[Posted by Karl]

After writing about Ben Smith’s memory of the role Big Insurance (specifically AHIP) played in both supporting and opposing Obamacare, I heard from him via email and Twitter.  He made the point that these two anti-Obamacare ads financed by the Chamber of Commerce (possibly with money from AHIP) attacked the tax-and-spend aspects of the then-pending legislation.  Smith misses two points.

First, while it is true the ads he identifies do not attack the “public option” or the employer mandate, it is equally true they do not attack the individual mandate, either.

Second, and more important, the ads Smith identifies ran in November and December of 2009.  Unfortunately for Smith, that was near the end of Obamacare’s long journey to passage.  He conveniently ignores that in June 2009, the Chamber’s ads were focused on opposing a government-run “public option” and that AHIP was on the sidelines.  Smith also ignores that in July 2009, the Chamber was still focused on the “public option” (and supporting the individual mandate), while AHIP ran its first ad, which called for bipartisan legislation providing universal coverage, even to those with preexisting conditions.  Watch it, especially if your name is Ben Smith.

As noted in the prior post, what happened next is that Congresspeople and Senators caught a ton of flak from their constituents over the summer recess.  But when they returned from recess, Democrats did not junk the “public option.”  Instead, they watered down the individual mandate, creating the risk of putting insurers into a “death spiral.”  Then, in late October 2009, Sen. Maj. Ldr. Harry Reid submitted a draft healthcare bill including a “public option.”  It took White House intervention in mid-December 2009 to get Senate progressives to give up the “public option” and thereby secure the necessary vote of Sen. Joe Lieberman from insurer-friendly Connecticut.  BTW, does anyone wonder why the mandate wasn’t Joe Lieberman’s “line in the sand”?  Does Ben Smith wonder?

In short, during November-December 2009, AHIP was being stabbed in the back by Democrats like a Quentin Tarantino staging of Julius Caesar.  No one should be surprised that AHIP tired of playing Lando Calrissian to the Democrats’ Lord Vader… with the apparent exception of Ben Smith.  AHIP ran more bare-knuckle ads for a few weeks that were designed to send a message to the White House and the Democratic Congress as much as the public.  But they spent months beforehand supporting legislation that met their criteria (particularly reliance on the individual mandate).  That support — and the time it bought Democrats —  was valuable, perhaps crucial, to the ultimate passage of Obamacare.  I appreciate that Ben Smith took the time to respond to my post, but the history seems to conflict with his memory.

–Karl

[Posted by Karl]

Ben Smith (surprisingly) got his first political byline at BuzzFeed today.  It addresses a “pet peeve” of Smith’s:

[I]f the mandate won’t clamp down as hard on costs as its backers hoped, it also didn’t prove the political elixir some still believe it was, buying the myth is that the mandate effectively bought off the insurance industry.

The mandate “explains why the big insurers, while opposing the final legislation, never attacked it as vigorously as they did Bill Clinton’s ill-fated reform effort,” New York Times columnist Ross Douthat wrote this week.

Perhaps a stronger mandate would have soothed the insurers, providing them a guarantee of a big new market, but ObamaCare’s didn’t, and if they were quieter in that opposition, that was a tactical choice driven by the intense attacks on their industry.

In fact, Bloomberg News reported that the main insurance lobby, AHIP, quietly gave $86.2 million to the U.S. Chamber of Commerce for a slashing campaign against the plan. The contribution only became public the next fall.

At the risk of peeving Smith further, let’s review a lot of history Smith leaves out of his supposed “debunking.”  AHIP was planning to buy into big-government health legislation as far back as 2006.  The agenda of Big Insurance was consistent.  The industry would accept regulations, including guaranteed issue and coverage of preexisting conditions, in return for the individual mandate, while opposing the inclusion of a “public plan” that would unfairly compete with the industry.

The Bloomberg piece Smith cites turns out to not say quite what he seems to think it says:

The Chamber got the money from the America’s Health Insurance Plans as the industry urged Congress to drop a plan to create a competing government-run insurance plan.

