Saturday, January 23, 2010

Citizens United and bans on corporation speech

A few days ago, the U.S. Supreme Court handed down its decision in Citizens United v. Federal Election Commission. (You can click here to see a pdf file of the Court's slip opinion; you can also click here to see blog posts at the Volokh Conspiracy that discuss the implications of the case.) As I understand the case,* the Court ruled that the McCain-Feingold Law's prohibition of campaign contributions by corporations and unions to fund "issues" ads within a given number of days before an election violates the first amendment and is thus unconstitutional. The Court also ruled that one provision, the provision that required full disclosure of which corporations donate to a campaign, is constitutional.

I should say that I agree that the ban on corporation contributions is a bad idea, regardless of its constitutionality. (I'm not sure that I follow all the legal arguments.) I say this for two reasons.
  1. Any regulation that governs when and by whom it is appropriate to spend money on a campaign involves the government in serious line-drawing and parsing of what given advertisement constitutes campaign-related speech. Such a regulation runs a risk, in my opinion, of too much government power. I'm not prepared to say such line-drawing is always wrong or even always unconstitutional (not the same thing, at any rate). It just makes me uncomfortable.
  2. Campaign finance regulations, as with most (maybe all?) regulations, increases what are called "compliance costs." In other words, the more regulations, the more a campaign has to worry about taking the right steps to comply with the regulations. This means hiring more lawyers to interpret the regulations and interpret the court decisions that clarify them (the Citizens United slip opinion for example, was 183 pages long, about 1/3 of which was the opinion of the Court, the other 2/3 being concurring and dissenting opinions: not necessarily easy for the layperson to interpret). It also means living with the uncertainty of whether one is complying with the law while the definition of an unclear term in the regulation is determined by the courts or while apparently contradictory regulations are reconciled by the courts or by yet further regulation. The effects go to favor the established parties, who can afford the lawyers and can afford to wait out the legal battles, and to make it harder for third parties or for members of one party who, for example, want to mount an insurgent primary campaign. The established parties, or those who sympathize with them, also have the luxury of seeking out apparent loopholes and facing the consequences, if ever, after their candidate has one the election. (I'm thinking of the "swift boating" ads which were apparently legal under the McCain-Feingold law and which, probably, helped George W. Bush win over John Kerry. I'm also thinking of the practice of Democrats in some states--e.g., Illinois--to use their resources to make sure the Green Party candidate did not get on the ballot in 2004, assuming my recollection is correct.)
Number 2, in my mind, is the most disturbing, and it has more, I think, to do with campaign finance regulation in general than it does with bans on corporation speech per se. To my mind, it would be better to simplify campaign finance requirements, perhaps with ample, but easy to understand disclosure requirements.

My sensibilities are offended by the fact that money is becoming / has become the main necessity in running an election campaign. They are also offended by the fact that a large conglomeration of capital invested in a corporation or a "political action committee" can exert so much influence in an election. It is also probably true that insurgent campaigns aren't likely to benefit from corporation contributions. But making that does not lessen the "due diligence" that a sincere, yet underfunded, campaign is required to exercise to demonstrate that it is complying with the law.

*Disclosure: I have not read the case. I have only skimmed the headnotes/syllabus and read a few of the blog posts at the Volokh Conspiracy.

UPDATE 1-23-10: D. A. Ridgely at Positiveliberty has an interesting post on the implications of the Citizens United decision. In one paragraph, although not directly related to the main point he is making in the post, he states my concern #1 above more clearly than I did (click here to read the post in full):
The 5 to 4 decision is disheartening to those who believe that corporate, union, etc. political spending unduly influences the political process, and it may come as a surprise to some readers here that I am not entirely unsympathetic to their concerns. Because corporations and unions and, hell, even political parties are not, themselves, really persons, I see nothing inherently wrong about curbing their political spending.

Alas, in practice it becomes impossible to draw an enforceable line that can be defended vis a vis the sort of personal, individual free speech the Constitution clearly does attempt to protect almost absolutely. For that reason, on balance I approve of the ruling. Even so, although I have not read the lengthy and, I’m told, impassioned opinions, the underlying issues aren’t nearly as simple or easily answered as many proponents and opponents of efforts to control campaign spending would have us believe

Saturday, January 9, 2010

Faustian Bargain? More challenges for health insurance reform

It now appears fairly certain that the Democrats' health insurance reform * will become law within a month and that it will have the following features:
  • It will mandate nearly everyone to purchase or otherwise procure health insurance.
  • It will restrict the variance of premiums between the "low-risk" policy holders--e.g., healthy young people--and higher risk groups--e.g., the elderly, or those with pre-existing conditions.
  • It will have subsidies for the very poor and will expand medicaid coverage.
  • It will require states to set up "insurance exchanges" at which people can purchase health care
  • It will forbid insurance companies from dropping people or for denying coverage.
As I have said in other posts, I do support the bill, with all its flaws (and there are many). As I have also said in other posts, the reform has several hurdles and challenges to overcome. I have thought of a few more.

First, there's yet another potential constitutional challenge. The requirement that states set up insurance exchanges may violate the 10th amendment to the constitution. (As I have written earlier, when I speak of violations of the constitution, I am not referring to violations of whatever policy I believe accords with the constitution. Rather, I am speaking of the relative likelihood that the Supreme Court would rule the reform unconstitutional.) In a Supreme Court case from 1992, New York v. United States, the Court considered a federal regulation that required states to set up sites for storing radioactive waste. The court ruled that the regulation was unconstitutional on the grounds that the Congress could not order states to enact policies. If this decision is translatable to the health care reform requirement that states set up exchanges (and to a requirement, which I read about in the Baucus bill, but am not sure if it is in the present bill(s) under consideration, that each state set up an ombudsman to oversee consumers' interests), the reform might be struck down.

