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Supreme Court Throws Health Care Forecasters a Curve Ball
Intertrade had rejection of the individual mandate of the health care law a 70% certainty. Most people had followed CNN’s Jeffrey Toobin’s take on the arguments that seemed to have gone so terribly wrong for the White House back in March. And they were all wrong.
President Obama has Chief Justice John Roberts to thank for saving the Affordable Care Act. Astoundingly, Roberts, who has voted 90% of the time with the other four Republican appointees, joined the court’s four liberal justices.
What many apparently discounted, was the extent that Roberts cares about political appearances. It took some intellectual gymnastics, but, in the end, it seems the Chief Justice wanted, at all costs, to preserve the integrity of the court against perceptions it had become a blatantly political body. Or, in the true meaning of the word “conservative,” he’s the kind of judge who believes it should be very difficult to alter existing law. Or both.
The gymnastics involved was the majority of the court labeling the “fee” that would be imposed on Americans who do not get health insurance a “tax,” a word that was never actually written in the legislation and a characterization which the President vehemently denied. But basically the court’s majority was saying, if the politicians were obviously afraid to call a tax what it really is- as NPR’s Nina Totenberg put it in her analysis of the court’s action, regardless, “If it looks like a tax and acts like tax, it’s a tax.”
And that’s key because there were five justices, including Roberts, who were of the opinion that a universally charged “fee” would have been a violation of the commerce clause of the constitution; they would argue you can’t force people from all 50 different states to pay a fee if they don’t get insurance. But a tax is different. The notion that the Federal government has the right to levy a tax has long been established.
The other part of the gymnastics that seems pretty conflicted is that there’s a law Congress passed that says courts don’t rule on the constitutionality of taxes until they are actually levied and this part of the health care law has not gone into effect yet. In this aspect of the case though, Roberts deferred to Congress’ assertion in the law that it is a fee, they instituted, not a tax. To justify this decision, Roberts had to kind of have it both ways.
So where to now? President Obama gets to explain to the American public what it is that the high court saved today- because his previous communication efforts with the nation in regard to the benefits of the health care law have been widely regarded as abysmal.
And, of course, what many have called his singular accomplishment as President remains intact. Mitt Romney said earlier in the week that rejection of the health care law by the high court would have meant Obama had wasted his first three years in office. That one’s out the window.
But Republicans will likely be all fired up by what they see as a slap in the face by the court. There will be symbolic but ineffective efforts in the House to repeal the law (the Democratic-controlled Senate will never go along). Mitt Romney will make it a mantra in every speech from now until November. Republicans will now be able to use “tax increase” against the President, and overall, it seems the court’s decision will further the stark nature of the choices voters face in November- namely- the role of government in our lives.
Finally, there was a lot of ridiculous speculation and forecasting about how this ruling would go. And you know which one ended up being 100% accurate? There’s a company that makes a business out of analyzing facial expressions. According to their analysis of the way the justices reacted on the bench during the arguments- there were five justices who smiled the most. The four liberals and Chief Justice John Roberts.
For whatever reasons he took the path he did, it would appear it is John Roberts who gets the last laugh.
Is Boycotting Rush Anti-Free Speech or the Exercise of it?
There are free speech proponents who, regardless of the foulness of the speech involved, feel very, very queasy about economic boycotts intended to silence people.
But regardless of how one feels in the specific case of Rush Limbaugh’s remarks about Georgetown University student, Sarah Fluke last week, central to the issue of the efficacy of economic boycotts is the concept of money and the free market.
The Supreme Court has made it pretty clear that money is a vehicle for the expression of protected 1st amendment rights. In the matter of Citizens United, the high court upheld the rights of corporations and labor unions to spend unlimited amounts of money on political campaigns.
The underlying philosophical foundation would also support the concept of economic boycotts because they too involve the use of money as a means of political expression. Not the spending of it, but the strategic denial of it.
And it is, perhaps, ironic in the case of the Rush controversy, that presuming that many on the political right are extreme free market proponents, the use of the economic leverage of the boycott, really is use of the free market; manipulating it as an expression of free speech.
So whether you’re boycotting Bill Maher’s advertisers for an ill-advised and, some would argue, grotesque tweet about Tim Tebow a couple of months ago, or angry with Rush Limbaugh for his vitriolic rhetorical attack on a young female college student, looks to me like the law is- more than ever- firmly behind you if you decide to stop buying products from companies whose perceived values are incompatible with your own.
