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The Humana Controversy and Government Funding:

Various people defended the Department of Health & Human Services "instruct[ing]" Humana to stop distributing allegedly "misleading and confusing" political advocacy, on the grounds that Humana gets huge benefits from participating in various DHS programs. But while the government has substantial control over how government program dollars are spent by people and institutions hired to administer the programs, the government may not impose blanket limits on everything the recipients say, as a condition of participating in the program. Rather, the recipients must retain the right to speak using their own money (at least unless their speech is otherwise punishable).

Here's the relevant passage from Rust v. Sullivan:

The Secretary's regulations [restricting the use of government funds for abortion-related speech] do not force the Title X grantee to give up abortion-related speech; they merely require that the grantee keep such activities separate and distinct from Title X activities. Title X expressly distinguishes between a Title X grantee and a Title X project. The grantee, which normally is a health care organization, may receive funds from a variety of sources for a variety of purposes. The grantee receives Title X funds, however, for the specific and limited purpose of establishing and operating a Title X project. The regulations govern the scope of the Title X project's activities, and leave the grantee unfettered in its other activities. The Title X grantee can continue to perform abortions, provide abortion-related services, and engage in abortion advocacy; it simply is required to conduct those activities through programs that are separate and independent from the project that receives Title X funds.

In contrast, our "unconstitutional conditions" cases involve situations in which the government has placed a condition on the recipient of the subsidy rather that on a particular program or service, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program. In FCC v. League of Women Voters of Cal., we invalidated a federal law providing that noncommercial television and radio stations that receive federal grants may not "engage in editorializing." Under that law, a recipient of federal funds was "barred absolutely from all editorializing" because it "is not able to segregate its activities according to the source of its funding" and thus "has no way of limiting the use of its federal funds to all noneditorializing activities." The effect of the law was that "a noncommercial educational station that receives only 1%" of its overall income from [federal] grants is barred absolutely from all editorializing" and "barred from using even wholly private funds to finance its editorial activity." ...

So if the government simply directed Humana not to use federally-provided funds for its political advocacy to recipients, that would be permissible. It's possible that if Humana used a federally-provided mailing list for its mailing (I don't know whether that's true), the government could attach similar restrictions on the use of the mailing list. But the government went further: It instructed Humana even to take the advocacy off its Web site, without regard to whether Humana used government-provided money for such advocacy. That, it seems to me, is unconstitutional under FCC v. League of Women Voters.

To be sure, because money is fungible, this League of Women Voters principle in effect does stop the government from making sure that its subsidies aren't indirectly used for certain speech. If the government gives someone $1 million (whether as a subsidy or as fair market compensation for the value of its services), and the speaker continues speaking using what is ostensibly its own money, that speech will still be much facilitated by the government grant -- the $1 million will free up money that the recipient would otherwise have had to spend, and will let the recipient use that freed-up money for its own speech.

But the Court considered that argument in League of Women Voters and rejected it. And when the government (federal, state, and local) controls 25-30% of the GNP, and provides valuable range of contracts and subsidies to a vast range of institutions, including private universities, think tanks, newspapers, and so on, giving the government a free hand to restrict recipients' speech as a condition of its contracts would give the government vast power over public debate.

stevesturm:
You may be right but so what? I doubt anyone at HHS cares whether they are constitutionally permitted to do what they did. They knew (or, at a minimum, had a good hunch) that Humana would both back down and not challenge the HHS in court. And HHS isn't about to reconsider their actions in light of this or any other analysis that says they were wrong.

Putting it another way, if an agency acts improperly but the target rolls over, who is to say that the agency acted improperly?
9.23.2009 1:14pm
ruuffles (mail) (www):

You may be right but so what? I doubt anyone at HHS DOJ cares whether they are constitutionally permitted to do what they did. They knew (or, at a minimum, had a good hunch) that Humana the detainees would both back down and not challenge the HHS DOJ in court. And HHS DOJ isn't about to reconsider their actions in light of this or any other analysis that says they were wrong.

Putting it another way, if an agency acts improperly but the target rolls over, who is to say that the agency acted improperly?

Whoa.
9.23.2009 1:18pm
ShelbyC:

They knew (or, at a minimum, had a good hunch) that Humana would both back down and not challenge the HHS in court.


I'm kinda interested in what Humana had to say. I bet I have 3rd party standing.
9.23.2009 1:18pm
ruuffles (mail) (www):
interesting tidbit: Rust was decided in 1990, League in 1983, both by 5-4 margins. But you'll notice that Rehnquist, White, Marshall, and O'Connor were in the majority and then in the minority, or vice versa.
9.23.2009 1:20pm
Steve:
What's interesting is that HHS didn't even make an argument. As discussed in the other thread, I'm pretty sure they could come up with something better than the pathetically weak Rust argument. But they didn't even try! Instead, the letter reads like "we demand you stop this speech, while we research the issue to figure out whether we're permitted to stop you." Someone exercised pretty poor judgment here.
9.23.2009 1:26pm
ruuffles (mail) (www):

As discussed in the other thread, I'm pretty sure they could come up with something better than the pathetically weak Rust argument. But they didn't even try!

