October 29, 2020 / by 

 

Walmart Takes Advantage of Health “Reform” It Championed

On September 9 and 11, 2009, I noted a dangerous aspect of the Senate health insurance reform plan (which I called MaxTax, after Max Baucus) that would ultimately become ObamaCare: it would give Walmart and all other low-wage employers an incentive to keep its employees in poverty.

It was the only way to get them health insurance for free.

The MaxTax offers this one, giant, out for corporations.

A Medicaid-eligible individual can always choose to leave the employer’s coverage and enroll in Medicaid. In this circumstance, the employer is not required to pay a fee.

In other words, the one way–just about the only way–a large employer can dodge responsibility for paying something for its employees is if its employees happen to qualify for Medicaid. Under MaxTax, Medicaid eligibility will be determined by one thing: whether a person makes less than 133% of the poverty rate. And who has the most control over how much a particular person makes? Their employer!

So if Wal-Mart wanted to avoid paying anything for its employees under MaxTax, it could simply make sure that none of them made more than $14,403 a year (they’d have to do this by ensuring their employees worked fewer than 40 hours a week, since this works out to be slightly less than minimum wage). Or, a single mom with two kids could make $24,352–a whopping $11.71 an hour, working full time. That’s more than the average Wal-Mart employee made last year. So long as Wal-Mart made sure its employees applied for Medicaid (something it already does in states where its employees are eligible), it would pay nothing. Nada, zip. Nothing.

Saturday, HuffPo mapped out what I, too, have been watching. Walmart is making the changes necessary to prepare to do this–charge you and I for health insurance for its employees (actually, more of its employees, as it already uses this approach where it can), all premised on the legal poverty Walmart imposes on its workers–by kicking precisely those employees who will qualify for Medicaid off Walmart insurance.

Walmart, the nation’s largest private employer, plans to begin denying health insurance to newly hired employees who work fewer than 30 hours a week, according to a copy of the company’s policy obtained by The Huffington Post.

Under the policy, slated to take effect in January, Walmart also reserves the right to eliminate health care coverage for certain workers if their average workweek dips below 30 hours — something that happens with regularity and at the direction of company managers.

[snip]

Labor and health care experts portrayed Walmart’s decision to exclude workers from its medical plans as an attempt to limit costs while taking advantage of the national health care reform known as Obamacare. Among the key features of Obamacare is an expansion of Medicaid, the taxpayer-financed health insurance program for poor people. Many of the Walmart workers who might be dropped from the company’s health care plans earn so little that they would qualify for the expanded Medicaid program, these experts said.

“Walmart is effectively shifting the costs of paying for its employees onto the federal government with this new plan, which is one of the problems with the way the law is structured,” said Ken Jacobs, chairman of the Labor Research Center at the University of California, Berkeley.

I hate to say to the boy wonks who poo-pooed my concerns in 2009 I told them so. But I told them so.

What HuffPo doesn’t mention in its piece on this, though, is that this is all presumably by design.

Walmart, after all, was one of the partners behind the push for ObamaCare. In fact, as things started to drag in summer 2009, WalMart partnered with Center for American Progress and SEIU to try to nudge the process along. While the letter signed by the heads of all three organizations preaches of “shared responsibility,” it also talks of removing “the burden that is crushing America’s businesses” and an employer mandate that does not “create barriers to hiring entry level employees” (as workers forced into part time unskilled positions are sometimes facetiously called).

Walmart gave ObamaCare a lot of credibility back in 2009. It was clear then what the payoff was going to be. And they’re cashing in now: by making the poverty wages they pay their employees the trick to get us to pay their employee health insurance, rather than the billionaire Waltons who can afford it.

I guess that’s what Walmart believes constitutes “shared responsibility.”

Update: In other “I told you so” news, Liz Fowler–the former Wellpoint exec who wrote this legislation for Baucus–is headed back to industry to cash in.


Fourteen Dead and 170 Infected: Poor Regulation Built That

The latest figures indicate that fourteen people have died and at least 170 have been sickened by fungal meningitis arising from an injectable form of the steroid drug methylprednisolone. The bulk of the cases have occurred from patients receiving spinal injections for back pain but there is now at least one documented case of an infection arising from injection of an ankle. At a time when Republicans running for office all across the country routinely deride “job killing regulations”, we now have a sadly perfect example of how lack of regulation kills people.

The tainted drug causing the infections in these cases comes from a single compounding pharmacy in Massacusetts. Compounding pharmacies exist in a regulatory gray area and have pushed further and further away from their original form due to an absence of regulatory push-back. The FDA strictly regulates the manufacturing of pharmaceuticals and assures that they are produced without risk of contaminating microorganisms that could cause infection upon use of the drug. However, compounding pharmacies are regulated only at the state level, mostly because their original role was to provide unique mixtures of drugs produced in response to prescriptions for individual patients. Sensing opportunity to operate in a regulatory gray area, “the free market” has moved in and compounding operations now openly flaunt the single patient idea. In the current case, CNN reports a CDC estimate that as many as 13,000 patients may have been injected with the tainted drug compounded by New England Compounding Center in Framingham, Massachusetts.

