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I’ve been feeling very fatalistic lately about the course ObamaCare will take and, more generally, about whether the juggernaut of Incredibly Huge Utterly Unresponsive Federal Government Bureaucracy is stoppable - or even slow-down-able. Kevin D. Williamson does nothing to change that:
Barack Obama’s administration is unmoored from the institutions that have long kept the imperial tendencies of the American presidency in check. That is partly the fault of Congress, which has punted too many of its legislative responsibilities to the president’s army of faceless regulators, but it is in no small part the result of an intentional strategy on the part of the administration. He has spent the past five years methodically testing the limits of what he can get away with, like one of those crafty velociraptors testing the electric fence in Jurassic Park.
As Williamson points out, "the American public accepts" this. That's not a hopeful sign, either.
… but I will defend to the death your right to say it. - My mother's explanation to me of the meaning of freedom of speech under the United States Constitution and, yes, I do realize she was quoting - or at least paraphrasing - someone else.
Julian Bond, President Emeritus of the NAACP, was asked recently about the IRS targeting theTea Party, especially in light of his objections to the IRS auditing the NAACP during the Bush Administration. Mr. Bond replied in part:
I think it’s entirely legitimate to look at the tea party. I mean, here are a group of people who are admittedly racist, who are overtly political, who’ve tried as best they can to harm President Obama in every way they can.
That's an interesting argument. Bond appear to be saying that it is legitimate for the IRS to take a special look at the Tea Party because it is:
- it is admittedly racist;
- it is overtly political;
- it has tried its best to harm President Obama.
I'm going to leave aside the issue of whether the Tea Party is overtly political in any sense that matters to the IRS, and the issue of whether the Tea Party has tried to harm President Obama (as well as the issue of what he means by "harm"). Those would be rich subjects to explore but they are not my focus. Furthermore, I am going to note in passing that the Tea Party is not "admittedly" racist but that is not my focus either. My focus is on Mr. Bond's apparent belief that an organization's racism has something to do with whether it is appropriate for the IRS to subject it to exceptional scrutiny. It does not.
The IRS does not exist to police the beliefs of individuals or the policies of groups.
If I believe that straight white Anglo-Saxon Protestant men are the only hope for the country and want to set up a group to educate everyone about my beliefs, I should be able to do so without the IRS subjecting me to a more intensive examination than it would give me if I believed that straight white Anglo-Protestant men were the bane of the country and wanted to educate my fellow citizens about those beliefs. It is no business of the IRS whether an organization is racist, sexist, or feminist; whether it is pro-men, anti-Catholic, pro-amnesty, anti-ethanol, pro-salt, anti-war, pro-LGBT, or anti-Asian. It is no business of the IRS whether an organization supports abortion or opposes it; supports Obamacare or opposes it; supports Israel or opposes it; supports the NAACP or opposes it. It is most emphatically no business of the IRS whether an organization supports the IRS or opposes it.
The only concern of the IRS is whether an organization's activities conform to the guidelines laid down for the type of organization it claims to be.
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I wrote this post in May and then realized I didn't know how to finish it. Those who agree with me, agree with me - there's no need for a big finish to convince them. Those who disagree with me see the world too differently for what I write to make any difference. It's not a difference of degree; it's a difference of kind. To people of the latter persuasion, if someone's stance, position, or utterance is wrong, then it's perfectly reasonable to use every means at their disposal, especially government power, to make sure that someone is, at minimum, disadvantaged and, preferably, silenced. Or, rather, not just perfectly reasonable - it's the obligation of decent human beings to make sure that sure error is stamped out.
It's depressing and frightening to realize I'm sharing a country with people who think the way Julian Bond does. It's puzzling and ironic to realize that many of those who think like Mr. Bond are self-proclaimed representatives of the very groups whose views have been so often silenced by society and government in the past.
In the process of doing some reading about the Chick-Fil-A business permit fiasco*, I ran across a CBS News article that has a few quotes I haven’t seen discussed. The first two are statements by Chicago Alderman Joe Moreno, who is threatening to block Chick-Fil-A from opening a restaurant in his district. According to the CBS story:
On Wednesday, Chicago Alderman Joe Moreno said he wants Chick-fil-A to adopt a written anti-discrimination policy before it is granted a permit for a new restaurant in Chicago. "There are consequences for freedom of speech (and) in this case the consequences are... you're not going to have your first free-standing restaurant in Chicago," he said.
Yes, there are consequences for freedom of speech. Our customers, our friends, our community, our associations, perhaps even our employer may impose such consequences when we speak freely. The point of the First Amendment, however, is that the government may not impose consequences for freedom of speech.
The second quote is also from Alderman Moreno:
Moreno said he's been working with Chick-fil-A on the matter for several months and that the restaurant has already verbally agreed "they will no longer donate any dollars to any organization -- left, right or center -- that has a political agenda."
The idea that a government official would force a company (or individual or other organization) to restrict its donations - political or otherwise - in exchange for the “privilege” of doing business is appalling. Even more appalling is that Mr. Moreno considers this something to be proud of.
The third quote is from Philadelphia City Councilman Jim Kenney. Mr. Kenney wrote the head of Chick-Fil-A denouncing his comments; that’s fine with me. Mr. Kenney will introduce a resolution to the City Council “condemning Chick-Fil-A”; that’s fine with me, too. Mr. Kenney told CBS that some constituents support and some oppose what he is doing:
"People who are mostly con continue on with the religious aspect," he said. "American civil liberties are not ordained by religion, they're ordained by a free and democratic government. There were times when religion was used to explain slavery and lots of other ills."
I can imagine few ideas more dangerous than the idea that our civil liberties** are whatever the government decides they are. American civil liberties were originally conceived as a way to protect us from the government; to assert that there are some rights that are ours by virtue of being human and that bestowing and removing them are beyond the reach of government. Government can violate them but it does not grant them and cannot take them away.