Can you show me a corporate cease-and-desist letter that actually cites specific court cases?
9.23.2009 1:30pm
Stash:
I do not know if it is true, but it seems that there might be a reasonable restriction on the website that provides "official" Medicare information issued by the government--as opposed to a separate "company" website that does not provide such information. That is, it might be reasonable for the government to prohibit communications that could be mistaken as government-sponsored communications about Medicare. I will say though, that I have yet to find out what the precise restrictions really are. I place the burden on the government to show an affirmative right to restrict this speech, and I have not seen it.
9.23.2009 1:34pm
Melancton Smith:
Since detainees had and continue to file lawsuits challenging their detention, it is not at all analogous to deflect this. Reads like childish finger pointing.
9.23.2009 1:35pm
ruuffles (mail) (www):

Since detainees had and continue to file lawsuits challenging their detention, it is not at all analogous to deflect this. Reads like childish finger pointing.

That was not at all the case at the very start. In post-9/11 2002 and 2003, the winds were very much against them. So much so that the ACLU took a pass on representing them and lawyers from an even more liberal outfit took it on (I'll have to look it up).
9.23.2009 1:38pm
Tom952 (mail):
It is an interesting situation. Unlike the precident cited, the group comprised of the largest health insurers are so wealthy and powerful that they can confuse the voters and influence the lawmakers to pass laws to serve the interests of the insurers at the expense of the voters, defeating the democratic process.
9.23.2009 1:41pm
ruuffles (mail) (www):
Look up Rasul v Bush. It was filed in 2002 by the Center for Constitutional Rights.
9.23.2009 1:41pm
Steve:
Can you show me a corporate cease-and-desist letter that actually cites specific court cases?

Sure I can, just drop by my office. I've written many of them myself.

I'm not sure what people think a demand letter or a cease-and-desist letter looks like, but it's almost a given that you have to cite some sort of supporting authority. Maybe the opposing party is in violation of a contract, maybe they're in violation of a statute or regulation, maybe there's a judicial precedent on point. But a cease-and-desist letter certainly doesn't look like "I'm not telling you why, but you better stop or else."
9.23.2009 1:43pm
Bruce Hayden (mail):
It is an interesting situation. Unlike the precedent cited, the group comprised of the largest health insurers are so wealthy and powerful that they can confuse the voters and influence the lawmakers to pass laws to serve the interests of the insurers at the expense of the voters, defeating the democratic process.
I take this as either paranoid, or parroting a talking point for the President's health care reform proposals.
9.23.2009 1:53pm
Ilya Somin:
Eugene,

It's actually almost 40% of GDP.
9.23.2009 1:53pm
Mark N. (www):

I'm not sure what people think a demand letter or a cease-and-desist letter looks like, but it's almost a given that you have to cite some sort of supporting authority.

It's often shaky and conclusory, though, to the effect of, "you published something negative about me, which constitutes libel", without actually doing either a credible analysis of the standard for libel, or explaining why specific complained-of statements plausibly meet that standard. Here's one among many.
9.23.2009 1:56pm
Kazinski:
It is an interesting situation. Unlike the precident cited, the group comprised of the largest health insurers are so wealthy and powerful that they can confuse the voters and influence the lawmakers to pass laws to serve the interests of the insurers at the expense of the voters, defeating the democratic process.

The first amendment is all well and good, but there should be a way that reasonable people agree with that would allow the government to suppress speech that is contrary to its policies. After all they were elected to do the peoples business, and obstruction from corporations, opposition politicians, the people, and other special interest groups should not be allowed to obstruct progress.
9.23.2009 2:01pm
Steve:
It's often shaky and conclusory, though, to the effect of, "you published something negative about me, which constitutes libel"

Absolutely true, but at least there's an accusation that the tort of libel has been committed. I agree that it's the rare demand letter that cites chapter and verse the way a legal brief might. But it's even rarer to see a letter that states, as the government's letter does here, "we still haven't figured out what rule you're violating but stop anyway."
9.23.2009 2:06pm
Paul Zrimsek (mail):
The new hierarchy:
1. Strict scrutiny
2. Intermediate scrutiny
3. Rational-basis scrutiny
4. Looks kind of like a cease-and-desist letter scrutiny.
9.23.2009 2:08pm
ShelbyC:

It's possible that if Humana used a federally-provided mailing list for its mailing (I don't know whether that's true), the government could attach similar restrictions on the use of the mailing list.


This raises a larger issue WRT 1A issues surrounding govt ownership of IP.
9.23.2009 2:31pm
DennisN (mail):
Tom952:


It is an interesting situation. Unlike the precident cited, the group comprised of the largest health insurers government are so wealthy and powerful that they can confuse the voters and influence the lawmakers to pass laws to serve the interests of the insurers party in power at the expense of the voters, defeating the democratic process.
9.23.2009 2:35pm
Radar:
The first amendment is all well and good, but there should be a way that reasonable people agree with that would allow the government to suppress speech that is contrary to its policies.

Really? Really?

