Plaintiffs Challenging Affordable Care Act In The Supreme Court Admit That The Law Is Constitutional
One of the oddest arguments made by the plaintiffs now challenging the Affordable Care Act before the Supreme Court is a claim that, if just one small part of the law is declared unconstitutional, the whole law must fall with it. The overwhelming majority of judges who have heard ACA cases rejected the ridiculous claim that any part of the law is unconstitutional. And, of the handful of judges to strike part of the law down, only one — the guy who included an explicit shout-out to the Tea Partyin his opinion — accepted the legally indefensible position that the whole law must fall.
In their attempt to see the entire Affordable Care Act fall, however, several of the plaintiffs challenging the law committed what should be a fatal blunder — they effectively admit that their entire constitutional challenge to the law is garbage.
The primary attack on the ACA targets its provision requiring most Americans to either carry health insurance or pay slightly more income taxes — the so-called “individual mandate.” This insurance coverage provision exists because without it, the law’s other provisions ensuring that people with preexisting conditions can obtain insurance cannot be implemented. If patients can wait until they get sick to buy insurance, they will drain all the money out of an insurance plan that they have not previously paid into, massively driving up costs for the rest of the plan’s consumers.
This problem doesn’t just make the insurance coverage requirement good policy, it also makes it constitutional. The Constitution doesn’t just give Congress sweeping authority to regulate the national economy, it also authorizes it “[t]o make all laws which shall be necessary and proper for carrying into execution” regulations of interstate commerce. As conservative Justice Antonin Scalia explains, this means that, “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”
So, with this background in mind, consider the following passage from the private plaintiffs’ brief arguing that the entire law must fall if the insurance coverage rule goes down:
The mandate was intended to be a direct subsidy to insurance companies, as compensation for requiring them (in the guaranteed-issue provision) to insure against “risks” that have already come to pass and forbidding them (in the community-rating provision) from using actuarially sound insurance premiums. The mandate thus works to counteract the powerful inflationary impacts of these other provisions, which would otherwise make premiums in the individual insurance market prohibitively expensive, thereby frustrating Congress’ goal of affordable health insurance. And Congress further viewed the mandate as necessary to prevent “adverse selection” to “game” the new insurance rules, which proponents warned would spark a “death spiral” in insurance.
The guaranteed-issue and community-rating requirements thus cannot operate without the mandate in the manner intended by Congress. Rather, “their associated force—not one or the other but both combined—was deemed by Congress to be necessary to achieve the end sought.” To strike the mandate alone would impermissibly eliminate a central quid pro quo of the Act. If the mandate falls, the guaranteed-issue and community-rating regulations must therefore fall with it, as the Government itself has conceded.
So the plaintiffs admit that, without the insurance coverage requirement, premiums will become “prohibitively expensive” and that the ACA’s provisions protecting people with preexisting conditions or who otherwise are highly likely to need health care (what are known as “guaranteed-issue” and “community-rating” laws in the jargon of health policy) “cannot operate without the mandate in the manner intended by Congress.” This is a flat out admission that the Scalia Rule applies in this case. Guaranteed issue and community rating are regulations of interstate commerce, and thus Congress has “every power needed” to make them effective — including the power to enact the insurance coverage requirement.
I discuss this rather breathtaking admission at greater length in an amicus brief I filed Friday on behalf of several health provider organizations, which also includes some more details about why the plaintiffs’ attempt to take out the entire ACA has no basis in law. Ultimately, however, there is no need whatsoever for the justices to consider how much of the law stands or falls without the coverage requirement. The private plaintiffs already gave away the farm when they admitted that their entire legal challenge rests on a crumbling foundation.
By: Ian Millhiser, Think Progress, January 30, 2012
Unlimited Contributions Give “Super PACs” Power To Change Presidential Race
With the South Carolina primary less than a week away, residents of the state are being bombarded with a barrage of political advertisements funded by Super PACs.
“It’s coming in fast and furious,” said Randy Cable of South Carolina’s conservative talk radio station WORD.
