In response to my colleague's disapproval of Obama's handling of Health Care below, I would like to offer a counter argument. I think Obama, despite one glaring fault, has handled Health Care extremely well. Future presidents should learn from his approach. The problems that have hampered the bill-making process which Ragoth cites are not marks on Obama's record, but rather the results of the broader American political culture and structural facts about how our legislative institutions operate.
Obama's single greatest achievement in the Health Care debate is letting the legislature do its job on its terms. The Health Care bill is the single largest legislative undertaking since Medicare with so many constituencies, laws, regulations, and potential strategies that it is simply impossible for a single person to be completely satisfied with the bill. The political capital being spent, burned, and built is incomprehensible. Had Obama come out with his own piece of legislation, it would have crashed as miserably and dishearteningly as the Clinton bill. Not only do we have the Clinton example to look to as a comparative, but also the string of failed Bush legislative projects like immigration and social security reform. The Bush administration's series of legislative failures is a great example of what happens when the executive takes too much initiative in the legislative process.
So, rather than write the bill himself (excuse my artistic reification), he outlined specific, largely inflexible, and sound goals for the bill. The shortcomings of how the bills have come out were not his choices. They are the results of the legislative process driven by the relationship between the party machines, polity, and interest groups. Republicans will not vote for the bill period, despite the fact that much of their bill (most prominenty, the exchanges) will end up in the final bill. There are too many new Democrats in vulnerable districts and moderate Democrats to take full advantage of the Democratic supermajority. So, a big public option or single-payer system is simply politically infeasable. We will have to wait for health care to implode before the American political conscious is ready for such a radical market restructuring.
What Obama has done wrong is not spend his own political capital to better shape the legislative process. To be sure, he has pushed his weight around in the many private meetings he's held throughout this process. That may be why the bill will be deficit neutral, cost-cutting, and ultimately politically feasible. However, he has not publicly pushed specifics in the initiative to the point of having any piece of the bill put in his name (though Glen Beck would have you believe otherwise). For example, he could very well have personally owned the public option, stumped for it in a national campaign, and gave up other items (such as the abortion payment rules) to persuade the remaining moderate Democrats and secure the filibuster-proof majority. In this view, Obama is guilty by omission. However, this is hardly the ownership that detractors and critics attribute to the President (still love saying that).
To extend this out to the rest of Obama's presidency and wrap up my defense, I believe this is a great sign of exactly the kind of success Obama will have throughout the rest of his terms. While Republicans will never vote "yes" on any liberal issue (i.e. immigrant citizenship, carbon emissions regulation, recession spending), their party infrastructure, ideological puritanism, and general detachment from the majority of Americans will insulate Obama's legislative goals from strong Republican interference. Yes, some Democrats will probably lose their seats in the next elections, but Republicans will not be able to legitimately claim a mandate within the next four years. Think the "Anyone but Bush" sloganeering.
This will enable Obama to continue to work his guiding, but hands-off approach to the upcoming, major initiatives that he put forward in his campaign. Unless Obama changes tactics; environmental, government spending, immigration, and other monumental legislative undertakings will follow the same trajectory. No one will be fully satisfied, but we will witness major advances in government policy. If Obama learns from Health Care and Democrats maintain their majority or miraculously expand their electoral success, we could see the most effective and long-lasting solutions to modern social problems in our life times. They won't be silver bullets as Health Care has well-demonstrated, but they will be leaps talked about in terms of "light years." Obama's greatest contribution then will be the exemplary leadership that guides without doing everything himself.
Sunday, January 3, 2010
In Defense of Obama
Tuesday, December 15, 2009
Why I Probably Won't Be Voting for Obama Again
It would seem that meaningful health care reform has been killed in the Senate. Really and utterly destroyed. Joe Lieberman, Bill Nelson, and a few other conservative "Democrats" have said that they will not vote for the bill as it stands. Let us take a brief detour through the history of this process.
Medicare was created in the U.S. in 1965 under Lyndon B. Johnson. It is offered to those who are U.S. citizens or have been living as legal permanent residents for 5 years or more, who are 65 and older, and have been paying taxes for Medicare for at least 10 years. Medicare is a single-payer system, and in fact is the largest single-payer system in the world, covering 43 million Americans in 2007. The program has been under constant scrutiny since its inception, and indeed has a lot of problems - one of the largest being huge fraud issues. Medicare has been updated several times since its creation, and largely has gotten better by most measures of such things. Conservative opposition has always been the strongest, and typically fall along two pillars - 1) It's too expensive; and 2) It leads to socialism.