Isn't the raison d'etre of the 1st amendment to prevent the government from restricting speech that is contrary to its policies?
9.23.2009 2:40pm
Tom B (www):
My own, albeit limited, experience with DoJ is that it does not like to be more specific than it has to be. That way it can support its position with whatever it finds later. It is not a bad strategy.
9.23.2009 2:48pm
A.S.:
Isn't the raison d'etre of the 1st amendment to prevent the government from restricting speech that is contrary to its policies?

Yes. Well, other than during the few years between McConnell vs FEC and FEC vs Wisconsin Right to Life, when the Supreme Court effectively repealed the portion of the First Amendment protecting speech on topics contrary to the government's policies.
9.23.2009 2:54pm
ShelbyC:

Isn't the raison d'etre of the 1st amendment to prevent the government from restricting speech that is contrary to its policies?



Check the fuse in the sarcasm detector, dude.
9.23.2009 2:56pm
ruuffles (mail) (www):

Well, other than during the few years between McConnell vs FEC and FEC vs Wisconsin Right to Life, when the Supreme Court effectively repealed the portion of the First Amendment protecting speech on topics contrary to the government's policies.

And it's been over 35 years since Miller repealed the portion of the First Amendment protecting obscenity. Still waiting for Thomas and Scalia to get on that horse.
9.23.2009 3:02pm
egd:
ruuffles:

Can you show me a corporate cease-and-desist letter that actually cites specific court cases?

I got one a couple weeks ago, at least my client did. And it was from a guy named Steve...
9.23.2009 3:08pm
A.S.:
BTW, I find it interesting to note that one of the bases for the cease and desist letter was that it was somehow "misleading" to state that the healthcare bills under consideration in Congress would lead to cuts in benefits under the Medicare Advantage programs. Humana's claims was directly supported by the CBO in testimony yesterday:

Budget chief contradicts Obama on Medicare costs
By ERICA WERNER (AP) – 21 hours ago

WASHINGTON — Congress' chief budget officer is contradicting President Barack Obama's oft-stated claim that seniors wouldn't see their Medicare benefits cut under a health care overhaul.

The head of the nonpartisan Congressional Budget Office, Douglas Elmendorf, told senators Tuesday that seniors in Medicare's managed care plans would see reduced benefits under a bill in the Finance Committee.

The bill would cut payments to the Medicare Advantage plans by more than $100 billion over 10 years.

Elmendorf said the changes would reduce the extra benefits that would be made available to beneficiaries.
9.23.2009 3:09pm
Radar:
Check the fuse in the sarcasm detector, dude.

Thanks for the reminder. It seems like I go through one of those things at least once a week. It its constantly overloaded by the unbelieveble-yet-not-sarcastic postings that I read in the blogosphere these days.
9.23.2009 3:13pm
JakeCollins:
Insurance companies can't lie to their customers. In the case of Humana, it was warning its customers that they would lose Medicare coverage if health care reform passes. And what if that leads seniors buying more coverage because they're being mislead?
It's analogous to a Mac sending out warnings to its customers that all the Windows computers are due to crash in 6 months.
9.23.2009 3:41pm
LorenW:
<blockquote><i>If the government gives someone $1 million (whether as a subsidy or as fair market compensation for the value of its services), and the speaker continues speaking using what is ostensibly its own money, that speech will still be much facilitated by the government grant -- the $1 million will free up money that the recipient would otherwise have had to spend, and will let the recipient use that freed-up money for its own speech.</i>

</blockquote>

Money paid as fair market compensation should not give the payor any rights, other than those understood by both the provider and the payor to be part of that fair market transaction. Money paid in fair market compensation is not facilitating anything. It is buying something. That the provider / seller uses any profits as they wish, does not mean the buyer facilitated that use.

And it doesn't "free-up" any money, unless the services provided have no cost to the provider, or the provider would have still incurred the cost even if not paid for the provision.
9.23.2009 3:46pm
egd:
It's analogous to a Mac the government sending out warnings to its customers that all the Windows computers insurance companies are due to crash in 6 months the cause of all our health care problems.
9.23.2009 3:53pm
A.L. (mail) (www):
It's probably worth noting that there are different standards that apply to commercial speech. Companies can't just deceive their customers, whether by mail or in television commercials.
9.23.2009 3:59pm
JakeCollins:
thanks egd to the editing. But I think you're conceding my point for the rationale of the government's decision. And insurance company practices are denying people access to health insurance. For example, I'm uninsured because I've had pancreatis... what your glibertarian solution... let me die?
9.23.2009 4:01pm
Thorley Winston (mail) (www):
Insurance companies can't lie to their customers. In the case of Humana, it was warning its customers that they would lose Medicare coverage if health care reform passes.


That’s not actually what the flyer in question said. It talked about proposals by Congress to make cuts to the Medicare Advantage program and made no claim that its customers would lose their Medicare coverage.

Although actually both Baucus and HR 3200 have in fact proposed making “cuts”* to Medicare (otherwise there wouldn't be any real "savings" in either plan) but that's not what Humana claimed in the flyer which got Baucus’ panties in a twist.

* I am of course using "cuts" to include "reductions in the projected rate of growth" which are called and reported uncritically by Democrats and the MSM as "cuts" whenever Republicans propose them.
9.23.2009 4:01pm
JakeCollins:

That’s not actually what the flyer in question said. It talked about proposals by Congress to make cuts to the Medicare Advantage program and made no claim that its customers would lose their Medicare coverage.



