Relevant and even prescient commentary on news, politics and the economy.

How Many of Obamacare’s New Enrollees Were Uninsured Last Year? Why It Doesn’t Matter

Maggie Mahar on the Uninsured:

As I explain in an earlier post, Charles Gaba, the enrollment guru who has been tracking Obamacare sign-ups since October, now estimates that by April 15, some 17 million Americans will have purchased their own insurance policies either in the Obamacare Exchanges (8 million) or off-Exchange (9 million)

But how many of them were uninsured and how many were simply replacing policies that the Affordable Care Act (ACA) had forced insurers to cancel?  This is the question conservatives ask.  After all they argue, if most of these folks already had coverage, we have just wasted a great deal of time and money moving them from a policy they chose to one that President Obama prefers.

There are two answers to their question. The first is that while we don’t have an exact number as to how many of the new enrollees were uninsured,we do know (thanks to Obamcare),  the percent of Americans who are “going naked” has declined.

Gaba offers a second, even better, answer: “It doesn’t really matter.”

I agree. As he explains:

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John Roberts Introduces a New Favorite Tactic This Term: Sleights-of-Hand Analogies

Roberts suggested that he believes Hobby Lobby and Conestoga Wood can bring forth claims of religious freedom, saying courts have held that “corporations can bring racial discrimination claims as corporations” and that “those cases involve construction of the term ‘person.’”

John Roberts Offers Conservatives A Way Out Of Birth Control Dilemma, Sahil Kapur, TPM, Mar. 26

About which I wrote a post here the next day titled: “Turns out Alito isn’t the only justice who conflates the Securities Exchange Act with state-law corporate-structure statutes.  Roberts does, too!  (Unless, that is, racial-minority-owned corporations are denied access to restaurants and hotels when traveling.  Or something.)

Yep. Unless, that is, racial-minority-owned corporations are denied access to restaurants and hotels when traveling.  Or something.

What I was referring to was this, from that post of  Kapur’s about the argument on Mar. 26 in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius, the two consolidated cases challenging as violative of the First Amendment’s free exercise clause the ACA’s employer contraceptive-coverage mandate, in which a threshold issue is whether corporations can exercise religion and therefore are “persons” within the meaning of the Religious Freedom Restoration Act:

After observing that “eight courts of appeals, every court of appeal to have looked at the situation have held that corporations can bring racial discrimination claims as corporations,” the Chief Justice asked:

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Obamacare Enrollment Heads for 17 million

by Maggie Mahar at The Health Beat Blog.

Charles Gaba, who has become the “Nate Silver” for Obamacare enrollment numbers; now predicts that by April 15, 17 million Americans will have purchased their own healthcare coverage.

His back-of-the-envelope estimate includes a nice round 8 million”  who buy policies in the government marketplaces. In parentheses, he suggests:  Perhaps a little higher (1M even?) and then strikes that thought;  “As always,” he notes, “I’ll be more than happy to be proven wrong, as long as I’ve undershot the mark.”

Gaba then adds roughly  9 million who, (according to a Rand Corp. survey), have bought their own policiesdirectly from insurers, instead of using the Exchanges. Nine million plus 8 million brings us to an astounding number: 17 million.

Rand shared its analysis  with the LA. Times, though it has not yet released its report. Obamcare’s  skeptics scoff at Rand’s number; but, Gaba points out the Blue Cross and Blue Shield Association alone have confirmed its member plans have enrolled at least 1.7 million people in plans that  meet the ACA’s requirements outside the exchange system.

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What the Supreme Court’s refusal today to agree to decide whether to strike down the federal statute that bars corporations from making contributions directly to candidates and political parties might suggest about the outcome of Hobby Lobby

When donors furnish widely distributed support within all applicable base limits, all members of the party or supporters of the cause may benefit, and the leaders of the party or cause may feel particular gratitude. That grati­tude stems from the basic nature of the party system, in which party members join together to further common political beliefs, and citizens can choose to support a party because they share some, most, or all of those beliefs. … To recast such shared interest, standing alone, as an opportunity for quid pro quo corruption would dramatically expand government regulation of the politi­cal process.

