Pay2Play Ceci: “The Most Influential Players” Love MaxTax

Pay2Play Ceci Connolly has an article out summing up the reaction she’s seeing to Max Baucus’ health care plan:

As they scoured the 223-page document, many of the most influential players found elements to dislike, but not necessarily reasons to kill the effort. Most enticing was the prospect of 30 million new customers.

In order of appearance, here are the people she cites in her article (I’ve bolded the ones she has actual quotes from):

  • Max Baucus
  • Obama
  • Liberal Democrats and allies, particularly labor unions
  • Republicans
  • Major industry leaders and interest groups
  • White House strategists
  • Obama
  • John D. Rockefeller
  • Lawmakers and lobbyists
  • Ron Wyden
  • Neil Trautwein, a vice president of the National Retail Federation
  • Leaders of the Business Roundtable and the National Federation of Independent Business
  • Drugmakers and hospitals
  • Kenneth E. Thorpe, an Emory University professor and Clinton administration official (noting that health care providers stand to make more than they’ll lose)
  • Max Baucus
  • Several trade associations
  • The medical device industry (dsecribed "recruiting" four senators to roll back fees on its industry)
  • One White House aide

In all, Ceci presents a landscape in which the most important players–aside from two Senators who have been slighted in the process thus far–are trade industry groups. And the most important issue for them is the profit they stand to make off of taxing America’s middle class to make them wealthier.

Now, to be fair to Pay2Play Ceci, that’s unashamedly the point of her article–that while the bill has pissed off Democrats and Republicans, it has thus far lulled the industry with dreams of forthcoming riches.

But behind the rhetorical fireworks was a sense that the fragile coalition of major industry leaders and interest groups central to refashioning the nation’s $2.5 trillion health-care system remains intact.

And also to be fair to Pay2Play Ceci, it’s clear that these players were the prime movers behind this bill. The story is absolutely accurate–though that doesn’t mean it has any business being told.

Nothing demonstrates the degree to which actual politicians–much less their constituents–have become mere bystanders as the health care industry crafts up a plan to get 30 million new captive customers.

One more point on this (so I can count this as my daily thrashing of the WaPo). An article like this is the natural outcome of the WaPo’s attempt to be a broker of the key players (not surprisingly, the same industry hacks highlighted here) in the health care debate. From the time Katharine Weymouth first recruited Pay2Play Ceci to invite her clients sources to the Pay2Play salons, it pretty much guaranteed that Pay2Play Ceci would come in at precisely this moment and present the industry’s judgment–that they’d be perfectly happy getting 30 million new customers with almost no payback–as "news."

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

140 replies
    • LabDancer says:

      This links to your own story!

      I particularly hate this tactic for how much it feels like a second generation con. I did wonder ever so briefly if you might feel somehow vindicated in being driven to this tactic, by some number of commenters in the FDL firmament having clearly indicated they Won’t Get Fooled Again into reading one of your conspiracy theories? Then the concern faded, probably because I don’t care anywhere nearly as much about that as I despise finding myself flat on my keister looking skyward having once again naively expected the football to be there.

  1. klynn says:

    Neil Trautwein, a vice president of the National Retail Federation

    Gee, Walmart didn’t want their name in print. It would be bad advertising? You know the…Walmart…

    Save money.
    Live better.


    • klynn says:

      Let me update that comment with some clarification.

      After a front-page Wall Street Journal story and a quote in the Washington Post, NRF’s Neil Trautwein appeared on CNBC and FOX Business to talk about a letter that Wal-Mart sent to President Obama supporting the idea of employer mandates for health care. Trautwein said NRF was “flabbergasted” by Wal-Mart’s decision to support employer mandates.

      And here is a good blog post from this summer which seems to hit on some of the Walmart motive.

      • readerOfTeaLeaves says:

        supporting the idea of employer mandates for health care.

        I don’t have time to look into this, but just from the excerpt that you have posted, the problem I see is: NO competition in this bullshit.

        Maybe Wall Street requested that WalMart make this statement?
        In my state, Costco, Starbuck’s, and other businesses have slammed WalMart b/c they believe that their employees should have medical, but trying to compete against WalMart when your costs per employer are higher is tough.

        This looks like a runaround; evasive action to try and obfuscate the fact that without actual, legitimate competition health care will not be reformed.

        Because ‘employer mandates’ is NOT the same thing as competition. It still leaves out millions and leaves small biz prey to huge health insurance corporations — economically disastrous for the larger economy.

        Howard Dean is absolulety correct in explaining that health care reform = business reform. That’s why it’s such a death-match IMVHO.

        Wyden and Rockefeller are the two guys that HealthCo is going after next, would be my hunch.

  2. JimWhite says:

    Danger sign for the MaxTax folks–workers are already fed up BEFORE you screw them with this tax:

    Raises, bonuses and other incentive programs have been slashed since the downturn began, and employees saddled with additional workloads for less pay are becoming increasingly dissatisfied with their current position — or just plain burnt out.

    If CNNMoney is running stories on worker burnout, the Villagers really need to start paying attention. Burnout followed by MaxTax just might result in burning torches accompanied with pitchforks…

    • klynn says:

      I have been making this point often. It is not just raises, bonuses and incentive programs that have been slashed. People took pay cuts in the form of furloughs. Then picked up additional work load as others were laid off. And there is no chance for a cost of living increase on the future horizon. Additionally, more furloughs may be in many folks near futures, just to keep their company afloat. Health care costs have been rising ever since furloughs were necessary (and prior). In addition to furloughs, benefits were still taken out to make up for the non-work weeks.