Cable said that Super PACs are buying up a majority of his station’s air time.
“They’re a game changer,” Cable told Rock Center Special Correspondent Ted Koppel in an interview scheduled to air Monday night.
This election season is the first presidential race to feel the influence of Super PACs, political action committees that can receive unlimited money from individuals, corporations and unions. Some of these Super PACs have morphed into powerful outside organizations working solely on electing a presidential candidate of their choosing. While a campaign supporter can only donate $2500 directly to a presidential candidate, he or she can donate unlimited amounts of money to a Super PAC supporting the same candidate.
“The Super PACs are outspending the candidate committees two to one at this point in time,” Cable said. “The ones that are buying the most [air time] are going to have the biggest impact. You know, just like in the world of business and advertising, politics goes the same way. Those that spend the most have the biggest impact.”
Every major GOP presidential candidate has a Super PAC supporting their campaign. Super PACs are supposed to operate independently of the candidates, meaning they can’t communicate directly with the politicians and their campaign staff. Super PACs have been effective even with the communication barrier, because they are often run by people who already know how the candidates think. A look at whose running the Super PACs reveals a roster of former staffers and advisers to the presidential candidates.
Carl Forti, a former political director for Mitt Romney, helped launch the ‘Restore Our Future’ Super PAC in 2010. The Super PAC supports Romney’s campaign for president.
Koppel asked Forti, “Some of the research I’ve read on you and your organization suggests that you may by the end of this political year have spent four hundred million dollars on the campaign. Is that fair? Does that seem reasonable?”
Forti responded by saying, “Potentially. Well, that seems a little high probably, but between the different entities it may be three hundred, three-fifty.”
Of those criticizing the millions raised by Super PACs, Forti said, “There’s a lot of criticism leveled at Super PACs, but we’re just operating under the laws as provided.”
The Citizens United Supreme Court decision in 2010 allowed the unique political action committees to form. In the case of Citizens United against the Federal Election Commission, the Supreme Court ultimately ruled that the government could not limit political spending by corporations.
Some of this election year’s most negative advertising has come from Super PACs, giving candidates a way to effectively attack an opponent without having the blame pinned directly on them.
At a press conference held Monday morning in South Carolina, Republican presidential candidate Jon Huntsman cited the negative tone of this year’s campaign when he announced he was dropping out of the race.
“This race has degenerated into an onslaught of negative and personal attacks not worthy of the American people and not worthy of this critical time in our nation’s history,” Huntsman said.
Political analysts say that an anti-Newt Gingrich ad run by ‘Restore Our Future’ during the lead-up to the Iowa Caucuses significantly impacted Gingrich’s one-time lead. Gingrich finished fourth in the caucuses.
“We learned in Iowa, if you unilaterally disarm, you might as well not run. If you allow other candidates to have a scorched earth, multimillion dollar ad campaign and there’s nothing that responds, they simply, by constant defamation drive you down,” Gingrich told Koppel.
Following Gingrich’s finish in Iowa, a Super PAC supporting the former Speaker of the House called ‘Winning Our Future,’ received a $5 million donation from wealthy casino owner Sheldon Adelson. In South Carolina, ‘Winning Our Future’ has launched anti-Romney advertisements.
While Gingrich has publicly denounced the negative advertisement, the Super PAC supporting him continues to run the ad that paints Romney as a greedy businessman and attacks his record from his days at venture capital firm Bain Capital.
“We’re now entering a world where until the laws are changed, every serious campaign will have one or more Super PACs. They will spend an absurd amount of money and it will virtually all be negative. That’s a fact,” Gingrich said. “Given the playing field right now, you have no choice.”
The power of the Super PAC has been mocked by comedian Stephen Colbert, host of Comedy Central’s ‘The Colbert Report.’ Colbert created his own Super PAC and recently handed over control of it to Jon Stewart, renaming it ‘The Definitely Not Coordinated with Stephen Colbert Super PAC.’
Colbert handed over control to form an exploratory committee about a possible presidential run in South Carolina. His Super PAC also launched a satirical anti-Romney advertisement that likened the former Massachusetts governor to a serial killer, implying that Romney killed businesses.
