The American Prospect

Media of Type text

More Than Corruption Threatens the Integrity of Our Democracy

What does it mean to corrupt an elected official? 

A coal executive walks into a member of Congress’s office with a $100,000 check in hand and says, “I will hand you this check if, and only if, you vote against any fracking permits on federal land—it’s bad for the local water supply, and besides I don’t need the competition.”  The Representative accepts the check and then votes “nay” when the time comes.  Is that corrupt?  Most people would say yes—it’s a paradigm case.  After all, there is a quid pro quo exchange—you do this, I give you that. 

Does it make a difference if that check goes into the Congressman’s personal pocket, his campaign account, or to an allied Super PAC?  Probably not to most people. The Congressman wants to be re-elected, probably more than he wants a Porsche, so either of the latter scenarios certainly provides a thing of value. 

Now what if an environmental group walks into the same Congressman’s office and says “We’re here to talk to you about the upcoming vote on fracking permits on federal land.  Fracking is bad for the environment.  As you know we release an environmental scorecard each election year and we’ll be scoring this particular vote.  We also endorse candidates and we make those decisions in part based upon a representative’s score.  So, we hope you’ll be with us on this vote, Congressman.  Oh, and here’s a list of the other issues we plan to score this year.  It would be great if you’re in the right place and we can advise our members in your district that you deserve to be re-elected.”

Corruption?  The quid pro quo is just as explicit—you vote this way, I give you a thing of value (i.e. our endorsement).

Some might say so, but most of us would probably say, “no—that’s democracy.”  The environmental organization isn’t buying a vote with money, rather it’s organizing people and translating the power of an organized citizenry.  In a nutshell, it’s bargaining with votes.

So, what’s the difference, in a democracy, between bargaining with money and bargaining with votes?  Here’s one thought: the difference is that—at least in theory—everyone has an equal vote to bargain with.  Not so financial bargaining power. 

What offends us about money-for-vote exchanges isn’t the quid pro quo nature of it so much as that this type of bargaining doesn’t take place on a level playing field.  After all, it’s only the prospect of contributing substantially more than fellow citizens that raises the prospect of undue influence.  If we could all afford to give a Member of Congress a $100,000 bribe or campaign contribution, that check probably wouldn’t buy much.

We have a gut-level sense that we should come to the political table as equals in America, and in a very real way our outrage over corruption can be traced to the ways in which bargaining for legislative success with money leaves us far short of this ideal.  It violates our basic sense of political equality—birthed in the Declaration of Independence, baptized through a Civil War, nurtured through the Progressive Era, tested and matured through the Civil Rights battles of a prior generation.

The U.S. Supreme Court doesn’t get this.  For forty years, multiple generations of justices have shaped and mis-shaped constitutional law, and especially First Amendment doctrine, by (at times willfully) ignoring this basic insight.  And, the consequences for our nation have been dire. 

This is the story of how the Court’s fundamentally misguided approach to money in politics has helped create a vicious cycle, ultimately leading us into a new Inequality Era in which the income gap expands endlessly and the size of a citizen’s wallet determines the strength of her voice—reinforcing trends that if left unchecked will spin us towards plutocracy.  And, it’s the story of how—while at first glance tangential—a new money in politics jurisprudence is perhaps our best hope for working families to get a fair shot at economic security.


The Political Roots of Economic Inequality

The striking increase in economic inequality and accompanying decline in class mobility in the United States since the 1970s has been well-documented. The U.S. is now the single most unequal nation in the “developed world” with respect to income, and has fallen behind France and Pakistan, among others, when it comes to economic mobility. Economist Emmanuel Saez reports that between 2009 and 2011 the real income of 99 percent of Americans shrank by 0.4 percent, but the top one percent saw gains of 11.2 percent—in other words the top 1 percent experienced 121 percent of the income gains in the first two years of recovery from the Great Recession.  The bottom line is that the poor in the U.S. gaze at their wealthier compatriots across a huge and widening chasm, with scant chance of ever crossing it themselves.

The political class is starting to notice, which is heartening even if long overdue.  President Obama made a much-publicized speech on economic inequality in December and has signaled his intention to focus much of the remainder of his administration grappling with it.  Bill DeBlasio swept to a landslide victory in New York’s mayor’s race on a message about “two New Yorks”.  And, Elizabeth Warren has, of course, become a hero to the progressive left by focusing on kitchen table economic issues.

This is important because staggering inequality is no accident of history or inevitable result of global economic forces.  Rather, as Jacob Hacker and Paul Pierson documented extensively in their 2010 book Winner Take All Politics, a string of government policies enacted (or avoided) over the past few decades have brought us to where we are today: lower marginal tax rates, weak rules governing the right to form a union, repeal of basic regulations on capital markets, lack of rules governing executive pay.  To this list, one might add the declining real value of the minimum wage, receding per-pupil investment in higher education, tax loopholes, and direct subsidies benefitting large corporations at the expense of small businesses.

This reality raises a profound question.  Why, in a democracy—where each citizen in theory has equal voting power, and where votes are the ultimate arbiter of who ascends to political power—would a government comprised of elected officials craft economic policies that cater to the interests of a small minority and foster rather than combat economic inequality?

The answer is simple and intuitive, but some pioneering recent political science research has put the details in starker relief than ever before.  The bottom line: the wealthy prefer policies that make them even richer (often by stifling mobility and security for those lower down the ladder), and government responds almost exclusively to their preferences.  He who pays the piper calls the tune.

Differing preferences are hardly surprising.  The wealthy, after all, do not live or work like typical members of the general public, so why should they think like the rest of us?  And, in a 2013 study called Democracy and the Policy Preferences of Wealthy Americans, political scientists confirmed that the policy preferences of the very rich differ substantially from those of the general public—especially on key questions about how to structure the economy.  The wealthy prefer deficit reduction to job creation, and are more adverse to taxes and regulations.  Nearly twice the percentage of the public (78 percent) than the wealthy (40 percent) support a minimum wage “high enough so that no family with a full time worker falls below the official poverty line.” Other studies of the merely affluent confirm that the divergence in preferences over the economy does not apply only to the very rich.

This would not be cause for concern if the economic elite’s influence on public policy accorded with their numbers.  The top one percent—or one tenth of one percent—may desire different outcomes than the broad public; but by definition there are not very many people in this cadre, and so they would not be able to achieve their desired ends without convincing a large number of their fellow citizens of the wisdom of their preferences.  This is how we would hope a democracy—characterized by a rough form of political equality consistent with the principle of one person, one vote—would operate.

Of course, it will shock no one that in fact the wealthy are able to exert disproportionate influence on the political process in the U.S.  But the degree of disparity of influence that can be documented in black and white may surprise even some of the most seasoned political observers. 

In a landmark 2012 study called Affluence and Influence, Princeton political scientist Martin Gilens set out to measure the relationship between Americans’ preferences and actual policy outcomes across the income spectrum.  What he found is deeply troubling. 

Government responsiveness is strongly tilted towards the most affluent among us, and average Americans have staggeringly little impact on policy.  Tellingly, when the preferences of the wealthiest 10 percent of Americans conflict with those of the rest of the population, the 10 percent trumps the 90 percent.

And, just as the sharpest break in preferences occurs on economic policy, the same goes for responsiveness.  It appears our elected representatives listen to the rich much more than the rest of us when it comes to the role the government should or shouldn’t play in shaping a fair economy.  In this light it’s not shocking that Washington has been obsessed with reducing deficits in recent years while the rest of the country has consistently prioritized putting their neighbors back to work.