Yes, AHIP, like the Chamber, opposed the so-called “public option.”  And if you look at the ad Bloomberg posted with the story, you will see it supported government action, but opposed the “public option” and an employer mandate.  Anyone see what they did not oppose? Anyone? Ben Smith? Bueller?  A “slashing” campaign this was not.  The Chamber supported the individual mandate, as did AHIP.

The BuzzFeed story is likely correct that AHIP would have spent less if the individual mandate had been even more punitive, but after a summer of getting hazed by the public Congressional Democrats set about watering down the politically toxic mandate, even as they continued to push for the inclusion of the “public option.”  AHIP spent not to defeat Obamacare, but to ensure the legislation conformed to conditions they would accept.  Obama’s flip-flop on accepting the mandate was key to avoiding the total opposition Bill (and Hillary) Clinton faced from Big Insurance in 1993-94.  Douthat is correct about that; Smith is the one dealing in myth.

Update: Ben Smith responds; I reply.

–Karl

April Fool’s! That post I published yesterday about a bill to strip section 230 protections was a hoax, and (don’t get mad!) I was part of it. Eric Turkewitz, perennial annual jokester and the brains behind the operation, explains:

Welcome to April 2nd, and that means deconstructing yesterday’s web hoax that dealt with a phony bill by Senator Joe Lieberman that would effectively ban anonymous commentary on the Internet. The bill does this by stripping away the immunity that content providers currently enjoy from Section 230 of the Communications Decency Act. That would expose bloggers, forum owners and a panoply of others to potential liability. It played out on a dozen blogs that were all in on the joke.

How do I know it was just a joke? Do you really have to ask? If you’re just checking in to this blog for the first time you will find out by looking at this posting of mine from yesterday that this is the fifth year in a row I’ve done one of these. But since I’m now known (in the legal blogosphere) for running an annual gag, I created a new blog in February just for this purpose, to mask my identity: McIntyre v. Ohio. Prior to yesterday, the readership of that blog had been six Bulgarian spam bots and that guy Ken from Popehat. Thanks, Ken.

The new blog is dedicated to anonymous free speech, and named for the leading Supreme Court case on the subject. The idea for it popped into my brain late last year when Senator Lieberman asked Twitter to kill the Taliban feed. Obviously, the government can’t just shoot down someone’s speech rights, no matter how vile, because of that whole First Amendment thingie. This country was built on the marketplace of ideas prevailing, so the answer to political speech with which we disagree has always been “more speech.”

So the April Fool’s idea was that Lieberman would circumvent the First Amendment issue by simply stripping away the immunity that web hosts enjoy, thereby scaring the bejesus out of everyone in the private sector that is in any way involved with a web forum, and forcing people to kill controversial speech out of fear of litigation. It was called the Accountability for Free Discussion Act, or AFD, which is also the acronym for yesterday’s fun fest.

Eric has more at the link, but I wanted to highlight this one part:

But before any of you get angry at me or my co-conspirators listed below, remember this: Each of the authors participated because we feel strongly about protecting the First Amendment. (I’ve twice defended defamation claims, one in the past and one currently.) So while you may have been fooled for a few hours, or even angered, you should know that those who did the fooling are your teammates in vigilance against those that wish to encroach on our rights to speak freely. Most of the jokesters are lawyers. We get it.

I agree entirely. I would be four-square in opposition to any proposal as foolish as the one we attributed to Joe Lieberman. Holding bloggers responsible for the comments of their commenters would create a troll’s paradise in which commenters could create lawsuits for opposition blogs by leaving defamatory or otherwise actionable comments on those blogs. The response of blog owners would be to kill open comments on the Internet — a clear loss for the free and open exchange of ideas.

Yesterday I argued something a little different: that squelching anonymous speech would have a silver lining, because anonymous Internet actors spread false rumors that can hurt people and create phony controversies. I had a lot of fun writing those comments, because I knew that the entire premise of the post was based on an anonymous Internet actors (Turkewitz’s anonyblog) spreading a false rumor and thus creating a phony controversy. If you go back and re-read yesterday’s post and comment section, you will hopefully enjoy a little chuckle as I go around trying to get people to pay attention to the dangers of anonymous people spreading falsehoods on the Internet.