The CNN article describes that the regulatory gaps are well-known but Congress has refused to act:

If Sarah Sellers’ warnings had been taken seriously 10 years ago, 12 people might be alive today.

Sellers, a pharmacist and expert on the sterile compounding of drugs, testified to Congress in 2003 about non-sterile conditions she’d witnessed.

“Professional standards for sterile compounding have not been consistently applied,” she told the Senate Committee on Health, Education, Labor, and Pensions. “The absence of federal compounding regulations has created vulnerability in our gold standard system for pharmaceutical regulation.”

Nearly 10 years later, there are still no federal sterility guidelines for compounding pharmacies that make and distribute drugs all over the country.

Further, we see that the court system has acted to weaken the poor regulations that previously existed:

In the 1990s, FDA regulators began to more closely scrutinize the industry, as some compounding pharmacies grew into larger operations that resembled small pharmaceutical companies.

In 1997, Congress passed a law bringing compounded drugs under FDA oversight, requiring that they meet certain standards for production, labeling and advertising. Specifically, the law banned compounding pharmacies from advertising their products.

A 9th Circuit court ruled that this last requirement was unconstitutional, and the Supreme Court upheld the decision in 2002. The court did not rule on the other portions of the law, though the FDA has not actively enforced them.

We learn from USA Today that problems from compounding pharmacies lowering safety standards while chasing higher profits through high-volume compounding have led to many known cases of infections and other medical complications over the last ten years or so:

Thousands of these pharmacies play a critical role in providing custom drug mixtures and hard-to-find compounds that might otherwise be unavailable to doctors and their patients. But a proliferation of compounding operations in recent years and the growth of some into de facto manufacturing enterprises that produce and ship thousands of doses of medication all over the country have paved the way for serious problems.

Since 2001, records show that the FDA has issued more than 40 warning letters to compounding pharmacies for sanitary violations and failure to take proper steps to prevent the sale of dangerous or ineffective drugs.

/snip/

If the NECC drug is implicated in the ongoing meningitis episode, it would be the worst recorded U.S. outbreak of illness associated with medication produced by a compounding pharmacy. But it would be far from the first.

More than two dozen deaths since 2001 have been linked to contaminated or mismeasured doses of medications produced by compounding pharmacies, according to USA TODAY’s review of state and federal records, academic journals, and industry reports. Scores more patients have been badly injured, sometimes resulting in permanent disability.

There also was a highly publicized incident in 2009 when a pharmacy compounding veterinary drugs made an error that led to the deaths of 21 polo horses in Florida.

When it comes to the business of compounding, free marketeers who seek to exploit the poor regulatory environment have demonstrated exactly why strict oversight is needed when it comes to pharmaceuticals. In a bit of irony, though, rather than the regulations being the job killers, in this case it would seem that the thirst for high volumes of sales of compounded materials from large-scale operations most likely squeezed out smaller pharmacies who probably would have been more scrupulous in preparing materials for injection in response to prescriptions for individual patients. By massively inflating the scale of an operation that was designed to work for individual patients, thousands of people who already were suffering from severe pain now have been put at risk for fatal complications arising directly from putting profits over safety.


Rebecca Solnit’s Mirror

I’ve been laughing my ass off at the number of lefties who have linked to–or republished–this Rebecca Solnit piece scolding her “dismal allies” for being such grumps.

It’s not so much I mind someone trying to persuade progressives of the importance of voting for Obama in November. Solnit acknowledges that Obama has done some horrible things and recognizes the dilemma that might present. And as a swing state resident, I’m used to blue state residents imploring me about the importance of my vote. I’ve always weighed the responsibility of living in a more closely contested state seriously and in 2004 worked many many hours to elect a John Kerry I believed was a problematic choice. Solnit appears not to realize it (allowing one of her interlocutors from NV to equate voicing this dilemma with actual voter suppression, which is after all, a real thing that involves affirmative attempts to make it hard for people of color to vote), but we lefties in swing states actually do think about this stuff and weigh it seriously. It is fair to try to persuade us that voting for Obama is a better choice than not voting or voting third party.

It’s just that I’m stunned that anyone–particularly people who work with words–could imagine Solnit’s piece effectively accomplishes her goal.

This is a piece the 7th word of which is “briefly” that doesn’t wind down for another 2,765 words. It’s the 6th paragraph before Solnit gets around to providing an example of her complaint, and before you get there, you have to wade through vacuous language like, “There are bad things and they are bad. There are good things and they are good, even though the bad things are bad“–italics original.

By the time readers have gotten to the moral of Solnit’s story,

Every minute of every hour of every day you are making the world, just as you are making yourself, and you might as well do it with generosity and kindness and style.