The dominance of the wealthy has been getting worse over time, which suggests that government responsiveness to the wealthy is not a constant (and some would say inevitable) state, but rather is itself responsive to particular policy or economic conditions. 

Gilens’s exhaustive study leads him to conclude that “[t]he concentration of political influence among Americans at the top of the income distribution is incompatible with the core democratic principle of political equality,” and “[t]he patterns of responsiveness found in previous chapters often correspond more closely to a plutocracy than to a democracy.” Strong words from a sober academic, not a talking head or strident activist.

Why, exactly, do the wealthy have so much influence?  One answer is that wealthier Americans are much more active citizens, as reflected in voter registration and turnout rates, membership in civic organizations, and more.  But, basic math dictates that even large differences in voting rates and other forms of civic participation would not likely, on their own, lead directly to the extreme differential in responsiveness described above—there just aren’t enough rich people.

It is when the wealthy make use of their greatest comparative advantage, by breaking out their checkbooks, that they can multiply their influence in virtually unlimited ways.  It is the role of money in contemporary American politics that, more than any other single factor, drives government’s differential and undemocratic responsiveness to the wealthy.

Simply put, our permissive campaign finance system allows a tiny number of wealthy donors to set the agendas in Washington and state capitols across the country.  Roughly speaking, they do this in three ways. 

First, rich donors act as gatekeepers, determining who runs for office in the first place, long before voters have their say at the polls.  Is it a coincidence that we have plenty of lawyers and business owners in Congress, but hardly any teachers or electricians?  It helps to have rich friends and associates to get your campaign off the ground.

Next, the donor class shapes candidates views as aspiring officeholders spend an inordinate amount of time with a tiny (rich) slice of the country while on the campaign trail (or, more accurately, while in a call room).  Consider that 2012 U.S. Senate candidates raised 64 percent of their funds in contributions of at least $1,000, from just 0.04 percent of the population, and you’ll have a sense of exactly who candidates are talking to. “Every night I would lock myself in a room with a bag of chips and some strong coffee and make my calls, homing in on people who could ideally give me at least $500 or $1000 or more,” says Current Common Cause President Miles Rapoport of his 1998 run for Congress.  “And, when I was talking with these potential donors I found that their problems and concerns weren’t the same as the majority of folks I was looking to represent in Congress… I wasn’t changing my positions, exactly, but there was definitely a shift in emphasis, and I could feel myself shifting as I spent more and more time talking to a very narrow set of wealthy donors."

Finally, big donors give their favored candidates the best chance to win.  Money doesn’t always carry the day, but ask any candidate, consultant, or party recruiter and she’ll tell you it certainly helps.  The biggest spending candidate routinely wins 80-90 percent of congressional races.  Outside spending complicates the picture, but doesn’t change the fundamental math: if you want to give yourself the best possible shot to win you’re going to do everything possible to keep the campaign cash flowing in the door and the ads up on TV.






Outside spending fueled by unlimited contributions in the wake of Citizens United has also greatly increased the share of campaign spending by the super wealthy.  In 2012, 28 percent of all disclosed political contributions came from fewer than 32,000 people—who the Sunlight Foundation calls the “political one percent of the one percent.”

In addition, the wealthy (often corporations) spend billions on lobbying to influence officials once they’re in office, paying for relationships, access, and a sympathetic ear when national policy affects the bottom line.

All this spending fuels the vicious cycle mentioned above: the wealthy pour money into politics; elected officials who depend upon their largess write economic rules that cement the status of economic incumbents; the already-haves become the have-much-mores; and in turn reward the “public servants” who have tilted the playing field in their favor.

Americans have noticed, and are working to break and reverse the cycle.  But there are some obstacles in our path.


The Supremes

The story outlined above is, fundamentally, about the uneasy relationship between the representative democracy the founders designed and the (moderated) capitalism that has evolved to complement it.  Our twin commitments to democracy and capitalism leave most Americans with the general sense that every citizen has an equal right to participate in political life, but not necessarily the right to possess an equal number of dollars or widgets.  We’re tolerating a lot of inequality in our economy right now; but most of us don’t think this should spill over into our political life. 

Without proper protections, however, this is exactly what happens.  Those who are successful (or simply lucky) in the economic sphere can translate their economic might directly into political power. 

So, robust rules governing the use of money in politics are our best hope for protecting the primacy—and legitimacy—of our democracy.  These rules are the only way to ensure that (perhaps legitimate) inequalities in the economic sphere don’t become unwarranted disparities in political power.  It is how we should make the principle of one person, one vote come alive.

This is where the Supreme Court enters the picture.

The American people have long recognized that in order to provide working families a fair shot at upward mobility and basic economic security, democracy must write the rules for capitalism, not the other way around.  That’s why Progressive-era reformers didn’t just pursue wage and hour laws, but also protections against corporate dominance of politics.  Theodore Roosevelt said, “[t]here can be no effective control of corporations while their political activity remains.”  And since then the People have passed many laws intended to rein in corporations and wealthy individuals—through their elected representatives, or directly through the ballot initiative process.

But, the Supreme Court has, time and again, stepped in to eviscerate common-sense rules intended to prevent wealthy interests from translating economic might directly into political power.  Like widening economic inequality, this trend took flight in the 1970s. 

In 1976’s Buckley v. Valeo—considered the seminal campaign finance case—the Court struck campaign spending limits and equated money with speech.  Buckley also gave us the fundamentally flawed idea that fighting quid pro quo corruption and its appearance are the only legitimate reasons to regulate political money. And, the Buckley Court explicitly rejected an interest in promoting political equality—writing that “the concept that government may restrict the speech of some … in order to enhance the relative voice of others is wholly foreign to the First Amendment …” 

The Roberts Court has been consistently hostile to campaign finance laws, culminating in 2010’s Citizens United, which gave corporations the same First Amendment “speech” rights as individuals; opened the door to billionaire-funded Super PACs and unlimited, undisclosed “dark money;” doubled-down on the corruption only focus; and narrowed the definition of corruption substantially.  Justice Kennedy wrote for the 5-4 majority that “ingratiation and access … are not corruption.”

Justice Roberts followed this up in a 2011 case, writing specifically that limiting political money to level the playing field between wealthy donors and ordinary citizens is forbidden—only preventing quid pro quo corruption is allowed. 

The bottom line is that for nearly forty years when evaluating any limits on the use of money in politics, the Court has focused only on one narrow concern: is this regulation necessary to fight corruption or its appearance?  And, in the last decade, the Roberts Court has clarified that it’s only willing to recognize one very narrow type: quid pro quo corruption of individual officeholders (as opposed to more systemic forms of corruption).

In addition to being intellectually misguided, focusing on the effect of money on individuals misses the forest for the trees. The reality is that money buys elections more often than it buys politicians. While officeholders may at times alter their votes or priorities in response to particular contributions, most elected officials are probably not “corrupt” in this way most of the time.  The “coal executive handing over a big check to buy policy” scene that opened this article is actually pretty rare in D.C.  If special interests or wealthy individuals can ensure that their friends, associates, colleagues, or neighbors are elected to Congress, there will be comparatively little need to bribe them once in office.    

