The SCOTUS and the ACA

The Supreme Court made an interesting announcement. They will hear King v Burwell, a suit that challenges a key feature of the Affordable Care Act. The court doesn’t do this kind of thing every day — where “this kind of thing” is to preempt the usual legal chain. King v Burwell was to have been heard en banc by a Federal appeals court but the Supremes cut that off. It takes a minimum of four justices to do this and there’s speculation about which four — most of it focusing on the “usual suspects” who come out of the woodwork whenever there’s a chance to block progressive legislation.

In short, that Scalia et al. see a way to eviscerate Obamacare.

King v Burwell focuses on whether the tax credits that the feds give to help low-income folks buy insurance are expressly allowed within the language of the Act. The suit argues that only the states can provide them and only though state-run exchanges. If the court supports this claim, the ACA will effectively die because every red state will refuse to provide such subsidies — just like they have already refused to participate in the Medicaid programs, an act, as noted before, of reckless stupidity.

Anyway, this is speculation and we’ll have to wait and see how it turns out. The real question is why are they doing this? Why are suits like this being brought? Why is the SCOTUS taking unusual moves like preempting an appeals court?

When you step back and look, long view, it’s a puzzle. Some might argue that the ACA violates basic conservative principles because it contributes to “big government.” But the ACA isn’t “socialized” medicine. Unlike the systems most industrialized countries have, it preserves the role of the private sector. Insurance coverage is supplied by private companies. Most of the hospitals are privately owned. The health care providers are private individuals. The pharmaceutical corporations remain untouched, their profits ever-growing.

Others have tried to argue that it’s too expensive. But this is simply not true. The longer the ACA is in place the greater the savings are seen to be. More people are insured so there’s less pressure on municipal hospitals’ ER’s. Insurance rates are plummeting because more healthy people who need fewer services are insured. Medical costs are coming down because more people are getting preventive care. The ACA is a big, long-term money saver.

Still others argue that it’s unpopular, that Americans don’t want it. There’s something to this but mainly because of the barrage of invective conservatives have unleashed. The longer the ACA is in place the more it’s impact is appreciated. In fact, the rush to undo it is driven largely by fears on the right that, like Medicare and Social Security, everyone will eventually see what a good thing the ACA actually is.

In short, there is absolutely no sane reason for objecting to Obamacare — except for that name in the label that’s been attached to it. It’s HIS signature piece of legislation. It’s the primary reason he will go down in history alongside of others like FDR and LBJ who carved out significant federal programs that made life better for Americans.

That, they cannot bear and that, they will do anything possible to prevent even if it means fucking over the millions of Americans whose quality of life has been dramatically improved by this act. And, since they haven’t been able to repeal it, since their efforts to derail it at the state level are slowly losing steam, since they haven’t been able to defund it, they’re going to a polarized Supreme court and appeal to the Gang of Five to screw America once more.

Fasten your seatbelts. The lingering hope is that Roberts has the wisdom to see further down the road than the others — as he did the last time the wackjobs on the right tried this gambit.

An interesting wrinkle on this case was in The New Yorker recently by James Surowiecki. The point he  makes is that, if the Republicans win this one, it will backfire big time on the anti-anything-Obama crowd. As he notes, it will have zero impact on the main features of the ACA. Everyone will still have to have health care coverage, insurance companies will still not be able to deny coverage based on pre-existing conditions, children up to 27 can still be on their parents’ plans and all those (mostly Blue) states with in-house insurance exchanges will still have cheap plans, subsidized for low-income individuals and famlies.

Who will get hosed? Why the very folks who’ve brought this suit.

In their fervor to undo Obamacare they will be hoist on the their own petard. Suddenly everyone living in those (very Red) states without exchanges won’t have subsidized policies, won’t have tax breaks and, of course, if they are really poor, they’ll be without Medicaid support because those states have refused to take that option as well.

Stupidity shall reap its own rewards. It is sad.

Thoughts on the Midterm Elections

Funny outcomes. Yes, the GOP trounced the Dems everywhere but, oddly, I don’t see this as a referendum on the parties nor as an indication that the country backs Republican positions. Two factors to consider:

a. The Democratic Party ran the stupidest, most inept, incomprehensible campaign imaginable.

b. In every instance where some social, cultural initiative was on the ballot the Progressive side won.

On that campaign: The essence of it was captured in an interview Debbie Wasserman-Schultz, the DNC Chair and, presumably, the “brains” behind the campaign did with Joe Scarborough on the “Morning Joe” show. Scarborough asked her a simple question: “Is voting for a Democrat voting for a continuation of Obama’s program?”