It strongly implied that Medicare benefits would be cut. To continue the earlier analogy, it would be like Mac sending out notices that "Windows is considering modifications in its OS that might affect your ability to access basic programs"--a true but highly misleading description of Windows 7.
And after looking at the mailer, it made the government's action seem even more justified--the mailer explicitly connected its misleading info about health care reform to the suggestion that they buy more coverage!
Even if you oppose health care reform, you should also oppose insurance companies taking advantage of your parents and grandparents.
9.23.2009 4:13pm
A.L. (mail) (www):
Prof. Volokh,

To elaborate on my previous comment. This is not a typical example of political speech. This is a communication from a company to its customers about a government program. There are any number of laws and regulations that prohibit companies from deceiving customers generally and, though I'm no expert on federal health care law, I believe there are a number of statutes and regulations that specifically prohibit companies who do business with the federal government from engaging in deceptive practices with respect to their customers. These laws do raise First Amendment issues, of course, but I believe they are more properly analyzed under the Central Hudson line of cases that address permissible prohibitions on commercial speech, not Rust v. Sullivan.

We can of course debate how/whether this particular Humana letter was deceptive, but I think we can all agree that it is permissible for the government to prohibit a company from deceiving its customers. If, for instance, Humana had written a letter telling its customers that the new law would result in them losing their coverage unless they pony up $1000 immediately, clearly that would be illegal and improper, even if the letter was sent out using Humana's own money.
9.23.2009 4:18pm
Kazinski:
Jake Collins:

But I think you're conceding my point for the rationale of the government's decision. And insurance company practices are denying people access to health insurance. For example, I'm uninsured because I've had pancreatis... what your glibertarian solution... let me die?


I'm sorry about your illness, but are you arguing for
a pancreatic exception to the first ammendment?

I too am concerned about my families health. My wife and I are both cancer survivors (so far at least), I worry that life saving technology will be denied or rationed if the government takes over health care.

By the way, even though both my wife and I have had cancer, we are both insured. I take it that you are uninsured because you went without insurance until you got sick and now you want it? Perhaps a one solution to the "free rider" problem is that you have to pay retroactive health insurance premiums (with interest) so to pay your fair share into the system. I think that would go far to eliminate the rational free rider problem for those that choose not to purchase health insurance, because everybody knows they're going to get sick eventually.
9.23.2009 4:19pm
josil (mail):
When I think about the claims that the Bush admonistration was adopting fascistic measures in its War on Terrorism, I can't recall anything quite so blunt as "shut up" repeated in various forms by the current regime.
9.23.2009 4:21pm
JakeCollins:

I'm sorry about your illness, but are you arguing for
a pancreatic exception to the first ammendment?

I too am concerned about my families health. My wife and I are both cancer survivors (so far at least), I worry that life saving technology will be denied or rationed if the government takes over health care.

By the way, even though both my wife and I have had cancer, we are both insured. I take it that you are uninsured because you went without insurance until you got sick and now you want it? Perhaps a one solution to the "free rider" problem is that you have to pay retroactive health insurance premiums (with interest) so to pay your fair share into the system. I think that would go far to eliminate the rational free rider problem for those that choose not to purchase health insurance, because everybody knows they're going to get sick eventually.


Unless you believe commercial speech should not be subject to regulation, I've already explained why your 1st amendment concerns are a non sequitar.

I was insured when I had pancreatis, but can't get insurance now. I'm no "free rider," and the fact that you want to project that onto me shows you up for the amoral sociopath you really are.
9.23.2009 4:23pm
stevesturm:

I'm uninsured because I've had pancreatis... what your glibertarian solution... let me die?
so who do you want to pay for the care you're either not able or willing to pay for yourself? taxpayers? people who have insurance, in the form of higher premiums and reduced coverage? or doctors and hospitals, in the form of unreimbursed care? whose pocket do you want to pick?
9.23.2009 4:25pm
A.S.:
I am confused by the people claiming that HHS was somehow prohibiting deceptive or misleading communications by Humana to its customers. The flier claimed that the bills in Congress would lead to benefit cuts under the Medicare Advantage programs. And, as was pointed out above, this claim was accurate.
9.23.2009 4:25pm
ShelbyC:
JakeCollins:

Unless you believe commercial speech should not be subject to regulation, I've already explained why your 1st amendment concerns are a non sequitar.


But this isn't commercial speech. Commercial speech is speech proposing a commercial transaction.
9.23.2009 4:29pm
JakeCollins:

But this isn't commercial speech. Commercial speech is speech proposing a commercial transaction.


The flyer explicitly advertised for insurance transactions. This is pretty weak sauce, even from hack crypto-libertarians.
9.23.2009 4:34pm
JakeCollins:

so who do you want to pay for the care you're either not able or willing to pay for yourself? taxpayers? people who have insurance, in the form of higher premiums and reduced coverage? or doctors and hospitals, in the form of unreimbursed care? whose pocket do you want to pick?