Furthermore, the councilman has clearly not thought through his view of religion. He implies that we had slavery and other ills because of religion; that without religion we wouldn't have societal ills. This is nonsensical on the face of it. Societies use whatever is handy to justify what they want to do. Sometimes they use religion; sometimes they use ideology; sometimes they use science. Religion is an extremely useful tool but it is not a cause.
The other aspect of the councilman's statement that is discouraging is his utter lack of historical knowledge. He seems totally unaware that religion was the driver of and the justification for both the Abolitionist movement in the mid-nineteenth century and the Black civil rights movement in the mid-twentieth century. Once again, society uses whatever is at hand to justify what it wants to do.
There is one positive thing I can say about both Mr. Moreno’s bullying and Mr. Kenney’s views of civil rights and religion: these men are being honest. As Ross Douthat said in his recent New York Times opinion piece:
If you want to fine Catholic hospitals for following Catholic teaching, or prevent Jewish parents from circumcising their sons, or ban Chick-fil-A in Boston, then don’t tell religious people that you respect our freedoms. Say what you really think: that the exercise of our religion threatens all that’s good and decent, and that you’re going to use the levers of power to bend us to your will.
The alderman and the councilman have done exactly as Douthat asked. Now we can, as Douthat says, "get on with the fight" - honestly.
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Notes:
* If you don’t know what this fiasco is, you can read Glenn Greenwald for an excellent explanation.
** Here’s how Wikipedia begins its definition of ”Civil liberties in the United States”:
Civil liberties of the United States are certain inalienable rights retained by (as opposed to privileges granted to) citizens of the United States under the Constitution of the United States, as interpreted and clarified by the Supreme Court of the United States and lower federal courts.
[Comments are closed since I’m not really blogging. You can always email me; my email address is in my profile.]
From a 1997 interviewwith David Gelernter, author of Drawing Life: Surviving the Unabomber (a book well worth reading)
I expect from a journalist exactly what I'd expect from a friend or colleague or neighbor, not that he agree with me on everything but that he and I speak the same moral language. If you believe that abortion is morally neutral or that capital punishment is unacceptable, I may disagree, but I don't doubt that a morally serious person could reach such positions. If you believe that murder is all right, that killing or injuring innocent strangers with mail bombs might be okay under the right circumstances, I have nothing to say to you. We have no moral common ground. You have a free-speech right to your opinions, and I don't question that right. I have a right to regard you as a monster, to regard your opinions as dangerous and unacceptable and to refuse to have anything to do with you. You might argue that rejecting abortion and accepting capital punishment were once part of our shared moral common ground in this country, and you'd be right. Society's moral consensus isn't fixed; it evolves. Has it evolved to a point where disapproval of murder, or terrorist bombing, is outside the moral consensus? God forbid -- though I don't doubt that if we continue the way we have, that could happen some day. At that point the group of people who are profoundly at odds with this society will be so great, the rest of the country will have to take notice (and for all I know, a new Mayflower will set sail).
This is where I’ve come to regarding the HHS mandate that all employers provide insurance that covers contraception: there is no common moral ground here. Not “no common moral ground” on contraception itself but “no common moral ground” on what this controversy is about.
I’ve always thought that Americans on the opposite side of an issue from me were understandable. I might think they were short-sighted or unaware of certain information or wanted a different type of society than I did or were ignoring human nature or were ignorant of history of even were simply wrong or mistaken. But I’ve always been able to say that I could see how they held the position they did; I couldn’t hold it myself but given what they knew, what they believed, how they thought, what they wanted, I could see how they believed it. Or, at least, to concede they may have valid reasons for their position, even if I couldn’t see those reasons.
When it comes to the HHS mandate, either the original or the ”compromise” that isn’t, that is no longer the case. The issue is so clearly one of violating the First Amendment that I am unable to find any common ground with anyone who doesn’t see that. We have nothing to say to each other on this topic. And their belief either that this does not violate the First Amendment or that violating the First Amendment is acceptable is so inexplicable that we don’t really have anything to say to each other about anything else related to the Constitution or governance in general.
Furthermore, it doesn’t matter how this situation comes out. Even if the Administration backs off completely on the contraception mandate for all employers, it’s too late. Even if the Supreme Court rules that the mandate is unconstitutional, it’s too late. That a President of the United States believes it is acceptable to simply ignore the First Amendment is a sea change in our form of government. Perhaps if the Administration had established this mandate and every single person and institution other than President Obama and Secretary Sebelius had screamed bloody murder, I could believe that we had, in a moment of national inattention, elected as President one of the only two people in the United States who consider the Bill of Rights irrelevant. But that wasn’t the case; Obama and Sebelius’ attitude toward the Constitution is clearly so widespread that there is no going back.
Do I consider the people who support the mandate “monsters” as Gelernter does those who are willing to countenance killing or injuring innocent strangers with mail bombs? No. My dictionary says that a monster is “one who inspires horror or disgust”. Those proposing the mandate and those supporting it inspire in me simply total bewilderment. I do, however, “regard [their] opinions as dangerous and unacceptable and ... refuse to have anything to do with [them]” insofar as issues of law, governance, and the Constitution are concerned.
I have heard for years - decades - that the Constitution was being shredded. I have heard this from both major political parties and from those aligned with neither. I’ve never really bought that. Yes, the Constitution was being bent, twisted, expanded, contracted, and even turned inside out. But I always believed that there was, nonetheless, a basic respect for the Constitution and that there was a point beyond which we, as a nation, would not go. We might fold and even spindle the Constitution but we would not mutilate it. Now we have. The HHS mandate and the defense of that mandate is something completely different, something new in the long line of disputes over the Constitution.
Is “the group of people who are profoundly at odds with this society ... so great, the rest of the country will have to take notice (and for all I know, a new Mayflower will set sail)”? In other words, are there a lot of people who believe what I believe? I don’t think so. Some people seem to be opposed to the HHS mandate for political reasons; it’s a chance to make hay. Most seem to be opposed to the HHS mandate for reasons of principle but also seem to believe that this is just more of the same and that if the mandate can be reversed or thrown out by the Supreme Court, the genie will go back in the bottle. They see this as one more struggle over the Constitution, one more argument that can be won or lost. I see it as a watershed; the meaning and relevance of the Constitution are profoundly and irreversibly changed.