As to expense...yes, I'll give them that. The Medicare system needs significant overhaul to cut costs and perform audits on treatments. Clean up the program, and you will probably see significant savings. Al Franken has made this a huge talking point - the guy is very much in favor of Medicare, but recognizes it needs significant work.
As for the second pillar, that of fear-of-socialism...well, I offer this to the conservatives. If you really and strongly are opposed to all "socialized medicine," and are so concerned about principles and values as you claim, then propose an amendment to eliminate Medicare. Get rid of it. Tell all your constituents that Medicare is "evil" and "socialized" and is ruining American freedom and that you're going to eliminate it and allow the elderly to exercise their freedom of choice and buy their own health insurance out of their own savings (because subsidizing them would be exactly the same problem). You'll be saving money and protecting American values. I don't understand why you haven't already done this when you controlled Congress and the Presidency.
More below the fold...
Let's jump ahead to the Clinton administration. A bit arbitrary and skipping over some things, definitely, but this is a blog post, not a history of health care in America. Clinton made it an important part of his presidency (in some parts spearheaded by the First Lady) to introduce health care reform. Part of the problem was that it wasn't sold very well, and conservatives and the health care industry made their case loudly and well (whether or not it was a valid case is an entirely different point, but here is the problem inherent in humans - we don't often, if ever, make choices based purely on logic). Clinton tried and got little done - it was all basically shot down by Congress. We had no meaningful reform, despite the fact that so many conservative members of Congress claimed that they were quite happy to legislate reform, so long as it was the right reform.
Let's skip to the Obama administration. This is not as arbitrary. For more than a decade very little was done with health care, despite conservative control of government. That silence may, in fact, be the most damning evidence against them of all.
Obama campaigned primarily on promises of health care reform, on significant reform in foreign policy, on constitutional adherence and on transparency in government. In foreign policy...well, he's done a pretty good job. He has restored a large part of foreign nation's relations with the U.S., and has taken a tough but measured stance on specific groups. While I don't fully agree with the idea of sending 30,000 more troops to Afghanistan if your only purpose is hunting down the reported 100 or so people left, I'll give it to him, it's a strong political message, and at least he's showing he is attentive to the situation there.
However, Obama has made little moves to eliminate or reduce Bush's foreign or economic policies. I see this as a significant failure. The Patriot Act, tax cuts, even the TARP bailout. Let me be the first to state that I do agree that some sort of bailout was necessary to prevent a deeper depression - whether or not we should have had a bailout may not be the right question. How the bailout was carried out...that is entirely a different question. The bailout should not have been, I think, at a $1:$1 ratio, nor do I think that it should have come without any oversight or regulations. Basically, nothing has been done to fix the basic system. Obama's speech in the past few days about the bankers' responsibility? Please. A glorified publicity stunt - a public slap on the wrist, nothing more. He's asking them to self-regulate. The media complains that the White House doesn't have much leverage in this situation. Please. My ass the White House doesn't have leverage. Let's look at it this way - the only reason most of these banks are still afloat is because the American tax-payers bailed them out. Obama, as the representative of the American taxpayers, should be able to tell the banks a few things, as that we own a rather large stake in them now. And what should he tell them? Well, first of all, that they're going to open up lending again. And if they need a little assistance in that, well, we could just eliminate the whole credit default swap mess that got us into trouble to begin with. Executive decision - regulatory power, hell, use whatever agency you want to decide that they're fraudulent and just effing ban them. That's a big stick right there.
But Obama consistently makes deals with the bankers and continues to open loophole after loophole for them. I believe that he is smart enough to realize that he does have the ability to push for regulation, (certainly Britain and France have recognized it). I believe that if he had the will to do it, he could accomplish it relatively easily. Which leads me to believe that he simply doesn't want to do it.
So now let's look into health care. If we go with the most progressive/liberal option, Obama could have pushed for a single-payer system. This would essentially be like expanding Medicare to everyone. The basic pros would be everyone would be covered with health insurance, and assured coverage. The basic cons would be costs and likely tax levies. But, instead of pushing for this, they compromised to a strong public option - a government run insurance plan that most anyone could buy into. This would also have come with significant regulation reforms to bring down costs in other areas such as Medicare. I was in support of this plan to begin with, but again and again the Democrats compromised, and the White House stood basically silent or encouraged such compromising. Now the public option, if it happens at all, seems likely to be a completely toothless measure that would cover very few people, be vastly more expensive than it would have been to begin with, and chock-full of loopholes. I am not in support of this type of public option.