Colbert talked to Koppel shortly before he relinquished control of his Super PAC.
“It would be stupid to be in the 2012 campaign or want your voice heard in the 2012 campaign and not have a Super PAC,” Colbert said. “I mean, the RNC, the DNC, those organizations really don’t mean much anymore. Karl Rove has more money than the RNC.”
Back in South Carolina, the advertisements seem to be getting nastier by the day as the million dollar donations continue to pour in.
“These Super PACs don’t have reputations to protect, so I think that there is a tendency for them to get nastier in the ads that they run and they don’t have the same restraints operating on them as candidate committees do,” said Ellen Weintraub, a commissioner for the Federal Election Commission.
Weintraub and the FEC are tasked with regulating the Super PACs. Weintraub said that a key difference between the PACs and the candidate committees is that the Super PACs do not have to disclose their donors as often. The first time that many of the Super PACs will disclose their donors will be at the end of January, which means that voters will have cast their vote in several key primaries before knowing who is behind the advertisements that flooded their televisions and radios.
“At some point, you have to step back from the regulations, you know, take your face out of the book and see the forest for the trees,” Weintraub said. “And I think for a lot of people out there, seeing the massive amounts of money that are being raised and spent by groups in the candidates’ names effectively on the outside, and seeing that these groups do appear to have some kind of connection to the candidates. I think it’s going to raise a lot of questions for the public.”
So how do political advertisements get so nasty? Unlike consumer advertisements, political ads do not have to be vetted by the Federal Trade Commission.
“I mean it’s actually more difficult to sell somebody white bread than it is to sell a president getting into the White House,” said Linda Kaplan Thaler, an advertising executive.
Thaler is behind campaigns like Wendy’s advertising campaign and the Toys R’ Us popular jingle, ‘I Don’t Want to Grow Up.’ Thaler said that when it comes to consumer advertising, it’s about building a love for the brand. With politicians, it’s different.
“You know, when it comes to politics, it’s not so much about, you know, that I have to love the candidate I’m voting for. It’s very often, I have to dislike him the least,” Thaler said.
By: Jessica Hopper, Rock Center, January 16, 2012
For “A Government That Represents All The People”, Overturn Citizens United
In America today, the top 1 percent earns more income than the bottom 50 percent and the wealthiest 400 individuals own more wealth than the bottom half of the country–150 million Americans. We have the most unfair distribution of wealth and income of any industrialized country.
In America today, the middle class is largely disappearing while the rich and largest corporations are doing phenomenally well. Meanwhile, despite a $15 trillion national debt, the effective tax rate for the top 1 percent is the lowest in decades and many large corporations enjoy huge tax loopholes and pay little or nothing in taxes.
In America today, while insurance companies and the pharmaceutical industry enjoy large profits, 50 million Americans lack health insurance, and we are the only major country on Earth that does not provide healthcare to all as a guaranteed right.
All of these disturbing American realities, and many more, are related to the sad fact that the Washington political establishment is much more interested in representing the wealthy and the powerful than the needs of ordinary Americans. Why is that? The answer is simple. We have a horrendous campaign finance system in which Big Money is able to elect the candidates of its choice and defeat those who oppose its agenda.
The absurd Citizens United Supreme Court decision makes a bad situation much worse. Now, corporations can go right into their treasuries, set up super PACs, and spend as much as they want, without disclosure, on political advertising. This gives the Big Money interests even more power over the political process. It makes it harder and harder for the voice of the average American to be heard.
If we are serious about giving ordinary Americans the power to control their political future, we must overturn the Citizens United decision, eliminate super PACSs, and move toward public funding of elections. Our goal must be a government that represents all of the people, and not just those wealthy individuals and corporations who can put millions into political campaigns.
By: Sen Bernie Saunders, Vermont; U. S. News and World Report Debate Club, January 13, 2012
Who Wants To Be A Millionaire?: “Current Presidential Race Has Demonstrated That A Million Dollars Is Nothing”
Back in the late-1950s there was a TV show called “The Millionaire” about a mysterious rich man, named John Beresford Tipton, who would anonymously give checks for $1 million to total strangers.