      Water bills are rising. Electric bills are going up.

      This is just madness boiling.

      • klynn says:

        ScoutFinch and JimWhite:

        And homes in one’s neighborhood may also end up in foreclosure (especially if a large employer laid people off) dropping the value of each house in the neighborhood by as much as $8700 per foreclosed house. Eating away at equity.

        Not to mention, eating away at the time our local sheriff’s department spends on actual safety measures when they are having to deal with so many foreclosures.

      • PJEvans says:

        One of my fellow commuters has been informed that there won’t be a 4 percent cola this year. That money was going to pay for food and housing …. (The employer is actually using that money for much-needed infrastructure repairs and improvements.)

    • ScoutFinch says:

      Yes, if unemployment continues its upward spiral (30% of the losses in my industry – construction) – then there will be LOTS of folks with free time to man the phones, get out in the streets, and do all sorts of unpleasantness that I’m sure both the Village and the Lords will positively hate.

      Once again, all together now, It’s the Economy, Stupid!

  3. Peterr says:

    Yeah, I don’t hear any voices from the Baucus Caucus screaming “Only 30 million new customers? Kill the bill!”

    From the piece: “At the heart of the administration’s strategy — and Wednesday’s guarded optimism — is a collection of deals intended to neutralize the interest groups that helped defeat President Bill Clinton’s health-care overhaul 15 years ago.”

    Giving them what they want would tend to have that effect.

  4. Mauimom says:

    One more point on this (so I can count this as my daily thrashing of the WaPo).

    Could you please up your daily quota of WaPoo thrashing? Perhaps it will drive them out of business sooner.

    [I continue to pray for Warren Buffet to wake up and dump Berkshire Hathaway’s investment in the Poo.]

    • BoxTurtle says:

      The WaPo is too important a mouthpiece for key players. Some friendly Moonie will find the cash to keep it operating, regardless of whatever Marcy writes. Perhaps they’ll do it BECAUSE of what Marcy writes, I just gotta a feeling that she really ticks off some of those folks.

      Boxturtle (Which is a good thing)

  5. Mauimom says:

    while the bill has pissed off Democrats and Republicans, it has thus far lulled the industy with dreams of forthcoming riches.

    Well that fulfills Rahm’s champagne wishes & caviar dreams!!

    • scribe says:

      Nice bitch-slap-back Burris gave Rahm yesterday, too. Proclaiming he will not vote for any bill that won’t include a public option.

      I love it when things come together….

      • BoxTurtle says:

        Burris is getting nothing in the way of campaign contributions from anybody, every Democrat in the senate leadership is likely still pissed at him for accepting that seat.

        It might be a vote of conscience…or it might be a poke in the eye with a sharp stick on his way out.

        Boxturtle (Burris does strike me as somewhat unprincipled and somewhat vindictive)

          • PeterHug says:

            Hmmm…maybe Jim Bunning could be talked into voting for the bill, purely as a way to piss off Mitch McConnell (it strikes me that he would get a kick out of that).

  6. alinaustex says:

    The WaPo continues its death spiral spin out as as a mouthpiece of the corporate elite.
    And if memory serves lil Ms CecI was one of the media monkeys that danced to the kkarl organ grinder music -if not first quoting out of context the “Al Gore invented the internet “meme she ceratinly repeated that misquoted lie -thus of course helping to bring gwb43 to his eight years of crime & corruption,
    Ceci might as well go to work for Roger Ailes ( ARRRRGH ! )

  7. Leen says:

    EW you are so good
    “Now, to be fair to Pay2Play Ceci, that’s unashamedly the point of her article–that while the bill has pissed off Democrats and Republicans, it has thus far lulled the industry with dreams of forthcoming riches.

    But behind the rhetorical fireworks was a sense that the fragile coalition of major industry leaders and interest groups central to refashioning the nation’s $2.5 trillion health-care system remains intact.

    And also to be fair to Pay2Play Ceci, it’s clear that these players were the prime movers behind this bill. The story is absolutely accurate–though that doesn’t mean it has any business being told.”

    Wendell Potter nailed it “Insurance Industry Profit Protection and Enhancement Act”

    Sounds like the name of a love drug for industry executives

    • scribe says:

      Returning to small, independent teams like in the old days* might not be such a bad idea. As it is now, for a young guy who would be a driver, the easiest way to get a ride with a team is to be someone’s son or grandson, and staying on a team will require the kind of … flexibility … described in the article. Talent and desire, alone, don’t go too far anymore.

      * I think back to the Andretti twins (Mario and Aldo) working nights with a third guy (who later quit racing and became a plumbing contractor) to build and rebuild their first stock cars (all this – especially the racing – over Mama Andretti’s strong objections) after working all day pumping gas and changing tires at a relative’s gas station. It worked out pretty well for them….

  8. perris says:

    explain this to me marcy, or anyone who has some kind of answer to this question because none of this is making any sense to me;

    if this bill is so good for the health care industry then why wouldn’t the industry get the republicans clamoring to sign on?

  9. fatster says:


    Judge Dismisses Large Part Of Hiring Case Against Bush DOJers
    Justin Elliott | September 17, 2009, 10:39AM

    “A federal judge has thrown out most of the class action suit alleging the Bush-era Justice Department improperly rejected intern applicants, the Legal Times reports.”