Now, granted, the House passed a proposal with a public option. It's not everything that we would want, but...maybe it's a bit of a step forward. But let's look at the Senate. Here we have the utter breakdown. The Obama administration has again and again called for "bipartisan support" for this bill, and has signaled his willingness to compromise again and again to get even one Republican vote. But that's exactly the problem - they have given you the laundry list for what it will cost to get even a single vote from their side of the aisle. We'll have to eliminate the possibility of a public option, we'll have to eliminate the expansion of Medicare, we'll have to mandate that everyone gets private insurance coverage, we'll have to reduce regulation. Essentially, if we take out all meaningful reform and fill the coffers of the private insurance companies, then we might get a Republican vote or two...but probably not.
So here are the basics - the Senate's bill does not include a public option. That got eliminated due to "conservative Democrats" like Joe Lieberman and Bill Nelson. Then someone proposed that we could expand Medicare to people 55 and older in special cases. But Joe Lieberman didn't like that, so, of course, we have to bow our heads to him. The Obama administration has made a deal with him and has basically told Harry Reid to accept whatever Lieberman says. Lieberman says that not only will he not vote for any bill that has a public option or Medicare expansion, but that he will join a Republican filibuster.
Let's look at the situation. If the Democrats had any spine at all, this would be a very easy fix. There is a special option for budget resolutions in Congress called reconciliation - it's a fairly drastic measure, but let's be honest...the Republicans used it all the time when they were in power, including to get the Bush tax cuts passed. Back when they were in control, reconciliation was just another means of doing business, while filibustering (the Democrat's option at that time) was a horrible and obstructionist policy. Now that the Democratic Party controls Congress, reconciliation is a means of railroading policies and destroying American freedoms, while filibustering is a noble venture to protect the people. Hmm...politics as normal.
Anyway, the point is, you could have a Senator, one of the ones already locked in to vote for a reform bill, go on any of the programs that Lieberman and Nelson are touring and say something like the following:
"Oh, hi Mr. Lieberman, Mr. Nelson. I'm sorry to see that you've been wasting your time on these talk shows. You see, we've decided to split the bill. Yeah, it's going to be a headache, but, here's the thing. We're going to put in a public option, or an expansion of Medicare, or whatever the American people want, and make it a budget matter. Then we're going to push it through in reconciliation. I'm sorry, but you are effectively irrelevant now. Oh, what's that you say? It's going to cost too much? Well, it's up-front costs, maybe; but the Budget Office has already returned estimates that show that these measures would save us a helluva lot of money over the next decade. So, at the very least, it's budget-neutral. What about that war that's going on? I notice the conservative senators across the aisle never had any budget problems when Bush was in office. How odd it is that they and you are complaining about the budget now. Oh, and we're going to push private insurance out of business? Look, I really don't think that's going to happen - FedEx, UPS, and the USPS all coexist quite happily. And if they have to trim their belts a bit and offer better services, well, that's capitalism for you. Socialism? To begin with, that's ridiculous, and on the other side of it, a majority of Americans want significant health care reform and are in favor of a public option. So, you tell me, if the American people want it, why are you standing in their way? Even if it does smack of socialism to you?
"You see, (interviewer's name), the problem is that most of us in America believe that when you have two opposing views, the truth must be somewhere in the middle. Our issue is that here we have one side, the conservatives and people like Mr. Lieberman, who are so far off into non-reality, that even when you take the middle ground between them and the facts, you're still wrong. It's like when you split the differences between American progressives and the "pure" Republican party, you're still pretty conservative. We need a fact-based approach to this, and here are some basic facts - private insurance premiums have continued to rise unchecked in the past years; health insurance is covering fewer and fewer people for fewer and fewer conditions, and thus excluding more people for more conditions; the majority of American tax-payers, who people like myself and Mr. Lieberman are ultimately accountable to, want strong health care reform like a public option; the people elected Obama, who ran on a platform of strong health care reform; and no significant reform has happened in quite a long time. Beyond these basic facts, there are the numbers of comparing different health care systems around the world. On any standard measures, ours ranks fairly low. Conservative congressmen are wont to say "Our health care system is the best in the world." I can only assume that they include the V.A. and Medicare in that, as they often tout our treatment of veterans and the elderly. If that is so, why are they so opposed to a government-run plan for the rest of us?