She has called or implied her audience is “dismal,” “rancid,” “Eeyore,” “snarky,” “poison[ing],” “sour” “complainers,” “kvetchers,” “caustic,” “pile of bile,” She accuses her audience of “bitch[ing],” “pound[ing] down,” “habitual[ly] tearing down,” engaging in “recreational bitterness.” She disdainfully labels the “lesser of two evils” metaphor a cliché, but then informs her readers that, “when you’re a hammer everything looks like a nail”–and that’s just one of her many clichés. And all that’s before she accuses her audience of asking that “Che Guevara give them a spa pedicure.” She calls other people snarky?

Given the way she attacks her audience, I find it hard to believe that Solnit didn’t see the irony when she suggests we “thrive in this imperfect moment [] through élan, esprit de corps, fierce hope, and generous hearts.”

And then there are Solnit’s details. She repeatedly implies that she “already know[s] most of the dimples on the imperial derriere.” But that’s not always clear. Three times she suggests Obama’s re-election is about access to health care; just once does she get it right that it’s about access to insurance. And here’s the complaint–the one that first shows up in the 6th paragraph–that appears to have set her off:

Recently, I mentioned that California’s current attorney general, Kamala Harris, is anti-death penalty and also acting in good ways to defend people against foreclosure. A snarky Berkeley professor’s immediate response began, “Excuse me, she’s anti-death penalty, but let the record show that her office condoned the illegal purchase of lethal injection drugs.”

Apparently, we are not allowed to celebrate the fact that the attorney general for 12% of all Americans is pretty cool in a few key ways or figure out where that could take us. My respondent was attempting to crush my ebullience and wither the discussion, and what purpose exactly does that serve?

Not only does Solnit seem to misunderstand what has happened on the foreclosure front, but she also projects motives onto a guy who appears to have insisted on measuring Harris by her deeds, not her words. Was he really “attempting to crush Solnit’s ebullience”? Does she have evidence to that fact? Can she–someone who writes for a living and in this piece demands that people “describe [this political system] and its complexities and contradictions accurately”–really not imagine that this guy was simply providing precisely that complexity?

Along with her ironic call for generosity and kindness, Solnit also suggests people consider how they’re engaging in this movement.

ask yourself just what you’re contributing, what kind of story you’re telling, and what kind you want to be telling.

Solnit might ask herself these same questions. Indeed, she might take a lesson from Obama, a master story-teller. Rather than attacking the students and Latinos and struggling workers whose enthusiasm had waned–a strategy Solnit apparently shares with Mitt Romney–Obama has told stories about kids getting insurance coverage and students getting Pell grants and factory workers working longer hours again. Given the increased enthusiasm among his base, those stories appear to have worked like a charm.

But rather than tell those kind of stories, Solnit has opted for precisely the kind of attack she criticizes.


Good Thing the Democrats Forced That Vote on the Ryan Plan

Most of what I have to say about Mitt Romney’s pick of Paul Ryan I said on Virtually Speaking Sunday. I think the Ryan pick will hurt Mitt, and I think it opens up an opportunity for progressives to even box Obama in.

But I am enjoying the response from Republicans, who almost immediately started bad-mouthing the pick. First there was the BuzzFeed story–less than 48 hours after the pick!–describing how the political pros in Mitt’s staff opposed the pick. And now Politico describes the opinions of some three dozen Republican operatives, all of whom except Mary Matalin are queasy about the choice. (The Hill has a similar story.)

In more than three dozen interviews with Republican strategists and campaign operatives — old hands and rising next-generation conservatives alike — the most common reactions to Ryan ranged from gnawing apprehension to hair-on-fire anger that Romney has practically ceded the election.

It is not that the public professions of excitement about the Ryan selection are totally insincere. It is that many of the most optimistic Republican operatives will privately acknowledge that their views are being shaped more by fingers-crossed hope than by a hard-headed appraisal of what’s most likely to happen.

And the more pessimistic strategists don’t even feign good cheer: They think the Ryan pick is a disaster for the GOP. Many of these people don’t care that much about Romney — they always felt he faced an improbable path to victory — but are worried that Ryan’s vocal views about overhauling Medicare will be a millstone for other GOP candidates in critical House and Senate races.

One big reason the operatives don’t like this choice is it makes their job–getting down-ticket Republicans elected–harder.

And that’s just what it does to the Romney-Ryan ticket. Forget how it plays in close House and Senate races.

“Very not helpful down ballot — very,” said one top Republican consultant.

“This is the day the music died,” one Republican operative involved in 2012 races said after the rollout. The operative said that every House candidate now is racing to get ahead of this issue.

And what Politico doesn’t dwell on–but what Crooks & Liars noted the other day–is that it’s already too late for most of the Republicans running for reelection to separate themselves from Ryan’s signature policy. Because they already voted for it.

