We are the 99%, we are the 1%

The "Occupy Wall Street" movement has figured prominently in the BCM (Blogosphere as Consulted by Me) and, I assume, in the mainstream media, although I haven't looked much at the MSM in the last weeks. This movement appears to be largely a protest against what its participants believe to be the corporate greed and the unfair advantages enjoyed by the wealthiest of the population at the expense of most hardworking Americans.

One of its rallying cries is "We are the 99 percent," as opposed to the rent-seeking, greedy 1 percent who oppress us all and get government bailouts. One website that claims to speak for the movement explains what it stands for:

We are the 99 percent. We are getting kicked out of our homes. We are forced to choose between groceries and rent. We are denied quality medical care. We are suffering from environmental pollution. We are working long hours for little pay and no rights, if we're working at all. We are getting nothing while the other 1 percent is getting everything. We are the 99 percent.

Who, then, are the 1 percent?

They are the 1 percent. They are the banks, the mortgage industry, the insurance industry. They are the important ones. They need help and get bailed out and are praised as job creators. We need help and get nothing and are called entitled. We live in a society made for them, not for us. It’s their world, not ours. If we’re lucky, they’ll let us work in it so long as we don’t question the extent of their charity.

I do not wish to dismiss this movement or the concerns expressed by its adherents out of hand. There are real problems out there and reading that website--which, from the first of its (so far, as of a week and a half ago when I wrote the first draft of this post) 67 pages, seems to be a series of posts by people who explain their personal plight, such as high debts, poor health, and joblessness--is quite sobering. It's one thing for someone like me to contemplate, in the abstract, others' statements about what is important to them. It is quite another to put a human voice to the person making that statement. Many of the problems voiced there remind me of some of my own challenges. Others of the problems are (thankfully, knock on wood, etc.) are, so far, beyond my ken.

I also do not wish to claim that this movement is saying something it is not. It is easy to chide the proponents of the "we are the 99%, and they are the 1%" formulation as both naive and potentially dangerous, indicative of a mentality that sees conspiracies in everything perceived to be unfair or simply unsatisfactory or unfortunate. It is also easy to point out that the 99% formulation is over-inclusive. The top 10%, for instance, probably benefit more than the remaining 90% by orders of magnitude comparable to that enjoyed by the top 1% over the 99%. I in fact made a comment to that effect in a post at the Lawyers, Guns and Money blog. One commenter there thoughtfully rebuked me, saying in part (the rest, along with my original comment you can get by clicking on the link),

Personally, I think it’s somewhat misleading to think of “the 99%” as a demographic group; it is, rather, a political designation, more akin to a declaration of faith and principles than a reference to one’s factual income. To declare oneself as part of the 99% is not to say that I make less than X amount of money; it is to declare that I am in opposition to the existing order of things, which has effectively written out large percentages of the population as not really relevant to the political community. Thus, for instance, I think that Warren Buffet could declare himself too to be of the 99%, and I would welcome it. So while its true that the 99% don’t share a common interest, it is equally true that the one core purpose of the movement is to transform things, to bring into being a new political subjectivity, which in theory at least, could contain anyone and everyone.

Now, I think this commenter has a point, and it's a check on my own smugness (and against what another commenter at that site, in another post, called being "a pedantic a***ole). At any rate, I reject the facile characterizations of the movement by such people as Charles Krauthammer, who, in his appearance on a recent episode of "Inside Washington," criticized the protesters for their alleged hypocrisy in owning I-phones and wearing designers jeans while declaiming against corporate America. (That's not the only time I've seen the "they use I-phones" trope....I questions, by the way, how many of those people actually do use I-phones.) Another casual dismissal comes from Tom Van Dyke at the League of Ordinary Gentlemen. Noting one protester who says he or she has $70,000 in debt:

I feel you, brother. $70,000 in hock to the Educational-Industrial Complex and still no job to pay off your medical bills, the ones you ran up spending your cash on clubs and sushi and gadgets instead of insurance. Now you’re streetcamping, trying to figure out how to make a meal out of Cup O’Noodles and a can of Red Bull.

I don't see how Mr. Van Dyke knows that this person actually eats sushi or went to the clubs or didn't even have insurance, just as I don't know how accurate is Mr. Krauthammer's assessment of the protesters' fashion capabilities.

These detractors might have a point. Young college educated people--and the protesters are at least portrayed as mostly young and college educated, although I suppose those assumptions might be a bit overwrought--might have it rough in this economy, but it appears that the lesser educated have it even worse. At any rate, I'm not sure we really know the demographics enough to make such a general statement about the protests. But no number of studies in comparative oppressions and no accusations of hypocrisy necessarily answer the protesters' arguments.

Another point from the the detractors, a la Mr. Van Dyke, is that these protesters are in the situation they are in largely because of choices they made, some of which might have been improvident or at the very least ill-considered. There's probably some truth to that point, and that truth oughtn't be denied. But there is also a point, I believe, where it is important to have empathy for others, regardless of how much they owe their position to their own improvidence. Who among us hasn't made at least some poor choices? Of course, what the common solution should be, can be, and is, is a different question. I'm not sure, for example, that a onetime student loan bailout, is the way to go (although, to be fair, I don't see a lot of people seriously arguing for a student loan bailout as much as I see them arguing for expanding the categories by which people can earn forgiveness or otherwise have their debts discharged or reduced). But if someone is in distress, sometimes it is helpful to listen to them. We might see ourselves.

Still, I feel constrained to reject the "we are the 99%" formulation. My rejection comes, in part, from the criticisms I mentioned above: the conspiracy-theory mentality the formulation plays into and the formulation's (what I and and at least one other person sees as) over-inclusiveness.

My rejection also comes from the way I believe that formulation mischaracterizes the beneficiaries of the bank bailout. Those who benefited the most are probably the investment bankers and jet-setting insurance executives, at least I am going to assume that to be true. But in the very short term, at least, other beneficiaries were probably the people much lower on the food chain who worked for those firms--the clerks and the janitors and the tellers and the couriers. My point isn't that the bank bailout was wise or that it was primarily an effort to help those folks. Rather, my point is that when protesters criticize "Wall Street" or "Bank of America" (in Chicago, the protests are taking place on LaSalle Street and Jackson, where the main Chicago branch of Bank of America is located), they often elide the distinction between those they call the "1%" and those who are trying to get by on more modest incomes at more modest jobs at these places. (In this sense, my rejection is based less on the protest movement's alleged "over-inclusiveness" and more on its "under-inclusiveness.")