Could it be that these senators and representatives are not truly representing the will of the people? Could it be that they have been bought off by private insurance companies? We know they receive significant amounts of money through that lobby, and it seems that opposition to health care reform is directly correlated with the amount of money being received from them. Which brings us back to Mr. Lieberman, senator from Connecticut. You stand to gain a lot from revenue increases for private insurance companies, Mr. Lieberman, and have proven time and time again that you have no real interest in actual reform. Thus, we have decided to cut you out of this process. We are going to reconciliation, and we will spend every nickel we can to run an actual progressive against you in Connecticut in the next election. Don't pretend to be surprised or angry. You can pack your things and move to the other side of the aisle if you want, but for now, you've effectively been cut out of the debate."
You want to tell me that the Democrats don't have leverage to spare right now? Fuck, it's like everyone's taken a stupid pill. I think the issue here is that, with a few notable exceptions, no one, including Obama, is really interested in creating real reform in this area. Maybe the lobby is too big and there's too much money in it for them; maybe they were never interested in reform to begin with but just wanted to garner some of the progressive vote - I don't know. What I do know is that Obama has completely given up on a lot of his campaign promises. While I think that's normal for politicians, it's also disappointing to have allowed the process to go this far and then have the guy who proposed it in the first place stomp it down.
I know that Rahm Emmanuel has his strategy - gather whatever support you can from conservatives by compromising, because progressives will never vote for the other guy. They're expendable. Well, maybe that's true. We're not so crazy as to vote for ass-hats who have been coming to the forefront of the conservative movement recently. But, maybe we're not so stupid as to keep voting for people who are going to turn out to be conservative-lite in the end.
So, for now, I'm probably not going to be voting for Obama again. Don't caution me about voting against whatever crazy-person the Republicans offer up...at this point, I'd almost relish knowing again that the person in power has no intent to do anything but selfishly promoting their own power and control. I'm not sure that it's less dangerous than having someone who promises so much and not only fails to delivers, but purposefully does the opposite. Obama can win me back, but it's going to be a hard, hard fight.
Sunday, October 25, 2009
Who Wins in the Health Care Overhaul: Patients, Hospitals, or Insurers
Evaluating Republican and Democrat health care proposals can be boiled down to how the plans impact the Three Interests of Hospitals, Insurers, and Patients. It doesn't seem like you can have your cake and eat it too when it comes to our health care market. I argue that the Republican plan most supports Insurers and Patients but does little to stem health care costs and puts the majority of bargaining power in the hands of Insurers. The Democrats' plan, broken down into those with a strong or weak/no public option, supports Patients. Ultimately, Patients win in the Democratic proposal, with mild benefit to Hospitals and mild or adverse outcomes for Insurers. These proposals however miss the fundamental problem with the health care economy - the existence of an adversely incentivized arbiter between patient and doctor known as the insurer.
Right now, Insurers and wealthy-treating, research-oriented Hospitals are the winners. In our liberal system, market regulations allow, and industry practices take advantage of, the relative health and wealth of middle and upper class populations to offer high quality plans and care because the wealthy can afford them. Those who can't afford the newest treatments or drugs or become too costly (i.e. sick or disabled) are the uninsurable and underfunded in research. By excluding the poor and unhealthy, our current system is allowed to operate on largess for the wealthy and parasitic accumulation of debt and disease on the poor.
The under-publicized Republican plan provides a range of incentives to patients, businesses, and hospitals to participate in the current insurance industry. Basically, the plan allows more people to have the kind of insurance we have now without any strings attached to Insurers. The cornerstones of the Republican plan are tax credits to the uninsured to pay for health insurance, limitations on medical liability, and insurance pools for individuals, small businesses and other groups (www.gop.gov, Rep Roy Blunt's summary) . There are other, more ambiguous and less ambitions proposals in the Republican Plan. I focus on these three and mention some of the other highlights in saying that Insurers are the winners here.