Even as Mitt Romney was introducing Wisconsin Rep. Paul Ryan as his running mate, his campaign was preparing a defense of the House Budget Chairman’s draconian Medicare proposals. With good reason. After all, in April 2011 the nonpartisan Congressional Budget Office forecast that Ryan’s scheme to convert today’s guaranteed Medicare insurance program into an underfunded voucher system would dramatically shift the health care costs onto America’s seniors. And in February 2010, Ryan acknowledged his privatization plan for millions of future elderly constituted rationing.

But it’s not just Team Romney that should be concerned about being caught red-handed with the proverbial gun pointed at the wildly popular program. Last year, 235 House Republicans and 40 GOP Senators–98 percent of all Republicans in Congress–voted for Paul Ryan’s budget and its blueprint to rationing Medicare.

What’s particularly remarkable about the Politico piece is that, in spite of widely expressed admiration for Ryan, just about all the anonymous sources admit that people hate his plan. The plan their bosses have already voted for.

I don’t think any of the geniuses in DC–whether Republican or Democratic–planned for this. I don’t think they intended to turn Mitt Romney into the poster child for the elites who have been looting our country. I don’t think Mitt realized that by picking Ryan, he would make the problem worse, not better.

But this election has now crystalized into a referendum on the austerity, oligarchy, and looting the Republicans (and more recently, the Democrats too) have been gradually introducing into our country.

Obama may still screw up the election. The economy may recrash, the drought may bring a price spike that makes people desperate enough to vote for Mitt, or there may be an October surprise.

And I’m sure Obama didn’t want to be running this election, pointing out how unpopular and disastrous are Ryan’s policies–policies which are not that different from some of his own.

But that seems to be where we’re heading. A referendum, from the top of the ticket on down, on the unpopular elitist policies that both parties in DC have been pushing for the last decade or so.


More Damage from Panetta’s Vaccine Ruse: UN Doctor on Polio Vaccine Drive Shot; Hundreds of Thousands Denied Polio Vaccine

As one of only three countries in the world where polio is still endemic, Pakistan launched a three day vaccination drive yesterday with a target of vaccinating the 318,000 children in North and South Waziristan who have not received their vaccinations. Across all of Pakistan, the goal is to vaccinate 34 million children under the age of five. The drive is being held despite a push by the Taliban to prevent vaccinations in tribal areas. The Taliban’s ban on vaccinations is aimed at stopping US drone strikes in the tribal areas and is in response to the vaccination ruse by the CIA.  Dr. Shakeel Afridi pretended to be doling out hepatitis vaccines in a failed attempt to retrieve DNA samples for the CIA from the bin Laden compound when it was under surveillance prior to the attack that killed Osama bin Laden. Today, a UN doctor and his driver were wounded when a shooter opened fire on them in Karachi. The doctor was reported to be working on the vaccine program.

Dawn reported yesterday that a jirga was convened today in the tribal areas to try to find a solution to the Taliban’s vaccine ban. That article gives good background information on the ban:

Although a nationwide anti-polio campaign was launched on Monday, the authorities were yet to convince the Taliban shura on the importance of getting children of North and South Waziristan vaccinated against the debilitating disease.

/snip/

Commander Hafiz Gul Bahadur, who leads the powerful Taliban Shura, had banned the anti-polio drive in North Waziristan on June 16 and said that children would not take polio drops unless the government stopped drone strikes in the area.

He was followed by Commander Mullah Nazir in South Waziristan and other militant commanders in FRs D.I. Khan and Kohat.

In South Waziristan, the ban is much stricter because it prohibits vaccination against all eight childhood diseases, including polio.

“We have asked health workers to be careful and don’t put their lives at risk,” the official said, adding that they were waiting for the government’s response.

However, the Taliban ban is not the only barrier to vaccines:

He [the official quoted above] said the military operation in Orakzai and Khyber agencies was one of the factors which deprived children of the much needed vaccines.

Just the two tribal agencies of North and South Waziristan account for a large number of unvaccinated children:

According to sources, the political agent of North Waziristan has convened a jirga of local ulema and notables on Tuesday to find a solution to the problem posed by the Taliban vaccination ban that has deprived about 318,000 children of getting polio drops in the two agencies.

Although the warning above to doctors to be careful was issued in relation to vaccinations in the tribal areas, a doctor in the vaccination program came under fire today in Karachi:

Gunmen opened fire on a UN vehicle in Karachi Tuesday, wounding a foreign doctor working on a polio immunisation campaign and a local driver, officials said.

The shooting happened in the Soharb Goth neighbourhood of eastern Karachi on the second day of a widely publicised polio vaccination campaign.

Attacks on foreigners are rare in Karachi, but human rights activists say ethnic, sectarian and politically-linked violence has killed at least 740 people in the city so far this year alone.

“A WHO vehicle was fired upon with gunshots. One international staff and one local driver were injured in the incident,” Maryam Yunus, spokeswoman for the United Nations’ World Health Organisation, told AFP.

She said the doctor from Ghana and the Pakistani doctor[sic] had been transferred to a private hospital where their condition was stable.