She ducked, babbled some nonsense about what the Democrats need to do …

He asked again. She ducked. And again, and again.

The DNC had decided to run away from Obama, not even mention his name, not ask him to campaign, especially in swing states. They, apparently, were distressed by polls showing that his “approval” ratings were in the low 40s. But, so far as I can tell, no one ever asked just how many of those who gave Obama a low rating were doing so because of disappointment that he had backed away from the progressive agenda he originally ran on. It is, almost certainly, a deeply contaminated statistic. And, it led to a horrible political decision. Here’s what Wasserman-Schultz should have said:

“Of course. Obama has been a transformational president. He took over an economy on the verge of collapse and rescued it. He saved the US auto industry which, you may have noticed, paid back those loans. The economy is in full recovery. Unemployment, which was over 10% when Bush finally left is now down below 6%. Inflation is low, interest rates are low, the stock market is at an all time high. The deficit has been cut by over a half. Immigration reform is still needed but the number of illegals entering the US is dramatically lower and deportation is at all time highs. The dollar is strong. Bin Laden is dead. America has a comprehensive health care plan for the first time in its history. Insurance premiums are down, health care costs are down and record numbers are now insured — and things would be even better here if GOP-dominated states weren’t refusing to cooperate with Medicaid programs. Do you want me to go on, Joe? I could discuss disengaging from two idiotic wars, the complexities of the UN, gay rights, the repeal of DOMA — and all of it in the face of an obstructionist opposition. Yeah, damn straight a vote for a Democrat is a vote for continuing the Obama agenda.”

But she didn’t. She waffled and Republicans laughed and won elections everywhere but, oddly, lost on all those initiatives. So, to the second factor of interest:

Progressive ballot referendums: Alaska, Oregon and Washington DC had the legalization of recreational marijuana on the ballot. It won in all three. They join Washington State and Colorado in this movement. Several other states liberalized medical marijuana laws and, it is reasonable to assume, will soon be moving toward full legalization. Finally, after decades of insanity that began with Nixon’s moronic “war on drugs,” we’re making progress.

So-called “personhood amendments” were on the ballots in Colorado and North Dakota. These initiatives, which declare a fertilized ovum to be a “person,” are idiotic on the face of it, unenforceable and scientifically bankrupt (the majority of fertilized ova are never implanted in the uterine wall). They were defeated by 30 points in both states. They have been defeated every time they have been on a ballot including Mississippi, the reddest state in the country.

Ballot measures to increase the minimum wage in Alaska, Arkansas, Nebraska and South Dakota passed while these states were electing Republicans who have historically rejected any increase in the minimum wage. In fact, every measure to increase the mimimum wage has passed from the most liberal places to the most conservative. It is favored by over 70%.

Washington had two initiatives on guns, one was the standard NRA-backed plan that would forbid any law authorizing background checks on purchases, loans or gifts of guns. The other would make a full background check obligatory, even for sales at gun shows. The latter won by almost 20 points, the former lost by over 10 and, of course, this happened while the state was electing a Republican-dominated senate.

So what’s going on? First, there’s a lot of emotion and not a lot of thought behind the ways in which folks are voting. Nothing new here, of course. It’s just that the juxtaposition between belief and choice this time is startling.

Second, a good bit of this emotional tone came from a shrewd Republican strategy that fit perfectly with the brain-warpingly stupid one of the Democrats. Do everything possible to block action, load bills down with unworkable amendments, refuse to consider presidential appointments, tie matters up in committee, lie about the economy, instill fear in the electorate, even shut the government down if need be.

Then blame Obama.

It worked, not because Obama was at fault, but because he blew it when it came to touting his own accomplishments and his party abandoned him, ran away from him and his record. So voters sat there feeling angry, thinking that the country was going to hell in a hand-basket and blamed the Black Dude in the White House while, astonishingly, voting in a bunch of Republicans who oppose the things that they simultaneously voted to approve!

What does this auger for the future? Who the hell knows. Even Nate Silver’s crew over at Five-Thirty-Eight didn’t see this train wreck coming.

We’re in a funny time. A majority of people assign the label “Conservative” to themselves but when you probe them for their positions on the economy, education, the environment and other key features of government they look like Liberals. They generally show support for moves to increase job growth, provide better funding for education, a progressive tax code, birth control, gay rights, disengagement from the wars in the Middle East, tackling climate change, funding for science and so many more progrssive programs — and then go out and vote for people who oppose them.