Insurers win because the Republican plan is built on making it easier for people to get private insurance without changing the insurance industry. Ironically enough, what is asserted as lowering the cost of health care are the insurance pools and tax credits that make insurance more affordable. Affordable health insurance is not cheaper health care. To put a price on these subsidies, the Congressional Budget Office puts the additional cost for just a quarter of the uninsured at $1 trillion over the 10 years. In addition, there is language in the Republican House Bill to incentivize Medicare and SCHIP (children's insurance) patients to move to private insurance. While these proposals would add to the health care roles, they in fact do not reduce the cost of health care.
The real cost-cutting measures for Republicans are in medical liability claims (House Bill), "increased competition," and efficiency savings. First, by capping how much and who you can sue for, say, dying from getting the wrong heart in a transplant, doctors and hospitals can reduce their costs by having to pay less in their own insurance, reduce their defensive mechanisms (like quality assurance procedures), and paying less in the case of a lawsuit. Now, while I'm not sure what the difference between a $20 million and $200 million legal suit means for the plaintiffs, the logic of price reduction is sound. Such savings however are not a panacea. The beneficiaries here are Hospitals and Insurers and (indirectly directly, around the elbow to the knees) Patients (maybe).
Second, GOP.gov asserts that their plan would increase competition by allow patients to get insurance from any state and comparing coverage and rates through an online portal. The actual Patients' Choice bill does not mention inter-state plans but Insurance Exchanges at the state level. This is the only market restructuring proposal in the Republican Plan. While such an exchange would make insurance shopping easier, it is unclear whether or not it would actually increase market competition. As we all know from buying cars, televisions, appliances, and other products from mature industries; competition often produces fewer, bigger firms and less product diversity (not to mention an ambiguous relationship with the quality of the product).
By subsidizing and incentivizing private insurance with minimal changes in the insurance industry itself, the Republican plan looks to expand private insurance's customer base without interfering with business as usual. More people would be insured (though how many poor folks the Republicans would be willing to hand money out to is historically laughable), but through the same kinds of insurance that we have now and which have not proven to reduce medical costs or properly incentivize treatment and research. The biggest winners would be Insurers and maybe the poorer hospitals and those receiving the tax deductions depending on how much is actually spent subsidizing private insurance. When it comes to market bargaining power, who gets to enforce cuts on whom, private Insurers win out hands down. Hospitals and the current cost structures inflating our Health bills would be relatively untouched.
The loose ends of the Republican plan are where both parties' plans come together to benefit hosptials. They include a number of government oversight mechanisms for improving hospital efficiency, rewards for evidence-based medicine, and a focus on lower-cost prevention and treatment approaches. These proposals are not game-changers or world-makers in terms of policy. These oversight proposals cannot change our overall health care economy because they do not internalize the motive to cut costs, reduce the economic drag of the uninsured (by insuring them, covering their procedures, or otherwise eliminating the burden of their health debt), or guarantee adequate health care to meet our standard of living.
The Democratic Plan, depending on whether or not and to what extent there is a government run insurance company, benefits Patients most. (I use "Patients" instead of "people" because insurance agents, doctors, nurses, and officials are people too.) Patients benefit through subsidies and the elimination of rejections based on pre-existing conditions (a guarantee made in the Republican plan, but remains highly ambigious in that it's supposed to be implimented through increasing or creating new (unspecified) programs for those with pre-existing conditions). On the subsidy front, both Republicans and Democrats are on the same general page.
The game changer, as it always is, is the extent to which government will be involved in paying for health care. The bigger the public plan, the more dangerous it is to Insurers. The weaker the plan, the less effective the bill will be in changing the underlying economics of health care. As I said above, without a change in the market structure, there will be no stopping health care inflation, better incentivizing research and development, or adequatly supporting the health of poor and rural populations.
This gets to the heart of why you cannot make all three Poles of health care happy and actually improve the American health care system. Health insurance is an arbiter between patient and care. The current free market nature of that barrier means that the bureaucrat mediating my relationship with my doctor is in it to make money from both of us. In a government run program, the bureaucrat between my doctor and me is in to provide a service within his budget. Neither are, at bottom, in it to make sure I get the best care or that the doctor and hospital offer the best care at a sustainable pay structure. The public option replaces the doctor-greed-patient relationship with the doctor-administrator-patient relationship.
There's an economic wall disconnecting producer and buyer and, in both cases, the middle man has the most leverage to make patients pay more and receive less and hospitals provide more for less without quality of care entering into the patient-hospital relationship. Hospitals don't compete with one another on price and it is extremely difficult to know what a patients' care would have been like at another hospital. To improve the hospital-insurer relationships (paying hospitals more and getting better care for the dollar), you have to increase prices on patients to fund the added expense. To reduce costs for the patient, the insurer must force hospitals to cut costs and shed unprofitable practices like prevention programs. There is another option for health care economics.