The article on the shooting describes the vaccination ban as in protest of drones and in response to Afridi’s actions:

Local Taliban and Pakistani warlord Hafiz Gul Bahadur banned the vaccinations in the region of Waziristan to protest against US drone attacks.

They have condemned the immunisation campaign, which began nationwide on Monday, as a cover for espionage.

Pakistani doctor Shakeel Afridi was jailed for 33 years in May after helping the CIA find Osama bin Laden using a hepatitis vaccination programme as cover.

Fighting between government troops and local warlord Mangal Bagh also made it difficult to innoculate all children in Khyber district, officials said.

It seems that Leon Panetta’s approval of and subsequent public confirmation of Afridi’s vaccine ruse is a problem that just continues to affect the lives of more and more children every day. Although the Pakistani government’s vaccine drive is legitimate and urgently needed, Panetta’s poor judgment is putting that drive at risk and assuring that it will fall far short of the rate of vaccination needed to prevent a record year for polio cases in Pakistan.


The FDA Demonstrates What “Targeting” Does

“They think they can be the Gestapo and do anything they want.” — Chuck Grassley, on learning his staffer’s emails had been surveilled by the FDA

It is utterly predictable that members of Congress only get concerned about heavy-handed surveillance when they get sucked up in the surveillance. And so it is that Chuck Grassley, who voted for the FISA Amendments Act, and Chris Van Hollen, who didn’t, are outraged that their offices have been dragged into the FDA’s invasive surveillance used to conduct a leak investigation.

The surveillance started in response to a belief that FDA scientists, upset that their concerns about the safety of medical diagnostic equipment had been overridden, leaked classified proprietary information to the NYT. But after targeting just 5 scientists suspected of the leak, the FDA developed profiles on 21 people thought to be conspiring against the agency.

What began as a narrow investigation into the possible leaking of confidential agency information by five scientists quickly grew in mid-2010 into a much broader campaign to counter outside critics of the agency’s medical review process, according to the cache of more than 80,000 pages of computer documents generated by the surveillance effort.

Moving to quell what one memorandum called the “collaboration” of the F.D.A.’s opponents, the surveillance operation identified 21 agency employees, Congressional officials, outside medical researchers and journalists thought to be working together to put out negative and “defamatory” information about the agency.

Mind you, Grassley and Van Hollen’s aides (and Van Hollen himself) were not themselves the targets of the leak investigation. The scientists were the targets. But since they were communicating with the scientists, their communication–some of it protected by law–were collected, “incidentally.” And having convinced themselves a leak had happened and a conspiracy was afoot, the FDA continued its collection program, even after the FDA’s Inspector General determined no law was broken and the Special Counsel started investigating the retaliation against the scientists.

Precisely the same thing can happen under FAA in the name of national security: people are targeted based on a suspicion, and those they communicate with, even for legitimate purposes, get sucked into the trap. That is, this is precisely the problem with the FAA, which Grassley, at least, is prepared to reup for another 4 years.

And precisely the same thing has and continues to happen as agencies put their concerns about classification ahead of whistleblower concerns. This story is not so different from what happened to Thomas Drake, with members of Congress targeted, whistleblowers punished, and the underlying complaint ignored.

On that point, the NYT leaves two questions left unanswered in their important article on the FDA surveillance: it doesn’t make clear whether the medical devices–mammogram and colonoscopy imaging devices–are still out there on the market, exposing Americans to too much radiation.

And while the NYT does include the FDA’s two different attempts to justify this surveillance, it doesn’t tell us where are the people who put the FDA’s institutional interests above the safety of the American people.

We are all already at risk of this kind of surveillance given the way FAA is structured. This instance, because it’s only about General Electric’s security rather than “national security,” might actually provide an opportunity to talk about how inappropriate this kind of surveillance is, both in other workplaces, and when our government targets us in the name of national security.

But it probably won’t happen.


Withholding the Tax Decision: SCOTUSblog on the ObamaCare Decision

Having served as the liveblog link to a widely-anticipated court decision myself, I probably read Tom Goldstein’s tick-tock of how the decision got reported differently than others. Most interesting for me?

SCOTUSblog is not credentialed to cover SCOTUS

Goldstein describes how most major news outlets as well as the White House listened in on a conference call SCOTUSblog had to discuss the ruling as it came out. He notes that Fox managed to correct its incorrect initial reporting because Megyn Kelly was watching SCOTUSblog. He describes other news outlets–like NPR–citing SCOTUSblog as their source.

And yet, even with all those people relying on SCOTUSblog for coverage of the decision (and all other decisions), SCOTUSblog is not credentialed to cover the court.

The Supreme Court will not grant SCOTUSblog a press credential.  Lyle Denniston is the only member of our team permitted in the press area; he has a press credential because of his reporting for WBUR in Boston.  There are six other members of our team nearby, running nine computers on eight separate Internet connections.

I’m curious what the justification for this stance is. Does the Court care more about its prestige than ensuring that what amounts to its own newswire be able to report quickly and accurately?