To the anti-boycott/free speech advocates- if there really is a marketplace for ideas in this country- a place where people pay through their purchases and their listening or viewing habits, to make it possible for some to shout their views from an electronic pulpit- no one is ever losing their right of expression.
The only thing affected by the power of money- is the size of the pulpit. How people choose to spend their time and money and show their attraction or revulsion to the product, determines whether that pulpit is amplified through a 50,000-watt radio or television tower, or relegated to 45 people reading the daily rants of a lonely website.
Either way, though, it’s still free expression. Nobody said you have the absolute right to get rich off of it.
SuperPacs and Cynicism and Disgust with the Democratic Process
I don’t know if the five Supreme Court justices who signed off on the Citizen’s United case have been reading the newspapers and watching cable, but the effect of the ruling has been on full display over the past month and things are not going according to the high court’s rose-colored-glasses view that unlimited political expenditures are harmless expressions of free speech.
The ruling that gave corporations and labor unions the right to spend unlimited amounts of money on political campaigns assumed a number of things. Justice Anthony Kennedy, for example, denied it would “give rise to corruption or the appearance of corruption.” And that was because the public would know where the money was coming from and because candidates and so-called “Super Pacs” (PAC= Political Action Committees) would never coordinate. Please.
The candidacy of Newt Gingrich was destroyed in Iowa with $4 million in withering negative ads from PACS supporting Mitt Romney. The brief Gingrich resurgence following the death of the Herman Cain campaign was sliced and diced by the assault, cutting the former House Speaker’s poll numbers by half.
Direct coordination with the Romney campaign would be illegal, of course. But as the Washington Post’s Ruth Marcus points out, there’s darned near a shadow campaign staff operating the Romney PAC called “Restore our Future.”
The committee is run by Carl Forti, political director of Romney’s 2008 campaign. Its treasurer is Charles Spies, the Romney 2008 general counsel. Its fundraiser, Steve Roche, headed the Romney 2012 finance team until jumping to the super PAC last summer. And to underscore the flimsiness of the PAC’s supposed independence, Romney himself has spoken at “Restore Our Future” events.
Yet up-to-date information about who is bankrolling this effort will not be available until the end of January, by which point four states will have voted and Romney may have the nomination wrapped up.
And it’s not just Republicans. Former Obama aides run a PAC called Priorities USA which has already been releasing nasty anti-Romney ads. One can only imagine the slime and dirt that will fill our TV screens and radio dials this fall from all the Super Pacs that are out there .
In a very insightful article in Slate.com, Dahlia Lithwick, writes that even some state courts are beginning to question the wisdom of the Citizen’s United ruling. The Montana Supreme Court, for example, has recently ruled by a vote of 5-2 that corporations are not people and that to assume unlimited political expenditures are benign goes against well over a century and a half of practice in Montana state politics.
Chief Justice Mike McGrath dove deep into that history, ranging back over the “tumultuous years … marked by rough contests for political and economic domination primarily in the mining center of Butte, between mining and industrial enterprises controlled by foreign trusts or corporations.” Noting that, back in the last Gilded Age, Montana’s wealthy “Copper Kings” bought judges and senators, picked the location of the capital, and owned the media, McGrath pointed to Montana’s vast size, sparse population, low-cost elections, and long history of having its resources plundered by foreign corporate interests to emphasize that the state has a compelling interest in maintaining its ban.
The sad fact is that negative campaigning and advertising are hideously effective and only nominally based on any discernible truth. To not be able to identify who’s putting up the money for these organizations that put out these ads means there is absolutely no accountability for them. Nor will we be able to tell how the donations by anonymous individuals impact the candidate once they become an office holder and are in a position to make public policy that may benefit those contributors.
At a critical juncture in our history and our economy, when fundamental philosophical views need to be aired, debated and decided- we may, instead, be reacting to and basing our votes on the primal, negative personal attacks of politicians on one another.
That we will be hip-deep in this kind of swill from now until November can only increase the already deep cynicism the public feels about politics and government. Watching how it’s actually playing out, a great public disservice may have been committed in the name of free speech when the Supreme Court made the Citizen’s United ruling. It is eroding -not helping- the function of a healthy democracy.
No More Justices at State of the Union Addresses?
We may have seen the last of Supreme Court Justices attending State of the Union speeches. As it is, they don’t allow cameras in the courtroom. And lately, they haven’t seemed disposed to wanting to share even audio arguments before the high court. How will we know they still exist?