It’s just as well, I suppose, that there aren’t a lot of people who believe what I believe. Gelernter overooked the fact that there is nowhere for a new Mayflower to go.
Back in August, I got involved in a rather heated discussion over at Reclusive Leftist. Among other things, I asked why those on the Left were so eager to turn health care over to the government (RL favors single-payer) when they were forever complaining about government when it came to war, domestic surveillance, and so on down the whole litany of things the Left hates about the government. What if, I wanted to know, all health care is controlled by government and the Republicans return to power? Don’t you worry that certain procedures - including abortions - will be eliminated from government-paid health care?
Reclusive Leftist’s response was (emphasis mine):
It’s not a question of trusting goverment. It’s a question of using government for what it’s best at, which is managing shared resources and doing things which require society’s collective action. Government is just society imposing its will as a group. [snip]
A drawback in this country is that government-funded programs are susceptible to political attrition, particularly when Republicans get in office; but at least we have recourse in terms of voting.
As the health care bills moved through Congress and the attendant battles over covering abortion made the headlines, I wondered if those on the Left who are also feminists would begin to see that perhaps government-paid health care was not necessarily a totally good idea. Certainly the refusal to allow Federal money to pay for abortions is about as clear an example of society imposing its will as we can find: 61% of those polled by CNN in mid-November “[oppose] using public money for abortions for women who can not afford the procedure”; only 37% favor such use. Clearly the position that Congress has taken on funding (or rather not funding) abortion under the new Exchange reflects the will of society.*
Now it looks like society imposing its will as a group is not such a good thing after all. In a post entitled “Abortion restrictions violate women’s Freedom of Religion”, Reclusive Leftist quotes approvingly RiverDaughter’s argument that:
With anti-abortion measures, women are not just subject to the state, they are forced to recognize a religious presence in their lives whether they have faith or not. Men do not need to recognize any faith. They are allowed complete freedom of conscience.
RL then says:
... it’s absurd for the government to honor the anti-abortion scruples of conservative Christians while simultaneously forcing the rest of us to pay taxes for war or torture or capital punishment or any number of policies we abhor. [snip]
Anti-abortion laws essentially force every woman in this country to be a conservative Christian whether she likes it or not. No matter what she personally believes — whether she’s an atheist or a Unitarian or a Jew or a Muslim — she must obey fundamentalist Christian law.
It’s no different than forcing every woman into a sharia court if she wants a divorce, or forcing her to wear a veil.
Oh, dear. Where to start? Let’s get the Christianity thing out of the way first. It’s not just conservative Christianity and Catholicism that oppose abortion. Some very minimal research - a look at the Wikipedia article on “Religion and abortion” - uncovers the fact that all five major religions have objections to abortion. So while Leftist feminists are certainly free to pursue the religious freedom argument they’ll have to move away from using it to bash fundamentalist and evangelical Christians and Catholics.
Even with that, however, a lot of activities we forbid by law are also forbidden by some or all of the major religions; murder, theft, and perjury spring to mind. One simply cannot argue with a straight face that if a religion prohibits an activity, then prohibiting it by law violates religious freedom.
That leaves us with the argument that only those who are deeply or conservatively religious have reservations about using government money to finance abortions. This doesn’t hold water either. Abortion pits a woman’s right to bodily integrity against the fetus’ personhood. You don’t have to be deeply religious to accept the fetus’ personhood any more than you have to be not at all religious to accept a woman’s right to bodily integrity. Abortion is simply not a strictly religious issue. And, of course, funding abortion has even less to do with religion than abortion itself.
The argument the Leftist feminists should be making, of course, is the slippery slope argument: the government refusing to pay for abortions is the first step to the government refusing to pay for other procedures people can now purchase on their own. They cannot, of course, make this argument since it validates the central argument against single-payer or any type of government-paid health care: the fear of rationing. I hope I will be forgiven for finding their dilemma somewhat amusing.
More seriously, what the Leftist feminist’s line of reasoning is really about, of course, is two things. First, the desire on the part of Leftist feminists to avoid recognizing that a policy they believed would be an unalloyed good - government health care - is not as totally wonderful as they thought it would be. This is human and understandable: no one wants to think they’ve fought hard for something that didn’t work out and no one wants to give up the dream of something that will fix everything that’s wrong. That doesn’t exactly make them reality-based but we all have our blind spots.
The second underlying issue is more serious and far more dangerous. It’s about ends and means and whose will should be considered society’s will. If the legislative process produces the end result desired by Leftist feminists - government health care - then the legislative process is the means by which society’s will should be expressed. However, when that process produces a result not desired by Leftist feminists - exclusion of abortion from government health care - then the legislative process is invalid and it is the courts through which society’s will should be expressed. Clearly it is not really society’s will that is to be expressed by government but the will of those who know best what society’s will should be.
I don’t imagine this is a new phenomenon. I’m sure that throughout our nation’s history every political group has sought to insure that its will is considered society’s will and is therefore the will government expresses. But as the health reform effort makes clear, the more government does the higher the stakes become. And, therefore, the more dangerous is the idea that any one group’s will is the correct will for the government to express.
I have a very good friend who has always said his preferred form of government is a benevolent dictatorship - with himself as dictator of course. The fact that that is everyone’s preferred form of government seems to me to be the basis of democracy. That formulation acknowledges both our own conviction that we always know best and some healthy laughter at that conviction. Out of that acknowledgment and that laughter comes the understanding that we must let everyone’s policy aims play out in an open, democratic manner or risk ending up with just the benevolent dictatorship we desire - but with someone else as the dictator. To be so convinced that one’s own policies are the correct ones that one is willing to insure those who prefer other policies are not permitted an equal shot at achieving their goals is to undermine the very bedrock of democracy.