    • LabDancer says:

      Here’s my attempt to channel HL Mencken as a legal commenter [& hopefully HTML Mencken at least]:

      The decision here turns smartly on precedents said to bind the court in things it is required to consider, others it is bound to disregard, & what can done with what is left over. In not-that-many-years on the federal court bench, this judge has demonstrated a heightened sensitivity to the principle of deference, its corollaries & various subtle manifestations of each — and if not precisely a creative urge to interpolate & extend those, then a readily discernible propensity in favor of determining & applying the same, even when the result conveniences the interests of those in same political party as the president who nominated him.

      That was fun! Anyway, there are many, many previous posts here on decisions by Judge Bates, going back almost to the dawn of emptywheelitude in 2005. IMO the upshot is that he is as conservative as a federal court judge can be yet adhere to the rule of law & this decision reflects that point of view [Just read it; it’s all obvious]; but it’s nowhere near intellectual dishonest, nor can I recall any serious accusation of him ever playing fast & loose with the facts or the Constitution, & I would defy you, or Leen or anyone else here who’s not encountered his name before, to demonstrate to us all how, exactly this decision is wrong in law.
      I’m off for a meeting & anticipate returning thereafter fortified by a cup of early evening tea; I can’t tell you how much I am looking forward to this.

      • allan says:

        IANAL. But Bates fits comfortably into the category of Republican appointees
        whose decisions make Republicans very comfortable.
        Not to mention that he was a part of Kenneth Starr’s corrupt witch hunt.

        • LabDancer says:

          Fine; I know him a bit, & I’ve read a number of his decisions; you, on the other hand, apparently know him far better; & I’m very pleased with that, not the least because he’s never struck me as someone I’d enjoy sharing a beverage with, refreshing or otherwise.

          More to the point is that I take it we’re all to infer you have some insider knowledge that dispels the actual words Judge Bates uses in this decision, as magical intonations that mean something different than their plain meaning; & that the concepts he refers to in this decision as obliging its result don’t actually carry their usual meaning, but instead implicate something quite different from that, or at least beyond how such are used in the many other cases where they’ve been used & their propriety endorsed on grounds ranging from solid technical to widely defensible policy.

          But I’ve neither urged nor asked you or Leen or whoever else wants to jump in on this, to give up any confidence; or in the revealing of information which by such threatens anyone’s interest privacy interest; not anything of the sort. I haven’t thought I’d be in any way worthy of any such double secret sauce information, & I’m not suggesting any one else here is either [though of course they’re welcome to comment for themselves].

          All I’ve asked for, & what I’m so looking forward to in a such state of anticipatory excitement, is for someone to get on with it: go ahead & get behind that curtain & dip your magic brainiac machine in the holy oil of double secret insider information, then draw on whatever insight your might have, and proceed to use it to tear this decision & reduce it to the shredded, soggy state you imply it so richly deserves.

          I was born a quarter century too late to see Harry Houdini, but at least I’ll always have this.

      • Mary says:

        Without reading the opinion, but with reading the longer article, it looks like Bates is saying that instead of filing and asking for $$, a chunk of the plaintiffs were instead protected by the alternative remedy –

        – that of being able to apply to Scott Bloch (when he wasn’t tied up having his hard drives illicitly erased by the Geek Squad, or his home raided by the FBI, or readying himself for investigation by the HJC, or engaging in his own notorious conduct) for divinve Office of Special Counsel intervention.

        So see – all better.

        • LabDancer says:

          Oh fine; but you never used any special glasses, or deduced the existence of any secret ceremonies, or conjured up the specters of political payback, or anything like that; you just read. I could do that for myself. I did! Looks like a shitty state of affairs; but as to the decision extending political shenanigans through judicial corruption, maybe it’s like one of those magic eye pictures my own eyes are too old for.

          • readerOfTeaLeaves says:

            When I read comments like this one, I regard it as a pity that Henry Fielding and Jane Austen and Dumas (pere) are not around today to read here.

        • bmaz says:

          Yeah I just did a quick trip through the opinion. Bates is on solid enough ground I think. What is, really, the monetary claim under Bivens? Is a decent question. specific performance of hiring by a different DOJ when the individuals are no longer intern level etc. people isn’t really amenable either. And there was an administrative remedy scheme. I dunno, we may not like it, but it isn’t the worst decision in the world.

  10. zeabow says:

    washington post carrying water for the medical-health care complex

    They are so on the take any more. They must be selling propaganda in backroom deals now instead of selling it like avon at one of their employee’s social parties. Regardless, they are the worst of the “reputable” newspapers.

    “But behind the rhetorical fireworks was a sense that the fragile coalition of major industry leaders and interest groups central to refashioning the nation’s $2.5 trillion health-care system remains intact. As they scoured the 223-page document, many of the most influential players found elements to dislike, but not necessarily reasons to kill the effort. Most enticing was the prospect of 30 million new customers.”

    Who are some of these “interest groups?”:

    “”This is the best start of any of the bills” circulating on Capitol Hill, said Neil Trautwein, a vice president of the National Retail Federation. Leaders of the Business Roundtable and the National Federation of Independent Business were also generally positive about the Finance panel’s bill.

    Most noteworthy, perhaps, were the organizations that held their firepower. Drugmakers and hospitals, two groups that struck early deals with the White House and Baucus, had little to say.”


  11. JohnJ says:

    St.Pete Times headline today:

    $852b in Health Care Reform.

    I’m too busy this morning to read it (or all the comments here right now, sorry), but the lead in basically says Max’s plan sucks.

    The St.Pete Times has been pretty good at calling this shit out lately.

    They just got out from under a “false light” suit (I’ll look it up later and link it) that was stifling their reporting for several years.