And, the question is inherently limiting. Addressing the role of money in politics is not just about clean governance—it’s about shifting fundamental power dynamics in American society to facilitate meaningful representation for all citizens.  As noted above, much more profound questions about the relationship between capitalism and democracy, and the role of each citizen in that democracy, are at stake. Even if we are able to eliminate all financial quid pro quo “corruption” from the electoral process, money would still exercise tremendous influence on elections and hence policy outcomes. 

Prior to Citizens United, some reformers believed that we could justify most, if not all, necessary reform measures under a broadly-conceived anti-corruption rationale—even if much of the public support behind such policies was based upon a desire to level the playing field and prevent large donors from drowning out the voices of non-wealthy citizens. But, the corruption interest was always inadequate; and the Roberts Court has made it almost completely unavailing.

The Supreme Court’s current campaign finance jurisprudence has placed out-of-bounds the fundamental reforms needed to enable ordinary citizens to claim our democracy from billionaires and special interests and hacked away at the basic protections needed to safeguard the integrity of our democracy.  Limiting the government’s interest to fighting corruption (as narrowly understood as possible) has been the anti-regulatory justices’ primary tool.

Any day, the Court might make things worse.  In a case argued in October called McCutcheon v. FEC, Senator McConnell, the RNC, and a wealthy coal executive have asked the justices to strike the limit on the total amount a rich donor is permitted to contribute to all federal candidates, parties, and PACs combined—a limit that’s already twice the yearly income of an average American family.  Reformers should win the McCutcheon case under the Court’s current approach—there are good arguments that striking “aggregate limits” seeds the ground for more corruption.  But, the case would be a total slam dunk if a broader range of concerns were considered.  For example, it obviously undermines political equality for one very rich person to dump millions of dollars into our political system. 

So, while important work remains to defend the few remaining effective campaign finance laws on the books, now is the time to turn our attention to achieving the type of transformative change in the legal-constitutional landscape that will enable policy advocates to once again go on the offensive to start building a democracy in which the strength of a citizen’s voice no longer depends upon the size of her wallet. 

To truly honor the First Amendment and to safeguard our democracy, the Court must remove its blinders and take a fresh, honest look at the full scope of core values at play.  The vast majority of Americans don’t think it’s fair for one person to flood the system with hundreds or thousands of times more money than his fellow citizens can afford to spend or give, amplifying his voice with a million-dollar megaphone and drowning out his fellow citizens.   The founders never intended the First Amendment to be a tool for use by wealthy donors to dominate our political discourse by crowding out the rest of America.  There is room under the First Amendment to regulate money in politics to promote a diverse, robust conversation around candidates and causes while honoring political equality or other important values that help us achieve a truly representative government that accords with the principle of one person, one vote.

Over the past several years, scholars have proposed various pathways out of the current jurisprudential box.  Some of these build out from the concept of corruption. Other theories speak to the value of political equality or the effective workings of democracy itself. And, some propose additional compelling government interests in regulating money that the Supreme Court has not considered or accepted, such as maximizing citizen participation or protecting candidates’ and elected officials’ time from the constant demands of fundraising so that they may focus adequately on the tasks of governance. 

Regardless of the exact approach, it’s time for an enduring interpretation of the Constitution that empowers the People to enact protections that strive not just for clean governance, but also to make democracy work for all Americans.

We can achieve this in two ways.  We can transform the Supreme Court’s approach to money in politics by developing and promoting robust interpretive frameworks that go beyond corruption; promoting these ideas with legal and popular audiences; and ensuring that newly appointed justices share the public’s common-sense understanding of the Constitution.  Or, we can amend the Constitution to clarify that the People have the power to rein in the influence of big money.  Either way will do—but it’s time to get moving. 

We now stand at a crossroads.  In the wake of Citizens United, we will either pick ourselves up and fight our way towards a truly representative democracy, or we will continue our recent slide towards plutocracy.  We will take decisive action to break and reverse the vicious cycle of economic and political domination by the wealthy minority, or we will allow the cycle to spin out of control—possibly until it builds too much momentum to stop peacefully.

To choose representative democracy, we must rescue our Constitution.  This is the task to which the great legal minds of our day must apply themselves.  It won’t be easy, but we can’t afford to lose.  It’s only government that is truly of, by, and for the people that hangs in the balance.

Note: An earlier version of this piece appeared in The Seton Hall Law Review.

Original Story
Media of Type text

Some Notes on the Outrage Industrial Complex

In past years, I would marvel at the right wing's ability to take an obscure liberal from somewhere who had said something stupid and propel him to national prominence, through the use of Fox and talk radio. My favorite example was Ward Churchill, a professor in Colorado who became a celebrity after he made some comments of the "we had it coming" variety after September 11. During one stretch, there was some discussion of Churchill on every episode of The O'Reilly Factor save one for an entire month. The point behind Churchill and a hundred other such stories the right promoted wasn't just that their audiences should be angry at this one guy, but that liberals in general hate America and want to destroy it; the individual story is a stand-in for the larger group at whom they're trying to generate contempt.

But more recently, liberals have gotten, dare I say, just as good at this as conservatives were, maybe better. And I think it deserves a moment of discussion.

A week and a half ago, David Weigel raised an objection to the "Obscure Candidate Makes Shocking Remark" story, arguing that as electoral fortunes for Democrats worsen, they work harder to find these people to get mad at. As a rule, he said, "if you see the phrase 'GOP lawmaker' in a headline, your click will usher you into a world of back-benchers from Bismarck and Jackson and Dover and Sacramento, not the people currently threatening to take the Senate back from Democrats." Kevin Drum countered that "These folks represent a real constituency, and the mainstream of the Republican Party, far from disowning them, practically falls all over itself to insist that they have nothing but admiration and respect for their willingness to stand up and fight for traditional values without compromise. That makes them worth a story."

They're both right, even if sites like the Huffington Post and Talking Points Memo run one "GOP Lawmaker" story after another primarily because they know they're irresistible clickbait (protip for aspiring web publishers: partisan readers love partisan stuff about how the other side are monsters). Even the most rational person, confronted with a headline that reads, "Person From Other Party Says Abominable Thing," can't help but click through to find out just what it was.

Should we count it as a victory that liberals can play this game just as well as conservatives? Well...yes and no. You could argue that a lot of the time it's harmless; what's being encouraged isn't so much real outrage but simple mockery, giving you leave to indulge your inner Nelson Muntz and point at someone whose ideology you dislike and say "Ha-ha!" More meaningfully, the infrastructure that enables it can find the outrageous remark not only when it comes from the vice-mayor of Maricopa, Arizona, but also when it comes from a more important person, like a GOP nominee for Senate talking about "legitimate rape." Yes, the smaller stories reinforce the underlying ideological argument (that conservatives are nutty extremists), but only when the person in question is of a higher stature is the story likely to break through to mainstream media and have an immediate political impact.

If conservatives have fallen behind on producing the sheer volume of this kind of thing, it isn't just because Democrats have a smaller quantity of crazy legislators (and other folks) who are out there doing the hard work of making outrageous statements. It's also because at this moment in history, the right has bigger fish to fry. When there's a Democrat in the White House, he's the one you focus your anger on, and it isn't necessary to go searching as far for other people to be mad at or to make fun of. Whenever the White House next changes hands, the roles will be reversed: Liberals will spend most of their time thinking about, and getting mad at, the president; and conservatives will resume searching far and wide for liberals they can hold up to ridicule.