Finally, my rejection comes from that formulation's rejection of what I take to be basic truth. We are all essentially just as greedy, corruptible, and rent-seeking as the next person. The difference between the "99%" and the mythical 1% is that the 1% are better positioned or better able, or both, to make their greed work for them. This assertion--that humanity is inherently greedy and corrupt(ible)--is of course not very original. Even if you don't agree with it (maybe in a later post I'll explain my theory of greed, which I have stolen from C. S. Lewis and now claim as my own), you have to admit that the idea is out there and reasonable people advance it. You don't even have to agree with my broad generalization to acknowledge that to the 1%, but for the grace of God, go the 99%. (I hope that makes sense.) Who among us can honestly and with certainty say we would, if we could, abrogate all the privileges we enjoy that give us an advantage over others? I can't, and I don't think the 99% can either.

At the same time, to demand such and honest and certain avowal from another human being is unfair. And I hope it's clear that my rejection is to a particular slogan--"we are the 99%"--and not necessarily to the movement itself, what the movement represents, or any solutions the movement advocates.

Gingrich might win the presidency

Newt Gingrich has announced that he is running for president and he might win it. I say this in the "stranger things have happened" sense: if he wants to run for president, this next year is his best chance to win. Here's why:

• Obama, at least right now, seems unbeatable. Such things and seemings can change at the drop of a hat, but while it the seemings do truly so seem, they prevent others from entering the race.
• Because Obama seems the candidate to beat, and because incumbent presidents have a strong history of winning reelection, other Republicans who are more electable will set their sites on 2016. If a Democrat wins that year, the best Republican options will set their sites on 2020. If a Republican wins that year, the 2020 spot will presumably be taken. Gingrich would have to wait until 2024 before he has as good a chance as he does now.
  
• Gingrich might be the "Goldwater of 2012": the throw-your-vote-away candidate.
• Who knows, if the economy continues to do poorly, or is seen as continuing to do poorly, Gingrich could pull an upset.
  
• Gingrich's past and his character would be issues in any campaign, but he wouldn't be the first candidate to win with such questions about his character. (Of course, in his case, the character issues are largely verified: the Gennifer Flowers incident was largely denied and gainsaid whereas the specifics of what Gingrich did are much more stipulated to.)

I hope none of this is taken as an endorsement of Gingrich. It's just an observation.

The mandate and reconciliation

One of the problems I have with the current challenges to the health insurance reform, and in particular the mandate, is that I am, to a large degree, convinced by the arguments of the challengers. I'm no lawyers by any stretch of the imagination, but I cannot find any precedent for the federal government to compel people to buy something from a private provider solely because these people have not chosen to buy such a product. I am also concerned by some of the reductio ad absurdum arguments that even if the "penalty" is a tax that can be rebated upon purchase of insurance, one still cannot "sortir de l'embrras." As Jason Kuzinicki points out, such logic might one day be conceivably used to justify corvee style labor (although one would hope the 13th amendment might prevent such an imposition).

There are counterarguments to these opponents, and I don't find them wholly non-compelling (neither without all the negatives I mightn't use in this sentence): namely, mandating such a purchase is a "proper" exercise of Congress's power to regulate interstate insurance markets, the latter power even most opponents of the reform do not seem to seriously contest. This counterargument makes enough sense to me that I won't concede the unconstitutionality of the mandate, but I must say that I am more convinced by the opponents' claims.

But what I am more convinced of is that the mandate requirement is so inextricably bound with the bulk of the health insurance reform that if it is unconstitutional, the rest of the bill (or most of it, in particular the pricing provisions and bans against lifetime caps and restrictions based on pre-existing conditions) ought to be as well. In other words, Judge Vinson's opinion, which I have actually read (okay, I "skimmed" it), makes more sense to me than Judge Hudson's opinion, which I haven't read but have read summaries of. Both judges find the mandate unconstitutional, but Mr. Vinson would strike down the entire law and Mr. Hudson would strike down only the mandate.

The problem with all this is that I support the health insurance reform and even the mandate, although I would welcome changes that would do away with the mandate in exchange for another policy (an open-enrollment window with higher premiums for those who fail to enroll during that period seems the most doable politically, but something like a public option, or as I have argued for elsewhere, an interim public option, might work, but maybe not, as I'm no expert). I have a hard time, however, justifying its constitutionality even to myself. I do not follow any particular mode of constitutional interpretation--some amalgam of originalism, textualism, and "living constitution" and the kitchen sink appeals to me and makes more sense than strict adherence to one or the other--but I cannot come up ex nihilo with some theory to justify a mandate and defend it to justify Mr. Kuzinicki's specter of corvee labor.

More than my desire for intellectual consistency and overcoming my own [warning!!!! I'm about to use a buzz word] cognitive dissonance, I should say I am a partisan in favor of the bill. I have taken my position and even very early on acknowledged these constitutional difficulties (and others too, see here, here, and here.)

My only real rationalization--I cannot call it a justification--rests on a factual claim not (yet) in evidence, namely, that the mandate and the broader health insurance reform will achieve its goal of making decent health care affordable to almost everyone: the rationalization is that the mandate, for all its constitutional difficulties and for all the dangers that pushing the limits of the constitution imply, does not scare me. If the federal government really embarks on a corvee labor scheme (as opposed to, say, merely trying to draft striking railway workers into the military as Mr. Truman threatened to do when he was president), we have bigger problems than whether the district courts will uphold such a measure. (As an adhominemish aside, I might imagine some of the very opponents of the health insurance mandate writing in the case of a Truman style draft law that "in order to preserve the dignity of labor and railway workers' liberty of contract, we need to approve drafting the entire nation's labor force to guarantee their right to a steady job." But I should be chary of criticizing anyone for a hypothetical in order to deflect my very real-life support of a policy.)

As another, related rationalization, other nations have some version of a mandate, and the walls haven't come tumbling down. But to paraphrase Christopher Marlowe, "that was in another country, and besides, the insurers are all non-profits."

Get out the vote: the shaming strategy

I reject the popular notion that "if you don't vote, you don't have the right to complain."

For starters, I assume that people who make this statement exempt certain people, to wit:

• Children who are not old enough to vote.
• Someone who gets in some sort of accident on the way to the polls.
• Military commanders who, as a matter of conscience and to remain "apolitical" choose not to vote.
  

For continuers, I assume that people who make this statement don't mean the following by "complain":

• Any complaint that has nothing to do with government.

One radio talk show host I listened to on election day piously clarified to his audience why he believed that people who don't vote have abrogated the "right to complain": if someone complains and didn't do the bare minimum of voting, then he will discount that person's complaint. This talk show host then offered a hypothetical to a caller who said she wouldn't vote this time around: say Pat Quinn be elected governor and he run this state (Illinois) into the ground, and say that this caller complain: he would discount her complaint automatically because she didn't vote.