    Sorry to hit and run.

      • JohnJ says:

        I knew you were in town (I suspect there is at least one more local as well?) *g*

        I don’t read it that much anymore, but they do at least have some true stuff. That’s more than I can say for most of them today.

      • PJEvans says:

        yesterday’s LA Times had an editorial on ACORN. It mentioned that the ‘pimps’ were conservative activists, but didn’t mention that ACORN fired the staff members involved and scheduled training for others.
        Just like the stories on ACORN and voter registration never mentioned that they’re required by law to turn in all the registration cards, no matter how fake the information appears to be.

  12. Blub says:

    If you are in their states, please consider calling Stabenow, Schumer, Rockefeller and Cantwell, all of whom are on the Senate finance committee and who have expressed reservations about the MaxTax, to commit to block this bill at the committee level. Any three of them working together should be able to do it. Then we can move forward with the Harkin bill instead. I don’t think we should allow this to get the full Senate, whether for a vote or for reconciliation. Let’s try to stop referral of this bill.

    • readerOfTeaLeaves says:

      Yes, and isn’t it worth noting that Ceci Connolly doesn’t seem to have quoted Howard Dean in her fluff piece?

      Hmmmmm…. ;-)))

  13. whataretheysmoking says:

    so does my blue dog congressman walt minnick. here’s the drivel he just sent me. i informed him that no longer has my confidence or support.

    Dear XXX:

    Thank you for taking the time to contact me with your concerns and recommendations for health care reform. This is an important issue that will have long lasting consequences, and I appreciate your views.

    I spent three decades running everything from a small garden store to a multi-national forest products company. So I understand all too well how frustrated people are with the high cost of insurance. Health insurance premiums have increased an average of 73% over the last five years, faster than wages and inflation. The United States spends more per capita on health care than any other country in the world. Yet, we rank almost last in preventing deaths associated with treatable cancer, diabetes, and heart disease. Idahoans expect and deserve better.

    While, H.R. 3200, America’s Affordable Health Choices Act, has many good provisions that will move our country toward the health care reform we need, I cannot support the bill as it is currently written. It will cost more than $1.6 trillion over ten years, leaving much of the cost to our children and grandchildren. It also relies on a government-run insurance plan, which would reduce competition and limit choices for the American people. I do not believe this is the best way to reform our health care system. However, I am encouraged by other ideas coming out of the Senate Finance Committee. I am hopeful that I will be able to vote for and support the final bill that the President signs into law.

    My reservations about the current House bill do not serve as an endorsement of the current system. For far too long the federal government has failed to fulfill its duty to ensure Americans have access to quality health care. Congress must set the rules of the road under which health insurance companies and health care providers operate. This includes prohibiting discrimination based on age, employment status, and pre-existing conditions and setting a national standard for appropriate health care coverage. Once insurers and providers understand the rules, they will be able to adapt to provide affordable, quality coverage for the American people.

    The discussion about health care reform is far from over, and I am hopeful that Congress will be able to come together to find a solution that will benefit all Americans. Again, thank you for taking the time to contact me, and I apologize for the long delay in responding to your letter. Feel free to visit my website at for continued updates on my work, and do not hesitate to contact me if I can be of assistance in the future.

    It is an honor to serve you in the U.S. Congress.

    Walt Minnick

  14. earlofhuntingdon says:

    As you point out, this is Ceci doing the work she would do at one of the WaPoop’s parties-with-lobbyists-and-Congresscritters. Except that this she can write at home alone in her pajamas, not nursing an X-O cognac in G’town while twittering between her guests, tripping over the loose cash on the floor. It’s much cheaper for the Washington Post.

  15. earlofhuntingdon says:

    As pointed out here, taxing “platinum” health insurance plans is aimed less at CEO’s and more at American unions. How nice of Democrats to add that caboose to their electoral railroad train.

    It’s an elegant illustration that the political landscape is not split between left and right, but between insiders and outsiders, Bush’s haves and have nots.

  16. Frank33 says:

    OT but I need some brain bleach for my ears. Just now drug addled windbag Rushbo is calling Obama names. To quote exactly, talking about President Obama, “He is racism.”

  17. Frank33 says:

    Limbaugh must have gotten himself another oxycontin connection. “It is a SEMINAL point, Obama is failing.” Could Rush be reading our diaries?

  18. arcadesproject says:

    Hey. Somebody’s missing from the list of influential players. Citizens. Voters. You know, US. (Something’s wrong here, I just can’t quite put my finger on what…)

  19. fatster says:

    O/T. Very interesting. “The story starts with Dick Cheney’s energy task force . . . “

    Feds Probing Gale Norton For Corruption: LAT
    Zachary Roth | September 17, 2009, 12:23PM

    “Did Gale Norton, President Bush’s far-right interior secretary, illegally use her position to benefit an oil company that later hired her? Justice Department investigators want to know, reports the Los Angeles Times.

    “In a nutshell, here’s what DOJ is looking into:”


  20. SparklestheIguana says:

    Ezra in today’s Poo chat:

    Right now, a critical mass of congressman swear they won’t vote for the bill without a public option and crucial senators won’t break a filibuster with one. I predict we end up with some kind of trigger.

    Read this to learn about the horrors and total ineffectiveness of triggers

  21. brendanx says:

    But behind the rhetorical fireworks was a sense that the fragile coalition of major industry leaders and interest groups central to refashioning the nation’s $2.5 trillion health-care system remains intact.

    I too, marveled at the Post’s ingenuous candor here.