Usually, the recipient was a poor schlub who was over the top with joy until it turned out that the money didn’t buy happiness. Clearly, we were all better off in our humble homes, clustered around our 14-inch TVs.
I am bringing this up because the current presidential race has demonstrated that a million dollars is nothing — nothing — these days. Nothing! A million dollars is what they give you for designing the best pantsuit on a reality TV show.
Now, if you want to impress people, you have to be a billionaire, for sure. There are about 400 billionaires in the United States, and, while some of them are famous, like Bill Gates and Warren Buffett, many have profiles so low that their own families may not recognize them. Really, it could be the guy living down the block, if your block happened to contain a 30,000-square-foot Tudor with 10 bathrooms.
But even the humblest billionaire wants to be on the campaign trail this year. They’re everywhere. Rick Santorum has Foster Friess, a mutual fund manager who likes the fact that Santorum starts the day with 50 push-ups. (“That’s the kind of energy level that the Republican Party needs right now.”) Friess has vowed to give Santorum’s super-sized political action committee at least a million. Which certainly is the least he could do for all that exercise.
Newt Gingrich’s “super PAC” got $5 million from billionaire Sheldon Adelson, a casino owner, in what Adelson’s associates said was an act of friendship. I certainly hope so, since giving money to the Gingrich-for-president effort at this point is like betting that the New York Jets will win the Super Bowl. You would think that a casino owner would know what futile acts of desperation look like.
Jon Huntsman’s dad is a billionaire, which didn’t seem to help as much as you would think. (Once again: not buying happiness.) Mitt Romney is probably only a quarter-of-a-billionaire, which, in this company, is kind of the equivalent of playing the harmonica for lunch money on the street.
But it’s hard to be sure about Mitt’s wealth because he has refused to release his tax returns. This is something every major presidential candidate in recent history has done, but so what? If every major presidential candidate in recent history jumped off the roof, would you expect Mitt to do that? How many other major presidential candidates in recent history came from the business sector? How many drove to Canada with their family dog strapped to the roof of the car? So, really, stop with the sweeping generalizations.
Romney does appear to have more billionaire pals than anybody — 10 percent of all the billionaires in the country are already giving money to Mitt, including Sam Zell, Destroyer of Great Newspapers, and John Paulson, a hedge fund operator who made a killing in 2007 by betting against the housing market. Forbes, which put Paulson at No. 17 on its list of richest people in America in 2011, said he had made $4.9 billion in the preceding year.
People, how much TV time do you think a person like that could buy if he put his mind to it? Seriously, by September we could be seeing entire networks devoted to nothing but Mitt Romney. Every week, Mitt will solve crimes, save patients with extremely rare diseases, build a house for a deserving family, help Zooey Deschanel with her dating problems and win bids for abandoned storage lockers all around the country.
Not that President Obama won’t have enough money to buy a channel of his own, if he wants one. So far, the president is behind Mitt in the billionaire donor sweepstakes, but he is still doing fine, thank you very much. So well, in fact, that a spokesman for the re-election campaign has been forced to denounce the idea that Obama will raise $1 billion. There’s that number again.
All these billionaires would not be so worrisome if the Supreme Court had not totally unleashed their donation-making power in the Citizens United case. Gingrich, who loved that decision, was furious when Mitt’s rich friends chipped in to run anti-Newt ads in Iowa.
He declined to acknowledge that the two things had any connection whatsoever.
“In fact, this particular approach, I think, has nothing to do with the Citizens United case. It has to do with a bunch of millionaires getting together to run a negative campaign, and Governor Romney refusing to call them off and refusing to be honest about it,” he told MSNBC.
Except for the part where the law that the court overturned had to do with keeping a bunch of millionaires from getting together to run a negative campaign. But, really, if they’re only millionaires, how much harm could they do?