Original Story
Media of Type text

Daily Meme: The Fog of Donald Rumsfeld

  • You may recall an infamous news conference in February 2002a year before the invasion of Iraq—when reporters packed the Pentagon Briefing Room, hoping to wring some answers about Saddam Hussein's shadowy weapons of mass destruction program from senior defense officials. Donald Rumsfeld, the defense secretary, decided that the reporters did not deserve the benefit of the English language.
  • "As we know, there are known knowns; there are things we know we know," Rumsfeld said. "We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns—the ones we don’t know we don’t know."
  • The remark was, at the time, widely mocked. But in time, it became so synonymous with Rumsfeld's tenure that he eventually used it to title his memoir.
  • Now, Rumsfeld, years out of office, is the subject of a new documentary by Errol Morris, the filmmaker who captured another infamous defense secretary, Robert McNamara, expounding upon Vietnam and the state of modern warfare in The Fog of War.
  • But Rumsfeld is no McNamara. In Morris's new film, The Unknown Known, he's trying to get answers out of a notoriously slippery talker. Morris has a series of blog posts at the New York Times this week, describing his 33 hours of interviews with Rumsfeld. "I fear I know less about the origins of the Iraq war than when I started," Morris writes. "A question presents itself: How could that be? How could I know less rather than more? Was he hiding something? Or was there really little more than met the eye?"
  • Some criticis contend that Morris wasn't combative enough with the evasive Rumsfeld. "Morris allows him to play the crafty statesman on his own terms, and never really makes him uncomfortable, even when he's faced with the contradictions or absurdities of his statements: notably, his calm description of Guantánamo as simply a "well-run" prison," writes Jonathan Romney at the Guardian.
  • But others say the film reveals more about Rumsfeld's motives—and his intelligence. Mother Jones' David Corn says the "zen of Donald Rumsfeld" is on display, "which is merely camouflage for stupid mistakes that caused mayhem and death."
  • Maybe the film provides necessary context for a quote that, over the years and "decoupled from context," people began to think was smart.
  • Or perhaps it's just a chilling portrait of a man who—eight years after he was fired by George W. Bush—is still defending the failures of the Iraq war.
  • "The scariest thing is that what you see here is what you get," Morris told the Economist. "There is nothing behind that façade, just endless quibbling about vocabulary. Hannah Arendt wrote about the “banality of evil”, that it’s not the presence of something but the absence of something that makes evil men. I feel in a way that I’ve made a horror movie."
Original Story
Media of Type text

Is the "Mend It" Period of the Affordable Care Act's Evolution Beginning?

All of a sudden, people in Washington seem to want to fix the Affordable Care Act. And regardless of their motivations, that should be—well, maybe "celebrated" is too strong a word, but we can see it as a necessary and positive development. Is it possible that the arguments about whether the ACA was a good idea or should have been passed in the first place are actually going to fade away, and we can get down to the businesses of strengthening the parts of it that are working and fixing the parts that aren't? It might be so.

Sure, cretinous congressional candidates will continue to display their seriousness by pumping paper copies of the law with bullets, probably for years to come. But with this year's open enrollment period coming to an end in a few days, a particular reality is starting to set in, namely that, however you feel about the law, millions of Americans have now gotten health insurance because of it. Repealing it would mean taking that insurance away. So let's look at what people whose political fortunes are dependent on some measure of anti-ACA grandstanding are doing.

First, a group of centrist Democrats, mostly from conservative states, offered a plan to make some changes to the ACA, some of which are more meaningful and reasonable than others. Yes, they're doing it because they want to give themselves some political cover. But that's OK. Meanwhile, some Republicans are, for the umpteenth time, crafting a package of things they claim will "replace" the ACA. Of course it's the same few things they've always advocated—make it impossible for people to sue for medical malpractice (AKA "tort reform"), let people buy insurance across state lines, encourage health savings accounts. Nobody who has thought about health care for five minutes thinks those "reforms" would do anything to address real health care challenges, but more importantly, they wouldn't prevent the massive upheaval that would occur if you repealed the ACA. And that's a reality that will become increasingly clear: the disruption of taking away the ACA now would be even greater than the disruption the law brought about in the first place.

So if Republicans took over the Senate, there would be a brief period of kabuki, in which they would attempt to pass their reform package, then President Obama would say, "This is a joke" and veto if it passed. Then they'd have to decide if they actually wanted to address their specific complaints about the ACA. And yes, we have to start from the assumption that everything conservatives say about the Affordable Care Act is offered in bad faith (sorry, conservatives, but you've earned it). That doesn't mean, however, that they can't prove that assumption wrong at some later date.

Democrats should respond by welcoming a more particular debate about the ACA, starting from the presumption that it's law now and millions of people are dependent on it, so the question is what needs adjustment. Republicans can no longer just shout "This law sucks, because freedom!" It's too late for that.

And some context is in order. Before the law was even passed, many of its advocates were careful to note that no matter how much care went into its design, adjustments were going to be required as it was implemented. That's how things always go with complicated laws: conditions change, certain features don't work the way they were supposed to, and unforeseen challenges emerge. Revising existing legislation is a substantial part of lawmaking, and always has been. For instance, when Social Security was created in 1935, it was written to exclude agricultural and domestic workers, which included most blacks in the South (there's some debate about whether this was actually done in order to secure the support of Southern segregationists). That didn't change until the 1950s. Survivor benefits for spouses and children were also added later. Cost of living adjustments were added later. In other words, the most successful and popular social program in American history required a lot of changes and alterations as it evolved, and no one ever expected that the ACA would be any different.

There are going to be changes to the ACA in the coming years, just as there should be. The trick now will be making sure the right changes are made.

Original Story
Media of Type text

George Takei, Living Long and Prospering from Social Media

On March 20, in between jokes—“You can’t spell ‘diet’ without ‘die,’” and sharing a picture of a man dressed as a giant iron (Iron Man, get it?)—George Takei put up a serious post on his Facebook feed. Fred Phelps, the founder of Westboro Baptist Church, known for its vitriolic picketing at the funerals of soldiers and gay people, had just died. “He was a tormented soul, who tormented so many,” Takei wrote to his nearly 6.5 million followers. “Hate never wins out in the end. It instead goes always to its lonely, dusty end.”

To newcomers, the abrupt change of tone might sound odd. But Takei's followers weren’t likely surprised; in the midst of humor, they know, he often delivers wise and solemn messages to fans.

For decades, Takei, who turns 77 in April, was most famous for his role as Hikaru Sulu on the original Star Trek series (catchphrase: “Oh my!”). But since he started his Facebook page in 2011, the actor has been a social-media whiz. He’s got more than a million Twitter followers, in addition to his Facebook throngs. His feeds are fun mix of dad-humor—puns and silly photos—and the occasional dirty joke, all of which get tens of thousands of “likes” and thousands of comments as well. He frequently mentions his partner, Brad, and his daily life in Hollywood, attending premieres or giving a birthday shout-outs. His fan base has grown from Trekkies to people who simply like some humor in their Facebook. He’s even popular on Amazon, where his funny reviews of products have made him a top commenter on the site. If you’re not following Takei, a bunch of your friends probably are. I learned that when I went to his page to discover 87 of my friends had already “liked” him. Anyone following, however, will also notice the occasional, pointed comments about civil rights, politics and history.

You might say that Takei is playing a long game. Speaking at SXSW earlier this month, he explained to interviewer Matthew Segal, the president of the dating service for older singles, his reasons for starting the Facebook page that would renew his celebrity for a new generation.