He needn't have been so hypothetical. As most people who follow politics know, the Illinois governor (re)elected in 2006 disgraced his office by, apparently and among other things, trying to sell Barack Obama's senate seat to the highest bidder. I suppose if someone who had not voted in 2006 made the complaint, this talk show host would have discounted that complaint. So far, so good. But the fact that the one who made the complaint hadn't voted in 2006 has nothing to do with whether Blagojevich tried to sell the senate seat and says nothing about whether his attempt to do so was a bad or illegal thing. The truth or falsity of the governor's actions, and the goodness/badness or legality/illegality of those actions, has nothing to do with whether the one making the complaint voted.

I think the talk show host would probably respond that, well, yes, he would exempt people who are blowing whistles or making fact-based claims, but wouldn't abide complaints about "politicians these days" from people who don't vote. In my observation, however, most of the time that people complain about "politicians these days," with election seasons excepted, they are doing so in the context of a certain policy debate, such as (choose your poison) the Iraq war, Cap and Trade, Health Insurance Reform. And the complaints here are not the general "politicians these days don't care about people like me"; they are "politicians favor and are enacting policy x but they neglect the very legitimate concerns of people like me."

The most charitable construction to put on the "if you don't vote, don't complain" aphorism is that the act of voting is the most minimal forms of political participation and puts the voter among the community of people who are making the basic decisions in a democratic republic such as we live in. It is, in that respect, the "least we can do" is participate in the electoral process and be part of the civil society that puts a check on governmental power and expresses the voices and concerns of "the people."

Fair enough, and this construction has a certain appeal. And that is probably one reason why I usually chose to vote in city and national elections, although I usually do not vote in the primaries. (In Colorado, at least when I lived there, one had to be registered with a party to vote in its primary, I was not. Now in Illinois, one needn't register to vote in the primary, so I have less of an excuse.)

But not voting does not preclude participating in other ways. And the complainer, by complaining, is participating, and usually more vocally, than if all he or she did vote. If one writes a letter to one's congressperson, that is a more direct form of participation (although I suspect a letter from someone who the record shows has voted might carry more weight.....who knows? I don't.)

I'm not saying, as I used to say by implication (click here and here and here for examples), that voting is an entirely worthless exercise. And I think one should vote in the same way that one should [insert logically appropriate, but preferably also witty and folksy, analogy here]. But voting is not the summum bonum of all things good in a person qua member of civil/civic society.

Why support the Green Party?

For the by-elections in Illinois, I am endorsing the Green Party ticket. (Right now, I expect to hear a collective *sigh* of apathy from my readers, who number perhaps in the high single digits and who probably don't depend on me to tell them how to vote.) Any endorsement of the Green Party, or any third party, comes up with some very commonsense and reasonable exceptions:

1. Third parties have a notoriously hard time actually winning elections. This is true historically, even at the state and local levels. Even apparent examples of "successful" third parties are either not really that successful or not that "third": the Republicans, in the 1850s, might arguably be thought to have been a "third party" of sorts, but in actuality, the prior third party system (Whigs versus Democrats) was falling apart, and the new Republican party was taking on some of the trappings of the Whigs and Free Soil Democrats; the Progressive Party of Theodore Roosevelt was somewhat "successful" (TR placed second in electoral votes to Woodrow Wilson), but to the degree it enjoyed any success was due to that fact that it represented one wing of the Republican party that had broken off from the alleged "Old Guard"; the Populist Party, for a time, enjoyed some electoral success at the state level, but it, too, fell by the wayside.
   
2. This is also true structurally: our "first past the post" system of voting for "single member districts" (basically: only one person can serve as representative for a geographically bound territory, and that person needs to get at least one more vote than her or his competitors) militates against a victory from someone who does not belong to one of the two parties.
3. This is also true in terms of hardball politics. Frankly, third parties almost never have money or legal resources to deal with the inevitable challenges (more often than not, from the Democratic Party) to their right to be on the ballot.
   
4. Third party campaigns usually hurt the electoral chances of the candidate who is most likely to represent the interests of those who vote for the third party. It is probably too trite to say, for example, that Nader voters in 2000 all would have voted for Al Gore if Nader hadn't been on the ticket (I, for one, would have probably voted for another third party, and I really do think some others might have voted for Bush), but it seems pretty clear that Green voters probably played the critical role in battleground states like Florida and that Gore would have been much more friendly to the types of policies espoused by the Greenites than Bush was on most issues.
   

Given these objections, why on earth would I support the Green Party? Here are a few reasons, and I confess that they do not answer all the above objections completely:

1. At the state level, and especially at the local level (by which I mean, Cook County), the Greens have a marginally better chance at winning than they do at national-level elections. I stress that this chance is, indeed, only marginally better. But it is better.
2. The stakes, at the local level, are not necessarily as stark as at the statewide and national levels. The Greens are running someone for Cook County President, and the Democrats, who dominate the board, are so corrupt, that it might be hard to distinguish much from the Republicans. (There is a danger that a tax-lowering Republican base might dismantle county health aid and other forms of public assistance, so I don't claim that the partisan differences mean nothing.)
3. The Democratic party in Illinois, and especially in Chicago and Cook County, is so institutionalized and so unabashedly dictatorial that almost any change seems better. I even briefly considered supporting local Republicans, until I went to the GOP's Illinois website and found, on its opening page, a big advertisement against the "Obama/Pelosi Takeover of Healthcare." Now, there are very good reasons to oppose the new health insurance reform bill, but such rhetoric does nothing except to foster open discussion of the issues. (Not that the Democrats are any better; that's one of the reasons I do not wish to support them.)
   

Oh yeah, I also agree with much of the Green Party platform

Courting controversy

President Obama's nomination of Elena Kagan to replace John Paul Stevens on the Supreme Court has created some controversy among those who identify as liberals, or who take views that make them more or less "liberal" (I'm not trying to pigeonhole anyone; I'm just using labels of convenience). Their concern, expressed, for example, by Paul Campos here and here, can be boiled down to three points:

1. Her appointment suggests a certain amount of cronyism and represents the continued dominance of Ivy-Leaguers on the Court. (This concern has also been expressed by, among others, the libertarian David Bernstein here.)
2. She has published very little and yet got tenure at a prestigious law school. One conclusion that people like Mr. Campos seem to draw is that she's an intellectual lightweight, or at least someone who isn't yet prepared for the big leagues of the court, especially since she has no experience as a judge.
   