Let's imagine that insurers had no market bargaining power, meaning consumers can choose any hospital and insurance plan they want at any moment and hospitals can treat anyone regardless of whether and what form of payment. (This would be much like the world of a single payer which works on a administrator-hospital-patient traid). The connection between patient and hospital is effectively immediate and the health care economy is driven by hospital competition and the balance between quality of care and cost of care. Insurance then is an administrative task of making sure the hospital can cover its costs while patients get maximized quality. In this case, insurers make no profit and have no bargaining power, but hospitals and patients find a free market balance between demand for and availability of services.
Where bargaining power is concentrated in the hands of the insurer, only a maximum of two of the three players can win. In the Democratic plan, patients win because the government can negotiate lower prices with hospitals, drug companies, and other health care providers; out-compete private insurers; and subsidize below market-value plans. Think of the U.S. Postal Service. In the Republican plan, Insurers win through more consumers, government funded hospital cost-cutting, and government-absorbed high-risk/high cost patients. Imagine the Cash for Clunkers program without rules about mileage. In both plans, the middle man's leverage ensures that patient and hospital are detached from one another.
In neither plan are we really addressing this fundamental problem with the economics of health care.
Sunday, October 11, 2009
Peace Sells... But Who's Buying?
Obama does not deserve the Nobel Peace Prize. Obama is a relatively decent, left-of-center President who has restored America's standing in the world and taken steps to ensure peace. Fine. But he still presides over a country that practices "extraordinary rendition," where people are nabbed and sent to countries where they can be legally tortured (in ways that make Gitmo look like Disney World). That is simply a defeating condition of his eligibility to receive a peace prize. And I am not even claiming he is a horrible president; I realize his actions are circumscribed by political realities he can't control. But so far he has done exceedingly little to transcend those realities, opting instead to prove how adept he is at working within them. Again, fine: he is a good politician. But so far he has not shown the moral courage that would make him truly deserving of the prize.
Tuesday, September 22, 2009
The Supreme Court on Corporations: Citizens United vs. the FEC
The current case of Citizens United vs. the FEC, the Supreme Court is confronting one of the most foundational constitutional issues since Brown vs. Board. Despite all of the angles taken by the plaintiffs and justices about fair elections, the role of money in politics, and the purient interests of government to make rules in regards to free speech; the one that matters most is the most taken for granted: does the bill of rights apply to corporations sui generis? My answer, as I will elaborate below, must be no; but I will consider the implications if the court decides it does.
The core rule driving the debate is that it is currently illegal for corporations to spend money on "electioneering communications" (meaning "an appeal for a vote for or against a specific candidate"). The rationale for the challenge is whether or not Hilary: the Movie is such a communication and advertisement, and whether or not the rules of enforcement are overly burdensome. (See Cornel Law for a full but short overview.) At face value, these claims are very different from the arguments being made to the Supreme Court and, frankly, this case could technically be solved without any major change in statute. However, the Appelant and thus the court and Appelee (Citizens United) have focused the issue on whether or not the law against electioneering communications is constitutional by way of arguing that free speech protections apply to corporations. Listen to the arguments at NPR , read the Citizens United brief (pdf), read the FEC's brief (pdf).
The question of whether electioneering communications are unconstitutional stems directly from the interpretation of who (and now what) the first amendment applies to. Scalia makes the argument that 95% of corporations are small business “indistinguishable from the individual who owns them.” Ginsberg's take is that corporations are not "endowed by their creator with inalienable rights" and raises the additional issue of corporations partly owned by non-citizens (see re-examination available on NPR or secondary news source).
While these touch the core issue of the application of the first amendment, they do not touch on the legal basis of corporations - which are not mentioned in the constitution and are pure legislative constructs from a legal point of view. Corporations are, in a legal sense, only what legislatures say they are and are not, and only a constitutional amendment can override that.
While I will ignore convenient arguments about judicial activism and rewriting the Constitution, the basic question is whether or not the Bill of Rights applies to corporations and the answer is a potential watershed moment in our history. Let's go into some of the potential implications. First, to extend the right of free speech to corporations subverts any rules on what can be seen on television or expressed in any other media except for what is already proscribed for individuals (including language, sexual content, violence, drug-makers' claims about a new drug, etc.).