I have a fair number of half-finished posts laying around and at some point I realized that a common thread running through many of them was a concern with process. Democracy is not about outcomes; it is about process. In some sense democracy begins with the idea that in many policy areas there is no “better” outcome; there is simply what the majority of the citizens want. In our particular form of democracy, the founders attempted to insure both a good process and protection for those policy areas where there was a “better” outcome. Then they gave us a process to change the protections if we so desired. But process is all-important.
In writing about the passage of the Senate’s health care bill, Megan McArdle said:
But to a libertarian, process matters. Having a good process is better than getting a good outcome, because a good process is one that maximizes your chances of getting good outcomes over time.
This is not an argument in favor these days with either side of the political aisle. We have become a nation focused solely on outcomes and seem to scarcely even remember we have a process - except of course when we accuse the other guys of making an end run around it. Somehow we have managed to forget that when we distort the process to get the outcome we want today, we open the door for those who oppose us to distort the process to get the outcome they want tomorrow. We forget that our “good process” is our only protection against that benevolent dictatorship where - I can absolutely guarantee you - all but one of us is not going to be the dictator.
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* I simply have to comment on another result of that CNN poll: 26% of those polled thought that “abortion should be legal under any circumstances”. I find this impossible to believe. Surely a quarter of the country does not support a perfectly healthy woman expected to give birth without difficulty to a perfectly healthy baby having an abortion when she is 8-1/2 months pregnant. And I sincerely hope that a quarter of the country does not support having an abortion simply because the mother - or father - is unhappy with the baby’s sex. I’d really like to see some more in-depth answers from the “any circumstances” people.
*****
Reading:
FindLaw: An interesting FindLaw article by Marcia A. Hamilton that argues the Stupak Amendment is unconstitutional on three grounds. I’m unimpressed but expect to hear much more of these arguments. She credits the United States Conference of Catholic Bishops with achieving the Stupak amendment and seems to think that proves this is a strictly religious issue. I doubt that anyone on either side of the health care reform issue would similarly interpret the USCCB’s support for universal health care as clear evidence such reform is a religious issue prohibited under the Establishment Clause of the Constitution.
Interestingly, Hamilton makes a slippery slope argument but only in a limited sense: that not funding abortions will lead to not funding contraception. I took a brief look at her other writings for FindLaw and recommend this one: “The Case for Instituting Healthcare Reform at the State, Not Federal, Level”.
Grim writes approvingly of RiverDaughter’s concerns about taxes being used in ways an individual taxpayer does not want and proposes a system to make sure that doesn’t happen.
I watched This Week with George Stephanopoulos and Inside Washington this morning and am puzzled about some things.
On IW Mark Shields thought that Harry Reid thought that he had between 52 and 55 votes for a robust (not just a trigger, no opt in or opt out) public option in the health reform bill. Therefore if Reid can convince all the Democrats (and Democrat-caucusing Independents) to vote for cloture, he can get a vote on a robust public option and the option is likely to pass. Over at This Week there seemed to be more concern that if Olympia Snowe could not be persuaded to vote for a bill with a robust public option the Senate Democratic leadership wouldn’t even try to pass it because they did not want to pass a bill with just Democrats; they needed cover for moderate Democrats and/or they wanted to look at least somewhat bipartisan.
First of all, if Reid has 52 to 55 votes he is already counting on losing a few moderate Democrats. As long as he can hold them for the cloture vote he doesn’t need them for the substantive vote. And I think any moderate Democrat of reasonable intelligence could make a cloture vote palatable to his or her constituents.
Second - and I imagine this is terribly naive of me - if the Democrats are convinced the public option is the right thing to do, will improve the insurance picture for most Americans, and is supported by a majority of Americans, then they should welcome the chance to pass it without Republican support. Assuming the bill does what they believe it will, the Democrats will be heroes for a generation and the Republicans will look like fools.
I’m also now totally confused about what a robust public option actually is. On This Week’s roundtable Cynthia Tucker said - if I understood her correctly - that only about 12 million people would be covered under the public option. I don’t know if she means that the public option would be written in such a way that only 12 million people would be eligible to enroll or if she simply anticipates that only about 12 million people would choose to enroll, the rest presumably having insurance through work or being happy with their private insurance.
In a side puzzlement, not directly related to the Sunday shows, I wonder what creation of the Exchange and/or a public option would do to insurance in States like New Jersey. New Jersey essentially requires insurance companies to sell insurance to individuals; limits their ability to exclude coverage for pre-existing conditions; and has an extensive list of treatments the companies must cover. One result is to drive up insurance premiums in New Jersey. I would think that if Federal health reform passes then New Jersey would figure individuals could now get coverage via either the Exchange or the public option and would be quite tempted to relax requirements for insurance companies to sell to individuals in order to bring down insurance rates in the State.
I was more amused than puzzled to hear Senator Claire McCaskill carefully point out that the health reform bills the Senate is considering will require members of Congress and their staffs to purchase their health insurance through the “Exchange”. Since as far as I can tell the Exchange simply re-creates the Federal Employees Health Benefit Plan this is sort of like announcing the Senate is going to build a second Senate Dining Room and start eating all its meals there rather than in the existing Senate Dining Room. It would have been much simpler to just let anyone who wants to buy into the existing FEHP. Cheaper, too, if we’re going to create a whole other bureaucracy to run the Exchange.
I’m also puzzled about Afghanistan. I know that General McChrystal has requested more troops; I seem to be hearing 40,000 although I also heard that there might be alternate plans for fewer (10,000 or 20,000) and for more (80,000). Obama has not decided whether to approve McChrystal’s request. The discussions this morning seemed to be about whether Obama is “dithering” or taking the time he needs to consider all options and make a prudent decision. What I don’t understand is what impact this is having on the troops already there. Colby King was asked specifically if Obama’s delay put the troops in danger; he said it did not. I don’t really understand that. Are we simply holding ground we already have in Afghanistan and as long as we continue to do that more troops aren’t really necessary? Or are we engaged in attacks (which is what I thought) but the scope of those attacks is such that more troops wouldn’t help?