  22. perris says:

    the circle of life has fractured and our universe is comming to an end;

    NINA OWCHARENKO: Well, it has massive new federal regulation. So you don’t necessarily need a public option if the federal government is going to control and regulate the type of health insurance that Americans can buy.

    O’REILLY: But you know, I want that, Ms. Owcharenko. I want that. I want, not for personally for me, but for working Americans, to have a option, that if they don’t like their health insurance, if it’s too expensive, they can’t afford it, if the government can cobble together a cheaper insurance policy that gives the same benefits, I see that as a plus for the folks

    from here

    they have a video too

    I believe I will now go to check and see if my water has turned dry, my fire has turned cold, jane has become a republican

  23. Mary says:

    Heigh, ho, the DOJ-O, The Aide Takes The 5th.

    The AG takes an aide, the aide takes a gift, heigh, ho, the DOJ-O, the aide now takes, the 5th

    John Ashcroft’s top aide from the Justice Department has pleaded the fifth in the trial of a member of Team Abramoff

    No one at DOJ is much intreseted in torture, but hoops tickets are a sacred thing.

  24. maryo2 says:

    ew must be drunk today. Her output is only at 4 MBUs.

    On the bright side, low thread count doesn’t just mean itchy sheets. It also means that somebody’s ass is getting stuff dug up on it that it don’t even want to know about. Aaah.

  25. MadDog says:

    OT – From Senator Russ Feingold’s site:


    JUSTICE Act, Introduced on Constitution Day 2009, Would Fix Long Standing Problems with the PATRIOT Act and Other Surveillance Laws

    U.S. Senators Russ Feingold (D-WI), Dick Durbin (D-IL), Jon Tester (D-MT), Tom Udall (D-NM), Jeff Bingaman (D-NM), Bernie Sanders (I-VT), Daniel Akaka (D-HI) and Ron Wyden (D-OR) have introduced legislation to fix problems with surveillance laws that threaten the rights and liberties of American citizens. The Judicious Use of Surveillance Tools In Counterterrorism Efforts (JUSTICE) Act would reform the USA PATRIOT Act, the FISA Amendments Act and other surveillance authorities to protect Americans’ constitutional rights, while preserving the powers of our government to fight terrorism.

    The JUSTICE Act reforms include more effective checks on government searches of Americans’ personal records, the “sneak and peek” search provision of the PATRIOT Act, “John Doe” roving wiretaps and other overbroad authorities. The bill will also reform the FISA Amendments Act, passed last year, by repealing the retroactive immunity provision, preventing “bulk collection” of the contents of Americans’ international communications, and prohibiting “reverse targeting” of innocent Americans. And the bill enables better oversight of the use of National Security Letters (NSLs) after the Department of Justice Inspector General issued reports detailing the misuse and abuse of the NSLs. The Senate Judiciary Committee will hold a hearing on Wednesday, September 23rd, on reauthorization of the USA PATRIOT Act…

    (My Bold)

    The text of the bill via EFF is here (103 page PDF).

    • Hmmm says:

      Le wow! How’re the R’s gonna keep this down at the same time HCR’s raging? Divide and conquer strategy on the Ds’ part?

      • MadDog says:

        And I’d be real interested in the opinions of our resident Legal Eagles on the practical consequences of “repealing the retroactive immunity provision” in the FISA Amendments Act.

          • MadDog says:

            Twas my thought too that repeal after the horses left the barn makes for strange law.

            In any event, I agree too that passage would be an uphill battle, though chances are better now with Democratic control of Congress and the Executive branch compared to last year’s vote during the heat of a Presidential election.

            I guess it depends on whether the Senate supporters can generate sufficient public animus against big lawbreaking corporations, but I’m not holding my breath on either Congressional passage (particularly in the Senate), nor an Obama signature.

  26. bobschacht says:

    This just in:

    Press Release Issued 3:59 PM Thursday September 17, 2009:


    JUSTICE Act, Introduced on Constitution Day 2009, Would Fix Long Standing Problems with the PATRIOT Act and Other Surveillance Laws

    Washington, D.C. – U.S. Senators Russ Feingold (D-WI), Dick Durbin (D-IL), Jon Tester (D-MT), Tom Udall (D-NM), Jeff Bingaman (D-NM), Bernie Sanders (I-VT), Daniel Akaka (D-HI) and Ron Wyden (D-OR) have introduced legislation to fix problems with surveillance laws that threaten the rights and liberties of American citizens. The Judicious Use of Surveillance Tools In Counterterrorism Efforts (JUSTICE) Act would reform the USA PATRIOT Act, the FISA Amendments Act and other surveillance authorities to protect Americans’ constitutional rights, while preserving the powers of our government to fight terrorism….

    Sorry, I don’t have a link. The whole thing was sent to me in an email from Mark Dorlester with no link.

    I’d like to hear this proposal discussed in detail here, but with Feingold, Sanders, et al. presenting it, I have high hopes. I’m also very happy to see Hawaii’s Dan Akaka on board as an original sponsor.

    Bob in AZ
    was in HI

      • Hmmm says:

        That was an interesting development because it only mentions DoJ supporting three provisions, whereas there are a lot more than three in there in total. So an exceedingly odd way of framing the position. Very unclear whether this can reasonably be interpreted as meaning DoJ would not object to sunsetting everything other than those three things.

        One can, I suppose, hope.

        • john in sacramento says:


          I tend to look at the forest rather than the trees

          I’m just looking at the totality of their positions since Jan., which to me point to a continuation of most of Bush’s policies … which includes USAPA

          But YMMV

    • fatster says:

      I had just headed over here in a big rush to link to that, too. Doing my happy dance.