Second, the peaceably assemble clause of the first amendment could also be used to severly limit laws on how corporations can be organized and run. For example, if a corporation's plant is shut down for sweatshop practices, the government can be taken to court for preventing peaceful assembly. Other such practices may include certain types of price fixing, cartel formation, and any scale of merger. Free market supporters who may not have a problem with the first and second implications should not forget that they would imply that we lose the ability to control monopolies and whatever their impact on government and politics more generally.
Lastly, the notion of voting rights also comes to the table if corporations are treated as people. While the idea that corporations would themselves have a vote is a constitutional stretch of cosmological proportion, to rule that corporations must be treated as people under the constitution raises these issues directly.
I don't mean to come off as a sensationalist about this ruling, but these issues become new fundamental questions with potentially history-changing impacts if the Supreme Court so rules. Of course, if the majority opinion does not base its finding on the notion that corporations are people, none of this matters nearly as much.
My guess is that the ruling will be overturned (Citizens United wins) because the law itself is too broad to defend the purient interest, the argumentation supporting the purient interest has been poorly defended over the course of the case (in large part because it is strapped by overbroad wording), and the right-leaning court is just not gonna hear it. However, such a blatant endorsement of the corporate personhood position will likely be found in an assenting opinion, but not the majority opinion (thus giving it credence without necessarily the force of Supreme Court interpretation); while the dissenting opinion will opine the view as it really supports the majority opinion and offer suggestions on how to regulate corporate money in campaigns given the majority interpretation.
Monday, September 21, 2009
Can We Sue for Being Offended?
A quick one for today. A Christian hotel-owning couple is being sued for offending a Muslim patron. Now, the actual elements of the conversation are not reportable due to the court proceedings, so I don't know exactly what happened. What appears to have happened, however, is that a Muslim patron became involved in a conversation about religion. The Muslim patron became offended at the conversation, and went to the police, and complained that she had been offended by the conversation, and felt there were "threatening or oppressive" elements to it.
Where do I stand on this? At this stage, I stand completely behind the Christian couple. If the same thing had happened at a Muslim hotel, believe me, I would stand completely behind the Muslim couple. This has nothing to do with the religious beliefs of either party. It's a basic element of free speech. You do not, or at least should not, have the right to not be offended. If a conversation is offending you, walk away, don't sue the people. I don't care if it offends your deeply held religious beliefs any more than I would care if it offends your deeply held political leanings. Trust me, if this is all it takes, I'm sueing the pants off of Glenn Beck and Rush Limbaugh, to name just a few. I am almost daily offended by the things they say. But does that make any sense? No. They have a right to their freedom of expression, just as I do, and I freely exercise that right and call them idiots and then list my reasons for doing so. That's the point.
Now, granted, this all took place in England, where the laws and the courts are a bit different, but even a commentator on the article brings up that the police are also charged with protecting freedom of expression, and that the Public Order Act has been used and is being used probably too aggressively, especially in cases where people's feelings are hurt.
Man, maybe I should change career paths and sue people for a living for a while. Then I can retire and drink away all my conscience concerns. On a remote island, or on top of some mountain.
Hm...it's not sounding so bad after all...
Saturday, September 19, 2009
ACORN, Tea Parties, and Militias: the New Conservative Grassroots
These three headline-makers signify the emergence of the newest wave of conservative grassroots organizing that will set the tone for the next brand of conservative politics. Within a long view of history, they are really not that unique. Looking to the near future, there are some very troubling dimensions, some healthy directions, and a nascent map for conservatives' political future. To sum it up briefly, the conservative grassroots is emerging as with all inter-election periods for the party out of power in the U.S.; however, it brings with it a dangerous fringe tied to the mainstream raising the question of how the grassroots will address its violent impulse.
The grassroots are the muscle and skeleton of political activity, from elections to petitions to agenda setting. This is particularly true for the grassroots of the party out of power. Remember all of the liberal anti-war, anti-WTO, and '06 and '08 election organizing during the Bush years? With the arrival of current Democratic power, the conservative grassroots have plenty of grievances to air with (seemingly) no hope of immediate success and a highly visible enemy to fight. At the center of the rebirth of the conservative grassroots are the Tea Party groups and emerging militias (including the hybrid militia-interest group Minutemen organizations) advocating for smaller, less intrusive government. While the social conservatives still penetrate the Tea Party groups, social conservativism of the anti-evolution, anti-homosexual, and other bible-thumping varieties are being comparatively deemphasized.