Second, the politics surrounding passage of the bill right now makes it more likely than it might have been otherwise that the Congress may repeal the reform. The Democrats have resorted to robustly partisan tactics and to unsavory compromises in order to ensure quick passage of the bill:
  • The, perhaps now infamous, deal to relieve Nebraska of the need to finance any further increases in medicare means that taxpayers most states (I believe a few other states have gotten similar exemptions) will have to subsidize Nebraska's care of the indigent.
  • The "ping-pong" approach to reconciling the House and Senate versions of the bill. The usual procedure for enacting a law is that one house passes the bill, the other proposes amendments, and then they meet together in a joint conference to hammer out the differences, after which point each house votes on the bill again, and it passes (or not) as a whole. The Democrats have opted to forgo the joint conference and to meet together to hammer out their own bill. This tactic avoids the long delays, such as votes on procedure and motions to entertain the objections or comments or proposed amendments from the Republicans. Accordingly, it makes it more likely that the bill will be passed quickly. At the same time, this tactic shuts Republicans out of the process.
Neither of these tactics are necessarily beyond the pale. In controversial bills--and perhaps more often in less controversial bills--states or other constituencies get sweetheart deals as a matter of common practice. It's the old pork barrel politics that politicians (including Messrs. Obama and McCain) campaign against and indulge in once they take office. The Nebraska compromise is, in this respect, just another example of such a deal. If news reports speak true, the "ping-pong" tactic of doing legislation is not unheard of either, although I don't know this for a fact.

However, these tactics will give the excuse to opponents of health insurance reform to repeal it. The Democrats have, perhaps out of necessity, resorted to ultra-partisan measures, which will give opponents grist to their mill for repealing the reform. Of course, a few things would have to happen: Republicans would have to gain control of both houses of Congress and Obama would have to lose reelection (or the Republicans' majority would have to be veto-proof). (I could imagine another situation: a budget crisis in which enough opponents of health insurance reform could try to shut down the government unless Obama agrees to a bill that undoes the reform. But I think such an event is unlikely.) Still, the point is, Republicans could, with sincerity, point to the extraordinary measures taken and claim extraordinary measures are thereby jsut as justified for undoing the reform.

Whereas the chance was perhaps 1 in 10 that reform opponents would mount a serious effort to repeal it, provided the circumstances make it possible, I'd say that now it is probably 3 in 10. It's still not likely, but it's more likely now.

I do believe that once the major provisions go into effect--2013 or 2014, if I'm not mistaken--and if constitutional challenges do not undo the reform, it will be much more difficult for opponents to repeal it. Once something becomes policy, it creates "rent seekers" who have a strong, vested interest in the continuance of the policy.

Finally, I should explain why I support the bill, given what cannot be described but as unsavory tactics of the Democrats. Namely, if the bill does what it is supposed to, people will no longer have to fear going into bankruptcy just because they get sick and they won't have to fear going to the doctors on the ground that if they are found to be sick, they will have no recourse to get help paying for their care.

Now, critics of the reform proper--and not just the way the reform is being enacted--have pointed to a lot that is wrong with the bill: it won't contain costs, it is uncertain how effectively the price of premiums can be controlled, it is a huge subsidy to the private insurance industry, it imposes huge "compliance costs" on insurers and doctors who have to deal with the regulations. I'll add to these criticisms and say that the bill might not even do what it's supposed to. What if insurance companies just decide en masse not to obey the law? What if, as a practical matter, people's coverage is dropped anyway when they get sick? Still, I'm betting, perhaps foolishly and perhaps not foolishly, that it will work.

*I have decided to start calling it "health insurance reform" instead of "health care reform" because it is primarily a reform of the health insurance system.

Friday, January 8, 2010

Fear and malice

In the comment section of a recent post (click here to see it), I mentioned "the occasions of actual fear and, sometimes, even malice, I feel toward those who have less than I." The commenter, laura(southernxyl), asked me to clarify: "Fear that they're going to harm you physically? Or something else? Malice - is that when they're obnoxious?"

Well, it's been a week or so and I've just now gotten back into blogging (I had been out of town visiting family). So I thought I'd answer the question now:

Fear: I experience fear in two ways.
  • The first and obvious is indeed fear of physical harm. I have heard that homeless people in particular are statistically much more likely to be assaulted than others, and I'm willing to accept that as true. Still, sometimes I just don't feel safe, and it's probably a good idea, right or wrong, to honor one's instincts.
  • The second is my white-liberal-guilty fear that a homeless person or panhandler, in asking whether I can spare a couple dollars or by him or her something to eat, will expose my avarice. Most of the time, I can indeed spare a dollar or two and a lot of the time I can spare the 5 dollars or so necessary to buy something substantial to eat.
Malice: This is a harder one to write about. I'll say it's the desire to see the homeless and the needy disappear.
  • I'm not referring to the kindhearted and altruistic wish that all people everywhere would have what they need to survive. I think most of us "want" that, at least on an abstract level. (At the same time, I realize it can be a bit presumptuous to assume that what the needy need and want what we need and want. All I'm saying is that it's hard to see people in want: witness people's repeated attempts to explain away the problem of homelessness by saying things like "oh, they just want to be homeless," or "that man looked young and healthy, he should be working instead of begging.")
  • Rather, I'm referring to the desire just to see these people disappear, to wish my fellow human beings out of existence.
  • I'm not defending this "malice." Indeed, I find it a baser impulse that ought not be indulged. At the same time, although I'll not hazard that all people feel this, I also suspect that I'm not the only one. That other people do it too (i they do) is not a defense.
Of course, one partial solution I haven't even discussed is volunteering at a soup kitchen or helping people in an organized way. That would probably do more good. But so far I haven't really done anything in that regard.