[EL] Fwd: An Aetna Experiment

Fri Jun 15 15:12:40 PDT 2012

The communications are absolutely about groups of citizens expressing views
on candidates -- no question about it, Mark.  We agree there.

We were promised in 1938, in a *Carolene* compromise, that it is safe to
close the courts to economic claims because economic deprivations are
unlikely to occur in a system of robust political processes: Economics
would be deemed a political question.

Retaliation 1) by government officials 2) with the regulatory *means* to
determine a business providers' very economic fate (*see* IPAB and
Dodd-Frank for its sweeping authority and lack of checks by co-equal
branches), who have 3) demonstrated a *motive* to retaliate (*see* Attack
Watch, the selective application of the DISCLOSE Act, a selective
application of Draft executive orders, Sebelius' threat to keep outspoken
opponents from healthcare exchanges and multiple other examples) and you
quickly begin to see the *Carolene *compromise is dead without a meaningful
exemption from campaign disclosure for independent, non-corrupting speakers
who rightly see political participation as their only remedy but do not
relish being next to be abused.

If the *Carolene* compromise is dead, so is popular sovereignty.  What's a
reviewing Court to do?

- S

On Fri, Jun 15, 2012 at 5:31 PM, Mark Schmitt <schmitt.mark at gmail.com>wrote:

>  Gingrich's views changed when his interests changed. His interests
> changed when he switched from being a lobbyist for the health insurance
> industry to being a Republican candidate for president. And I didn't say
> Aetna's best outcome would be a mandate. It would be a mandate with no
> other regulation -- a terrible policy and the opposite of public opinion.
> The parts of the health care law they want to get ride of are not the
> mandate.
>
> I doubt is so unsophisticated as to fall for something just because it
> "looks enticing." They have, you know, computers and actuaries and stuff.
>
> But ultimately, they believe that their best shot at having the influence
> that will get them closest to the policy results they want is to elect more
> Republicans. I keep coming back to this because I want to emphasize that
> these donations aren't about the corporation "expressing its views." They
> are about electing friendly legislators.
>
>
> On 6/15/2012 5:06 PM, Steve Hoersting wrote:
>
>  Aetna's views might change for the reasons Newt Gingrich's views (may)
> have changed.  An individual mandate looks enticing, until one begins fully
> to understand what the Progressives will do with it, and at what cost.  (I
> don't just mean dollars).
>
> Don't be so sure "Aetna's ideal outcome, in terms of interests, would be a
> mandate."  Aetna, too, may be learning.  Indeed, I'm betting there was a
> time GM's former CEO Rick Wagoner might have thought a ten-year tax break
> for General Motors would be *nirvana* -- "an ideal outcome, in terms of
> interests."  Guarantee you he doesn't think so any longer.
>
> I am glad to see you are willing to watch the experiment.  I too will
> watch.  Of course, as Bill suggests, it may be hard to gauge what
> concessions Aetna may already be making behind the scenes.  But that won't
> keep us from watching.  If you discover anything interesting, Mark, please
> let us know.
>
> Steve
>
>
>
>
> On Fri, Jun 15, 2012 at 4:54 PM, Mark Schmitt <schmitt.mark at gmail.com>wrote:
>
>>  Why would Aetna's views change? It's interests haven't changed. And in
>> answer to Bill, it's supported the mandate through Republican and
>> Democratic administrations and Congresses, so it's not likely doing it just
>> to curry favor.
>>
>> Aetna's ideal outcome, in terms of its interests, would be a mandate,
>> which delivers customers, mostly healthy low-cost ones, without any
>> insurance regulation, so they could continue to screen out the less
>> healthy, higher-cost applicants. Of course, that's the very worst
>> combination by any interpretation of the public interest. (People who
>> really need insurance still wouldn't get it and would wind up in
>> super-expensive high-risk pools, or uncompensated care, and the whole thing
>> would be staggeringly expensive.)
>>
>> I'm happy to treat the revelation of Aetna's political contributions as
>> an experiment in political retaliation. It's unlikely that a consumer
>> boycott would follow, since most Aetna customers (I'm one) aren't choosing
>> to buy from them directly, the cost of shifting is high, and most other
>> large insurers take a similar position (since they have similar interests).
>> And because the health reform *is *a market-based program,
>> administrators at HHS don't have a lot of room to randomly punish large
>> insurers for their political involvement, since they desperately need those
>> insurers to implement the program. But let's see where the experiment
>> stands in a year or two. And let's also see whether Aetna's influence in
>> Congress helped it get closer to the result most in its interests.
>>
>>
>>
>> On 6/15/2012 12:52 PM, Steve Hoersting wrote:
>>
>> Mark,
>>
>> First let me say, I would not be at all surprised if Aetna's views have
>> evolved or changed in the past decade. To the extent those views have not
>> changed, perhaps Aetna would, on a balance of factors, be willing to
>> support candidates who would repeal a law containing an individual mandate
>> in its entirety for fear of keeping a law that contains, say, an IPAB.  I
>> don't know the particulars of Aetna's calculation.
>>
>> What I do know is that the Chamber's ads will be independent of the
>> candidates it supports and will be non-corrupting as a matter of law.  (We
>> will soon see if that legal proposition is burnished or dented in the
>> Montana litigation currently before the SCOTUS).  Therefore, all that is
>> being further by this compelled disclosure is not anti-corruption, but only
>> the so-called "informational interest."
>>
>> My point and question, however, is not yours, which, if I can summarize
>> it, is tied to the informational interest as follows: Won't it be
>> interesting to see if Aetna backs someone who will repeal an individual
>> mandate?"
>>
>> Rather, my point is this: Will this recent disclosure of $7.8M bring the
>> heat down on Aetna?  That's the experiment I want to see run.  I don't
>> flatter myself enough to think my mentioning the potential of retaliation
>> against Aetna here will constrain anyone from retaliating against Aetna.
>> So, the integrity of the experiment survives, and we shall see.
>>
>> But I will flatter myself -- flatter my spotting of this issue some time
>> ago, anyway -- to this degree.  Senator McConnell's speech on
>> government-on-citizen retribution at AEI, and a related speech at CPAC,
>> show that my theory -- that we have now reached in America a state of
>> affairs where Capitalists Need *Socialist Workers*<http://www.nationalreview.com/bench-memos/266623/when-capitalists-need-socialist-workers-stephen-m-hoersting>-- will have its day.
>>
>> All the best,
>>
>> Steve Hoersting
>>
>>
>>
>> On Fri, Jun 15, 2012 at 12:22 PM, Mark Schmitt <schmitt.mark at gmail.com>wrote:
>>