First, the ACORN catastrophe. You've been living in an internet news hole if you haven't heard about the everyday investigators posing as a pimp and prostitute getting advice from ACORN staff on escaping the law and taxes. Here's a list of primer reports: Original Source (Biggovernment.com), NY Times Blog Round-up , "Congress stops funds to ACORN". Just search "ACORN" on your favorite news aggregator for more than you will ever want to know.
So, what does this have to do with the grassroots conservative movement, since the specific motivations and political ideologies of the investigators are open to interpretation? First, it is an immense blow to progressive grassroots organizing on the marketing and funding front. While community organizing, like taxes, will never go away; the pure toxicity of being associated with this scandal is sure to further inspire the conservative grassroots and weaken liberal organizing. This is one of the many-yet-to-come successful attacks on liberal groups (though ACORN considers itself nonpartisan) that will continue to drive the conservative grassroots' sense of efficacy and purpose and weaken public trust in liberal causes. It is a major victory.
The Southern Poverty Law Center's report on the resurgence of the malitia movement (that spawned Timohy McVeigh and includes other highlights such as Ruby Ridge and Waco) has helped spark an undercurrent of news reports on the issue of violent American malitias. The center's report links the shooting at the U.S. Holocaust Memorial Museum in DC, the murder of a Latino Family in Arizona, and the murder of Dr. George Tiller in Kansas with many others throughout the country to this growing militia movement. The storm of brutality is built on the injection of anti-immigration racism, a radical libertarian anti-Nationalism, and new fangled rebirth of white/Christian supremacy according to the report. The groups that have thus far been named in this movement include various wings of the minutemen movement, the Oath Keepers, the nativists, Birthers (who claim Obama is not American-born) and the NRA (due to their "Prepare for the Storm 2008" membership drive with gun manufacturers).
What may be more frightening now than in the 1990's version is the connections these groups and their ideology have with mainstream institutions. These groups' ideologues include Bill O'Reilly, lambasted for his "subtle encouragement" and *wink wink* commentary on the murder of Dr. Tiller, Lou Dobbs, for his racist special reports on illegal immigration and conspiracy theory episodes about Mexicans' invasion plans, and Fox commentator Dick Morris who said, "Those crazies in Montana who say, 'We're going to kill ATF agents because the U.N.'s going to take over' — well, they're beginning to have a case." Incredibly, high level politicians have echoed the rhetoric including Rep. Jean Schmidt (R-OH), Texas Governor Rick Perry's talk of succession at an Austin Tea Party, and Representative Michelle Bachman's (Minn.) claim that Obama was creating "reeducation camps."
The conservative grassroots movement has its feet on the ground and the big question is how far and in what direction it will go. The violent bigotry of the militia movement has found rhetorical resonance with some mainstream conservatives, but it is seriously questionable as to what, if any of it, would actually translate into a policy platform or mainstream ideology. In fact, I would hope that some conservatives find it offensive that I mention the two in the same breath. The fact of the matter remains that, unlike the Muslim population, American conservatives have (and probably will continue to) largely failed to publically take a stand against or even acknowledge their own. The surprising exception is Glen Beck, though he continues to foment hatred and conspiracy theories. They have yet to prove that they are not like their fringe.
I anticipate a further escalation of conservative grassroots activism and the development of a more contemporary conservative ideology and platform over the next two years reaching an apex in a strong party platform in 2012. Along with this however, I too anticipate the largely uncheced growth of the violent fringe, more conspiracy theories and extremist policy quackery, and, unfortunately, more bloodshed in the name of the conservative agenda. I predict that either a large republican swing over the next two election cycles or a more intense attack like Oklahoma City will deflate the movement and turn it away from violence.
On a more optimistic note, should conservatives emerge as a reasonable force with the ability to know when they are being lied to by their leaders, then we might actually get a better, more responsible government in the support for reduced government spending and deficits. Though I doubt that any serious bipartisanship will happen within the next decade, the swing towards smaller government should at least put deficit reduction on the table before Obama's term is up and maybe some pork barrel regulations will finally be put in place (though I doubt it).
All in all, the Tea Parties are the map to the conservative future, there are conservatives who might kill you with an IED and some in the mainstream will condone it, and at the end of it all, some sad progress might be made.
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