I want regulation forbidding discrimination against pre-existing conditions. Anyone can get sick. The fact that you have no concern for your millions of fellow citizens who lack health care because of the chance of nature suggests a sociopathy endemic to glibertarians who don't care about anyone besides themselves.
9.23.2009 4:37pm
Tom952 (mail):
I take this as either paranoid, or parroting a talking point for the President's health care reform proposals.

I am not parroting anyone's talking point. Paranoid? Consider - There is an abundance of confusion and misunderstanding of how health care is delivered and paid for in America due to the myriad programs in place, and how the various proposed changes will affect the status quo. Medicare, Medicaid, Medicare Advantage, Medigap, HSA, Group, Self-insured Groups, ASO, indemnity, non-indemnity... Few individuals understand the difference between existing plans that are government only; private insurance only, publicly subsidized private insurance, publicly subsidized private non-indemnity plans, and so on. There is the multi-tier pricing used by providers where they charge far more for a service to a patient outside of a negotiated network than they charge for the same service delivered to a patient who is covered by a negotiated price network. In such a confused debate, the twelve largest health insurers can publish half truths and pay lawmakers, and defeat the democratic process.
9.23.2009 4:41pm
A.L. (mail) (www):

But this isn't commercial speech. Commercial speech is speech proposing a commercial transaction


That seems like a difficult assertion to defend. This was a mailing from Humana to its Medicare Advantage customers talking about their coverage. Yes, the subject was pending legislation, but that doesn't change the obvious commercial nature of the mailing. Furthermore, Humana has these people's names and addresses by virtue of the fact that it administers a government program in which they are participants. Bombarding such folks with political advocacy (even if there was no commercial motive behind it) would be problematic.

For example, what if Humana sent out a letter to its Medicare Advantage customers encouraging them to sign living wills (OMG! Death panels!). Would you be okay with that? What if they sent a letter advocating for a law permitting federally funded abortions or euthanasia. Still okay with that?
9.23.2009 4:42pm
Kazinski:
Jake,
Corporations provide us with most of what we eat, drink, wear, read, live in, and drive in, as well as the energy to keep us warm and the medicine we need to stay well. If we got rid of government tomorrow, I'd still be able to go down to Walmart and get the things my family and I need to survive.

Given that, when the Government makes decisions that will hinder corporations from providing the people with the necessities of life, why shouldn't corporations be able to communicate with the people that depend on them for their daily wants and needs?
9.23.2009 4:42pm
MCM (mail):
If we got rid of government tomorrow, I'd still be able to go down to Walmart and get the things my family and I need to survive.


The naïveté here almost broke my monitor.
9.23.2009 4:45pm
JakeCollins:

Jake,
Corporations provide us with most of what we eat, drink, wear, read, live in, and drive in, as well as the energy to keep us warm and the medicine we need to stay well. If we got rid of government tomorrow, I'd still be able to go down to Walmart and get the things my family and I need to survive.

Given that, when the Government makes decisions that will hinder corporations from providing the people with the necessities of life, why shouldn't corporations be able to communicate with the people that depend on them for their daily wants and needs?


I have no inherent hostility to corporations. I'd just like to be able to buy some health insurance from one of them, along with millions of Americans who are also discriminated against because of pre-existing conditions.
Also, if there was no government you'd probably have some problem shopping at WalMart due to roving gangs a al Mad Max.
Finally, corporations are NOT allowed to mislead their customers--especially since their customers depend upon them for "their daily wants and needs."
9.23.2009 4:47pm
stevesturm:

I want regulation forbidding discrimination against pre-existing conditions.
in other words, you want everybody who now has health insurance to pay extra so you can get your medical bills paid. You do understand the basic economics, that if you're not going to pick up the tab then someone else has to, don't you?

And a nice bit of chutzpah on the guilt angle - you want to take my hard earned money out of my pocket and away from my family and you're trying to make me feel guilty for not doing so voluntarily? Sorry, but feeling concern does not obligate me to pay your bills. Hey, I want a bigger house, how about you paying for it? What, don't you have any concern for those who live in houses smaller than what they'd like?
9.23.2009 4:50pm
Tom952 (mail):
I want regulation forbidding discrimination against pre-existing conditions. Anyone can get sick

Pre-existing condition restrictions are a requirement of the insurance model, and this is the reason that insurance cannot be the solution. Without forced participation, people would not buy insurance unless they thought they were sick. When they decided they no longer needed the insurance, they would stop buying it. This is called "adverse selection" and "moral hazard". It is a structural limitation of indemnity insurance.

The solution is something like Medicare, which covers our elderly citizens who all have pre-existing conditions. They have one chance to buy into the plan when they turn 65. If they forego it, they pay a stiff penalty to enter the plan late. Participants pay a small premium, and the cost of Medicare is subsidized by payroll taxes. Medicare has been very successful in negotiating costs and fees and controlling administrative expenses.

I would like for all citizens and legal residents to have the opportunity to buy into Medicare at any age and pay a premium to fund the expected cost of their health care. State Medicare programs could provide subsidies for low income citizens that qualify. Perhaps there should be an additional premium for those with unhealthy habits, or perhaps unhealthy products such as tobacco could be taxed to pay for the health costs that result from use of the product.
9.23.2009 4:52pm
JakeCollins:


in other words, you want everybody who now has health insurance to pay extra so you can get your medical bills paid. You do understand the basic economics, that if you're not going to pick up the tab then someone else has to, don't you?