Presumably, what reporters are left at the TV and Radio networks and maybe a newspaper guy or two will actually attend oral arguments and confirm sightings of the Supremes. It could get to the point that just seeing them will be more news than the cases they’re hearing.
Well, actually, Justice Roberts did turn up this week at the University of Alabama. All this came out in a question & answer session with students there. Chief Justice Roberts called it “very troubling,” that at the last State of the Union speech, President Obama singled the justices out for criticism for their recent ruling that allowed corporations and labor unions to spend as much as they want on political campaigns.
It was a rare moment, for sure. Apparently, only the third known time a President had ripped into the Supreme Court in a State of the Union speech. Justice Samuel Alito was caught on camera shaking his head at the President’s remarks and mouthing the words, “not true.”
And Justice Roberts apparently felt kind of threatened.
…there is the issue of the setting, the circumstances and the decorum. The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court — according the requirements of protocol — has to sit there expressionless, I think is very troubling.
Justice Roberts and I have differing views on what is “very troubling.” War is “very troubling.” Unemployment is “very troubling.” My checking account balance is “very troubling.” Being surrounded by lawmakers disagreeing with you- I don’t know- “very troubling?”
And he added:
To the extent the State of the Union has degenerated into a political pep rally, I’m not sure why we’re there.
Oh my- imagine that- politics and partisanship at a State of the Union speech. How unusual. How new. How we’ve degenerated.
But-wait! What really seemed to bother the Chief Justice, if you go by the strict construction of his sentence, was that his colleagues from the court had to sit there “expressionless.” Dear High Court: Will you come back to future State of the Union Speeches if we let you bring in signs and blow-horns, bags of vegetables and rotten fruit?
But, alas, Justice Roberts is not alone. Justices Antonin Scalia, Clarence Thomas and John Paul Stevens all share his repulsion at having to come to State of the Union speeches.
Frankly, I don’t know how I’m going to survive if they suddenly stop attending. No more “Mr. Speaker! The Justices of the Supreme Court!” No more wondering what they’re wearing under those black, flowing robes. No more of the vacant facial expressions. No more wondering if they’d be watching American Idol if they didn’t have to be at the big speech.
But what suspense next January as we all wait, dizzy with anticipation, to see if they show. I’m nodding off now just thinking about it.
The Benefits of Owning Your Own Congressman
Having already written a serious assessment of the Supreme Court decision that allows unlimited corporate spending on political advertising, the claim by some that it will result in the wholesale purchase of lawmakers got me thinking about what it might be like to have one completely in my pocket.
This will never happen, of course, because I don’t make nearly as much money as Exxon, so the chances are next to zero. But one can dream.
For starters, and to make me feel better about myself, I think I would have him introduce legislation that would declare my birthday, October 29th, as National Robert Garcia Appreciation Day. If this passes, the following year I would go for a National Robert Garcia Awareness Month.
I think it might also be nice to have a bridge or a highway named after me. Many of my tax dollars have already gone toward the construction of such infrastructure so I think it’s only right. But why stop there? I would also want one train station and one airport. And they should be ones that I use, so I would have him propose renaming La Guardia and Union Station. I don’t necessarily expect that resolution to pass, but you have to take a strong initial bargaining position. If we end up with a small, municipal airport and perhaps the tiny little BWI train station, I could find this acceptable.
Then I’d have him introduce an amendment to the omnibus spending bill that would contain a provision that would exempt Robert Garcia from all federal income taxes. How cool would it be to actually keep the gross amount you see on your pay stub?
I also want a farm subsidy. Farmers, you know, are often paid to not grow certain crops. Though I am technically not a farmer, it is a well-established fact that I do not grow corn and I’d like to be paid for that. Because this seems such fertile ground (forgive the pun), going forward, I would point out to my Congressman that there are several other agricultural products I also do not grow like wheat and soy beans.
And then there’s the whole area of research. I would be more than happy to initiate studies on certain important topics like the psychological benefits of attending sports events and concerts. Or perhaps, the effects of sunshine on flies which might require travel to places like Hawaii and Puerto Rico. A few federal grants in the research area would go a long way toward improving the relationship between me and my Congressman.
I could go on and I will. But, regrettably, only in my dreams.
Victory for Principle and the Power of Money
The Supreme Court’s decision that overturns 60+ years of established law limiting corporate dollars for the funding of political advertising is an important one with a lot of nuance.
It involves a very real principle. But the true winner is the power of money, seen by a 5-4 majority of the court, as a vehicle for political expression worthy of 1st amendment protections.