He began in an unexpected manner. “I grew up imprisoned in two U.S. barbed wire prison camps, internment camps,” he said. He wanted to “raise the awareness of that dark chapter and make sure it never happens again, and the best way to do that [was] through a Broadway musical.” But to get a musical to Broadway, Take would need a much larger audience of likely ticket-buyers. Takei began work on Allegiance, which follows a Japanese-American family as they’re relocated from California to rural Wyoming, but meanwhile, he set out on social media to find new fans. He didn’t start out mentioning internment camps though. “Kitten [photos and memes] got people to like and share,” he said. “You catch more flies with honey and then you sock it to them with the meat.”

Takei’s social media approach is a bit like Buzzfeed—he aggregates the funnier stuff from the internet: “someecards” and giant quotations with pretty backgrounds, to silly signs. He gives fans riddles or asks them their Oscar picks. It’s like a much better version of the friend who sends along chain emails and long jokes to everyone they know. Only in this case, the people come to Takei.

Takei’s posts, all done by him personally, give him a unique voice on social media. Many celebrities make impassioned pleas on social issues, at least when they're not hawking their brands, but few have been able to use Twitter or Facebook to both get people to like them more and take them more seriously. But Takei’s blend of jokes and serious commentary has allowed him to be both the internet’s funny uncle and moral grandfather at the same time. He’s a host on the Howard Stern Show. He talks about gay rights while making jokes about clothing-store signs for “active male tops” and “active male bottoms.” Then he brings up the horrifying stories of Japanese internment to audiences who usually aren’t expecting a gut-wrenching history lesson.

In person, he uses the opposite formula, speaking seriously and sprinkling in a few lines that bring down the house with laughter. At SXSW, Segal, his interviewer, seemed surprised by his forthright and non-humorous discussions of his childhood, American history and politics. He invoked his father’s love for the former Illinois Governor Adlai Stevenson, the progressive Democrat who lost twice to Dwight Eisenhower, and discussed the importance of political participation. He criticized Edward Snowden’s decision to leave the country rather than stand trial and embrace a civil disobedience tradition. (“He’s talking about freedom and liberty and he goes to Russia of all places.”) and excoriated the International Olympic Committee’s decision to keep the Olympics in Russia after the passage of anti-gay laws. “The Olympic Committee is absolutely spineless.”

But he still knew how to lighten the mood. He told the audience how, for decades, many—if not most—mispronounced his name as "Tak-kai,” which sounds like the Japanese word for “expensive." But when, in 2011, he heard about the Tennessee Legislature’s proposal to ban teachers from using any language that assumes the existence of gay people—a bill known as “Don’t Say Gay”—Takei suggested that people could substitute his name for the word “gay,” as in Takei Pride Parades. His strategy, he now says, was two-fold: Mock the measure and get people to pronounce his name correctly: "Takei, rhymes with gay."

Original Story
Media of Type text

Two Roads Diverged

You already know that this a good year for big-league 50th anniversaries, from Beatlemania's advent to the first Civil Rights Act with any balls to speak of.  So before April comes, let me draw your attention to a distinctly minor milestone: the premiere of The World of Henry Orient on March 19, 1964. 

Among my contemporaries who know the movie at all, I've never met one who doesn't cherish it.  But considering that the contemporaries I'm on good terms with include a fair number of professional film critics, it's interesting how rarely Henry Orient gets its due as one of our formative  moviegoing experiences. This one we keep for ourselves.

Plot, courtesy of the novel by veteran screenwriter Nunnally Johnson's daughter Nora: two Manhattan 'tweeners cultivate an obsession with a pretentious and silly musician named Henry Orient (Peter Sellers, then at the peak of his vogue). The rich one—Tippy Walker as Val—is looking for an escape from being caught between her kindly but absentee businessman father (Tom Bosley) and her bitch of a high-society mother (Angela Lansbury). Val's middle-class sidekick, Marian 'Gil' Gilbert (Merrie Spaeth), is . . . well, a born second banana, meaning she's at once susceptible, resentful and yellower. Their innocent pursuit of sophistication goes from lyrical and zany to disillusioning once Val discovers that her haughty mom is having an affair with Henry.

At one level, this is unmistakably fake Salinger. But it's also Salinger feminized—kid sister Phoebe's story, you might say, with no Holden Caulfield in sight—and that's the movie's main claim to originality. Girls on the cusp of adolescence who learn about the fibs and betrayals of adult sexuality were fairly novel screen protagonists in 1964, especially since the hormonal changes fueling Val and Gil's mock-conspiratorial quest aren't in much doubt.  From Heavenly Creatures to Ghost World and the Kirsten Dunst-starring Watergate comedy Dick, pretty much every subsequent movie about girls' secret worlds owes Henry Orient a debt.

Shot largely on location, the ur-flick is also a priceless record of a vanished, almost fairy-tale New York, from Gil and her mother's cozy West Village digs to an impossibly benign Central Park.  But events had turned Henry Orient into a time capsule before its release. In the can before JFK's assassination, it came out a month after the Beatles' first appearance on The Ed Sullivan Show—two events that unexpectedly altered a social fabric the moviemakers had taken for granted, the nature of teenhood's predilections included. A dear friend of mine once told me that he'd gone to see Henry Orient multiple times the week it came out, transfixed by instant nostalgia for a period he knew was as dead as the dodo.

Yet inadvertently or not, the movie also prefigures any number of '60s sea-changes,  from its prescient attentiveness to female perspectives on sex—Henry the swinger's satyriasis makes him a figure of ridicule at a time when Hugh Hefner's Playboy philosophy was still in full swing—to the clash youthful idealism and fantasy with grown-up hypocrisy and cynicism. In one especially intriguing touch, fatherless Gil and her mother share their household with Mom's jolly, ever so slightly butch woman friend "Boothy"; the relationship's nature goes tactfully unexplained.  And the fade-out, which has ye-ye music swelling on the soundtrack as our two now definitely nubile heroines swap makeup tips—"I want my mouth to look like a crimson gash," Val announces, a line that's still startling today—airly charmingly anticipates all hell breaking loose down the road.

That's why the perfect sequel to The World of Henry Orient is the real-life story of what became of its two child actresses, most fully recounted in a New Yorker piece by John Colapinto a couple of years ago.  Merrie Spaeth, who soon quit acting, grew up to be a Republican PR flack, overseeing Ronald Reagan's White House communications office and then spearheading the Swift-boat campaign against Democratic presidential candidate John Kerry in 2004—her "biggest regret," according to Colapinto. Now 65, she's still at it, proving media consulting to Fortune 500 CEOs and such via her company, Spaeth Communications.

Tippy Walker, on the other hand, made a couple more movies—neither reportedly any good—before  the counterculture, at least so far as I can tell, more or less swallowed her up for a time. During Henry Orient's making, the then 17-year-old actress had found herself inveigled into a romance with the movie's married, 43-year-old director, George Roy Hill—and so much for saluting his enlightment about teenage girls' vulnerabilities and the obnoxiousness of male privilege.  Nowadays, still dependent on occasional handouts from friends to stay afloat in lean times, "Elizabeth" Walker lives quietly in New Haven, painting and writing poetry. Unlike Spaeth, she knows The World of Henry Orient is her one claim to immortality, and has shared her memories of the film's making—her unconsummated but intense affair with Hill included—in various forums online.

Someone ought to write a book about the pair of them. You could hardly ask for a better dramatization of their generation's garden of forking paths: The World of Ronald Reagan vs. Disorder And Early Sorrow. But I bet I know which of the two is more annoyed that they'll be linked forever. 

