) voiced her strongest opposition yet to the idea of creating a public option; Sen. Al Franken (D-Minn.) reiterated his strong support for a public plan; and Sen. Amy Klobuchar (D-Minn.) split the difference, saying she’s open to the public option but not if it utilizes a Medicare-like payment system.

MoveOn.org, the liberal policy advocate, is planning 350 vigils tonight to highlight the necessity of health reform this year, The Washington Post reported. The group says they expect 50,000 participants in an effort to counter the animated town hall forums — predominately featuring opponents of the Democrats reform plans — that have dominated headlines during the August recess.

Meanwhile, consumer advocates continue to support Rep. Anthony Weiner (D-N.Y.), the leading congressional voice behind the push for a single-payer health care system. On Tuesday, Weiner asked the Congressional Budget Office to estimate the cost of the single payer bill, a move Public Citizen is calling “a significant step in educating Congress and the public on how to truly fix our broken health care system.”