The other thing that concerns - as well as puzzles - me about Afghanistan is that I’m not sure what range of options Obama is considering. If the troops currently in Afghanistan truly are not in greater danger because of the delay and Obama is simply deciding whether to hold troop levels where they are or increase them by whatever amount then so be it. But if Obama is seriously considering pulling all US troops out of Afghanistan then he needs to decide now before any more Americans die in Afghanistan.
Finally I’m puzzled by much of the reaction to the Obama Administration’s War on Fox. (I love that phrase.) I can understand that liberals and those who call themselves “progressives” would enjoy watching Obama go after Fox. (Although I do still hope that those on the Left will be attached enough to freedom of the press to realize this is a very dangerous road to start down, set aside their enjoyment, and oppose this war.) What I don’t understand is how they can claim with a straight face that the Obama Administration is justified in this war because Glenn Beck and Sean Hannity are so incredibly partisan (some say loony). Do they honestly not know that Keith Olbermann and Rachel Maddow were included in an Obama White House chat earlier this week? If they don’t know, they’re seriously uninformed. If they do know Olbermann and Maddow had a coffee klatch with the President, they’re seriously incapable of logical thinking. If Obama and his supporters are truly bad-mouthing Fox News because it’s partisan and not because it’s critical of his policies then there is no way to justify Obama meeting with Olbermann and Maddow - who can most charitably be described as “rabidly liberal”. This is hypocrisy on such a massive scale it’s almost incomprehensible.
A very puzzling day. I can only hope the Yankees beat the Angels and restore order to the universe.
On October 12, America's Health Insurance Plans, a trade association for the health insurance industry, released a report they had commissioned from PricewaterhouseCoopers. This report (pdf here) examined the Senate Finance Committee health care/insurance reform proposal (the Baucus bill) and concluded:
There are four provisions included in the Senate Finance Committee proposal that could increase private health insurance premiums above the levels projected under current law:
- Insurance market reforms coupled with a weak coverage requirement,
- A new tax on high-cost health care plans,
- Cost-shifting as a result of cuts to Medicare, and
- New taxes on several health care sectors.
The overall impact of these provisions will be to increase the cost of private insurance coverage for individuals, families, and businesses above what these costs would be in the absence of reform.
The report caused such a stir that President Obama used his weekly radio address, entitled Taking the Insurance Companies on Down the Stretch, to attack health insurance companies. The New York Times described Obama’s speech quite bluntly (emphasis mine):
President Obama mounted a frontal assault on the insurance industry on Saturday, accusing it of using “deceptive and dishonest ads” to derail his health care legislation and threatening to strip the industry of its longstanding exemption from federal antitrust laws.
In response to Obama’s address, Megan McArdle has up two excellent posts about the threatened use of government regulatory powers to punish AHIP for publishing the PwC report. In the first, McArdle makes a vital - and often forgotten - distinction between the Constitutional idea of freedom of the press and our current tendency to think that freedom applies only to those who call themselves journalists (emphasis hers):
Freedom of the press was not a right accorded to the profession of journalism ... Presses were owned by individuals, who engaged in all manner of speech, commercial and non. Freedom of the press was not the freedom to own a newspaper or magazine, and say what you wanted therein. It was the freedom to disseminate written speech.
She points out that those who think the Obama Administration doing this to the insurance companies is a good idea would probably be less enthusiastic if a Republican Administration engaged - or threatened to engage - in similar regulatory endeavors that targeted George Soros’ finances. Or would it be okay, she asks, for a Republican Administration to:
openly declare that if unions didn't stop issuing reports in favor of a higher minimum wage, the administration would have to revisit Taft-Hartley?
Her conclusion seems to me to be inescapable:
... I am very sure that changes in the laws should never be wielded as weapons to punish speech that politicians don't like.
Apparently it’s not as inescapable as I thought. The comments to her post make it crystal clear that a significant number of people are perfectly happy to have our government threaten unpopular industry groups to get them to shut up. McArdle must have been as surprised as I was to see this since she put up a second post in which she attempts again to make her point:
But it is not okay for the administration to say, "If you publish a report saying that our plan will make premiums go up, we will use our regulatory authority in an entirely different matter to punish you." I don't see how that's much different from saying, "If journalists criticize the administration, we will use our commercial speech authority to undercut your ad revenue".
Again there were a lot of commenters who saw nothing wrong with Obama’s threats. They raised all kinds of interesting points about the nature of freedom of the press and free speech and to what extent those apply to associations or corporations. They discussed whether the anti-trust exemption for the insurance industry is a “favor” the government has every right to take away. They even debated whether the insurance companies’ anti-trust exemption helps or hurts competition. In other words, they totally missed the point. Which is pretty simple:
The government should not threaten citizens who publish reports - or run ads or make speeches or send out mailings - that disagree with, criticize, or question the government’s claims.
It really doesn’t matter to me if those who disagree are individuals, political parties, journalists, or trade associations. It doesn’t matter to me if a Philadelphia lawyer could make a case that what Obama and Congress are doing is technically legal. It doesn’t matter to me if every word in the report, ad, speech, or mailing is an outright lie. What matters is that the government should not be threatening to use its regulatory power to silence its critics. This is - or at least should be - intolerable. It’s one thing for the government to decide that the insurance companies’ anti-trust exemption does not serve the national interest and should be revoked; it’s quite another for the government to decide that the insurance companies’ anti-trust exemption makes a handy stick with which to beat the industry to compel its silence. The former is governance; the latter is extortion.
Reading Obama’s comments on the insurance companies reminds me of nothing so much as George W Bush’ comments on the War on Terror. In Obama’s world though it’s the insurance companies who are America’s “evil and ... determined enemy.” It’s the “aggressions and ambitions of the wicked [insurance companies that] must be opposed early, decisively, and collectively, before they threaten us all.” It’s the insurance companies that “would be a threat to every nation and, eventually, to civilization itself.” Obama is “determined to fight this evil, and fight until we're rid of it.” He’s “got a job to do, and that's to explain to the American people the truth.” Bush’s truth was that “we're now facing a new threat”; that of Islamic terrorism; Obama’s truth is that we’re facing the old, old threat of the insurance companies:
The history is clear: for decades rising health care costs have unleashed havoc on families, businesses, and the economy. And for decades, whenever we have tried to reform the system, the insurance companies have done everything in their considerable power to stop us.