– John Roberts, McCutcheon v. FEC, Apr. 2, 2014

My reaction when I read that last: OMG! You mean it’s finally occurred to Roberts and Kennedy that CEOs of publicly-held corporations don’t actually necessarily share the same political views as all those other members of these “associations of citizens” from whom the CEO, er, the corporation, derives its First Amendment speech rights?  (And religious rights, too, although that’s another case, isn’t it?)

Actually, that was a comment I posted to a Slate article last week about McCutcheon that included the above quote from that opinion.  The religious-rights cases I had in mind were, of course, the Hobby Lobby Stores v. Sebelius and Conestoga Wood Specialties v. Sebelius, the for-profit-corporation ACA-contraceptive-mandate cases, which were argued at the court on Mar. 25.

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Two Yale law professors think they know what, exactly, the APPEARANCE of quid pro quo corruption looks like. They don’t. But I do.

If the president is to be taken seriously, it’s time for him to make campaign finance a centerpiece of the upcoming campaign. Despite appearances, serious reform remains possible within the new limits set out by the Roberts court. Obama should take full advantage of the chief justice’s explicit recognition that the “appearance of corruption” serves as a compelling rationale for controlling contributions. This provides a meaningful roadmap for concrete reforms that will call a halt to the rise of plutocracy in American politics.

Consider, for example, the pathologies surrounding Wall Street’s defense of the loophole allowing big money to pay only 15 percent tax on investments as “carried interest.” To defend their right to pay lower rates than the average worker, hedge funds have doubled their political contributions from $20 million in 2008 to $40 million in 2012; yet more recently, private equity firms have entered the contribution business in a big way for the first time.

All Eyes on Obama: Obama needs to put his money where his mouth is on campaign finance reform, Bruce Ackerman and Ian Ayres, Slate, yesterday

In this post of mine here on Thursday, I mentioned that Roberts said in McCutcheon that Congress could still “regulate campaign contributions to protect against corruption or the appearance of corruption,”  but then limited “corruption” to an actual quid pro quo. Which I think there’s no question that he did. I then said this raises the question of what, exactly, the appearance of quid pro quo corruption looks like.  “Y’know, as opposed to the real thing,” I said.

Ackerman and Ayres, both of them Yale law professors, want Obama to try to push Congress to hold Roberts to the “appearance of corruption” thing. Which, as reflected in that quote above, would require an express statutory bar to large campaign contributions–to candidates and also, presumably, political parties–by anyone who made the contribution in order to obtain or prevent an end to favorable tax, subsidy or regulatory legislation, if that candidate wins (or that party wins control) and then does the bidding of the contributor.

That conduct is comfortably within most Americans’ definition of actual (if legal) corruption, I think, but it is expressly precluded from Roberts’ definition of “corruption” and also from his definition of the appearance of corruption. Still, the professors go on to say:

The impact of this rapid expansion in large gifts was recently on display when Republican Dave Camp, chairman of the House Ways and Means Committee, proposed a sweeping tax reform that would have eliminated this, and many other, loopholes that allow the top 1 percent to pay taxes at lower rates than those imposed on the average working family. Within days, threats of campaign retribution had generated widespread opposition in congressional ranks, leading a despairing Camp to announce that, despite his powerful position, he would not seek another term in office.

This stunning defeat of a reigning congressional baron, together with the escalating sums of big money, is more than enough to establish the “appearance of corruption.” Under present law, for example, federal contractors are not allowed to “make any contribution of money or other things of value” to “any political party, committee, or candidate.” After reviewing relevant case-law, a federal district judge upheld the ban because it “guards against ‘pay-to-play’ arrangements, in which people seeking federal contracts provide financial support to political candidates in return for their help securing government business.”

The same rationale should lead President Obama to propose a ban on contributions from taxpayers benefiting from the “carried interest” loophole. Going further, he should cap donations on any person who pays a lower tax rate than the rate of the average worker.

I assume that Ackerman and Ayres are sarcastically making the point that I tried to make: that McCutcheon actually limits campaign-finance laws to prohibiting what already violates criminal law: bribery.

But this illustrates an even more important point.  A key modus operandi of that crowd is to effectively amend the Constitution by redefining common English-language words and phrases, to the extent needed to achieve their goal.

“Corruption” means only smoking-gun quid pro quo. The “appearance of corruption” means only smoking-gun quid pro quo.