SCOTUS decided not to email the decision

Perhaps that’s the case. After all, SCOTUS also decided not to email the decision to reporters (and the parties to the case), though they have done so in the past.

The Court’s own technical staff prepares to load the opinion on to the Court’s website.  In years past, the Court would have emailed copies of the decision to the Solicitor General and the parties’ lawyers once it was announced.  But now it relies only on its website, where opinions are released approximately two minutes later.  The week before, the Court declined our request that it distribute this opinion to the press by email; it has complete faith in the exceptional effort it has made to ensure that the website will not fail.

But it does.  At this moment, the website is the subject of perhaps greater demand than any other site on the Internet – ever.  It is the one and only place where anyone in the country not at the building – including not just the public, but press editors and the White House – can get the ruling.  And millions of people are now on the site anxiously looking for the decision.  They multiply the burden of their individual visits many times over – hitting refresh again, and again, and again.  In the face of the crushing demand, the Court cannot publish its own decision.

The opinion will not appear on the website for a half-hour.  So everyone in the country not personally at 1 First St., NE in Washington, DC is completely dependent on the press to get the decision right.

Aside from being a boneheaded technical decision, it is, again, a statement about the philosophy of information at the Court. Why insist that the decision go through those physically at the Court, where people have little space or time for close reading?

Who hacked SCOTUSblog?

And here’s the bit that has me most intrigued. When we covered the Libby trial, we were hounded by denial of service attacks, including on verdict day–though we were also operating on a less stable system with almost no staff and little time to prepare for the technical demands of the coverage, which I think made the attacks rewarding.

Plus, it wasn’t surprising someone would attack FDL during the Libby case; because we served as the wire service for the trial, and because we didn’t unquestioningly repeat whatever Barbara Comstock claimed, we ended up undermining Liibby’s defense team’s best efforts at spin. So I’ve always assumed our DNS hackers were conservatives trying to cut off our coverage, leaving the more favorable Libby spin by default.

So it made sense that we were getting attacked.

But SCOTUSblog?

Our problem at the moment is that someone is trying to crash the blog.  At 10:00 exactly, hackers are launching a “distributed denial of service” attack with 1,000 page views per second to try and bring us down.  It does not work; our tremendous Deputy Manager Max Mallory has spent months augmenting our capacity, and the hackers give up after a few minutes.

The only one who–assuming good faith interest in reporting accurately–who I can imagine having a motive to hack SCOTUSblog are other media outlets who don’t want a competitor to draw off potential readers and viewers.

Alternately, there’s the possibility that someone wanted the decision reported inaccurately. I could imagine Fox, if it knew the jist of the decision, wanting to ensure it got misreported at first, though Goldstein is quite confident their screwup (as well as CNN’s) came out of haste, not any intent to report it wrong.

The one other possibility–and again, this would assume the hackers in question knew the jist of the decision ahead of time–are traders. But as Goldstein recounts, the first report on the decision was Bloomberg’s, and they reported it correctly, which had the predictable affect on stocks.

Because the Act is important to stock prices, stock traders will have a very rare opportunity to arbitrage the conflicting media reports and the fact that no one outside the Court has the opinion. The market had been betting against the mandate surviving.  That would have been bad for hospitals (which would lose revenues) and good for many insurers (which could be more selective in their customers).  Now hospital stock prices begin to spike:  Hospital Corp. of America, the nation’s largest private hospital chain, quickly rises from $27.38 to $29.35.  Many insurance stocks start to tumble:  United Health Group falls from $58.69 to $55.73.

Maybe I’m just harping on this point because when we got hacked, there were so many obvious explanations. Maybe the hackers were just thugs trying to disrupt. But I can’t figure out who would have an incentive to hack SCOTUSblog and the few motives I can think of all involve having advance knowledge of the decision.


SCOTUS Conservatives in Anonymous Disarray

I expressed skepticism about the part of Jan Crawford’s story confirming John Roberts flipped his vote on ObamaCare that claimed Roberts had no role in writing the dissent.

Finally, there is Crawford’s not entirely convincing explanation for the relics in the dissent that seem to suggest Roberts had a hand in crafting the dissent, too.

The two sources say suggestions that parts of the dissent were originally Roberts’ actual majority decision for the Court are inaccurate, and that the dissent was a true joint effort.

The fact that the joint dissent doesn’t mention Roberts’ majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.

If true, those relics, which violate normal protocol for referring to other opinions, reflect a very big affront to Roberts’ governing opinion.

Salon now has a single anonymous source disputing Crawford’s two anonymous sources on this point.

Crawford’s sources insist on the claim that the joint dissent was authored specifically in response to Roberts’ majority opinion, without any participation from him at any point in the drafting process that created it. It would, after all, be fairly preposterous for the four dissenters to jointly “author” an opinion that was in large part written originally by the author of the majority opinion to which the joint dissenters were now so flamboyantly objecting.