      Will start seriously sending strongest messages I can. At least these Senators are trying.

  27. fatster says:

    O/T. “Might”?

    Financial crisis panel might call Paulson: chairman
    Kevin Drawbaugh
Reuters US Online Report Politics News
    Sep 17, 2009 12:46 EST

    WASHINGTON (Reuters) – “Former U.S. Treasury Secretary Henry Paulson might be among witnesses called to testify by Congress’ Financial Crisis Inquiry Commission, its chairman told Reuters Television in an interview on Thursday.”


  28. fatster says:


    Sotomayor Issues Challenge to a Century of Corporate Law

    WASHINGTON –” In her maiden Supreme Court appearance last week, Justice Sonia Sotomayor made a provocative comment that probed the foundations of corporate law.

    “During arguments in a campaign-finance case, the court’s majority conservatives seemed persuaded that corporations have broad First Amendment rights and that recent precedents upholding limits on corporate political spending should be overruled.

    “But Justice Sotomayor suggested the majority might have it all wrong — and that instead the court should reconsider the 19th century rulings that first afforded corporations the same rights flesh-and-blood people have.

    “Judges “created corporations as persons, gave birth to corporations as persons,” she said. “There could be an argument made that that was the court’s error to start with…[imbuing] a creature of state law with human characteristics.””


    • bmaz says:

      Well, we shall see. One question/musing during an oral argument does not a position make. Now if she were to whip out a blistering dissenting opinion in CU v. FEC (and make no mistake, this court would not dream of altering corporate personage except to increase it) then we will have something to shout about and congratulate her for. I would be shocked if she is anywhere near that forward in her opinion (ifshe participates in a written dissent at all) on her first case heard; just don’t see it, but can hope.

      • Mary says:

        I’m not hoping for an overturn of personhood, but I am hoping (not counting on, just hoping) for upholding the limitations on spending bc it is so bleak if they don’t. I didn’t hear the whole thing, but one thing I didn’t hear addressed is the argument that I think makes a lot of sense, which is that a corporation (as opposed to a company) is very much a creature of statute, since neither the Constitution nor the common law recognizes the concept of limited liability. When the founders were around, every owner of a company was completely liable for the bad acts of the company. If you statutorily create a different kind of being, then it seems to me you damn well can statutorily create limits on what they can do to go with the limits on liabilty that you have given them, and if they don’t like them the owners can opt out and function with full liability. Which does tend to temper actions – at least until they completely do away with plaintiffs lawyers and tort recoveries.

        • bmaz says:

          That argument is well briefed, irrespective of its role in the OA. There is less than zero chance of disturbing corp personhood, and frankly the reargument doesn’t occur if Roberts didn’t want it, I think they are going to blow up the restrictions. I would be shocked at any other result.

    • readerOfTeaLeaves says:

      In her maiden Supreme Court appearance last week,

      I’ll save myself the trouble of determining whether the WSJ began their article about Justice Roberts’ first case on SCOTUS with a line like, “In his virgin Supreme Court appearance last week…”

      But Sotomayer is clearly reading fairly widely.
      I daresay that our new justice may have read the occasional science report or incisive economic analysis. My, oh, my…

      I do hope that Scalia, Roberts, and Alito’s heads did not explode at Justice Sotomayor’s comments?
      I daresay that would have been the lede line if they had.

      And john in [email protected], it’s also quite possible that it’s taken this long for some of the newer DoJers to ferret out what they were looking for, no?

  29. skdadl says:

    If an American court at some point did alter corporate personage/hood, I wonder what that would do to our law? To a lot of international law? Trade treaties?

    I’m just musing. I don’t know enough to measure what the impact would be, but I’m thinking that very very big would be a safe general guess.

  30. MadDog says:

    OT – It seems that CIA Director Panetta believes AG Holder’s “investigation” into CIA Torture is merely Kabuki designed to appease us DFHs and that the results are foreordained:

    Panetta Says CIA Will Be Absolved

    …Leon Panetta is confident that the DoJ’s new investigation into wrongdoing by CIA’s interrogators will absolve the Agency. “I don’t believe there’s a basis for any kind of action [against the interrogators]… and I’ll be proved right,” Panetta told reporters in Dearborn, MI, last night…

    He may be right.

  31. Mary says:

    LOL –
    I do think maybe you were a little tough on allan and Leen, in that I think they were mostly (allan went further, but still mostly) asking for input more so than stringing Judge Bates up.

    If that’s the case, I’m going to go into one of my long, boring answers for them.

    Judge Bates’ decision shouldn’t be unexpected, especially given the District in which he sits. The DC Circuit has some very bad case law for plaintiffs, in particular a case called Spagnola. In that case, the plaintiff had originally won at the Circuit Ct level, but in another case (Hubbard) a different panel of the Circuit reached a pretty conflicting decision, so the full Circuit got together and used some newer Sup Ct language (not really precedent imo, just language) to do in plaintiffs. Like it or not (I’m in the not obviously) Spagnola is a horrible case for plaintiffs to try to get around and I think most Judges would have done what Bates did.

    Spagnola says that in any case that can be squeezed into the parameters of 5 USC 2302 (a part of the codification of the Civil Services Reform Act “CSRA”) re: Prohibited Personnel Practices, then if there is a violation under that statute, the ONLY remedy available is the remedy provided by the CSRA, which would be to go to the Office of Special Counsel and complain. There is another route for people who are already employees for a couple of years and who face “major” personnel actions (see 5 USC 7511 et seq) that involves a merit board proceeding but it isn’t available to people who are injured by actions that prevent them from becoming an employee rather than by existing employees.