By: Gail Collins, Op-Ed Columnist, The New York Times, January 13, 2012
“What Happened In Iowa Won’t Stay In Iowa”: Super PACs Are A Dangerous New Weapon
The barrage of commercials tells the story: This is a presidential election without meaningful contribution limits or timely disclosure, outsourced to political action committees whose spending often dwarfs that of the candidates they support.
The PACs’ benign, intentionally uninformative names belie the brutal nature of their attack ads and the closeness of their relationships with the candidates, despite the requirement that they operate independently.
The leading example, in terms of financial firepower and ferocity of assault, is “Restore Our Future,” the Mitt Romney-supporting super PAC that has unleashed a $4 million barrage against Newt Gingrich. (It worked. Gingrich complained of being “Romney-boated,” a reference to the Swift boat attacks on John Kerry in 2004.)
The committee is run by Carl Forti, political director of Romney’s 2008 campaign. Its treasurer is Charles Spies, the Romney 2008 general counsel. Its fundraiser, Steve Roche, headed the Romney 2012 finance team until jumping to the super PAC last summer. And to underscore the flimsiness of the PAC’s supposed independence, Romney himself has spoken at “Restore Our Future” events.
Yet up-to-date information about who is bankrolling this effort will not be available until the end of January, by which point four states will have voted and Romney may have the nomination wrapped up.
The last time “Restore Our Future” disclosed its donors to the Federal Election Commission was six months ago, when it reported raising $12 million. The committee would have had to update the information by Jan. 15 but — as have several other super PACs — it managed to postpone that two more weeks by changing its filing status from quarterly to monthly.
Of course, “Restore Our Future” isn’t alone — nor is the super PAC a Republican phenomenon. Rick Perry supporters have formed the “Make Us Great Again” PAC. Gingrich has “Winning Our Future.”
In New Hampshire, the “Our Destiny” PAC backing Jon Huntsman, and reportedly funded by the candidate’s wealthy father, has a new ad calling on voters to “stop the chameleon.” (That would be Romney.) On the Democratic side, Bill Burton and Sean Sweeney, former aides to President Obama, launched “Priorities USA,” which has already aired anti-Romney ads.
The rise of these groups erodes the twin pillars of a functional campaign finance system: limits on the size of contributions and timely information about who is writing the checks.
“The establishment of the candidate-specific super PAC is a vehicle to completely destroy candidate contribution limits,” says Fred Wertheimer, president of the campaign finance reform group Democracy 21, which is releasing a report on the phenomenon. “It is a vehicle that will spread to Congress and it will lead us back to a system of pure legalized bribery, because you will be back, pre-Watergate, to unlimited contributions that are going for all practical purposes directly to candidates.”
Bonus points: The super PAC funds the dirty work of attack ads while the candidate gets to remain above the fray, not required to appear on camera to say that he or she approved this message.
“I view the super PAC as the evil twin of the candidate’s campaign committee,” Federal Election Commission member Ellen Weintraub told me.
The emergence of these entities is the unanticipated but logical outgrowth of the Supreme Court’s ruling in Citizens United v. FEC. The uproar over the opinion involved the justices giving the all-clear to unlimited corporate independent expenditures on behalf of candidates, and this is still a potential problem.
But as a practical matter, most publicly held corporations are squeamish about being associated with such direct advocacy. Instead, the real-world impact of Citizens United, in combination with lower-court rulings, was to usher in the era of the super PAC.
“By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate,” Justice Anthony M. Kennedy wrote in the majority opinion, dismissing the notion that such spending could be corrosive.
Did he really mean to clear the path for independent expenditure committees backing a particular candidate — and bankrolled by the candidate’s father or run by his former top aides?
“How can it possibly be true that to give more than $2,500 to a candidate is potentially corrupting but to give millions to an outside group that is acting on the candidate’s behalf is not?” Weintraub asked.
Absent legislative intervention (unlikely) or regulatory action (even less likely), the super PAC is a dangerous new force in American politics. What happened in Iowa won’t stay in Iowa.
By: Ruth Marcus, Opinion Writer, The Washington Post, January 3, 2012
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