Original Story
Media of Type text

Fracking Is Not Making the U.S. More Secure

AP Images/Brennan Linsley
When it rains, it pours, so they say, but pouring rain is not exactly what you want in a drought. The big storm that hit the parched American Southwest at the end of February only scratched the surface of the problem. The land is far too dry and hard-packed to absorb the deluge; instead of recharging the earth, much of the water bounced off the dirt, turning into wasted runoff and even flash floods.

These dry lands are dryer than they would otherwise be because of global warming-driven climate change. As it turns out, its not just the burning of oil, gas, and coal that's accelerating the loss of available freshwater, but also the drilling for two of the fuels themselves. A report by Ceres, a non-profit organization that promotes sustainability, found that almost half of the wells that were dug between January 2011 and May 2013 to hydraulically fracture (or "frack") shale rock to extract natural gas and "tight" oil were located in regions with "high or extremely high water stress," and more than half (55 percent) were in areas experiencing droughts. For California and Colorado, almost every single new well was drilled in a high or extremely high stress area. This is important because, as the name suggests, the hydraulic fracturing process requires millions of gallons of water per well. Even if that water is trucked in from somewhere else and even if it gets recycled or stays underground, the water used in the fracking process may still end up tainting local water sources with carcinogens, methane, or naturally-occurring toxins like radium and bromides that are brought up to the surface.

So it's little wonder that people who are being harmed in one way or another by fracking are banding together to fight the shale industry as well the industry-captured politicians and government agencies that are pushing fracking along, as this magazine has recounted in recent issues.

But you know who isn’t complaining?  National security and energy wonks at the major think tanks.


Under the chandeliers and faux-Federalist-era paintings in a ballroom at the Willard-Intercontinental Hotel early last month, I could feel the excitement. The room was packed to hear some of Washington's national security A-listers talk shale. It was a shindig hosted by the Center for a New American Security's (CNAS), a prominent think tank largely comprised of Democratic hawks, launching its new report, "Energy Rush: Shale Production and U.S. National Security."  We were told that as of last year, thanks to shale gas, the United States is now the world's top producer of natural gas, and that thanks to tight oil also found in shale, the United States will surpass Saudi Arabia as the worlds top oil producer next year. The new sobriquet is "Saudi America."

This was just one study among many. Surveying the major national security think tanks (of the non-partisan variety), each one I looked at had performed studies or issued commentary on shale gas and tight oil, all of which say rather nice things about fracking—and hardly a discouraging word. They say that fracking is great for American energy security because new shale reserves make us less susceptible to disruptions in the import market; it may give American consumers less "pain at the pump;" and, above all, it rocks for American geopolitical games. It will strip Russia, Saudi Arabia, and other petrostates of some of their power, and if we get busy drilling and exporting our shale gas and tight oil faster, we can make more countries more economically dependent on us. (The CNAS report calls this "energy statecraft" and "coercive political influence.")

It all sounds a bit same-old, same-old for the Washington national security establishment. There are some questionable findings—actually, exporting more natural gas will likely raise rather than reduce domestic prices; and there are some astonishing omissions—such as that other countries won't take our coercive energy games lying down, and that the shale boom appears to be exaggerated in the long term, dangerously dependent on (and trapped by) loans and hype, and struggling to maintain growth once the best wells are tapped. These alone should have driven me to check who funded the studies.

What astounded me most was the way these studies' (brief) environmental analyses stayed within the humdrum of America's present conversation about climate change and water security, which abjectly fails to recognize the urgency of these issues or the types of structural changes that will be needed to actually deal with them. The authors just nod at the issues before moving on, perfunctorily acknowledging them—like a person trying to avoid talking to someone at a party.


Water security is emerging as one of the great threats to stability around the world. The availability of clean water is falling while populations are rising. The U.S. Intelligence Community issued a paper finding that "During the next 10 years, many countries important to the United States will experience water problems—shortages, poor water quality, or floods—that will risk instability and state failure, increase regional tensions, and distract them from working with the United States on important U.S. policy objectives."  (NATO Review has a short video introducing the issue here.)

However, the question of domestic water security hardly makes it onto the security wonks' radar. Perhaps that shouldn't be surprising, as national security folks tend to look abroad as do most water security analyses, and the United Nations report linking fossil fuels to water shortages only came out this past Friday. But if the point of national security is to protect our physical safety, our economy, and our "way of life" at home, shouldn't the reports at least consider the effects of fracking on domestic water resources before promoting more drilling and more exports for dubious geopolitical gamesmanship? 

There is essentially no mention of the high prevalence of wells in water-stressed areas or of fracking's enormous thirst for water—some 4 million gallons per well—that gets taken out of our freshwater supplies forever. (A low estimate of annual water consumption by fracking in parched Colorado would be enough to supply the state's fourth largest town for a year.) The reports don't mention that almost no "produced" water can ever be used for drinking or irrigation because it contains toxins, carcinogens, and a cocktail of chemicals that municipal water treatment facilities cannot address because those chemicals are allowed to remain protected as trade secrets—and that doesn't include inadvertent pollution. Fracking and drought are running some small towns in Texas totally dry.

Perhaps reflecting their relative ignorance on domestic matters, the authors don't dig into these issues. But rather than holding them out as open questions outside their area of expertise, the reports blithely assume that everything is hunky dory and that high-quality environmental regulations and enforcement are on the way. The most ludicrous statement on this came in an op-ed promoting the CNAS report: "We urge policy leaders to make tax and permitting terms less cumbersome, while ensuring strong environmental standards to limit emissions and groundwater contamination associated with drilling." 

Right. It would be hard to imagine a framework in which frackers were less regulated. Indeed, the industry only seemed to blossom once Congress passed a bill exempting it from a host of laws, such as the Clean Water Act, Safe Drinking Water Act, and Clean Air Act. Regulators are spread thin. And even with captured federal and state politicians and regulators, the industry is pushing for more deregulation. Only Michael Levi of the Council on Foreign Relations takes the time to actively argue for more stringent regulation. What makes the others think that things are going to suddenly get a whole lot better?


Global warming-induced climate change is the greatest threat that civilization has ever faced, and dealing with it is the greatest collective action problem that has ever challenged humankind. That is no exaggeration, and it is appropriately alarmist.

Our government has officially stated that climate change is a major security threat. Indeed, this was reiterated in the Pentagon's recently-released 2014 Quadrennial Defense Review. Several of the studies dutifully acknowledge climate change—though some do so only in passing and a blue ribbon task force completely failed to mention it at all. Yet even the reports that appear to take it seriously don't actually take it seriously. As with the government's pronouncements—such as President Obama's "all of the above" energy policy—none seem to recognize the urgency and present-ness of the problem. (This is all too common a problem, even among people who haven't fallen prey to the professional denialists.)  And the climate-related topics they do discuss, they tend to get wrong. The results are a greenwash.

The think-tankers cheer for shale gas as a tool for freeing the United States from burning coal for electricity. While it is true that reducing the use of coal in the United States is of the utmost importance, and any reductions are to be celebrated, that's not the end of the story. The coal that isn't getting burned here is simply being exported and getting burned elsewhere; 2012 saw record exports, helping to feed, among others, coal-hungry China. The earth's atmosphere doesn't care where coal is burned. CNAS, for instance, mentions that Europe has been replacing Russian natural gas with cheaper U.S. coal, yet fails to notice how that might undermine its cheerleading.