Still Obama has “made clear to America, that this great country will not let evil stand.” “We are [near the end] of what I view as a very long struggle against evil.” However this “is not the time to grow complacent” because “America faces an evil and a determined enemy.” Rather “[n]ow is the time to draw the line in the sand against the evil ones.” And just as Bush was confident “good will prevail” so is Obama: “I believe we can. I believe we will.”
The difference is that Bush was demonizing a foreign entity that violently attacked the United States; Obama is demonizing American companies owned and run by American citizens. Bush wanted to mobilize us to fight an outside enemy so he could prevent further attacks; Obama wants to mobilize us to fight each other to so he can achieve a political goal.
And it’s not just the insurance companies. The lengths to which Obama is willing to go to silence them is unprecedented* but the basic message is not new. I’m astonished at how often this Administration has badmouthed its own people. It is not the job of the national government to explain to me that American trade association members and American family doctors and American corporate executives and American small government ralliers and American television employees and American talk show hosts are bad, bad people and I should not trust them or listen to anything they say.
On the other hand, it may well be that the current Administration is not actually running a national government. Rather it’s running a political campaign which unfortunately has the power of the national government behind it. Even worse it may not know there's a difference.
*****
* That whole pitchfork thing was a threat that government would fail to protect the bankers from attack rather than that government itself would attack them.
A YouTube video featuring clips from a 2001 Barack Obama interview is making the rounds. You can view it here. This video is about four minutes long and concludes with the clip of Obama talking to Joe the Plumber about spreading the wealth. I’ll write later about some of the claims that others have made with regard to what Obama’s comments mean but in this post I want to analyze what Obama does and does not say in this interview.
The four minutes in the YouTube video are pulled from an interview that is much longer: 53 minutes and 22 seconds. This interview took place on January 18, 2001. It was entitled, “The Court and Civil Rights” and was a segment of a program called “Odyssey” on WBEZ, a public radio station in Chicago. The interview was hosted by Gretchen Helfrich and her guests were:
Susan Bandes – Professor of law at DePaul University and the editor of the book, “The Passions of Law”
Dennis Hutchinson – The William Rainey Harper professor in the college, senior lecturer in the law school and editor of the Supreme Court Review at the University of Chicago
Barack Obama – Illinois State Senator from 13th district and a senior lecturer in the law school at the University of Chicago
The redistribution issues are covered in approximately the last 20 minutes of the interview. The entire interview is interesting if you have time but to evaluate what Obama is saying you can focus on the last 20 minutes. You can find the complete interview here apparently in RealAudio format.
I’ve transcribed much of those last 20 minutes below so if you want to read the actual interview before I discuss it, just page down until you see “Partial Transcript” then come back here for my analysis.
Let me talk first about what Obama does not say. First, despite claims to the contrary, it is crystal clear that Obama is not suggesting the United States Supreme Court can or should be the vehicle for redistributing wealth in the United States. On the contrary he explicitly rejects the Court as such a vehicle partly because he feels the task is beyond its capabilities, partly because it raises separation of powers issues, and partly because he recognizes the difficulty of legitimizing such action by the Court. Earlier in the interview he also discusses the fact that the Supreme Court cannot or will not get too far ahead of the general social consensus and this may enter into his determination as well. Obama explicitly regrets that the civil rights movement focused so heavily on the Supreme Court (or possibly courts in general) that it gave short shrift to political and organizational activities that offered a hope of effecting redistributive change in a way litigation did not.
Obama is a little fuzzier on the issue of whether State Supreme Courts can be effective in this regard and speaks about how San Antonio v Rodriguez seems to have resulted in issues of redistribution and wealth being litigated at the State level with mixed results. Nonetheless he certainly does not make an argument that litigation at the State level is an appropriate or desirable approach to achieving redistribution of wealth.
Second, Obama does not think the redistribution of wealth is an “administrative task”. He speaks of administrative issues as part of the separation of powers issues you run into if you attempt to use the Court to achieve wealth redistribution.
On the other hand, I believe the interview does make clear that Obama considers the redistribution of wealth to be a desirable goal and seems to consider such redistribution a component of - or possibly a precursor to - “more basic issues such as political and economic justice”. I know that this is not exactly news - see Joe the Plumber - but the focus in this interview is subtly different. In speaking with Joe the Plumber, Obama said:
It’s not that I want to punish your success, I just want to make sure that everybody who is behind you, that they’ve got a chance for success too. I think that when you spread the wealth around, it’s good for everybody.
In that formulation, redistribution of wealth is to help less successful people become more successful. This could be interpreted as a carelessly rendered version of George Will’s description of conservatives: they believe in equality of opportunity. That is, Obama can argue he is redistributing wealth to help the less wealthy achieve more wealth themselves through, for example, a better education financed through more tax dollars.
Obama’s views in the January 2001 interview are somewhat different. He does speak of the redistribution ramifications of truly implementing Brown v Board of Education and that could again be interpreted as using more tax dollars to achieve better education to in turn help the less wealthy achieve greater wealth. However, he also speaks of the Supreme Court “invest[ing] formal rights in previously dispossessed peoples” but not “venturing into the issues of redistribution of wealth and more basic issues such as political and economic justice”; about the need to “put together the actual coalitions of power through which you bring about redistributive change”; about the fact that he is “not optimistic about bringing about major redistributive change through the courts”. (That word “major” really bothers me.) This seems to lean more toward the idea of redistribution of wealth as a good thing in and or itself rather than as a necessary condition for - or a side-effect of - other specific policies like equalizing educational opportunity. In this interview, Obama seems more like George Will’s description of liberals: they believe in equality of outcome.