    So with the bad case law of Spagnola, which is binding on Bates, I don’t think you can go overboard about the rulings. (I still think these guys could craft some good issues for appeal, but moving along …) And that means the “remedy” if you aren’t hired as a part of an extra-legal scheme by the top echelons of the Dept of Justice (including the AG) to circumvent the prohibitions of 5 USC 2302, your “exclusive” remedy (under Spagnola) is go to the the Office of Special Counsel (that is operates under and is supervised by the same AG who is allegedly involved in the concocting and perpetuating the scheme – and which Office, btw, in this unique case is also allegedly involved in similar practices) and have them investigate.

    To go the next step, Spagnola and Bates say that if something can be fit under a 5 USC 2302 claim, then the CSRA is a “comprehensive scheme” such that remedies are limited to those provded by the CSRA (this argument, flipped, would have been why telecoms should have had to pay damages for participating in the DOJ’s FISA Felony Scheme) and that CSRA remedy is pretty lame – a picture of Bloch falling off a white horse that is really just a couple of DOJ extras dressed in some white sheets that apparently DOJ stocked up on during the Bush years.

    Now, to give Bates his due, he does make an effort to keep some claims that he might have tossed. There are Privacy Act claims for which there is also bad case law in the Circuit, but he does manage to preserve some of them (although he is inviting further briefing from DOJ on how to get rid of them).

    Judge Bates then gets rid of the “equitable” claims,for an injunction against future violations (which was kind of airy-fairy imo, asking the judge to enjoin on such a broad basis) based on a lack of standing.

    As I noted, I don’t agree with his decision but a) with even the very small amount I know about cases in this area I would have told real client-type plaintiffs that they were likely to be sunk from the get go, and b) I don’t know very much about this kind of case at all. I do think he jumped the gun, getting rid of them at this mostly pre-discovery point in the process on general litigation principles, but he wasn’t wearing a Glen Beck mask when he wrote this opinion and he could have probably gotten by with ditching the Privacy Act claims that he is letting go forward.

    BTW – one of the things I think they didn’t address was that, where 5 USC 2302 et al are being claimed to be a comprehensive scheme of legislation, 2302(d) says:

    This section shall not be construed to extinguish or lessen any effort to achieve equal employment opportunity through affirmative action or any right or remedy available to any employee or applicant for employment in the civil service under—
    (1) section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16), prohibiting discrimination on the basis of race, color, religion, sex, or national origin;
    (2) sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a), prohibiting discrimination on the basis of age;
    (3) under section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206 (d)), prohibiting discrimination on the basis of sex;
    (4) section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), prohibiting discrimination on the basis of handicapping condition; or
    (5) the provisions of any law, rule, or regulation prohibiting discrimination on the basis of marital status or political affiliation

    I’m thinking that doesn’t sound to me as if Congress IS saying that the CSRT is meant to be so comprehensive as to cover all the political affiliation discrimination in civil service hiring after all, or even that it is trying to create a sole remedy standard and approach with the OSC investigation option, and that wasn’t addressed by Bates, but maybe it’s already been dealt with earlier or maybe no one briefed it or whatever. I don’t see any arguments on futility of administrative remedy, which I would have expected to see if it were briefed (this is a doctrine that says where there is an administrative remedy – like under the CSRA going to the Office of Special Counsel – you almost always have to follow it first[if not exclusively]before going to the courts UNLESS you can fit in a small category of cases where you prove it would have been a futile act to take the administrative remedy route).

    I’m also thinking that it is hard to claim that Congress was meaning for the Act to be so comprehensive as to cover an organized scheme originating out of the office of the attorney general to implement a widespread program and pattern of discrimination based on political affiliation and to reduce investigation of such a scheme to being done by a subordinate officer to the scheme’s originator and by a department that may have been party to the same scheme. Tack on a lack of discovery and I find it a provocative (in the provoking sense) opinion, but nothing that anyone can go to pieces over.

    @90 – not only what is the monetary claim, but how do you really “prove” that you would have gotten the job?

    @99 I heard her, on NPR when this was argued, make the comment to Olsen on the old ruling, something like, “well, maybe the court got it wrong” and it was pretty funny. I was envisioning Thomas and Roberts having apoplexy.

    • bmaz says:

      @90 – not only what is the monetary claim, but how do you really “prove” that you would have gotten the job?

      Can’t, and the specific performance type of issue has long sailed if they even pled it. As I recall, someone did a perfunctory “reconsideration” of all the rejects and found them to be – gasp- still rejected. These plaintiffs were likely wronged, but I am not crazy about the strength of their claims here. Bates’ decision is both predictable and on solid ground.

    • Leen says:

      Just getting back. Mary thanks so much for that explanation. Not sure why a question like this @8 “What do folks know about Judge John Bates?” would end up being a wild hair up anyone’s ass. Certainly was not asked to aggravate anyone.

      You lawyer folks talk about the way judges lean politically and how that may or may not influence their decisions quite often.

      Again thanks for that explanation

    • fatster says:

      I surely hope that #5 you quoted gains more gravitas in this case. (IANAL, so if ‘gravitas’ has specific meaning in law, please know I’m ignorant of what that is.) Appreciate your explanation.