And a nice bit of chutzpah on the guilt angle - you want to take my hard earned money out of my pocket and away from my family and you're trying to make me feel guilty for not doing so voluntarily? Sorry, but feeling concern does not obligate me to pay your bills. Hey, I want a bigger house, how about you paying for it? What, don't you have any concern for those who live in houses smaller than what they'd like?


Nice to know that the glibertarians here truly are sociopaths. If the fact that your fellow citizens can't get coverage due to the chance of nature doesn't concern you, then I don't know what to say... except I'd rather be sick and dying rather than possess your very sad and pathetically small soul. Is that the lesson you teach your children? If so, they'll probably grow up to hate you.
9.23.2009 4:53pm
MCM (mail):
Perhaps there should be an additional premium for those with unhealthy habits, or perhaps unhealthy products such as tobacco could be taxed to pay for the health costs that result from use of the product.


We already have high taxes on tobacco, and I think there is something of a moral issue in taxing people with a verifiable addiction. I think better solutions would be ending corn subsidies and taxing junk food. Instead we have crap where the FDA allows manufacturers to market the health benefits of Froot Loops and mayonnaise.
9.23.2009 5:02pm
stevesturm:
you're just sticking to your talking points: insult those who don't feel obligated to open up their wallets to pay for what you don't want to pay yourself. Now that's a great lesson for kids: don't work hard, don't take care of yourself, don't save your money, you can always guilt someone to give you money. probably not hard to figure out who you voted for...
9.23.2009 5:03pm
stevesturm:

We already have high taxes on tobacco
and unless something has changed, by virture of their dying younger, smokers pay more in taxes and premiums than they consume. Get everybody to smoke, we'd solve the social security funding problem
9.23.2009 5:05pm
JakeCollins:

you're just sticking to your talking points: insult those who don't feel obligated to open up their wallets to pay for what you don't want to pay yourself. Now that's a great lesson for kids: don't work hard, don't take care of yourself, don't save your money, you can always guilt someone to give you money. probably not hard to figure out who you voted for..


I have worked hard my whole life, but sickness can afflict even the hard-working.. even your children. If you teach them that they shouldn't care about others, then they'll grow up to be the kind of assholes who'll shove you into a low-rent nursing home when you grow old. The fact that you think that I'm lazy shows more about your self-justifying sociopathy than anything else.
9.23.2009 5:07pm
geokstr (mail):

A.L.:
It's probably worth noting that there are different standards that apply to commercial speech. Companies can't just deceive their customers, whether by mail or in television commercials.

Yeah, too bad we don't have such regulations limiting the free speech of deliberately deceptive, but oh-so-smooth, presidents and congresscritters, eh?
9.23.2009 5:28pm
MCM (mail):
and unless something has changed, by virture of their dying younger, smokers pay more in taxes and premiums than they consume. Get everybody to smoke, we'd solve the social security funding problem


They die younger, but they also die in a relatively expensive fashion, as smoking is a contributing factor to lots of chronic conditions (like heart disease) as well as conditions that kill quickly (like lung cancer). The resulting strain on the health care industry raises costs for everyone.

The bigger worry, it seems to me, is diabetes. The lifetime costs of diabetes are staggering, although diabetes drugs and insulin are among the most profitable products for pharmacies. Hence my concern with ending subsidies for junk food, taxing it, and not worrying as much about cigarettes.
9.23.2009 5:33pm
Kazinski:
Also, if there was no government you'd probably have some problem shopping at WalMart due to roving gangs a al Mad Max.

I'd fully trust Walmart to provide adequate security in that case. Of course that is if I needed any help.
9.23.2009 6:11pm
JakeCollins:

I'd fully trust Walmart to provide adequate security in that case. Of course that is if I needed any help.


What about the roads on the way to Wal Mart? That's where the roving gangs will operate in a post-apocalyptic society. And who do you think built the roads? The libertarian elves?
You libertarians are truly delusional.
9.23.2009 6:17pm
Kazinski:
Jake,
we get it that you can't get health insurance, and you think someone else should subsidize it for you, and that anybody that disagrees is a sociopath. You're not a alone.

The part I'm having a hard time with is that you think that the government should be able to squelch opposing views. Humana basically said to its customers:


We like having you as customers but some of the health care proposals out there are going to cut funding for Medicare Advantage to the point that it may not be feasible for us to keep offering the insurance, or we may have to raise prices to the point where you can no longer afford it.

If you share our concerns contact your political representatives.


All of which is demonstrably true. Now I personally don't think that Medicare Advantage recipients have a greater moral claim to being subsidized than you do. But lets make it clear here what you are arguing, you are saying that you have a greater moral right to those subsidies than others do, and that it is wrong, amoral and sociopathic for a corporation to tell them their subsidies are in danger.

I happen disagree, amoral sociopath that I am.
9.23.2009 6:23pm
MCM (mail):
All of which is demonstrably true.