Nutty.

Update on 12 Nov 2014 by Arthur S. Reber

Headline today: 

Colorado Ousts Pro-Gun Republicans

Add this one to the list.

Update on the Towers Project in Point Roberts

Back in December of last year I posted a blog on a project that had been proposed for our little community, a plan to erect a large array of five AM broadcasting towers on a wooded lot near the border with Canada. At the time we were just beginning to grasp what lay ahead.

Ten months later we won — at least we won Round 1. In that earlier entry I outlined the Byzantine links between companies on both sides of the border, the involvement of the FCC and the CRTC (Canada’s equivalent agency), Industry Canada, Homeland Security and a passel of politicians on both sides of the border. The amusing part is that, despite all these arcane, twisted elements it all came down to the simplest of factors: local zoning codes that restrict the heights of structures.

The County Hearing Examiner determined that the tower array violated zoning regulations because the towers exceeded the limits on height and denied the permit.

Here’s the full story. It’s pretty interesting and describes in some detail what’s involved in the clash between a company with deep pockets and a small international community that barely even has a pocket.

 ===================================================================

KRPI 1550 AM v. The Residents of the Point Roberts/Tsawwassen Peninsula 

or

A Users Manual on How to Build a Coalition to Take On Goliath

In July, 2013 residents of Point Roberts discovered that BBC Broadcasting (no relation to the UK “Beeb”) had been granted a permit from the FCC to relocate their broadcasting towers from Ferndale, WA to Point Roberts. We were surprised and dismayed by this as we had been in contact with a representative from BBC some years ago and were told that Point Roberts was only one of many locations they were considering and they didn’t anticipate moving here.

The project was truly Brobdingnagian. There was to be an array of five, 150’ tall towers sitting in a large, forested lot just one long block from the border. The plans called for a wide driveway, an on-site storage and control facility, clear cutting over half the lot and, because of wetlands to the west, the towers would be on the northeast side and clearly visible from the main road — a road that has been designated a scenic byway with views all the way to the San Juan islands.

We immediately began a grass-roots effort to block the project which, as we discovered rather quickly, was wholly unsuited for Point Roberts. KRPI’s programming was in Punjabi. The signal, the highest the FCC allowed (50,000 watts both day and night), was to be beamed at the South Asian community in Metro Vancouver and all material, content, news, editorial positions and corporate decision-making was under the control of Sher-E-Punjab (SheP), a Canadian broadcasting company with studios in Richmond, BC. All advertising was for Canadian companies and products and all revenue remained in Canada with SheP.

BBC Broadcasting turned out to be a classic “shell” company. They did no broadcasting and their only income was from leasing the tower array to SheP. The companies are owned by the same extended family with one branch in Canada and one in the US. Later in the sixteen month-long saga we discovered that the Canadian Radio-television Telecommunications Commission (CRTC) viewed this use of an American facility to broadcast into Canada a violation of their Broadcasting Act and began an investigation.

As we looked at the applications to the FCC and Whatcom County we were dumbstruck. Despite the target audience of KRPI, Canada seemed not to exist. The entire area to the north, including the residents of Tsawwassen, had been redacted. In the many maps and charts submitted Tsawwassen was a dull, brown swath of nothing, no roads, no buildings, no homes or businesses — though one map noted that the town of Ladner was 7.2 miles away and another stated that Vancouver was 20 miles distant.

It was clear what was going on. BBC had deliberately ignored the Canadian population because, had they acknowledged it, the FCC and Industry Canada would never have approved the project. The number of people who would be exposed to harmful blanketing interference was many times what either country would allow.

Blanketing interference is a broadcasting term for the compromised functions of electronic devices that occurs in the vicinity of radio broadcasting towers. A 50,000 watt signal can have devastating effects on radios, televisions, cordless phones, hi fi systems, baby and invalid patient monitors, indeed anything with a receiver or a speaker. It also affects dsl lines, slows down computer operations, disrupts emergency communications on walkie-talkies and interferes with HAM operations. The umbrella of interference would, we discovered, be large enough to include virtually all of the 23,000 residents, businesses, churches, schools and community centers in Tsawwassen as well as the 5th busiest crossing along the Canadian-American border. Clearly this wasn’t just a Point Roberts problem. It was international.

We also understood why BBC was trying to pull out of Ferndale. In the original application they noted that  KRPI had created a “poisoned well” there with over 1,100 formal complaints filed with the FCC over blanketing interference.