First off, this helpful guide from the Washington Post:
What’s out:
— A 63-year-old prohibition on corporations using money from their general treasuries to produce and run their own campaign ads.
— A prohibition contained in the McCain-Feingold Act that bars issue-oriented ads paid for by corporations or unions 30 days before a primary and 60 days before a general election.Still in:
— A century-old ban on donations by corporations from their treasuries directly to candidates.
— The requirement that any corporation spending more than $10,000 in a year to produce or air a campaign ad covered by federal restrictions must file a report with the Federal Election Commission, revealing the names and addresses of anyone who contributed $1,000 or more to the ad’s preparation or distribution.
— The requirement that an ad include a disclaimer stating who is responsible for it, if the ad is not authorized by a candidate or political committee.
Judicial Activism
It’s safe to say, I think, that the conservative majority that overturned a lot of established law in this area took a pretty activist approach. This was not a narrow decision. Considering the general mantra from conservatives about strict interpretation of the law and respect for precedent, this ruling really does seem to turn that premise on its head.
Chief Justice John Roberts, anticipating this argument writes, in essence, that any decision that’s “right” trumps the principle of leaving established law alone. He maintains that if it were taken to its extreme, “…segregation would be legal, minimum wage laws would be unconstitutional and the government could wiretap ordinary criminal suspects without first obtaining warrants.”
Ok, there’s some logic there. But this is not in the same league as segregation and wiretapping. The idea that corporations have the same free speech rights as individuals does not strike me as running to the rescue of the oppressed. But there is a legitimate principle at stake here.
The ACLU and the NRA
The American Civil Liberties Union filed amicus briefs in favor of the winning argument in this case. The ACLU believes that all speech is protected, including speech (specifically, a political documentary that attacked Hillary Clinton) that is funded by corporations. The National Rifle Association takes the same position. I don’t know how often these two organizations agree on anything, but I think it’s rare, and in this case, interesting. There are a lot of constitutional experts who would normally be labeled as “liberal” who applaud the decision because, in their view, free speech trumps all. I’m not sure this is as a “right vs left” issue.
The Effects
Is it really the end of the world as many are hysterically crying out? Individual corporations have historically not wanted to get specifically and overtly into partisan politics because they’re sensitive about alienating consumers. Their trade associations have no such concerns. And corporations will contribute to those groups so their economic interests will be represented and they will produce lots and lots of ads.
Unions, of course, have also just won the same rights as corporations, so they too, will get to spend what they want on political advertising. I don’t know how this plays out in regard to partisan politics. I’m not convinced every corporate cause is necessarily a Republican or conservative one. Democrats have been known to seek corporate dollars too. In fact, it seems more likely that traditionally progressive labor unions are more predictable in their partisan patterns and favor many of the liberals who are howling the loudest about the Supreme Court ruling.
But I can see that a company that profits with less environmental regulation, like power and oil interests, just might be inclined to spend lots of money on candidates who want to weaken environmental laws. Insurance companies would do the same for candidates who oppose important aspects of health reform law. And the fear is that there will be back-room deals in which candidates will literally sell their positions in exchange for critical advertising dollars from corporations or the trade associations representing them.
A Clouded Conclusion
I think this was a win for free speech, but a technical, possibly Pyrrhic victory. It certainly puts a dent in the notion that a conservative Supreme Court bases its philosophy on strict adherence to settled law. It is likely to come at the cost of ever billions more dollars and their influence infecting the political process.
But then, are we really so naïve as to think money isn’t already a huge factor in politics? A study by the University of Maryland finds that U.S. House candidates spend 34% of their time raising money. It’s the same for the Senate.
In a report from a consortium of interest groups favoring public financing of elections, Former South Carolina Democratic Senator, Fritz Hollings, notes that Congressional recesses have grown exponentially since the 1960’s- specifically so politicians can go out and raise money:
In February it used to be Washington ’s Birthday and one for Lincoln’s. Now we’ve combined them so we can take a week off to raise money. There’s Easter week, Memorial Day week, Fourth of July week and the whole month of August. There’s Columbus Day week, Thanksgiving week and the year-end holidays. While in town, we hold breakfast fundraisers, lunch fundraisers and caucuses to raise funds.”
So now there will be more money for politicians to fight for- on top of the mountains of cash already in the game. The biggest effect of the court ruling may well be increased public cynicism about the integrity of representative government.
Most folks just don’t earn enough money to buy themselves a Congressman. They couldn’t afford it before the court ruling- and they won’t be able to after it.
Garcia Media Life 
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