Is this a hairsplitting difference? I don’t think so. For example, in writing about the YouTube video (not the interview itself), Ann Althouse says:
Now, there remains the question of how much he would want the legislative branch to do in the name of economic justice, and obviously, the phrase "redistribution of the wealth" gets people going. But that's the same old question we've been talking about for months. [snip]
But we don't know how much, so we're back to where we were before we listened to this clip. Obama favors some degree of progressive taxation and some programs to benefit people in lower income groups and so forth ... as do the great majority of Americans, including John McCain.
I favor progressive taxation but not because I explicitly want to redistribute wealth. Rather I believe that, for example, a 10% tax rate imposed on someone making $15,000 per year is far more of a burden than a 10% tax rate imposed on someone making $150,000 per year and so the person making more can afford to pay a greater percentage of his income in taxes with less pain. The effect may be partially to redistribute wealth but my rationale for a progressive tax rate is not redistribution of wealth. (I suppose you could characterize it as a type of “economic justice” but it has nothing to do with a civil rights aspect of such justice. Although not at all religious, I’ve always found the Parable of the Widow’s Mite compelling.)
Similarly, I am not willing to let old people starve or lack for medical care so I support Social Security and Medicare. I am not willing to let poor people - especially poor children - live on the streets or go hungry or do without health care so I support food stamps, some type of income assistance, and Medicaid. I believe the country as a whole benefits when everyone who is qualified can get a college education so I support government assistance to students. All of those policies require some redistribution of wealth but I’m willing to accept that redistribution in order to achieve specific goals, whether moral or practical. That is far different from pursuing a goal of redistribution of wealth for its own sake, which is what Obama seems to be advocating in the January 2001 interview.
Is Obama advocating a strictly racial redistribution of wealth? After all, this discussion is taking place within the context of the civil rights movement and Obama segues into wealth redistribution and social and economic justice by talking about what the Warren Court did not do in its expansion of those rights. This question is hard to answer because it is so difficult to disentangle the 2001 Obama the Constitutional lawyer from the 2008 Obama the candidate. I believe that if I had listened to this interview in 2001 I would have first thought Obama was talking about transferring wealth to improve educational opportunities for African-American children but by the end of the interview would have moved to thinking he was proposing some type of reparations for African-Americans. However, I do not believe the 2008 Obama the candidate thinks of wealth redistribution strictly along racial lines. Certainly his tax plan is targeted solely by income and has no racial component. He advocates the redistribution from the wealthy of every race and ethnicity to the less wealthy of every race and ethnicity. You may oppose his plan but you must give him credit for color-blindness.
In what is for me a more serious issue, the January 2001 interview raises questions about how Barack Obama views the Constitution. Certainly the views he expresses in this interview can be interpreted as a conviction that it is desirable to “break free from the essential constraints that were placed by the founding fathers in the Constitution ... that generally the Constitution is a charter of negative liberties”. However, it is also possible to argue he was speaking of what the Warren Court did - interpreting the Constitution as it had always been interpreted - rather than of what he wishes it had done or wishes the current Court would do.
I would probably be less concerned about this issue if I had not listened to another interview Obama did with WBEZ on September 6, 2001, where the discussion was about “Slavery and the Constitution”. The remarks that concern me begin about 45 minutes into the interview. After Richard John, one of the other guests on the show, talks about his view of the Declaration of Independence and the Constitution, the host (Gretchen Helfrich again) asks Barack Obama what his views are on those documents.
Obama: I think it’s a remarkable document.
Helfrich: Which one?
Obama: The original Constitution as well as the Civil War amendments but I think it is an imperfect document and I think it is a document that reflects some deep flaws in American culture, the Colonial culture nascent at that time. African-Americans were not, first of all they weren’t African-Americans. The Africans of the time were not considered a part of the polity that was of concern to the Framers. I think that as Richard said it was a nagging problem in the same way that today we might think of environmental issues and some other problems where you have to balance cost benefits as opposed to seeing it as a moral problem involving persons of moral worth. And in that sense I think we can say that the Constitution reflected an enormous blind spot in this culture that carries on until this day and that the Framers had that same blind spot. I don’t think the two views are contradictory: to say that it was a remarkable political document that paved the way for where we are now and to say that it reflected the fundamental flaw of this country that continues to this day.
I can’t figure out what this means and perhaps only another Constitutional lawyer could. I certainly understand that the Constitution's original treatment of people of African ancestry living in what became the United States was a moral problem but I’m uncertain of the leap from there to environmental issues. What exactly is the “enormous blind spot”, “the fundamental flaw” in this culture and country that Obama sees so clearly? I very much wish someone would sit down with Obama, read his comments to him, and ask him to expound on them.
In summary, the January 2001 interview is not the redistribution bombshell some pundits believe it to be but it does put a different slant on Obama’s “spread the wealth” argument, making it seem more like a long-standing and freestanding goal and less like a well-within-the-mainstream variation on the sort of redistribution Americans find acceptable in order to implement desirable policies. In particular his apparent (although probably deniable) desire to “[bring] about major redistributive change” (emphasis mine) is troublesome and in the right hands (about which I’ll write in that later post) could be political dynamite.
The Constitutional concerns raised by the January 2001 interview and exacerbated by the snippet from the September 2001 interview are far more serious. I would very much like to be reassured about Obama’s views on the Constitution and how he believes it should be interpreted and perhaps modified. I’ve just spent eight years with a President who does not share my understanding of the meaning, primacy, and enduring value of the United States Constitution. I’d really hate to end up with another President who hails from a different party but is nonetheless cut from the same cloth.
*****
Partial Transcript beginning about 34 minutes into the interview
Obama: After Brown v Board of Education a major issue ends up being redistribution, how do we actually get more money in the schools and how do we create equal schools and equal educational opportunity. Well, the [Supreme] Court in a case called San Antonio v Rodriguez in the early 70’s basically slaps those kinds of claims down and says, “You know what? We as a court have no power to examine issues of redistribution and wealth inequalities with respect to schools. That’s not a race issue, that’s a wealth issue and we can’t get into this.”
Hutchinson: And the Federal Constitution doesn’t provide any warrant for intervention.