>>>  We already know Aetna's position on health reform, from it's actual *
>>> speech* on the issue, which is different from the contributions it
>>> makes to influence elections. Aetna's position on health reform, going back
>>> a decade, has been that it supports an individual mandate, but opposes
>>> other insurance regulations.  (
>>> http://content.healthaffairs.org/content/27/3/667.full)
>>>
>>> Aetna's contributions to Republican candidates through these electoral
>>> committees will likely fund a message that, if it talks about health reform
>>> at all, will take the opposite position, attacking the mandate while
>>> promising to retain some of the more popular insurance regulations, such as
>>> guaranteed issue. Why? Because that's simply a more effective message for
>>> electing Republicans.
>>>
>>> That contradiction is interesting to know about. And if the Supreme
>>> Court overturns the whole health law, and the Romney administration somehow
>>> neglects to fulfill its promise to restore or keep the insurance
>>> regulations, the influence of mega-donors like Aetna might just have
>>> something to do with it.
>>>
>>> It's also strong evidence that these contributions have nothing to do
>>> with expression of a corporation's views, but simply getting Republicans
>>> elected.
>>>
>>>
>>> On 6/15/2012 8:49 AM, Steve Hoersting wrote:
>>>
>>> So, Aetna has disclosed the fact that it supports those who support
>>> medical markets.  This is interesting, and surprising.  Finally, the voters
>>> will learn that the Chamber *really* supports free enterprise.
>>>
>>> But let's see what, if anything, happens to Aetna in the next few
>>> months.  We will see whether the voters simply take their cues from this
>>> disclosure and better understand the Chamber's message.  Or see whether the
>>> disclosure paves the way for boycotts or brickbats.
>>>
>>> If the Target<http://www.huffingtonpost.com/2012/06/02/target-gay-marriage-ban-minnesota_n_1564739.html>matter is any indicator, Color of Change or, perhaps, Kathleen Sebelius in
>>> this case (*see* Michael Cannon and Diane Cohen's latest study<http://www.nationalreview.com/articles/302876/ipab-obamacare-s-super-legislature-michael-f-cannon?pg=2>to understand what I mean) will have Aetna selling "Single Payer" t-shirts
>>> by October.
>>>
>>> Steve Hoersting
>>>
>>> On Fri, Jun 15, 2012 at 12:02 AM, Rick Hasen <rhasen at law.uci.edu> wrote:
>>>
>>>>   Back Monday <http://electionlawblog.org/?p=35746>
>>>> Posted on June 14, 2012 9:01 pm <http://electionlawblog.org/?p=35746>
>>>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>>>
>>>> See you then.
>>>>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D35746&title=Back%20Monday&description=>
>>>>   Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments
>>>> Off
>>>>   “Aetna Confirms It Gave $7.8 Million To Chamber, American Action
>>>> Network” <http://electionlawblog.org/?p=35744>
>>>> Posted on June 14, 2012 9:00 pm <http://electionlawblog.org/?p=35744>
>>>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>>>
>>>> Tip of a very large iceberg, I suspect.
>>>>
>>>> Must-read<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=27071457&vname=mpebulallissues&jd=a0d3d5m7n5&split=0>Bloomberg BNA: “The insurance company Aetna confirmed June 14 that it
>>>> donated about $7.8 million to two major Republican-leaning
>>>> organizations—the U.S. Chamber of Commerce and American Action
>>>> Network—which have sponsored tens of millions of dollars worth of political
>>>> ads but have never disclosed their funding sources. The revelation—which
>>>> came due to an accidental filing by Aetna—was significant because few, if
>>>> any, political donations from large, public corporations have been revealed
>>>> previously….’We support organizations and candidates who share our views on
>>>> how to fix the problems facing our health care system, as well as our
>>>> country,’ [Aetna President] Bertolini said. ‘We fully comply with all
>>>> federal and state disclosure requirements.’…The Chamber spent over $30
>>>> million on television ads in the 2010 congressional elections—nearly all of
>>>> it backing Republican candidates or attacking Democrats.”
>>>>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D35744&title=%E2%80%9CAetna%20Confirms%20It%20Gave%20%247.8%20Million%20To%20Chamber%2C%20American%20Action%20Network%E2%80%9D&description=>
>>>>   Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax
>>>> law and election law <http://electionlawblog.org/?cat=22> | Comments
>>>> Off
>>>>   “Let Them Give Millions” <http://electionlawblog.org/?p=35741>
>>>> Posted on June 14, 2012 8:54 pm <http://electionlawblog.org/?p=35741>
>>>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>>>
>>>> Andrew Rosenthal<http://takingnote.blogs.nytimes.com/2012/06/14/let-them-give-millions/?ref=politics>on Newt Gingrich’s campaign finance complaints.
>>>>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D35741&title=%E2%80%9CLet%20Them%20Give%20Millions%E2%80%9D&description=>
>>>>   Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
>>>> Off
>>>>   “FEC Deadlocks On Attempted Evasion of Disclosure Laws”<http://electionlawblog.org/?p=35738>
>>>> Posted on June 14, 2012 5:28 pm <http://electionlawblog.org/?p=35738>
>>>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>>>
>>>> This item<http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=1766:june-14-2012-fec-deadlocks-on-attempted-evasion-of-disclosure-laws&catid=63:legal-center-press-releases&Itemid=61>appears at the CLC Blog.
>>>>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D35738&title=%E2%80%9CFEC%20Deadlocks%20On%20Attempted%20Evasion%20of%20Disclosure%20Laws%E2%80%9D&description=>
>>>>   Posted in campaign finance <http://electionlawblog.org/?cat=10>, federal