  32. Mary says:

    Jeff Kaye has a very good piece up at the Seminal, about the rendition program docs getting flyboy medals for their role…..e-flights/

    @114 – I’m actually very surprised he kept in the Privacy Act claims. I don’t think anyone can take too many potshots at him when he went that far down the kumbayah road.

  33. fatster says:

    Shudder. Bet this will matter to many about as much as knowing (ignoring) that torture was used–and used to elicit “information” to justify (excuse) the invasion of Iraq.

    Harvard Medical Study Links Lack of Insurance to 45,000 U.S. Deaths a Year
    September 17, 2009, 4:14 PM

    “As the White House and Congress continue debating how best to provide coverage to tens of millions of Americans currently without health insurance, a new study (PDF) is meant to offer a stark reminder of why lawmakers should continue to try. Researchers from Harvard Medical School say the lack of coverage can be tied to about 45,000 deaths a year in the United States — a toll that is greater than the number of people who die each year from kidney disease.”


  34. orionATL says:

    pjevans @120

    “…Just like the stories on ACORN and voter registration never mentioned that they’re required by law to turn in all the registration cards, no matter how fake the information appears to be…”

    that is very useful information i did not know.

    thanks. i’ll store it away.

    acorn does such good work.

    it is contemptible that they have become a whipping boy for the right wing and, of course, ensuingly*, the mainstream media.

    *made it up.

    • behindthefall says:

      That’s a pretty good poli-sci lecture! (Is it true that the 19th century court reporter who jotted down the justice’s aside actually had been a railroad president, or was that a joke?)

          • behindthefall says:

            John Chandler Bancroft Davis (December 22, 1822 – December 27, 1907), commonly known as Bancroft Davis, was an American lawyer, judge, diplomat, and president of Newburgh and New York Railway Company.

            From Worcester, Mass., it says, too. Why couldn’t he have stayed at home and kept out of trouble? But, no, he had to go get busy with all kinds of things, apparently. Including jotting down judicial asides.

            • fatster says:

              And he had the magic touch, too, since that one judicial aside quickly grew into the monsters that roam about the world today.

    • klynn says:

      That was too funny. Thanks for the link! I tell ya, you and Petro have kept the laughter going all day.

      I needed it. Found out the property next door is in foreclosure.

      • klynn says:


        Just a quick side note. Did you catch the Rockefeller interview on the Ed Show? Jay made a strong point regarding the lack of good faith negotiations by the Republicans (starting at 4:40) and emphasized his point with reference to his years on the intel committee. It’s worth watching in terms of the torture debate.

        Made me wonder if the real issue here for Republicans is not just to try and kill progressives as a power play through trying to make health care fail, but as an effort to derail the issue of torture?

        It appeared to me there was a “connect” in Jay’s mind, perhaps beyond the political strategy by the Repugs.

        • readerOfTeaLeaves says:

          Made me wonder if the real issue here for Republicans is not just to try and kill progressives as a power play through trying to make health care fail, but as an effort to derail the issue of torture?

          I had the same sense you did about Rockefeller, as if he’s somehow ‘liberated’ by something that he didn’t share on that program. Either he’s fed up completely, or he sees the GOP as a pack of pathetic scoundrels that he has had to tolerate politely while he patiently waited for other pieces to come together.

          As for the ‘real issue’, I’m wondering whether:
          1. The GOP is stalling and trying to avoid the topic of ‘torture’ coming up
          2. The GOP is further stalling any discussions of economic culpability, and with news items about Paulson possibly being called to testify, and also about Iran using Western banks to launder money so they could buy their nuclear materials, it seems certain that the GOP is going to fling whatever sh*t they can invent to avoid allowing the financial fraud and money laundering topic to hit the public’s awareness
          3. Call me nuts, but that strange Ortiz woman who’s heading up the ‘birther’ extremists seems awfully close to the Likud wing in Israel; I can’t tell whether this is just noise from them, or an attempt at diverting the conversation from Obama’s insistence that Israel clean up its act.

          Watching John Bolton lose it yesterday over Obama’s decision — backed by the US military commanders — to pull back missile systems from Eastern Europe really underscored for me how dangerously the neocons subverted the US military. Basically, Bolton was saying that the military command doesn’t know its arse from a hole in the ground; how in hell do you ‘reason’ with a nut like that?

          And Ortiz has to be somehow connected with the neocon-Likud extremists, so that appears to be one more of their attempts to delegitimize Obama in an attempt to weaken him, but also has the effect of ‘legitimizing’ violence. How long do we have to remain trapped in a futile death spiral of mutual destructiveness by these morons (!). I fervently hope the Secret Service is keeping an eye on some of these people.

          As we’ve seen over, and over, and over, these people are tyrannical and appear to be incapable of either nuance or negotiation.

          I wonder whether Rockefeller hasn’t become completely fed up with this sort of dangerous drivel, and sees that these jerks have completely overplayed their hand. And with news starting to whisper out about Very Large Banks involved in money laundering for terrorists (and dangerous governments), perhaps Rockefeller sees some progress on some of the issues that he’s been tracking for years….?

          I had the same sense of that interview: he seemed to be hiding a twinkle in his eye. I hope that’s the case!

          • klynn says:

            Boy you hit everything that was going through my head as I heard his words. I played that section of the interview over and over just because it really seemed this was beyond the “not in good faith” on health care. It was just interesting to hear health care in the same sentence as intel. Interesting as in “below the surface” interesting.

            • readerOfTeaLeaves says:

              Cool ;-))
              Interesting that we both have such a powerful sense of something lurking there.

              EW might have to alter Rockefeller’s nickname if we are correct ;-))

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