I don't think the word "demonstrably" means what you think it means.
9.23.2009 6:28pm
Kazinski:
What about the roads on the way to Wal Mart? That's where the roving gangs will operate in a post-apocalyptic society. And who do you think built the roads? The libertarian elves?
You libertarians are truly delusional.


Believe me without the government holding us back there will be a lot fewer roving gangs about. Especially if they are interfering with Walmart's or Exxon Mobil's business.

But I didn't say I don't think we need government. What I said is that most of my day to day wants and needs are filled by Corporations, not by Government. When it comes to that most roads are built by Corporations too, Government just takes care of the financing, and graft needed to build the roads. I could go on a lot longer with with Walmart being open for business and the government shut down than I could go the other way around.
9.23.2009 6:31pm
ray_g:
"Perhaps there should be an additional premium for those with unhealthy habits"

Here's the problem: who decides what is an "unhealthy habit"? I personally know lots of devoted runners and joggers and amateur football, basketball, etc. players who have had expensive orthopedic surgery due to sports injuries. More, in fact, than those with problems usually thought of as caused by bad habits (e.g. heart disease and lung cancer). Why shouldn't idiots who blow out their knees due to their obsession with so-called healthy exercise pay a higher premium?

I really don't think we want the government deciding which activities and life style choices are "approved".
9.23.2009 6:33pm
ShelbyC:

That seems like a difficult assertion to defend. This was a mailing from Humana to its Medicare Advantage customers talking about their coverage. Yes, the subject was pending legislation, but that doesn't change the obvious commercial nature of the mailing.



Well, the portion talking about the health care bill wasn't commercial speech, it was political speech. And that's the part HHS was trying to suppress.
9.23.2009 6:33pm
MCM (mail):
Here's the problem: who decides what is an "unhealthy habit"? I personally know lots of devoted runners and joggers and amateur football, basketball, etc. players who have had expensive orthopedic surgery due to sports injuries. More, in fact, than those with problems usually thought of as caused by bad habits (e.g. heart disease and lung cancer). Why shouldn't idiots who blow out their knees due to their obsession with so-called healthy exercise pay a higher premium?


What a cute anecdote. I'd love to see data suggesting ORTHOPEDIC INJURIES are the real weight crushing the American health system. It couldn't be diabetes and heart disease, no. Got to be sports-related injuries. Wow.

I really don't think we want the government deciding which activities and life style choices are "approved".


Really? Section 8 of the Constitution disagrees with you: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises..."
9.23.2009 6:41pm
MCM (mail):
That's Section 8 of Article I, obviously.
9.23.2009 6:41pm
ShelbyC:


I really don't think we want the government deciding which activities and life style choices are "approved".


Really? Section 8 of the Constitution disagrees with you: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises..."


Wow. Just....Wow.
9.23.2009 6:44pm
Kazinski:
I think the biggest question for Government health care advocates is: Why are you so obsessed with money?

Our current system is focused on Quality. Very little thought is given to money when diagnosing or treating illnesses. What is being advocated is a system that resolves around how to limit health care costs, and really the only way to do it is to ration care. Either payments to Doctors, nurses, hospitals, drug companies are going to be reduced to the point where the supply is restricted by suppliers getting out of the business, or not getting in in the first place, or it will be rationed by the government being the gatekeeper and blocking access to care. Taxing medical device makers, and drug companies (the way the Baucus bill will do), will directly limit the money medical innovators have for research. Requiring medical boards to approve spending for new treatments and diagnostic tools will strictly limit the funds going for development of these new innovations.

I don't think the answer to health care reform is to focus on money over quality of care. If we do then people are going to die.
9.23.2009 6:47pm
MCM (mail):
Wow. Just....Wow.


So what is an excise tax on something other than a decision that it's not "approved"? Or do you think that a Constitutionally enumerated power can't be exercised?

Really. I'd love to hear how Congress can't impose a nation-wide excise tax for the general welfare of the United States, when the Constitution says "Congress has the power to impose nationwide excise taxes for the general welfare of the United States."
9.23.2009 6:48pm
ray_g:
"What a cute anecdote. I'd love to see data suggesting ORTHOPEDIC INJURIES are the real weight crushing the American health system."

I never suggested such a thing. I was using this as an example of the type of reasoning used to justify taxing or banning some activity which the speaker thinks (often without proof) is costly or otherwise undesireable. I've heard similar and sillier things presented as serious proposals from many folks, including our elected representatives.

To paraphrase a well know book, "Tax/regulate not, lest ye be taxed/regulated."

Oh, and just because the government can do something doesn't mean it is right, or that we should want them to do it. I made no comment on the ability of the state to do it, just the desirability. So Section 8 is really irrelevant here.
9.23.2009 7:10pm
Kazinski:
I'd love to hear how Congress can't impose a nation-wide excise tax for the general welfare of the United States, when the Constitution says "Congress has the power to impose nationwide excise taxes for the general welfare of the United States."

Be my guest. I can't wait to hear all the former congressmen on the talking heads shows after the election.