Yet that, I am told by a source within the court with direct knowledge of the drafting process, is exactly what happened. My source insists that “most of the material in the first three quarters of the joint dissent was drafted in Chief Justice Roberts’ chambers in April and May.” Only the last portion of what eventually became the joint dissent was drafted without any participation by the chief justice.

[snip]

Roberts’ chamber did much of the drafting of the [first 46 pages of the dissent, which don’t mention Roberts’ opinion], and none of the [last 19 pages, which do mention it]. In short, it appears Chief Justice Roberts ended up in large part authoring both the majority opinion and the dissent in National Federation of Independent Business v. Sebelius.

Set aside the fact we’ve got a anonymous leak war going on, with neither side inherently garnering credibility. Set aside what Salon’s report, if correct, would suggest about Roberts.

I want to focus on what it means that comity in the court has broken down in this way. If Crawford’s report comes, as many suspected, from the conservative justices themselves, it would suggest they leaked a transparently illogical cover story (in that it didn’t explain the relics that made everyone suspicious about the dissent in the first place). They not only broke SCOTUS protocol about leaks, but did so and, reportedly, lied in doing so.

Then you’ve got a quick response from someone–could this be a Roberts clerk? one of the other conservatives?–calling out that purported lie.

To what end? To shift the emphasis on Roberts’ fickleness? To try to tone down the confrontational claims at the heart of the Crawford piece? And if another of the conservatives is behind the Salon report, then how do the original leakers feel about the story? What are the political objectives of each side of this anonymous leak war?

And all this is just what we can see through the screen of anonymity. The rancor this expresses must be worse in person.

Even if it’s all anonymous, I gotta say, I’m glad this leak fest has revealed the conservative justices in all their bitchy glory.

Update: Lyle Denniston hits some of these same issues, though based solely on the Crawford article before the Salon one came out. In addition to pointing out some more reasons to doubt the story in Crawford about who wrote the dissent when, has this to say about the impact of this leak war.

Whatever the facts about the drafting of the opinions, their sequencing, and their legal points, the fact that all of this internal deliberation has been shared with a news reporter by someone “with specific knowledge” is a departure from the Court’s norm of keeping such things to itself, and that alone can leave a trail of bitternesss and recrimination.  When the famous book The Brethren came out in 1979, filled with revelations about internal deliberations, the Court’s internal dealings were affected for months, and the Justices even closed off some of their hallways and denied media access to them.  There also were long-running recriminations over who had been the source or sources.

But the prospect of lingering impact of the CBS story is not due only to the fact of the leaks.   The content itself is a public rebuke of Roberts, from inside the Court, and amounts to a direct challenge to his ability to lead the Court and to take steps — if that was what his position on the health care law was intended to do — to insulate the Court from the partisan polarization that so dominates the rest of Washington


Complacency on Medicaid Would Feed Two Years of Ugly Race-Baiting

I’m with DDay. I believe liberals are far, far too complacent in their wonkery-based confidence that Red States will eventually come around and extend Medicaid under ObamaCare. (See this post too.)

I keep seeing these confident predictions from health care experts that no state would be so foolish as to reject the Medicaid expansion for their state. I want to set up a poker game with these people, to provide for my family in retirement. How many times can you say “well that’s so radical and extreme, it could never happen!” and be wrong before you review your assumptions?

[snip]

The idea that you can just point to a set of numbers and say “but it’s almost all paid for by the federal government!” and convince ideologically motivated conservatives with that reasoning is really rich. The consensus opinion on the right is that giving free services to poor people puts them on the road to serfdom and crushes their innovative spirits and shackles them rather than allowing them to grow and succeed. Really they don’t want rich people to pay for “others” to get free stuff.

But I don’t even think the wonks have formulated the question properly, given that they are formulating it as wonks, rather than as partisan hacks.

Take Ezra’s formulation of the argument with regards to South Carolina, which has already announced it won’t expand Medicaid.

Take South Carolina. “We’re not going to shove more South Carolinians into a broken system that further ties our hands when we know the best way to find South Carolina solutions for South Carolina health problems is through the flexibility that block grants provide,” said Rob Godfrey, spokesman for Gov. Nikki Haley.

So how are those South Carolina solutions working out? Nineteen percent of the state’s residents are uninsured, which is well above the national average. When the Kaiser Family Foundation ran the numbers, they found the Medicaid expansion in the new law would cut South Carolina’s uninsurance rate among eligible adults by 56.4 percent. That’s the fourth-largest drop of any state in the nation. The cost of that for the federal government between 2014 and 2019? Almost $11 billion. For South Carolina? Less than $500 million.

In the short term, a rising Republican star like Haley might have reason to reject that deal. The Republican base hates the law, and so one way to build a national profile right now is to be the most implacable, unreasonable opponent of the Affordable Care Act.

But that won’t last forever. And governors also have to answer to non-Republican voters who don’t want their state missing out on billions in federal dollars, and to the hospitals in their state who have to treat uninsured patients that end up in their emergency rooms, and the insured voters who end up paying for their uninsured brethren.