>>>> election commission <http://electionlawblog.org/?cat=24> | Comments Off
>>>>   “Florida governor mistaken for dead in 2006 vote”<http://electionlawblog.org/?p=35736>
>>>> Posted on June 14, 2012 5:27 pm <http://electionlawblog.org/?p=35736>
>>>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>>>
>>>> Reuters<http://www.reuters.com/article/2012/06/14/us-usa-voting-florida-idUSBRE85D15R20120614>:
>>>> “Florida’s governor, who is leading a disputed purge of voter registration
>>>> rolls, had to cast a provisional ballot in 2006 because officials
>>>> mistakenly thought he was dead, election officials said on Thursday.”
>>>>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D35736&title=%E2%80%9CFlorida%20governor%20mistaken%20for%20dead%20in%202006%20vote%E2%80%9D&description=>
>>>>   Posted in election administration<http://electionlawblog.org/?cat=18>,
>>>> The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
>>>>   “WyLiberty Attorneys File Lawsuit to Stop FEC Chill on Free Speech”<http://electionlawblog.org/?p=35733>
>>>> Posted on June 14, 2012 2:03 pm <http://electionlawblog.org/?p=35733>
>>>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>>>
>>>> Press release<http://wyliberty.org/feature/wyliberty-attorneys-file-lawsuit-to-stop-fec-chill-on-free-speech/>:
>>>> “Wyoming Liberty Group attorneys filed a lawsuit<http://wyliberty.org/wp-content/uploads/2012/06/Free-Speech-v-FEC-Verified-Complaint.pdf>in the Wyoming federal district court today against the Federal Election
>>>> Commission (FEC) on behalf of Free Speech, a Wyoming grassroots
>>>> organization…The suit, Free Speech v. Federal Election Commission, argues
>>>> that vague and overbroad FEC regulations, which require grassroots groups
>>>> to register as ‘political committees’ (PACs), effectively shut down much
>>>> speech in the heartland.”
>>>>
>>>> It is not clear how much this complaint overlaps with the recent 4th
>>>> Circuit decision <http://electionlawblog.org/?p=35602> in the *Real
>>>> Truth About Obama* case.
>>>>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D35733&title=%E2%80%9CWyLiberty%20Attorneys%20File%20Lawsuit%20to%20Stop%20FEC%20Chill%20on%20Free%20Speech%E2%80%9D&description=>
>>>>   Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
>>>> Off
>>>>   “Law & Order: Election Administration Unit; News Roundup: 2012 has
>>>> been a litigious year” <http://electionlawblog.org/?p=35730>
>>>> Posted on June 14, 2012 12:17 pm <http://electionlawblog.org/?p=35730>
>>>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>>>
>>>> That’s the lead story in this week’s Electionline Weekly.<http://www.electionline.org/index.php/electionline-weekly>
>>>>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D35730&title=%E2%80%9CLaw%20%26%20Order%3A%20Election%20Administration%20Unit%20News%20Roundup%3A%202012%20has%20been%20a%20litigious%20year%E2%80%9D&description=>
>>>>   Posted in election administration<http://electionlawblog.org/?cat=18>,
>>>> The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
>>>>  Justice Kennedy Issues Temporary Stay in Arizona Voter Registration
>>>> Case <http://electionlawblog.org/?p=35727>
>>>> Posted on June 14, 2012 12:11 pm <http://electionlawblog.org/?p=35727>
>>>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>>>
>>>> SCOTUSBlog<http://www.scotusblog.com/2012/06/new-arizona-election-plea/>:
>>>> “FINAL UPDATE Thursday 2:20 p.m.   Justice Kennedy has issued a temporary
>>>> order<http://sblog.s3.amazonaws.com/wp-content/uploads/2012/06/Kennedy-order-11A1189.pdf>delaying the Ninth Circuit Court’s ruling, at least until further briefs
>>>> are filed in the case.  The Circuit Court mandate was due to be issued
>>>> tomorrow, but now will be delayed until at least next Wednesday afternoon.
>>>> The challengers to the Arizona citizenship proof requirement are to file a
>>>> brief by Monday afternoon, with a state reply due by noon Wednesday.
>>>> Earlier today, this post was updated to provide a link to the application,
>>>> here<http://sblog.s3.amazonaws.com/wp-content/uploads/2012/06/11A1189-AZ-applic.pdf>
>>>> .”
>>>>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D35727&title=Justice%20Kennedy%20Issues%20Temporary%20Stay%20in%20Arizona%20Voter%20Registration%20Case&description=>
>>>>   Posted in NVRA (motor voter) <http://electionlawblog.org/?cat=33> | Comments
>>>> Off
>>>>
>>>> --
>>>> Rick Hasen
>>>> Chancellor's Professor of Law and Political Science
>>>> UC Irvine School of Law
>>>> 401 E. Peltason Dr., Suite 1000
>>>> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://law.uci.edu/faculty/page1_r_hasen.htmlhttp://electionlawblog.org
>>>> Pre-order The Voting Wars: http://amzn.to/y22ZTvwww.thevotingwars.com
>>>>
>>>>
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>>>>
>>>
>>>
>>>
>>> --
>>> Stephen M. Hoersting
>>>
>>>
>>>
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>>>
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>>>
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>>
>>
>>
>> --
>> Stephen M. Hoersting
>>
>>
>>   --
>> Mark Schmitt
>> Senior Fellow, The Roosevelt Institute
>> 202/246-2350
>> gchat or Skype: schmitt.mark
>> twitter: @mschmitt9
>>
>
>
>
>  --
> Stephen M. Hoersting
>
>
>
>
> --
> Stephen M. Hoersting
>
>
>
> _______________________________________________
> Law-election mailing listLaw-election at department-lists.uci.eduhttp://department-lists.uci.edu/mailman/listinfo/law-election
>
>
> --
> Mark Schmitt
> Senior Fellow, The Roosevelt Institute
> 202/246-2350
> gchat or Skype: schmitt.mark
> twitter: @mschmitt9
>
> _______________________________________________
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-- 
Stephen M. Hoersting
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