Obama: Exactly. So now but what’s interesting is a whole bunch of folks start bringing these claims in state courts under state constitutions that call for equal educational opportunity and you see state courts - with mixed results - being more responsive to it. The reason I think that’s relevant is not to say that I’m not worried about the lack of protections coming from the Supreme Court but it is to say though that you’ve got a cultural transformation that changes how states operate and how states think about the protection of individual rights in ways that didn’t exist prior to the Warren Court and that I think is an important legacy to keep in mind.
There is a brief discussion about Bush v Gore and how the Florida Supreme Court was active in a way that would be preferred by liberals and so a realization that Federalism may have advantages. Then at about 38 minutes in:
Hutchinson: I think the interesting development here is the one that Barack has emphasized and that is that questions of both litigation strategy and political strategy are tending to move more back toward the states now given what the Supreme Court is doing and given Republican control over effectively both Houses of Congress. And so we’re seeing a shift in strategy and a shift in location and it’s important to keep that in mind. I think we can be too Supreme Court of the United States obsessed sometime in thinking they can deliver questions of social justice in kind of an unbroken vector from Brown v Board of Education. And my favorite example that Barack and I were talking about before we went on the air this morning is the question of welfare rights. You know this obsession with the Due Process Clause, thinking if you can just force these welfare administrators to hold face to face hearings before they cut people off from certain welfare benefits will produce more social justice, more money for deserving people, and the like. There was a decision in 1971 that mandated that and what it did of course is to mean that more money earmarked for welfare went to hearings as opposed to benefits. And then the Supreme Court changed its mind five years later and said, “Well, you don’t have to have a face to face hearing, you can just have a paper review of the record.” And the idea that somehow you could use the Due Process Clause for redistributive ends socially that would be stable I think was an astonishing assumption in the mind of litigators about what they could accomplish over time and it just didn’t last very well.
Obama: And it essentially has never happened. I think that if you look at the victories and failures of the civil rights movement and its litigation strategy in the court. I think where it succeeded was to invest formal rights in previously dispossessed peoples, so that I would now have the right to vote. I would now be able to sit at the lunch counter and order and as long as I could pay for it I’d be okay. But the Supreme Court never ventured into the issues of redistribution of wealth and more basic issues such as political and economic justice in this society. And to that extent, as radical as I think people try to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as it’s been interpreted and Warren Court interpreted it in the same way, that generally the Constitution is a charter of negative liberties. Says what the states can’t do to you. Says what the Federal government can’t do to you, but it doesn’t say what the Federal government or the State government must do on your behalf, and that hasn’t shifted and one of the, I think, the tragedies of the civil rights movement was because the civil rights movement became so Court (court?) focused I think that there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change. And in some ways we still suffer from that.
The show then took phone calls from listeners. The first two questions were from “Joe” who sparked a brief interesting discussion on the fact that the civil rights movement had a moral/religious base but at the same time there is a feeling of discomfort with religion in political issues. Obama referred to this as a “long-standing contradiction” in “the liberal community”. Then a caller named “Karen” asked a question:
Karen: The gentleman made the point that the Warren Court wasn’t terribly radical. My question is - with economic changes - my question is it too late for that kind of reparative work economically and is that the appropriate place for reparative economic work to take place?
Helfrich: You mean the Court (court)?
Karen: The courts or would it be legislation at this point?
Obama: You know maybe I’m showing my bias here as a legislator as well as a law professor but I’m not optimistic about bringing about major redistributive change through the courts. The institution just isn’t structured that way. You just look at very rare examples where during the desegregation era the Court was willing to, for example, order changes that cost money to local school districts. And the Court was very uncomfortable with it. It was hard to manage, it was hard to figure out. You start getting into all sorts of separation of powers issues in terms of the Court monitoring or engaging in a process that essentially is administrative and takes a lot of time. The Court’s just not very good at it and politically it’s very hard to legitimize opinions from the Court in that regard. So I think that although you can craft theoretical justifications for it legally, I think any three of us sitting her could come up with a rationale for bringing about economic change through the courts, I think that as a practical matter our institutions just are poorly equipped to do it.
Bandes: I don’t necessarily disagree with that but I think it also depends on, much of the time what we see the courts are doing is ratifying the status quo. And in fact the Court makes redistributive decisions or distributive decisions all the time.
Obama: Right
Bandes: Let me give you an example which is that the Court considers whether it’s okay to take a program, a Federal Medicare program, that provides compensation, that recompenses people by insurance for every medical procedure they can have except abortion and it upholds that.
Obama: Right.
Bandes: We can except abortion from that. Well, that’s a decision about what kinds of subsidies we’re willing to uphold and what we’re not.
Obama: Although typically the Court can certainly be more or less generous in interpreting actions and initiatives that are taken by the legislature. But in the example of funding of abortions or Medicare and Medicaid the Court’s not initiating those funding streams. Essentially, what the Court is saying is at some point, “Okay, this is a legitimate prohibition or this is not” and I think those are very important battles that have to be fought and they do have a distributive aspect.
A caller named “Anna”, a community organizer planning to go into labor organizing asks why community organizing was given less emphasis than litigation. Obama answers that community organizing is harder than litigation, saying “it’s difficult to mobilize change at the local level”. Then:
Helfrich: It seems to me that there is a perception abroad that legislative solutions are somehow unstable as a result of the fact that you can then take them to the Court and the Supreme Court is this sort of last word. That you can struggle and struggle and struggle and get something done, get something passed but that may not be the end of the story.
Hutchinson: Well, traditional solutions are unstable, too. Because facts can change. You’re always arguing in a binary situation, there’s always another side to the case. And much of the desegregation efforts proved how hard it was for Federal District judges to continue to superintend how many students go from one section of town to another section of town and, oh, since the demographics have changed the following year we have to look at it again one more time. That doesn’t accomplish stable social change because you always have the intervention of a not clearly predictable actor, that is, the judiciary in play.
The show wraps up with a brief discussion of the limits on the Supreme Court’s power, that it’s all based on reputation, the Court has neither the power of the purse nor the power of the sword.
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