For those who don’t want to read a lengthy comment section, here is a brief recap. I started yesterday’s post noting that the source of the information was an anonymous blog:

According to the blog McIntyre v Ohio, an anonymous blog devoted to promoting anonymous speech, Senator Joe Lieberman has proposed stripping blog hosts of the immunity they currently enjoy from liability for things their blog commenters say.

Hint, hint! This is from further down in yesterday’s post:

You see, anonymous commenters (and bloggers) are also responsible for a lot of disinformation. And there is far too great a tendency for people to believe factual assertions by anonymous bloggers or commenters. Just because an anonymous blogger or commenter says something does not make it true. I specifically note this in part because I myself have been the victim of anonymous people making up “facts” about me. And it’s surprising how often people lap that kind of thing up.

So a revision to section 230 would be mostly bad. But given how often anonymous speech is not factual, you’re not going to find me crusading on this particular issue.

You would find me crusading on the issue . . . if the issue were real. But since it was a phony issue started by an anonymous blogger, I didn’t feel like crusading. That’s what I was trying to say.

In the comments, I elaborated on the dangers of falling for “facts” offered up by anonymous Internet entities, like here:

d in c: but them what do we do about the problem of misinformation by dishonest anonymous actors? It’s easy to say just refute it with more speech … but the problem with unsubstantiated rumors is that sometimes you don’t even know what disinformation is being spread. Trust me: when it happens to you it may give you a different perspective.

And here:

Will someone address my concern about misleading anonymous speech? Is this not a valid issue?

And here:

You sometimes find all kinds of people spreading disinformation that, if traced back to its source, turns out to be an anonymous person who is simply lying.

And here:

If you don’t think anonymous people on the Intenet manufacture “facts” to influence political discussion, you’re not paying attention.

The really scary part is how often it works without people even knowing it. Again: I have seen this firsthand.

And here:

58 comments in, I just wish one person would say: you know what? An anonymous Internet presence could totally make something up out of whole cloth, mislead people, and make fools of a large group of the electorate. And while I disagree with government intervention, I agree this is a genuine issue.

Can I get an amen on that, at least?

Writing these comments was fun, but what was especially fun was watching some of the readers “get it” — and then promptly burying their comments in moderation. Kudos go out to Dianna, Rodney Graves, JRM, Roland, Sue, and Random, all of whom guessed the joke. Random’s comment, collecting my quotes from the post about the dangers of anonymity, was an epic tipoff, and since the day was nearly over, and the collection of quotes was so well done, I decided not to moderate it. You can read it here.

Rodney Graves’s comment was cute:

Somehow, I suspect we’ll all feel a lot better about this in the morning…

As was JRM’s:

I’m slightly surprised . . . that *no one* appears to have looked at their calendar when analyzing this proposal.

Actually, several people had — I was just exercising my prerogative to disappear their comments. All the comments that I moderated out of existence have now been approved. Each contains my original note to them, followed by a note dated today saying I am releasing the comment from moderation.

There is a serious component to the argument I was making yesterday. It is actually a little frightening how easily people believe assertions by anonymous commenters on the Internet. I have been the victim of anonymous smear artists who have conducted Internet-based whisper campaigns about me, and I have seen it work on people who should know better. If yesterday’s exercise helps remind people that unsourced factual assertions by anonymous Internet entities are completely worthless, then I will have succeeded.

But the remedy is not government intervention. The remedy is more speech. In my case, the people conducting the whisper campaigns are all going to be exposed. Their reputations will suffer badly, and the weapon that will accomplish that suffering will be the best weapon of all: the truth.

So Joe Lieberman, you can take your phony proposal and go to hell!

[Posted by Karl]

In assessing why legal “elites” were caught off-guard by the scrutiny Obamacare received in last week’s Supreme Court arguments, Jonathan H. Adler suggests that (in addition to groupthink) “[a]t many schools, academics are more interested in developing a comprehensive theory of justice than in divining the nuances buried in the Court’s cases.”  Thus, “[p]remier appellate litigators may have a good sense of how the Court is likely to assess complex constitutional law claims, but elite legal academics, not so much.”  Expanding on the former point, Kenneth Anderson suggests legal elites are less interested in predicting Court outcomes than in framing of acceptable and unacceptable opinion and thereby setting the boundaries of outcomes.  RTWT, because I intend to focus on the latter point. (more…)