In addition, aside from a report by the Center for Strategic & International Studies, most show little written recognition that there remains an active debate in the science about how lifecycle emissions compare between coal and shale natural gas (which is mostly methane, a greenhouse gas with at least 21 times the warming power of CO2). Frankly, our knowledge base on fracking is pathetic for such an active industry, but the security wonks just assume that shale gas wins out—or even go to bat to defend shale gas against its critics.

Several reports discuss energy efficiency (notably CNAS's) or reductions in demand (notably RAND's)—which are both vitally important—yet for they fail to place these issues in the context of how carbon dioxide works. It doesn't matter whether fossil fuels are burned today, tomorrow, or next year because CO2 accumulates in the atmosphere and sticks around for decades to centuries. That means that energy efficiency and demand reduction only work if they keep carbon in the ground rather than merely postponing the burning. But the studies advocate more drilling and more exports, which means burning more, not less.

And here's the kicker: according to major organizations like the Intergovernmental Panel on Climate Change and even the industry-friendly International Energy Agency, a full two-thirds of proven fossil fuel reserves—the stuff that has already been located and is economically and technologically accessible now—needs to stay in the ground to avoid the "nightmarish" average global warming of two degrees Celsius.  Two-thirds may even be a low estimate.

Yet no study or commentary that I found bothered to raise the issue for real discussion. The closest was one by the Baker Institute at Rice University that simply stated that reducing drilling in one location would merely displace it to somewhere else. Not one report mentioned the possibility of the U.S. government buying up leases in order to leave some shale gas and tight oil in the ground as an in situ strategic reserve or "rainy day" fuel hoard for the nation. Instead, it's just "drill, baby, drill!" 


One of the statutory exemptions the fracking industry enjoys is from having to tell the public the ingredients of the chemical soups they use drilling for shale gas and tight oil. At the CNAS event at the Willard, task force member and former secretary of Energy Bill Richardson said that shale drillers really need to share their recipes. But—and here is the big but—he said that he could only say something like that because he wasn't running for office.

And so it comes back to money. It always does. (Sigh.) The fracking industry wants to export more than is currently allowed by law because the shale boom led to a glut that caused the price of natural gas to plummet, and weird financing and contract terms prevent many frackers from just turning off the drills. As Exxon Mobil CEO Rex Tillerson said, "We are all losing our shirts today" on shale gas. Natural gas sells for more abroad. And so they want limits on exports lifted. (Domestic manufacturers are fighting back because exports mean higher prices at home.)

It's commonplace for industries to launder their business and regulatory goals through think tanks in order to recast them as legitimate and valuable ideas. When an industry tries to paint a patina of national security relevance onto its business goals—usually to get a helpful hand from Uncle Sam—I would call it camowashing.

It should come as no surprise then that all of the think tanks issuing reports and commentary proclaiming fracking's supposed national security benefits and giving only short shrift to climate change and water security were directly or indirectly funded by the oil and gas industry as well as private equity and investment funds with big fossil fuel stakes. Some even take money from industry lobbyists. CNAS receives funding from the fracking industry's lobbyist and public relations outfit, the American Natural Gas Alliance. The Institute for 21st Century Energy at the U.S. Chamber of Commerce, a fossil fuel lobbying project at the country's biggest lobbying shop, a/k/a the "Chamber of Carbon," directly funded the RAND study.

Non-ideological think tanks and their researchers claim to be impartial and objective, unmoved by their sources of income—and they really do try. But that's an unachievable goal. Organizations and their researchers depend on steady funding. As they say, you don’t bite the hand that feeds you.

I know this having worked at one of these think tanks. Even if the funders don't loom over a project, researchers censor themselves: All it takes is one or two instances of your supervisors frowning and telling you that what you've written is critical of the funder and that you ought to be more careful, and suddenly you find yourself pulling punches. And sometimes the funders directly meddle with the research, shaping the questions or constraining possible recommendations. I once worked on a camowashing study funded by an industry association that had its lawyers go over the final draft line-by-line, forcing changes on us.

It kind of makes a person wonder how great fracking really is for our national security, doesn't it?

Original Story
Media of Type text

Daily Meme: Points of Clarification

  • The modern world is so confusing. Fortunately, there are lots of people out there trying to clarify things for you, so in today's meme, we're seeking and finding clarity on what bedevils us.
  • Are you a Supreme Court justice who doesn't quite understand how different birth control methods work, what with all those confusing ladyparts going on? Salon has a handy guide to help clear up your confusion.
  • Benjy Sarlin has a great story on Georgia Senate candidate Paul Broun, who is a member of the House because he was personally called upon by God to run for Congress. So if you're wondering whom the Big Guy is supporting in that race, it's been clarified for you.
  • Chris Christie has been totally vindicated by a report from a law firm examining the "Bridgegate" affair. We should clarify that the firm was hired by Christie.
  • Nate Silver and Paul Krugman are apparently in an escalating battle over just how much data can clarify the great questions of the day. If Jeff Gillooly hits Krugman in the knee with a baton, you'll know who to blame.
  • In the latest AP poll, President Obama's approval rating is 41 percent. Just to clarify, that's not very good.
  • Senate Majority Leader Harry Reid would like to clarify that the $31,000 his campaign paid his granddaughter was completely justified, because she's "a professional and talented artist who produced gifts for my staff and supporters that had a personal connection to my family and my hometown of Searchlight, Nevada." But he's going to reimburse the campaign out of his own pocket anyway.
  • Representative Bill Cassidy, a Louisiana Republican running for Senate, is probably going to want to clarify some remarks he made about people who don't have health insurance: "They're illiterate. I'm not saying that to be mean. I say that in compassion. They cannot read. The idea they're going to go on the internet and work through a 16-page document to put in their data and sign up does not reflect on understanding of who is having the hardest time in our economy." Yeah, but the law included funds for "navigators," who…oh, never mind.
Original Story
Media of Type text

Yet Another Legal Attack on Obamacare

On Tuesday, federal courts heard two of the seemingly endless ad hoc legal challenges generated by Republicans opposed to the Affordable Care Act. Most of the attention was captured, for good reason, by the arguments at the Supreme Court, which concerned the claims by Hobby Lobby and other corporations that they should be exempt from the Affordable Care Act's requirements that insurance cover contraceptives. But a lawsuit with the potential to do far greater damage to the Affordable Care Act went before the D.C. Circuit as well. In a more rational universe, these arguments would be laughed out of court—but the oral arguments suggest that there are still numerous Republican judges willing to damage the Affordable Care Act by any means necessary, even if it means accepting arguments virtually nobody would have taken seriously five years ago.

This challenge to the ACA is based on a drafting error in the law. In addition to a major expansion of Medicaid (which the Supreme Court severely damaged by placing unprecedented limits on the federal spending power), at the core of the Affordable Care Act is the creation of regulated private exchanges. Individuals are required to carry insurance. But in return, people who do not get insurance through their employer and are not eligible for Medicaid or Medicare are supposed to have access to private insurance to the exchanges. The insurance on the exchanges must be issued to all comers and must cover particular things. Crucially, those who would otherwise be unable to pay for insurance are eligible for potentially generous subsidies.