What remains unspoken in these arguments (though DDay has addressed it)–even in the assessments of why these Red States already have such low rates of Medicaid coverage to begin with–is race.

Medicaid expansion in Red States is not going to be argued as “extending health insurance to uninsured adults,” but rather, “giving free stuff to people of color” (though that won’t be the phrase used).

Consider:

Enlargement of Medicaid is the single most important provision of the Affordable Care Act for people of color. It’s the way that almost all non-whites covered by the law would receive insurance.

If implemented as written, the law expected to cover 32 million Americans, accounting for 80 percent of those currently uninsured. Half of the 32 million are to be brought into the system through Medicaid, and three out of four of those individuals are people of color.

[snip]

Blacks and Latinos are enrolled in Medicaid at twice the rate of whites. Half of those in the program are children. As the Kaiser Family Foundation has bluntly concluded, “Medicaid enables Black and Hispanic Americans to access health care.”

Already, my anecdotal experience is that a proportion of voters in the states in question claim that the first black President has spent his first term making sure that people of color get more than their fair share of benefits (I think they make this argument based on expanded food stamp usage, though of course the argument is not coherent). The GOP frame for the Medicaid argument will not focus at all on insuring the uninsured. It will not breathe a word of how insured people subsidize uninsured people who use emergency rooms for care. Rather, it will extend and enlarge on this argument about a black President giving free stuff to black people (or Latinos in states like Texas). And I believe that will remain true even if Obama loses in November.

How could radical Republican governors not love engaging in that fight? It’s a damn good way to keep working class whites in the GOP party. It’s a damn good way to keep the base enthused. It’s a damn good way to distract from larger economic failures. It’s the same logic, of course, that has already led some of these firebreathers to embrace “Papers Please” laws that lose their states a lot of money.

Moreover, these same governors are already hard at work shrinking the number of people of color who will be able to cast their legal votes. Thus, the idea that these governors will have to respond non-Republican votes is weak, given that this fight will be accompanied by an effort to limit the number of non-Republican voters who can vote at all.

Finally, while I don’t think the TeaParty arose primarily out of racist resentment, I do think it has fed on it in the last three years. Given that fact, the likelihood its fight against Medicaid would get racist and ugly quickly is quite high.

Sure, maybe it will in fact play out that the powerful hospital lobby will ensure even the Red States embrace Medicaid expansion. Maybe that leverage will be enough to achieve the no-brainer policy goals with little Democratic engagement.

But consider the price that outsourcing this fight to the hospitals will have in the interim. It would mean Democrats would not respond to race-based attacks with important arguments about the well-being of the nation as a whole, with important education about how the expansion of Medicaid is a key part of bring healthcare costs down more generally.

I believe, like DDay, the risk that states will forgo Medicaid is already too great. But even if we win that battle, what battles will we would lose along the way if we don’t fight this one aggressively.


The John Roberts-Anthony Kennedy Smackdown

There are several fascinating details in Jan Crawford’s confirmation that John Roberts did, indeed, flip his vote on ObamaCare.

Most interesting is Crawford’s description of the desperate efforts on the part of Roberts and Anthony Kennedy to persuade the other to flip their vote.

Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy – believed by many conservatives to be the justice most likely to defect and vote for the law – led the effort to try to bring Roberts back to the fold.

“He was relentless,” one source said of Kennedy’s efforts. “He was very engaged in this.”

But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, “You’re on your own.”

I’m also fascinated by Crawford’s oblique description of why this leaked from the normally tight-lipped Court.

The justices are notoriously close-lipped, and their law clerks must agree to keep matters completely confidential.

But in this closely-watched case, word of Roberts’ unusual shift has spread widely within the Court, and is known among law clerks, chambers’ aides and secretaries. It also has stirred the ire of the conservative justices, who believed Roberts was standing with them.

Note, too, that Crawford uses the same word Ramesh Ponnuru used–“wobbly”–to describe Roberts’ position, suggesting he may have had the same sources she did (and the word seems to come from a Justice himself).

It was around this time [in May] that it also became clear to the conservative justices that Roberts was, as one put it, “wobbly,” the sources said.

Finally, there is Crawford’s not entirely convincing explanation for the relics in the dissent that seem to suggest Roberts had a hand in crafting the dissent, too.

The two sources say suggestions that parts of the dissent were originally Roberts’ actual majority decision for the Court are inaccurate, and that the dissent was a true joint effort.

The fact that the joint dissent doesn’t mention Roberts’ majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.

If true, those relics, which violate normal protocol for referring to other opinions, reflect a very big affront to Roberts’ governing opinion.

There’s a lot in Crawford’s story that seems to treat the conservative leakers with too much credibility–not about the law, but about the pissing contest that has ensued. In any case, the very fact that it took just a few days to make it into a story add to the intra-party sniping.

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Originally Posted @ https://www.emptywheel.net/health-policy/page/7/