3. Following the point in number two, liberals seem concerned that because she has published so little, it is hard to know how she might come down on controversial issues, and the fear is that she'll be more moderate than they'd like. A corresponding fear/gripe is that Obama is in the position to nominate someone much more obviously liberal and that after this years congressional elections, this opportunity will have been largely diminished.
   

I, too, am concerned about the hold that the Ivy League appears to have on political power in this country (it also seems to have a lock on the more coveted academic jobs, too: one of the mythologies that non-Ivy League aspirants to academia like myself are sometimes prone, rightly or wrongly, to express in our unguarded moments is that a dissertation at a non-Ivy League institution needs to be groundbreaking as well as well done while an Ivy League dissertation needs to be only well done.)

I'm slightly more concerned about the opaqueness of her political views. Since Supreme Court justices exercise power that can only be described as political (whether this is an optimal state of affairs or not I won't address), I think it is important to know a potential justice's views. Will she be as liberal as the liberals hope? Will she be more moderate? Some evidence seems to suggest that she's at least open to be a moderate: apparently as a teacher, she entertained a diversity of perspectives in the classroom and as dean of Harvard Law School, she hired a lot of self- and other-identified "conservatives." (I should stress that if this is true, I personally think it's potentially a good thing. My only concern here, to the extent that it is a concern, is that her judicial philosophy is unclear.)

I'm not particularly concerned about her lack of experience and her (apparent) lack of scholarship. It is not unheard of for a non-judge to be appointed to the Court. Of course, there'd be a learning curve, but I imagine there'd be one at any rate. Perhaps a non-judge would provide a sorely needed perspective (and perhaps not....there's a lot I don't know about Kagan or being a Supreme Court justice).

As for scholarship, the charge is that even though she has published some things, it should not have been enough to earn tenure and it was unremarkable. I haven't read any of her scholarship, and I had, I probably wouldn't be well equipped to evaluate it: although I am acquainted with some legal scholarship, most of it is in the realm of legal history, and I tend to use it more or less instrumentally rather than critically (that is, I read it to uncover, for example, the evolution of concepts relevant to the laws of "combination" and "restraint of trade" and "conspiracy" than to I do to critique scholars' understanding of the law). Still, here are a few thoughts:

• A lot of scholarship that is published for tenure tends to be of very poor quality.
• My understanding is that in some professions, citation counts (how many times one's scholarship has been cited by others) is one factor in determining tenure decisions. In other words, scholars supposedly are in the position where they have to shill their wares like some huckster just to get notoriety. (It's not unlike my occasional practice of going onto well-traveled blogs like the Volokh Conspiracy and linking to a post in order to gain more traffic. When I do so, I try to make it clear to the commenters what I am doing, and I try only to link to posts that are relevant to whatever topic is under discussion.)
• Kagan's demonstrated strengths appear to be those of a teacher and an administrator (and as a Solicitor General, her current position in the Obama administration). I don't see why these strengths need to be derided as making her not-obviously suitable for a justice-ship any more than any other non-judge is not-obviously suitable.
  

I suspect--I'm almost certain--that her connections got her tenure on what is standardly considered a paucity of scholarship, and the guang-xi network, American style, is to my mind, unfortunate, to say the least. But she seems to have acquitted herself well, and I'm not inclined to criticize her nomination.

Jim Babka on Citizens United v. FEC

Jim Babka at Positiveliberty has an interesting post on the recent Citizens United case (Click here to see it in full). I rarely agree with Mr. Babka's post, but here I'm in almost total agreement. He says, in part,

Your [i.e., the hypothetical incumbent who'd benefit under McCain-Feingold] opposition might be small, spontaneous, and inexperienced. That might also mean too cash poor to afford attorneys or consultants to navigate the perilous law. But the Powers That Be — the authors and enforcers of these laws — always seem to have the resources to operate under these constricting rules. Is that a mere coincidence?

No, it appears to be intentional. After all, when contributions are limited in size, one is required to raise more of them in order to pile up sufficient marketing funds. That’s always easier to do for incumbents. A political contribution can be an investment or it can be protection money. But what does a donor gain by supporting your opposition effort? Given that his contribution is too small to settle the matter in the way he’d prefer, but big enough to be reported so that the incumbent office-holder can see it, the answer may well be “trouble.” So…

This is substantially the point #2 I tried to make in my previous post (here).

I part company with Mr. Babka when he suggests in his post that the media are actively "lying" to the public about the import of the decision. I think it's more a case of people honestly disagreeing about the import and consequences of the case. But I refer to his post because it is much better written than my point on the same topic.

Update, 2-3-10: I should emphasize that while I agree with the result in Citizens United, I still find the corporate dominance--and the dominance of money in particular--in politics to be disturbing. I oppose bans on corporation speech. I believe it is better to keep in place a bad system instead of adopting reforms that would create a worse system. If there is a more effective way to regulate campaign finance that answers the two objections in the post of mine I link to above, I might support it.

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

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.

More on health care and constitutionality: the 6th hurdle

In previous posts (here and here), I discussed what I thought were the key obstacles to the survival of the health care reform now pending in congress. I suggested that there were 5 "hurdles" that the reform would have to clear before being implemented. I also suggested grounds on which the reform might be declared unconstitutional.

An essay by Richard Epstein (click here to read it: hat tip, Volokh Conspiracy) offers another reason why it might not pass constitutional muster (or, in the way I see it, why the Supreme Court might strike it down). If I understand the essay correctly--and I have only skimmed it--the reform bill might be a "regulatory taking." That is, if the regulations it imposes on health insurance providers is so onerous as to cause a severe loss of profits, then it might be deemed a "taking" of the insurers' property without due process of law and without "just compensation," a violation of the 5th amendment to the Constitution. My fear is that a majority of justices, even the so-called "liberal" justices, might be persuaded by this logic where they might be persuaded by the other constitutional concerns I've mentioned.

One can sure bet that the health care reform will be challenged in court if it passes. If it is, then this challenge is probably the most potentially fatal to the plan, and any court case will be a nail biter.

Is health care reform unconstitutional?

The short answer: I'm afraid so.

First, I'm not going to go into whether the constitution, properly interpreted, allows for the type of health care reform that just passed the Senate (it still has to go into joint conference with the House and be re-passed by both houses). I'm not talented enough to figure out whether I endorse originalism, "plain text" interpretation, or the idea of a "living constitution." (I do have some respect for the notion of a "don't-rock-the-boat-so-much-that-the-whole-republicke-falls-apart," which perhaps is akin to a "living constitution" approach.)

Second, I'm more concerned with, when the health care reform is challenged in the federal courts, which, if it passes Congress, it almost certainly will be.