“Freedom” does not include actual physical non-imprisonment; to the contrary, “freedom” means states’–or actually, state courts’and prosecutors’ freedom to violate criminal defendants’ constitutional rights, to their heart’s content.

“People” means “states,” except that it really doesn’t, usually; it only does when the Voting Rights Act is being challenged as an unconstitutional infringement of the Fourteenth Amendment’s guarantee of due process and equal protection of the law. Heretofore (that is, since that Amendment’s ratification in 1868, until last year)  the Fourteenth Amendment was thought to guarantee those rights only to human beings, and its sole purpose was interpreted to protect only against states’ violations of those rights, since that is what it says; the Amendment does limit the guarantees to “people” and protects only against state–not the federal government’s–violations of those rights.

Just so you know, the section of the Fourteenth Amendment that Roberts, Kennedy, et al. said they were relying on to strike a key section of the Voting Rights Act last year, upon their stated conclusion that that section guarantees states the right to equal protection of federal laws, reads:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

And, of course, “people” means for-profit corporations, for purposes of First Amendment freedoms.

This is a seriously dangerous tactic, being employed now, regularly, by a bare majority of our country’s Supreme Court.  They de facto amend the Constitution to change its very nature, and of course not incidentally the very nature of the electoral process, simply by giving unconventional meanings to common words.

I do disagree, strongly, though, with Ackerman’s and Ayres’ proposition that Obama himself constitutes the end-all-and-be-all of making McCutcheon a significant campaign issue this year (or not). A huge problem for the Democrats, throughout the Obama administration, has been the failure of members of Congress and candidates for Congress to pick up Obama’s bizarre slack–on the ACA, on Keynesian economics, and on other critically important policy issues. Obama’s not going to change.  So what? This year’s Dem candidates can get these messages across on their own.

If they want to.  And they should want to.

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*Post edited substantially and expanded. 4-6

** Now cross-posted at my own newly minted blog, called … The Law of the Jungle.

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No, Mr. Kleiner, John Roberts showed that he knows perfectly well how money works in politics.

An article by Sam Kleiner posted yesterday on the New Republic’s website is titled “John Roberts shows he has no idea how money works in politics.”

Mr. Kleiner must not understand the real purpose of the Conservative Movement’s decades-long crusade against campaign-finance laws.  In fact, Roberts showed in McCutcheon v. FEC (yet again) that he knows perfectly well how money works in politics.

If you get my drift.

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The REAL news from the McCutcheon v. FEC opinion

“There is no right more basic in our democracy than the right to participate in electing our political leaders.”  That’s how Roberts began the opinion.

So I guess we can now assume that the Court will strike down all those voter-ID laws that so clearly impact that most basic of rights, and will do so by unanimous vote of the justices.

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UPDATE: Reader Alex Bollinger wrote this morning in a comment to this post:

Remember when the Republican SC justices (no, I will not pretend they’re apolitical) wrote an opinion in Bush v. Gore that there’s no right to vote? And that Scalia said, several times in oral arguments on that case, that no where in the plain text of the Constitution does it say that there’s a right to vote? This finding was fundamental to their argument – if there’s no right to vote, then they could discuss and bend state election law as they’d like without respect for voters’ participation in democracy.

I’m glad these folks finally found that right! Too bad rights magically disappear and reappear based on whether they further Republican Party goals.

To which I responded:

Alex, thank you so much for reminding me that Scalia said in Bush v. Gore (and elsewhere) that the Constitution provides no right to vote!  No, no, they didn’t recognize a constitutional right to vote, in McCutcheon. They just said the obvious: that there is no right more basic in our democracy than the right to participate in electing our political leaders, because “participate in electing our political leaders” means only campaign contributions.

Democracy is a synonym for capitalism, Alex.  It says so in the First Amendment.

And “hypocrisy”–bald, jaw-dropping hypocrisy–is a synonym for the Conservative Legal Movement.

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OK, so what exactly does the APPEARANCE of quid pro quo corruption look like? Y’know, as opposed to the real thing.

John Roberts wrote in yesterday’s opinion in McCutcheon v. FEC that Congress may still “regulate campaign contributions to protect against corruption or the appearance of corruption.”  He then limited “corruption” to an actual quid pro quo.

Which raises the question of what, exactly, the appearance of quid pro quo corruption looks like.  Y’know, as opposed to the real thing.

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