By now residents of Tsawwassen had realized what was happening. We had emailed friends in Canada who forwarded the messages about and a small group of Canadians, all of whom lived within a few blocks of the border, joined us at the next meeting in Point Roberts. In August of 2013 we dubbed ourselves the Cross-Border Coalition to Stop the Towers also known as FTT — which some said stood for “Fight The Towers,” others had a more colorful first word. It had a core of some ten individuals but as our efforts expanded and fund-raising became essential it grew to encompass about two dozen on both sides of the border.

Over time this group morphed into a remarkable organization. We used the existing Point Roberts Taxpayers Association as the “party of interest” to make the first filings and to handle contributions. We never had an official “board” or set of directors. Whoever was chairing the next meeting put together the agenda. We remained loosely organized but each of us brought some skill, some background, some level of understanding that was valuable. Outside of our regular meetings we generated a virtual blizzard of emails with some of us holding in excess of 6,000 messages and upwards of 300 official documents, filings, court cases and transcripts on our hard drives.

We found in ourselves abilities we didn’t even know were there. One of us discovered she was an archivist and became expert at digging through court records, the FCC website (a truly byzantine place) and tracking down earlier legal dealings that BBC and SheP had had in both the US and Canada. Others found that they were top-notch fund-raisers, adept at working door-to-door, giving talks at local clubs and organizations, staffing tables at shopping malls and organizing major events like fund-raising dinners and Town Halls on both sides of the border.

Still others emerged as natural leaders who could hold the group together, writers who could process huge amounts of information into coherent documents and web designers who understood social media and the impact of live demonstrations.

We realized we had engineers, lawyers, psychologists and managers in our midst. We carved up responsibility for tasks in ways that made sense and distributed the work load. We met regularly (often weekly). We tracked down consultants who could support our case: heron experts, bird migration scientists, broadcasting engineers, fish and wildlife officials, political figures in both Canada and the US and, critically, an expert legal team, one with extensive background in zoning and land-use regulations and experience working with the Whatcom County Hearing Examiner’s Office.

It’s impossible to emphasize this element enough. Some of us felt at the outset that, because we were right and noble and our cause was just, we would prevail. It quickly became clear that this perspective was, in a word, naive. We were facing an organization with far more resources than we had and which had retained top-drawer, well-connected legal counsel in Washington DC and Washington State. The senior partner in the firm BBC hired in DC was a former Director of the FCC. Locally, they were represented by a large and powerful firm with offices in nine cities in the US and abroad — they were dubbed the top communications law firm in the country in 2012.

The more we and our lawyers examined precedent the more we came to understand that decisions in cases like this are made on the basis of clear, defensible legal grounds. If you do not have a legal team that knows local zoning and land-use law, is sensitive to the complex links between county regulations and  the issue of preemption (that is, which set of guidelines, the Federal or the local, trumps the other) and understands the quasi-judicial nature of a County Hearing you are going to have problems.

Ultimately, the Hearing Examiner did, indeed, rule on zoning clauses in the Whatcom County Comprehensive Plan and the Point Roberts Sub-Area Plan. The key regulation was the one that limits the height of structures within Point Roberts to 25’ — with conditionalized exceptions allowing a maximum of 45’. BBC’s lawyers argued that radio stations are, by definition, “essential public utilities” and therefore eligible for a Condition Use Permit (CUP) independent of this zoning restriction. They also argued that the FCC approved the 150’ heights and that this Federal determination preempted any local restrictions. The Hearing Examiner did not agree on either point. He granted our pre-Hearing Motion to Deny the CUP and cancelled the five days of testimony that had been scheduled.

It was the local equivalent of finally nailing Al Capone for tax evasion.

So, how to deal with these kinds of situations? It’s not easy. You need a solid group of dedicated, devoted volunteers. They need to be smart, savvy, flexible and able to work with others. We also established strong contacts with local newspapers who reported on events, published letters and, in several cases, wrote strong editorials. Once the story got out it spread and articles appeared in the national press. Our website was important. It was updated regularly and donations could be made through it.

You’re going to need money, a lot of it. Between our efforts in Washington, DC (we filed a formal Petition to deny BBC’s license renewal — that case is still in process), our efforts in Whatcom County, our outreach to various politicians in Washington State and British Columbia and our retaining expert witnesses it has cost us around $140,000 and there are still outstanding bills that will run another $35,000 (the final accounting isn’t in yet — it could be higher).[1] It’s not easy to raise this kind of money. It takes devotion, time, arm-twisting, cajoling and diplomacy from every one of us. We held Town Halls and threw parties with silent auctions, 50-50 drawings and each of us opened up our own checkbooks — sometimes more than once.