So, even though I'd like the health care reform to pass, with all its faults (I've heard it called "health insurance reform" because it doesn't really reform the actual providing of health care but only reforms how people can get insurance....six of one if it means more people being covered), here are the reasons I think the reform might be unconstitutional:

1. The universal mandate, as a mandate, strikes me as unprecedented because it requires people to do things rather than, for example, forbids them from doing certain things. In other words, if one meets a certain income level (past which that person is excused from the mandate), then one must buy insurance. In other words, this has whiffs of "involuntary servitude." One might counter this claim by saying that other "mandates," such as compulsory jury service, compulsory process to testify in court or in front of government committees, and, perhaps the most egregious or at least most invasive for those involved, the peacetime military draft, have been deemed constitutional by the courts. My response is that the first two are so "ancient" and accepted in practice that they are practically ingrained in anything the Supreme Court is likely to uphold. The third, I believe, would not again be upheld in peacetime.
2. The mandate, viewed as a tax, and not as a mandate, might run into two potential hurdles. The first hurdle is that it could be construed as a direct capitation tax and not, for example, as an income tax. In other words, my reading of the 16th amendment is that only income taxes, and not capitation taxes, are excused from the requirement that taxes must be levied based on each state's population. In other words, the sum total of taxes taken from one state must be proportionate to that state's population so that, on average, each person would pay about the same tax. At least this is my understanding of the 16th amendment.
3. The second hurdle is the means for which any tax may be levied. A tax cannot be levied to pay for something that would otherwise be constitutional. Article I, section 8, clause 3 of the constitution gives congress the right to regulate interstate commerce, and if this health care reform is seen as a regulation of interstate commerce, then it would be constitutional. However, if it is seen as managing people's access to health care in a way that is non-commercial (whatever that means), then it stands a chance of being declared unconstitutional. (I'm not saying it's properly a regulation of commerce, only that I suspect 5 justices might claim that it's not).

Five hurdles for the health care bill

As I see it, the health care bill needs to pass 5 hurdles before it can become effective. The first four are obvious, the fifth is not.

1. It must pass the Senate.
2. It must pass the joint House and Senate committee.
3. It must re-pass the House.
4. It must re-pass the Senate.
5. Barack Obama must be reelected in 2012.
   

The major provisions of the bill are not designed to go into effect until 2013 or so. So it is possible to imagine a scenario in which the Democrats lose control of Congress and a Republican who opposes the health insurance reform gets elected president. And in this scenario, the reform could be dismantled before there is enough of an interested sector in society to oppose dismantling it.

Possible objections to my plan to reform the Senate

Here are some possible objections one might lodge to my plan(s) to reform the Senate (See here and here):

• Why not keep the present system of checks and balances? The Senate's current role in legislation prevents many improvident laws from passing.

My answer is really a non-answer. I am not arguing for reforming the Senate along putatively more "democratic" lines. But I am offering a way to reform it if one begins with the assumption that the Senate needs to be reformed. In other words, I have no answer. But I am stating how to do it if certain assumptions are accepted.

• The proposal to grant the Senate the power to approve or disapprove the commitment of military forces abroad wreaks havoc with the doctrine that the whole Congress ought to have the power to declare war, and therefore gives unprecedented power to the President.
  

My answer: as a practical matter, the President already has this power anyway. Despite the War Powers Act--which, if I.N.S. v. Chadha applies, would not be upheld by the Courts and would be otherwise unenforceable--the President can pretty much commit troops wherever and the Congress would not (probably) vote to discontinue funding, because doing so would be dangerous to American soldiers. Under this plan, with the retroactive approval/disapproval mechanism, the President would have to face severe consequences for committing soldiers, even though the operation might continue. This is an imperfect solution, as it does not address the notion of a "declared" war--which the US has not had since World War II--and a declared peace.

• Why even have a suspensatory veto?
  

Two reasons. First, it's a bone to throw to the Senate. Any constitutional amendment to reform the Senate would have to appeal to the Senators' institutional desire to safeguard their power. Unless an amendment is proposed by the "convention" method, 2/3 of the Senators would have to approve it. They could not propose legislation, but they could, perhaps, set up a committee to consult with the House on a measure that they would accept.

Second, the suspensatory veto could prevent improvident legislation from passing, especially if the period of suspension takes any legislation close to an election cycle. The members of the House would, in theory, have the opportunity to hear from their constituents before any bill would pass. While not perfect, this plan would work to avoid the (alleged) practice of Congress passing legislation in non-election years that would make them vulnerable during election years.

• Would the "veto" over executive orders be cumbersome?

Potentially. But that is the point, to encourage the President to consult with the Senate before making changes. I wouldn't necessarily oppose a supermajority for such a veto, say, a 3/5 or 2/3 vote. My goal is to indirectly, through the Senate, to place a check on executive power and yet at the same time allow considerable flexibility to the President to do his or her job. I am, in a sense, taking aim at the "unitary executive" doctrine espoused, among others, by Samuel Alito.

• The provision about curbing the power of the Vice President doesn't make sense.
  

This is a good objection. I guess I wanted a way to curb his or her power. The problem with the purported power of the Vice President is that much of it is non-Constitutional. Outside of his role to preside over the Senate, break tie votes, and succeed the President in an emergency, there's isn't much, constitutionally, for him to do. I'm not one of those who say we don't need a Vice President, but at the same time I'm disturbed by the fact that under my plan, it would be (slightly) easier to remove the President, only to have him replaced by his Vice President, a person who, in most cases, would probably be of a similar persuasion in regard to policy. I'd be willing to compromise on the Vice Presidency portion of the amendment, especially since I'm not sure I'd want to have it.

Update 10-27-09: I have clarified some of the language and added material.