By the time you add the drinkers to the druggies to the hamburger addicts, to the unsafe sexers, to the mountain climbers, to the couch potatoes then I think you'd have a landslide. And the smokers are already pissed off.
9.23.2009 7:16pm
MCM (mail):
Sorry, when you said:

I personally know lots of devoted runners and joggers and amateur football, basketball, etc. players who have had expensive orthopedic surgery due to sports injuries. More, in fact, than those with problems usually thought of as caused by bad habits (e.g. heart disease and lung cancer).


I took that to mean you thought we should be more concerned with sports-related injuries than "bad habits".

I was using this as an example of the type of reasoning used to justify taxing or banning some activity which the speaker thinks (often without proof) is costly or otherwise undesireable.


Except there is absolutely mountains of evidence that a lack of exercise and poor diet lead to diabetes, heart disease, obesity, gout, etc. I'm not even sure where you're going with this argument.

Obviously building a convincing case to tax a behavior requires convincing evidence. Nobody is suggesting otherwise.

Oh, and just because the government can do something doesn't mean it is right, or that we should want them to do it. I made no comment on the ability of the state to do it, just the desirability.


Of course. That's where the evidence comes in. If you think your Congresscritter is doing stupid things that don't rely on sound reasoning, you should probably vote it out of office.

So Section 8 is really irrelevant here.


Apparently ShelbyC disagrees. And I've heard numerous times from other libertarians that the government can't/shouldn't try to encourage different lifestyle choices through excise taxes. Despite Adam Smith and the Constitution arguing otherwise.
9.23.2009 7:18pm
ShelbyC:
Well, I guess all these years I've been laboring under the conception that those powers were to raise revenue. Silly me.
9.23.2009 7:26pm
ShelbyC:

Despite Adam Smith and the Constitution arguing otherwise.


Adam Smith was pretty down on excise, IIRC. And I think you're reading a little too much into the tax&spend clause.
9.23.2009 7:32pm
MCM (mail):
Adam Smith was pretty down on excise, IIRC.


Indeed! He said, "The motive for the implementation of excise should be nothing more than to curb the pursuit of goods and services harmful to our health and morals".

And I think you're reading a little too much into the tax&spend clause.


What particular part of

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;


am I "reading into"? I'm not even suggesting Congress has to spend the tax on anything in particular. Just that Congress would have the power to, say, tax sweeteners.
9.23.2009 7:37pm
Tom952 (mail):
I really don't think we want the government deciding which activities and life style choices are "approved".

It is not a matter of what activities and life style choices are "approved". It is a matter of incorporating a tolerable fairness in the premiums each participant should pay under the proposed solution. Currently, all Medicare recipients pay the same small fraction of the cost of the program and the remainder is made up by payroll taxes. If Medicare is opened up to all Americans, those who elect to participate in the program prior to age 65 will have to bear the cost. That cost can be allocated in different ways, and one way is to consider that on average people who stay in shape and refrain from smoking incur lower health care costs than those who do not. Another part of the solution is to consider taxes on products that are known to cause costly health problems, such as tobacco.

Not everyone can can buy health insurance and maintain the coverage throughout their life. In addition to the economic ups and downs that occur, as people develop chronic health problems insurers avoid covering them. This isn't because insurers are evil; it is because of the nature of the insurance business model, and management's duty to minimize costs and maximize profits. I suggest that giving individuals the opportunity to participate in Medicare and pay the cost of doing so provides them with a means to maintain reasonable health coverage not tied to a particular employer or region. I also believe that Medicare will always enjoy a cost efficiency over for-profit insurers. The experiment with Medicare Part D and Medicare Advantage programs are proving that concept to be valid.
9.23.2009 9:48pm
Tom952 (mail):
Believe me without the government holding us back there will be a lot fewer roving gangs about.

Oh yeah, I believe you man. Why just the other day I was saying that life looks just peachy over in Somalia where they do not have a rich, well organized government to screw things up.
9.23.2009 10:37pm
Kazinski:
Why just the other day I was saying that life looks just peachy over in Somalia where they do not have a rich, well organized government to screw things up.

I would be the last one to say that the last two hundred years of conservative and limited government has not brought enormous benefits to the United States. While those benefits are being eroded by the growth of government in the last few decades, they have been able to endure. That's why I want to put us back on the conservative and limited path, before too much damage has been done.
9.23.2009 10:55pm
Seamus (mail):

Wow. Just....Wow.



The use of this expression should be banned by law and punishable by flogging.
9.24.2009 10:11am
Seamus (mail):
Hey JakeCollins: How about laying off the ad hominems (i.e., repeatedly referring to people as sociopaths) and focus on the arguments.
9.24.2009 10:12am
Mac (mail):
I was wondering why no one in Congress was complaining about AARP disseminating info. re the their version of health care reform.

Here is an interesting article in today's WSJ.
9.24.2009 12:09pm
Mac (mail):

Seamus (mail):
Hey JakeCollins: How about laying off the ad hominems (i.e., repeatedly referring to people as sociopaths) and focus on the arguments.


Seamus,

The "Right" thinks the "Left" is well-intentioned, but based on history and facts, misguided.

The Left, feels and believes and if you don't feel and believe the same way, you are, by definition, an evil sociopath. End of discussion and no rational arguments needed.

It is the New Religion, based on Faith and you are an evil-doer if you are not a True Believer.
9.24.2009 2:04pm

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