The key to it all? Cooperation — in this case international cooperation. Friendships were formed that will last beyond all the possible appeals. And we found ourselves in some very odd situations where those bonds were essential. It’s not every day that an American citizen sits down with a Minister in the Canadian Cabinet to discuss strategy. It’s not every day that a duo of a Canadian and an American make carefully choreographed presentations to organizations on both sides of the border. It’s not every day that a member of a Canadian Council and a member of the British Columbia Legislature ask to present at a Whatcom County Hearing — just after that Cabinet Minister makes her Ottawa-approved statement.

It’s a bit amusing, looking back at the narrative that accompanied the original application. BBC’s legal counsel seemed to view Point Roberts as some quaint, rustic backwater whose residents would be pleased as punch to have a real radio station in their quiet wooded exclave. That is not what we are. We’ve been fighting to protect our forested, quiet, safe and, yes, funky, peninsula for a long time. And to the north was another community equally used to fighting for their quality of life. A natural bond was formed.

We are pragmatists. A bit of euphoria and a couple bottles of bubbly after the Hearing Examiner’s decision was followed by a reality check. We won Round 1 but the fight will go on. BBC has notified the County that they will appeal to County Council. If Council concurs with the Hearing Examiner’s ruling their next step will be Superior Court and, if BBC loses there, the State Supreme Court. In these proceedings the Coalition are bystanders. Our legal counsel will make presentations at each level but, basically, the county is now defending its decision and we are relieved of responsibility.

So … we wait. We wait for the county and state to rule on the application, for the FCC to decide on the license renewal and for the CRTC to determine the fate of Sher-E-Punjab in Canada. We’ll let you know what we know when we know it.

---

[1] At this time we are short some $35,000 or $40,000 and still vigorously working on fund-raising. Donations are welcome and are tax-deductible. They can be made at http://notowers.webs.com/.

One-year Follow-up on Deities and Diets

Last year, embedded in a rumination about religion and weight loss, I noted that my gentle approach to dieting had gotten me down from 213 to 183 over a period of eight months. It’s a year later and this morning my scale flashed back me 185. So, I’m satisfied. I seem to have stabilized and not put those 30 unwanted pounds back on.

Statistically speaking this is quite unusual. The vast majority of dieters put the weight back and, almost always they end up heavier than before the diet. The reason for my success, I think, is that I never went on a diet — not in the usual sense. Instead, I made life-style changes and stuck with them.  I’ve kept up the exercise routine, have continued taking (slightly) smaller portions and only have a small snack at night. I think the 185 me is the real me now.

I’ll get back in a year…. 

Dueling Initiatives in Washington State

We’ve got ourselves a really interesting pair of “Initiatives” on the ballot this year. Washington State, like California, has fairly gentle requirements for getting these kinds of things on ballots so it’s pretty routine for us to have one or more of them to vote on.

But this time, what’s on the ballot is really weird. The two are mutually contradictory. One, Initiative 591, would make it illegal to require a background check when a gun is bought or sold or traded — including at gun shows. The other, Initiative 594, would require a background check be carried out for any sale or transfer of a gun — including at gun shows.

And, because they are separate initiatives, both could pass or both could fail. You can see the mess it would create if both passed.

Being that this is Washington, where the west is urban, progressive and strongly Democratic and the eastern part is rural, conservative and tilts Republican we’ve got a neat kind of geopolitical battle going on. And when this kind of thing pops up money starts flowing.

The usual suspects are shoveling cash. Gates, Bloomberg, Ballmer backing 594 and the NRA and other pro-gun organizations supporting 591.

The usual verbal assaults are also being tossed around. Accusations of deliberate confusion abound with both sides claiming the other backed their initiative to confuse the voters who are, of course, confused. As the New York Times noted in a nice article covering this donnybrook, back in ‘95 there were two similarly conflicting initiatives on the ballot (they were on medical malpractice). The public rejected both, thereby saving the courts from a precedentless conundrum.

I’m backing Initiative 594. The choice seems pretty simple to me. One bill would increase the death rate, the other lower it. I’m for lowering it. Those backing 591 say that if my view prevails then our “gun rights” will be curtailed. This, of course, is hyperbolic nonsense. It wouldn’t take away the right to own a gun, sell it or loan it. It would merely mean that guns would be subject to the same kinds of guidelines as automobiles. I can live with that. Gun enthusiasts should be able to as well.