More on reforming the senate

In an earlier post, I offered a plan to reform the U.S. Senate. I would like to modify and elaborate on that plan:

1. On second thought, I would not like the Senate to be able to offer amendments to bills.
2. The "suspensatory" veto would have to be "proactively" imposed by the Senate. (I normally dislike the word "proactive," but here it seems to fit.) The idea is, the bill would be presented to the President for his signature or veto ten days after the House of Representatives passes it. The Senate could expedite the process by approving it before the ten day period. Otherwise, it would have ten days to impose its suspensatory veto. After a period of time--say, 90 days, or 180 days--the House would be able to re-vote on the exact same bill, an up or down vote by a simple majority. If the bill then passes, it would be immediately presented to the president.
3. I would like to expand the Senate's executive authority. In my original post, I suggested the Senate ought to have a right to vote "no confidence" in a cabinet member. Maybe it should have the power to vote "no confidence" against its president (i.e., the US vice president). Such a vote would not remove the vice president from office, but would forbid him or her from presiding over the senate and taking away his or her power to cast a deciding vote, in case of a tie, a vote which would nevertheless be less important now that the Senate would have only the power to "suspend" legislation.
4. Maybe the Senate should have the right to veto executive orders. Under this plan, all executive orders would be presumed valid unless the Senate vetoes them.
5. Whenever the President wants to commit the military to any overseas, combat action, he will have to get the approval of the Senate. If it is an emergency, or the president's commitment of military force requires secrecy (which militates against requiring prior approval), the President must make his case to the Senate within 90 days that he was justified in using military force, and the Senate must approve or disapprove the action. If the Senate disapproves the action, the House of Representatives may (but would not be required to) draft articles of impeachment, and the Senate would then "try" the impeachment, convicting by the requisite 2/3 vote standard. Under this scheme, unless the President has committed any other "high crime or misdemeanor," the President would not be able to be prosecuted in criminal court simply for committing troops improvidently.
6. Senators could be recalled upon a petition signed by voters in a state. The petition would have to have a reasonably high number of signers to prevent spurious recall, say, 10% of the number of people who voted in the last Senatorial election. The goal here is to provide an additional check on the Senate and, indirectly, on the Presidency through the checks the Senate exercises on the President.
   

A Practical Plan to Reform the Senate

A common complaint against the US Senate is that it is undemocratic, that it stymies legislation needed and desired by "the people." For example, Wyoming, with its c.500,000 people, gets as much representation as California with its c. 20 million (?) people. Another example: the filibuster: a 3/5 majority is needed for "cloture," or to close off debate for most measures in the Senate, which means that 41% of the senators can prevent passage of a bill desired by 59% of the Senators.

I'm not one to overly praise "democracy," in part because as a term, it elusive. Also, I'm a bit enamored of putting some check on "majoritarianism," the doctrine that just because a majority believes something is desirable, then it ought to be put in practice, or (more extreme) that just because a majority believes something is desirable, then it is right. (To be fair, few people, to my knowledge, really believe this in practice: no one save extremists, for example, would think it would be right to re-implement Jim Crow even if 90% of the population desired it.)

But of late, I've become more sensitive to the charge that the Senate needs to be reformed. In particular, my desire for the "public option" in the health care bill, which is likely to pass the House of Representatives but which might not pass the Senate, drives home for me why I'd like the senate to be reformed.

I have to eat crow a bit. I seem to remember opposing the efforts of Republicans to do the "nuclear option," forcing through judicial confirmations by a simple majority. Now that there's a policy I'd like to be passed, I support doing away with minority dominance in the Senate. Still, motivations aren't everything, and anyone who wants the Senate reformed along more putatively "democratic" lines might listen to my ideas and agree with them, or not, regardless of what is for me a convenient change of heart.

I propose a constitutional amendment that would change the senate in the following way:

1. The Senate would continue to have its Senate-specific functions, such as approving cabinet-level and other federal level appointments and ratifying treaties.
   
2. The Senate could not initiate legislation, but it could amend legislation.
3. The Senate would be able to exercise a "suspensatory veto" over the final draft of any legislation. If after the House debates all amendments proposed by the Senate and the Senate declines to approve the bill, the House may reenact the law 60 days after the Senate acts on the bill. If the Senate refuses to act on the bill, the bill would become law 60 days after it is referred to the Senate. There would be some check in the amendment to prevent the Senate from repeatedly adding amendments to the legislation to extend indefinitely a bill proposed to it.
4. The Senate would be given added executive powers. It would be able to vote "no confidence" in any cabinet-level officer (either by a simple majority or a supermajority....I'm inclined to say 3/5 majority, but I'm as yet undecided.)
   

Such an amendment would have the following virtues:

1. It would retain some of the Senate's power to check the excesses of the House of Representatives, even if only temporarily.
2. It would put a much-needed check on presidential power and make the presidency more responsible to elected legislators.
3. It addresses one practical objection to reforming the Senate, namely, that 2/3 of the Senate would never vote to refer an amendment to reduce their power. This amendment would actually grant more power, in some areas, to the Senators even while restricting the legislative power.
4. It removes another obstacle to reform of the Senate. The Constitution provides that no amendment may deprive any state of its equal represenation in the Senate. Abolishing the Senate could, under that provision, be constued as an attempt to deprive states of their equal representation.
   

Health Care: My Proposal

Here is my proposal for a health care plan. I should admit at the outset that I'm borrowing/stealing some of these ideas from others, and I also realize that I know too little of how health care and health insurance work, but here is my plan:

• Make a government health care plan available to anyone who has been denied private insurance for any reason or to people who cannot pay their private insurer's premiums or deductibles or co-payments. (In other words, the private insurer would have the right of first refusal.)
• The government plan's coverage of any one person will be retroactive to the date coverage was denied by the private insurer and or the date that the insured person determined that he or she could not pay the premiums. The private insurer, when it denies coverage, will have to pay the first month's premium for the government plan for the person who is denied coverage. The private insurer must also pay the first month of the plan for any of its insured's who make the determination that he or she cannot pay the premiums.
• Tort reform such as that suggested by Charles Krauthammer in this article.
  
• The private insurer will have to cover everything that is covered by the government plan (in other words, because someone cannot have the government plan and a private plan at the same time, the private plan will have to at least cover what the government plan covers). But the private insurer may do the following:

1. Cut off treatment, provided it pay the insured's first month premium as he/she goes on the public plan.
2. Insure additional treatments that aren't covered by the government plan.
   

• The government plan will be administered independently, with administrators appointed for a set number of years. The administrators will set premiums, deductibles and co-payments (for short, I'll say "premiums") and be statutorily required to make a 1% profit. They will be required to make this profit only by the premiums they set and not by denying service.
• People who cannot meet the government's premiums must provide proof of income stating that the premiums, etc., would exceed 10% (or whatever) of income.
• The plan will make it legal for private insurers to enter interstate competition.
  
• The plan will be funded by the following:
  

1. An increase in the income tax
2. A special tax on employer provided health care
3. The premiums set by the independent administrators.
4. The first two taxes would be meant as reserve funds to cover any unexpected shortages. The third is meant to pay for the bulk of the government plan.
   

• The government plan at least (and at first) will cover emergency care, catastrophic care and terminal illnesses and a select other number of treatments. (For example, hospital stays for women who give birth.)
• For the type of care covered by the government plan, health care providers will be forbidden from asking what, if any insurance, the patient has. For example, the health care provider will have to operate under the assumption that the patient is covered under emergency care. If after the fact it is evident that the patient had no insurance, he or she will be required to buy insurance within a month (or get insurance with affidavits that disclose proof of income), or be charged by the IRS for reimbursement of the premiums the government would have received.
  