The architects of the ACA envisioned most of the exchanges being run by the states, but in part because of the Republican war on health care for the non-affluent, only 16 states have done so. The drafters of the legislation were aware of this possibility even if they didn't anticipate the degree of non-participation, and allowed the federal government to create exchanges in cases where states declined to do so. The literal language of the ACA makes these tax credits available to anyone obtaining insurance from "an Exchange established by the State." Sensibly, the Internal Revenue Service interpreted the statute as making the credits available to those who obtained insurance from federal exchanges as well, reasoning that other provisions of the ACA as well as the structure and purpose of the statute made it clear that Congress intended the subsidies to be made available to everyone obtaining insurance from an exchange, state or federal. The opponents of the ACA bringing the suit, however, argue that the statutory provision should be read literally and in isolation as making subsidies only available to those who acquire insurance from state exchanges.

U.S. District Court Judge Paul Friedman supported the IRS's reading of the statute with little difficulty. First, the courts are supposed to defer to reasonable constructions of statutes made by federal agencies Congress has empowered to implement the law. And, second, the construction of the statute offered by the IRS was plainly the superior one. The courts, Fruedman observes, have a "duty to construe statutes, not isolated provisions." Viewed in the context of both other provisions of the ACA and the purpose of the statute, it's abundantly clear that Congress wanted the subsidies available to those who purchased insurance on federal exchanges. Holding otherwise would lead to absurd results that would subvert the purpose of the ACA's regulatory framework.

Almost certainly, withdrawing the subsidies from the federal exchanges would have devastating effects on health care markets. The purpose of the individual mandate and the subsidies is to prevent a "death spiral" in which young, healthy people leave the market, leading to increases in premiums that cause yet more people to drop out. Absent the subsidies, many people would choose to pay the tax for not carrying insurance rather than purchasing insurance they couldn't afford.

 Obviously, Congress did not intend to make the legislaiton inherently unworkable. As an amicus brief filed by an all-star team of liberal economists puts it, "[n]othing in the record suggests that Congress intended the economically disastrous approach of dramatically limiting subsidies only to participants in state exchanges." The arguments advanced to the contrary are implausible in the extreme.

Unfortunately, some federal judges have contracted the anti-ACA fanaticism that has infected most of the Republican Party, and at least two on the D.C. Circuit appear ready to ignore sound principles of statutory construction if they can deal a blow to the hated ACA. In a particularly telling comment, Judge Raymond Randolph asserted that "there is an absurdity principle, but not a stupidity principle. If the legislation is just stupid, it’s not up to the court to save it." Or, to translate that from Republican Hack into English, courts should not interpret statutes to produce transparently absurd results—unless it's a law a judge doesn't like on independent policy grounds.

The good news is that even if this three-judge panel issues a 2-1 ruling against the law (Judge Harry Edwards, a Carter appointee, appears certain to uphold the IRS's interpretation), the administration would ask for an "en banc" review by the entire D.C. Circuit. Thanks to the post-mature abolition of the filibuster for all federal courts except the Supreme Court, the D.C. Circuit now has a majority that is likely to hear the case and reject the invitation to read the law so as to produce an absurd result. Tuesday's panel, however, shows why eliminating the filibuster and getting good nominees confirmed to the D.C. Circuit was essential. As Judge Randolph so vividly demonstrated, above all the Republicans on the nation's second most important appellate court are committed to doing everything they can to ensure that the federal government can't work. Hopefully, the new majority on the D.C. Circuit will see its role as helping the people's representatives carry out their will instead.

Original Story
Media of Type text

Your Virtual Future

Don't be alarmed—I'm delivering the traditional Friday technology post a day early, because I want to talk a bit about virtual reality (VR). Facebook just spent $2 billion to buy Oculus, a company that as of yet has essentially no revenue and no customers, since its first product, the Oculus Rift virtual reality headset, is still in its development stages (game developers have models, but they haven't been sold to the public). Facebook thinks it's buying the future. Is it? And should you care? Well, Oculus itself may or may not be the future, but virtual reality is, for real this time. And yes, you should care.

It's reasonable to be skeptical, since we've been told that virtual reality is coming any day now since the mid-1980s or so. But now it really is around the corner. The hardware is getting there (the Oculus Rift has gotten the most press, but Sony is also developing its own version), and the technical problems (like the "lag" between moving your head and seeing the images move, which can make you nauseous) are on their way to being solved. It will be a few years before VR comes into its own—maybe 10, maybe 15, maybe more. But when it does it could be as big as the Internet itself.

Facebook wants "want to start focusing on building the next major computing platform that will come after mobile," Mark Zuckerberg said on a conference call discussing the sale. "History suggests that there will be more platforms to come and that whoever builds and defines these will not only shape all the experiences that our industry builds, but also benefit financially and strategically." Virtual may not be the next platform; maybe it'll be the one after the next, or the one after that. But at some point, the technology will indeed mature, and when it does there will be an explosion in the virtual sector, one that is much more far-reaching—economically, socially, and in lots of other ways—than the rise of the current hot platform, mobile computing.

A comprehensive virtual arena will provide an almost limitless number of new experiences to have, applications for most kinds of businesses, new kinds (and large numbers) of jobs created, and of course, things to buy and sell. If you're having trouble imagining it, remember that 20 years ago, a lot of people couldn't understand why a business would want to have a web site. The possibilities are truly endless, and if all you think it will be is trying on clothes in a virtual Gap or having conference calls with avatars sitting around a table, you haven't thought about it enough. There's almost no area of contemporary life—work, entertainment, commerce, education, socializing, and yes, even politics—that won't be touched by it. Just as happened with the Internet, once the possibilities start to become real, millions of people will start applying their creativity to come up with new ways to configure and use it, many of which we can't yet foresee. The real question is how we're going to handle the societal upheaval that results.

Now, a caveat. A lot of science fiction stories have been written about somewhat dystopic futures in which VR causes people to abandon their meatspace lives, as their bodies and souls wither away. That's unlikely to happen. Advocates of video phones discovered that we don't necessarily want every form of communication to includes the greatest number of senses possible; it turns out that people liked not being seen when they talked, and there are many times when it's preferable to communicate via text or email, not having to look at or hear the other person being precisely the point. There will still be plenty of times when we don't want to do things virtually, and a lot of people are likely to reject the technology entirely, just as there are people today who make a conscious decision not to be online.

But it's coming. As Alexis Madrigal says, big tech companies like Facebook "need to grab some land in whatever big technology wave comes next," and there will eventually be billions and billions of dollars to be made in this realm.  

Now let me offer a postscript. There has already been plenty of backlash among Oculus Rift enthusiasts who see a sale to Facebook as selling out to The Man. This piece by Dean Putney in BoingBoing explains:

The problem with this deal is that Oculus' crowdfunded background and public support made it feel like the next big thing in tech could maybe, possibly be a movement powered by enthusiasts and hobbyists instead of venture capitalists and giant corporations. It would have been DEEPLY satisfying for a beloved Kickstarter to IPO and the best chance we've seen at that just vanished.

That sounds great, but it's pretty ridiculous to think that something with the potential of virtual reality could retain, in its entirety, some kind of indie spirit. Oculus may be crowdfunded, but the Rift is a piece of hardware. Ten years from now there will be five or ten other companies with competing models. Oculus Rift could well end up being the Netscape of virtual reality—the thing that helps bring the whole realm into the mainstream and then eventually becomes obsolete. But even if it ends up shaping the development of VR for decades, it will still end up being a global platform in which millions, maybe billions of people participate in all kinds of different ways. And that means that whether you like it or not, big corporations are going to be there, sucking up every dollar they can.

Original Story


Subscribe to RSS - The American Prospect