Below is my column today on the continuing problems with the Affordable Care Act. I believe some national health care plan was needed. However, before passage, I spoke on Capitol Hill and criticized the poor drafting of the Act as well as the constitutional concerns over the federalism issues. I was most surprised by simply the poor shape of the massive bill. It was rushed through Congress to avoid having to go back to the Senate after the death of Ted Kennedy. The result was many poorly considered provisions. For that reason, I expected (particularly after the expenditure of such a huge amount) that the rollout would be done with particular care. I was shocked by the gross negligence shown by the Administration. Health and Human Services Secretary Kathleen Sebelius repeatedly assured Congress and the public that the system was ready after almost a half billion dollars in federal funds and years of preparation. She never informed Congress that her top tech officer (who has now resigned) refused to sign off on the program due to concerns of the lack of full testing and that various experts expressed doubts about the launch. However, Sebelius and her aides insisted on effectively launching in the blind. Putting aside how one may feel about national health care, this would seem an objective measure of the lack of performance. This was the single most important task not just for Sebellius but the Administration and it was a failure. For those who have fought hard for health care, the failure played into the hands of critics. Yet, with a program named after a Democratic President, there seems an unwillingness to separate the merits of Obamacare from the poor administration of the rollout of the program. While officials are now profusely apologizing, it seems that (unlike most citizens) high-ranking officials are immune from performance based termination. That is the subject of the column in USA Today.
On Oct. 1, millions of citizens came face to face with one of the most embarrassing blunders of our generation. After almost half a billion dollars spent on the computer registration system for Obamacare, the website coughed, sputtered and appeared to descend into an immediate coma as millions tried to log on. One reason is that the Obama administration never fully tested it.
For many, the greatest surprise was not that the government spent wildly on a defective system, but that the failure did not result in a single termination. While the agency’s top technology officer, Tony Trenkle, wisely is retiring, the appearance of the still employed Health and Human Services Secretary Kathleen Sebelius at a congressional hearing this week led many to ask a reasonable question: What does it take to lose a government job?
If recent scandals are any measure, the answer is chilling. Of course, one would have thought that a$400 million debacle would fit easily under “fireable offenses.” This is particularly the case when contractors testify that it was the administration that decided not to fully test the system. Then there is the use of a contractor that was terminated earlier in Canada for allegedly fouling up the computer system for Ontario.
The Obamacare six
During her testimony before the Senate Finance Committee, Sebelius admitted that the website is still “not where we need to be.” That is quite an understatement. One government estimate put the number of people registered in the first 24 hours at six. If that seems a joke, it was. In a Saturday Night Live skit, Kate McKinnon played Sebelius and noted, “Millions of Americans are visiting HealthCare.gov, which is great news. Unfortunately, the site was only designed to handle six users at a time.” Still, the Obama administration insists it will not release the current number of actually registered people until the middle of November while admitting that it will be low.
However, if history is any judge, Sebelius can take heart. Her job should be secure. Neither crimes nor incompetence seems to meet the standard for termination for federal employment. Take National Intelligence Director James Clapper. In a public hearing before Congress, Clapper denied that the NSA was collecting “any type of data at all on millions or hundreds of millions of Americans.” That was clearly false. Clapper later admitted that he gave “the least untruthful” statement that he could think of. That, of course, would still make it a lie and thus perjury. However, Clapper was neither prosecuted nor fired.
Likewise, waste is something that does not even register in Washington. The Pentagon ordered a dozen Italian-built C-27J Spartans at nearly $50 million a pop only to roll them directly from the factories into mothballs. That’s right, $567 million of aircraft sent directly to a facility in Arizona dubbed “the boneyard.” Then there is the $772 million spent for 30 Russian Mi-17 helicopters that an inspector general report found could not be flown by the Afghans. Then there is the $34 million spent to build a huge headquarters longer than a football field for the Marines in Afghanistan with a theater, special operations rooms and other amenities. The Pentagon did so despite the objections from the commander that the Marines neither needed nor wanted the building. An inspector general found that the 64,000-square-foot facility “will probably be demolished” without being used.
Even when lives are lost, negligence is not a basis for termination, as shown in the Benghazi scandal. The State Department’s own internal review found “systemic failures and leadership and management deficiencies” leading to the deaths of four Americans, including the U.S. ambassador to Libya, Christopher Stevens. But the Accountability Review Board “recognizes that poor performance does not ordinarily constitute a breach of duty that would serve as a basis for disciplinary action but is instead addressed through the performance management system.” In other words, even with four dead and an international crisis, the officials responsible could only be “reassigned.”
Arrogance of power
Given this history, one can understand Sebelius’ response to critics that “the majority of people calling for me to resign … are people I don’t work for.” Indeed, the people whom she works for measure success along political, not performance, lines.
Accordingly, new contracts have been issued to fix the Obamacare registration system. And, in the ultimate triumph of hope over experience, Sebelius is promising to personally ensure their success.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors.
USA Today November 8, 2013