• To discourage "free riding"--i.e., waiting until one is sick before buying insurance--people with insurance will be able to deduct the amount they spend on insurance from their income taxes. The deduction will be possible on all of the tax forms, not just the 1040, but also the 1040A and 1040EZ.
  

There are a lot of potential problems with this plan:

• The income affidavits might be onerous.
• The premiums are likely to be high.
• I haven't yet figured out how this plan would cover homeless people or undocumented immigrants. For some people, this isn't a problem, but I would like to see everyone covered.
• Some of the requirements, such as the proof of income requirement, and the IRS charges against patients endanger individual liberty.
• The program as I propose it would at first probably offer only coverage for the "un-insurable" and for those treatments that are most expensive. It would probably not cover individual visits for physicals or mammograms or other very necessary care.
• I'm sure words like "catastrophic" and "emergency" care have meanings in the insurance world of which I'm unaware. So, I hope I'm not using these terms incorrectly.
  

The virtues of my plan:

• It provides incentives to combat the free rider problems, and most of these incentives are "carrots" and not "sticks." In other words, it's not a "mandate" in the way that term is commonly (though perhaps not legally) understood.
  
• It would free up the market for non-catastrophic, non-emergency health care, and, I hope, make such care cheaper to afford while at the same time making it possible for private insurers to earn profits.
  
• While it would not necessarily guarantee that undocumented workers or homeless people get coverage, it would hopefully make it easier for them to do so.
• It would divorce health coverage from employment.
• It goes a little way, at least, to lessen the fear that going to a doctor might saddle someone with a diagnosis for a fatal pre-existing condition without any hope of being able to pay for treatment.
• The government premiums would be functionally a "progressive" tax.
• It avoids the cumbersome joint state and federal administration that we have with medicare and medicaid, but yet does not appear to violate principles of federalism, at least given the legal precedents that are currently in effect. (I would argue that the government plan is more like the "bank of the US" that the Court upheld in 1819 than it is like the "socialistic" Social Security Act that the Court upheld more than 100 years later. In other words, from a constitutional perspective, it's less extreme than commonly accepted programs. This won't please constitutional purists, but it will go a long way toward living up to a 21st-century jurisprudence.)
  
• It is politically doable:

1. It gives less traction to the charge that the public plan is simply "single payer lite," a backdoors way to introduce Canadian-style single payer system. (I'm not saying that this system is bad, but it would probably not get the necessary support.)
2. It incorporates some Republicans' (notably John McCain's) ideas on tort reforms and taxing employer benefits.
3. It's a baby-step. It covers a little but might be expanded.
4. It pays for itself.
5. It divorces costs from services, although it offers only a limited number of services, at least at first.
   
6. It avoids hot-button issues such as payments for abortions and stipulates that only those procedures approved by congressional enactment will be covered.
7. it would probably stand up to Court challenges.

I haven't read any of the actual bills under consideration, so I cannot comment to what extent my "plan" approximates those under discussion. But it has the virtue of modesty and doability, and it would at least cover the most pressing cases, which might be all we can ask for at this stage of the game.

UPDATE 9-4-09: Thanks to those who commented. Three comments is the most I've ever gotten on this monument to my vanity blog, and these are from complete strangers. Things are looking up for Pierre Corneille!

It appears that the "Corneille plan" is 1 for 3 in the voting, but David Schwartz voted twice (and the one "pro" vote was the one I cast for myself). Still, I appreciate the comments, and David Schwartz does have some very interesting objections that probably need to be addressed and that I only partially addressed in the comments.

Mr. Obama's speech

Next week, President Obama will reportedly give a speech to a joint session of Congress to rally support for his health care program. Here's what I hope to see in the speech:

• A clear statement of which House or Senate Bill he supports.
• An honest explanation of how the plan will be paid for.
• An honest detailing of what people will have to give up.
  

The last is the most important, but is probably the least likely to be discussed. In his public statements, e.g., his press conference about a month ago that is perhaps best remembered for his remark on the Gates arrest controversy, the president has insisted that nothing will change for those who already have and like their insurance policy. At that press conference, a reporter asked Mr. Obama point blank what people would have to give up, and Obama said something like "not having health care."

But surely things will not be all roses. There are trade offs and we live in a world of scarcity. Something will be lost. If nothing will be lost, then that must be proven. Simply pointing out that none of the bills in question requires people to give up their current health insurance--a common tactic for supporters of Obama's not yet existent plan--is honest, but also disingenuous: nobody in the know argues that there is such a provision. Opponents argue instead that the logical outcome of a plan result in some people losing their current insurance.

It is true that the president's opponents will seize on any admission of giving anything up. However, I suspect that making such an admission is the only way to get any bill passed because it would reassure the "public" (yes, I know that's a slippery word) that the president knows what it (i.e., the public) already knows. Charges that the supporters of the health care bill(s) are trying to pull a fast one will have much less traction. But even if I'm wrong--even if the president needs to deny what I claim to be obvious and it helps rather than hurts the chances at getting the bill passed--I still want him to be honest.

I am a firm believer in a national commitment to universal health care (although I'm not convinced that the public option is necessarily the only way to accomplish that goal), and I want Mr. Obama to succeed. But he has to square with the public. Nothing, except perhaps divine grace, comes without a cost, and health care if done right is worth the cost. But there will be a cost. Something will have to give.

I hope the president will admit it.

Reasons to support antitrust laws

As a general rule, I'm critical of antitrust laws. I think they are a blunt instrument and unfair in their application because it's very hard for most people to know when they are in violation of the laws until they have been prosecuted and/or convicted. There are, of course, some arrangements, like price fixing cartels, that have long been held per se in violation, but otherwise it is hard to know what counts as an antitrust violation. Another reason that I oppose antitrust laws is that most of its goals--smaller, more competitive businesses, lower prices for consumers, etc.--often contradict each other (sometimes it's the largest "monopoly" that can outproduce smaller businesses and offer its goods at a cheaper price). Moreover, I believe most of these goals can be realized through other forms of regulation.

Still, I think there are some reasons to support antitrust laws. And while they don't change my belief that these laws are ill-considered, I still find the reasons compelling enough to list;

1. Some corporations can become so powerful that they act almost as states within states, or as imperium in imperio. Antitrust can be a good counterpoint to this power.

2. Some companies, like banks, might become "too big to fail" and thus need to be bailed out when in trouble. Antitrust might alleviate this condition. (I do believe, however, that other forms of regulation might work better than the hail mary shot of an antitrust prosecution that punishes people in many cases for simply being fortunate enough to succeed at business.)

3. Antitrust laws have been around (in the US and elsewhere, but I'm talking especially about the US) for a long time, at least since 1890 at the federal level and even earlier in some states. These laws have become so involved in the way that businesses operate and the way that contracts are formed that simply to repeal the antitrust laws would wreck more havoc than keeping them on the books. (This is an argument I got from reading Donald Dewey's The Antitrust Experiment.)

I find reason #3 to be most compelling. Still, I think the laws can be modified to be fairer and more rational.

The AAA all over again?

Jason Kuzinicki at Positiveliberty links to a post that suggests Congress's "cash for clunkers" program is reminiscent of some of the wasteful destruction of foodstuffs under FDR's Agricultural Adjustment Administration. I hadn't seen the connection before, but I think I see it now.

For those who aren't familiar with the program, here are the details: the federal government has promised to reimburse car buyers (indirectly through car dealers) who trade in their own gas-inefficient cars for newer, more gas-efficient cars. Apparently, the program has been a "huge success" (although there is some dispute about it: see this post from the Volokh Conspiracy) and the original $1 billion or so allocated for the purpose has all been spent and Congress is busy trying to pass another law to allocate yet another $1 or $2 billion to the program.

The comparison with the AAA is that as the AAA destroyed food in order to drive up the price of food to help farmers, so this program is destroying cars in order to help out car dealerships and car companies.

Where the comparison breaks down, in my view, is that this program, even if the several billions sought are devoted to it, is not as far reaching as the AAA. (I'm not enough of an expert--in fact, I'm not an expert at all--on the AAA, but I wouldn't be surprised if the AAA was much more expansive....at the very least, Congress had created its own administration to oversee the program.)

Another point where comparison breaks down is that one of the stated justifications for the program and, presumably, one of the reasons why it was passed, was to provide for more environmental friendly cars and thereby help the environment. I don't think the AAA had such a goal (maybe I'm wrong....it wouldn't surprise me if the AAA tried to address such environmental concerns as the dustbowl....again, my ignorance is conspicuous.)

Most of my friends seem to cheerlead this cash for cars program, and mostly they harp on the supposed environmental benefits. There very well may be such benefits, and maybe the economy is helped also (the links above dispute that claim, but then again, the authors aren't necessarily sympathetic to government intervention in markets...at the same time, they're not knee-jerk reactionaries either).

But one thing is clear: the government is giving away tax money to subsidize the auto industry.

Ricci Is a Hard Case

One of the concerns about Obama's nominee for the Supreme Court, Sonia Sotomayor, is her willingness to sign off on a circuit court of appeals decision to affirm a district court's decision in Ricci v. DeStefano, more commonly known as the "New Haven Firefighters Case." The district court decision is here, and the two-page statement Sotomayor signed off on is here.

The case regards a set of qualifying exams for promoting firefighters in New Haven Connecticut. In one round of exams, the results were such that only whites, and a very small number of hispanic exam takers became eligible for promotion, while none of the African American candidates scored high enough to be considered for promotion. (The rules stated that only the highest scorers qualified for promotion. Therefore, if one passed but did not have one of the highest scores, they were not considered eligible for promotion. The deal was that for each of the positions available, the three highest exam scorers were eligible to be considered.) The City of New Haven, seeing the racially disproportionate results, refused to certify the exams.

As a result of the city's refusal to certify the test results, the eligible whites (and, I believe, the two hispanics) sued the city for discrimination. The District Court upheld the city's actions. At this point, the plaintiffs appealed to the 2d circuit, which Sotomayor sits on, and the three-judge panel affirmed the lower court's decision. The plaintiffs then appealed to the US Supreme Court, and the Court agreed to hear the case. I believe the Court's decision is still pending.

This case has caused grave concern for some conservative opponents of the Sotomayor nomination. While I have not followed their concerns extensively it seems that they boil down to the following points:

1. The city allegedly engaged in "reverse discrimination" and the federal courts upheld the this action of "reverse discrimination." Sotomayor presumably agreed with the court's decision to uphold the city's action. Therefore, it is possible that as a Supreme Court justice, she would uphold other instances of reverse discrimination.

2. The court of appeals issued its decision as a "per curiam" decision, which, as I understand it, precludes it from being established precedent in future cases. Yet, the per curiam decision was published, meaning that it might be so used. (I'm on shaky ground here, as I'm not sure I fully understand this point, and I might be using the terms incorrectly.)

3. There were, allegedly, some problematic backroom maneuvres in the original district court finding.

4. There were, allegedly, some backroom maneuvres to get the third jude in the circuit court panel to sign off on the affirmation of the district court's decision. This appears to suggest that Sotomayor might be more supportive of the city's action than the per curiam report suggests.

5. One of the reasons the city refused to certify the test results--and a reason that the city appears to have admitted--was the desire to gain the approval of the Mayor's African American constituency. Those who are concerned about the decision suggest that this is judicial affirmation of race-baiting politics and they pose the argument by analogy that similar decisions by elected officials to appease white constituencies would not be tolerated by the federal courts.

After reading, or at least skimming, the district court decision, and not knowing anything about the backroom dealing, I've come to the conclusion that the Ricci case is, by itself, too complicated to devine Sotomayor's approach to affirmative action or issues of reverse discrimination. At least as the district court's decision put it, the city was concerned about, among other things, being sued under federal civil rights law if it certified the results.

If the district court's opinion (which is all I'm going on...I haven't looked closely at what went on in judges' chambers) is to be believed, the city had at least a good faith reason to believe that the exams might have been racially biased. In other words, there is some evidence that the city could have a reasonable belief that the exam was not purely merit-based in its execution. I find some of the reasoning to support this belief quite suspect and maybe even pretextual (in the everyday meaning, not legal meaning, of the word), but the reasoning is not wholly arbitrary. For example. a lot of weight was put on oral exams, and some "experts" the city consulted claimed that the oral in-person interviews might have influenced the city goers.

There is a lot that is unclear here. For one thing, it seems to me that had the city certified the test results, it might have plausibly done so to appease white constituents, and I, for one, am not sure that the decision to certify would have necessarily been actionable in the federal courts. For another, it is unclear whether the City was merely using the testimony it used as an after the fact pretext to justify a politically--and potentially legally--problematic result. This decision brings up issues to federal-state relations as much as it does issues of discrimination and so-called reverse-discrimination.

It's my conclusion that, given the ambiguities, this case, taken alone and absent any other damning evidence, should not lead to disputing the confirmation of Sonia Sotomayor for the Supreme Court.