Thinly Veiled

     The city council of Los Angeles and Mayor Antonio Villaraigosa have passed an ordinance requiring pornographic actors to wear condoms during filming. For the president of the AIDS Healthcare Foundation, Michael Weinstein, the law's passage represents a victory for public health and the first step towards state-wide legislation. After a few high profile cases of actors testing positive for HIV, Weinstein and others have argued that the pornographic film industry's policy of HIV and STD testing in general is insufficient. They would like to see law enforcement and the machinery of workplace safety agencies (including random inspections) implemented to ensure compliance with the new law.
     The industry largely opposes the new law and promises to provide stiff opposition. Many adult film companies fear that requiring condom use will hurt consumer ardor for their product and have threatened to pull out of Los Angeles in order to shoot somewhere else. If the measure survives legal challenges (it might be a big “if”) then it is likely a Pyrrhic victory for Michael Weinstein and the AIDS Healthcare Foundation.
     Industry representatives have suggested that they would relocate studios to nearby Nevada or elsewhere. Attorney Marc J. Randazza of Nevada tells the Los Angeles Times that a district attorney might be reluctant to prosecute a pornographic film company in a state where prostitution is legal in certain areas (pornographic film making can be construed as a form of prostitution). Michael Weinstein feels that the such a move is unlikely, but the AHF has vowed to follow them if they relocate. The AHF is not without a paddle; legal prostitution in Nevada does mandate the use of condoms, and it is not a stretch to apply the law to cover pornographic films.
     However, Nevada is not the only option. Other states may welcome the pornographic movie industry by accommodating their desire for condom-less production. A cottage industry approach would also allow for furtively produced pornography without condoms. So far, California has been a natural home for pornographic film studios and not simply because it has been a home for movie studios and aspiring actors in general; the California Supreme Court is one of the few that has upheld the production of pornography as constitutionally protected expression (and not merely a form of prostitution) whereas the issue has not been tested in many states. That could change. Mainstream film companies have already relocated much of their production to places outside of Hollywood, and it is not hard to imagine a similar migration for adult film studios looking to avoid a condom mandate. Weinstein and the AHF seem committed to follow them to any part of the country.
     Their uncompromising position suggests that the health and safety of porn actors and the people with whom they have sex are not the only consideration. After all, promiscuity and unprotected sex are not exclusive to porn actors and sex partners (a very small fraction of the population), and pornography can be produced by a highly monogamous married couple (isn't that redundant?) in their own home where a condom mandate replete with random OSHA-style inspections would seem uncommonly silly.
     Condom-mandate advocates are using the rhetoric of public safety as a thin cover for the real meat of their argument; the AHF intends to use legal compulsion to draft an unwilling industry into a campaign to promote condom usage amongst consumers of pornography and not merely those who are employed in it. Weinstein and others hope that by attempting a virtual ban on films featuring unprotected sex that the undesirability of condom use will decline and that usage will increase amongst the general population when prophylactics are glamorized on film.
     Of course, they do not advertise this paternalistic motive. Public support would fade and First Amendment challenges would be inevitable. Hiding behind a narrower public safety argument (the safety of workers in an industry) allows them to deflect accusations of trying to change the content of what the California Supreme Court deems protected speech. This effort parallels attempts by some to erect obstacles to mainstream films where actors smoke, but those advocates cannot hide behind arguments related to the health and safety of actors who smoke. It is perhaps for that reason that they only argue for restricting minors from seeing such films.
     Consider Weinstein's skepticism of pre-exposure prophylactic pharmaceuticals for HIV prevention: “As a gay man, I believe this would be a catastrophe for HIV prevention... If this pill were approved by the FDA, why would those [HIV negative] men keep wearing condoms?” His argument parallels one that was employed against the efficacy of the HPV vaccine: “If teenage girls get the HPV vaccine then why would they abstain?” Weinstein and other social liberals have become scolds and busybodies. They have created a cult of contraception as religious conservatives once did with female chastity.
     The cultural Left has long desired greater government intervention in the realm of promoting contraception, but Americans would generally oppose infomercials and public awareness messages for the promotion of condoms (or birth control pills). A condom mandate for adult films is a terrific Trojan horse.

Racist Until Proven Innocent

     If his most zealous advocates were to be believed, Barack Obama's ascension to the White House was supposed to usher America into a “post-racial” era. It was a narrative intended to elevate Obama's prestige amongst the general public and conform to the idealized picture that Obama's followers had painted in their minds. So far, Obama's most avid supporters have only exacerbated racial tensions.

     “You have what I call the 'Get the N-word out of the White House,' the Tea Party,” says Hollywood actor Sean Penn in an October 14^th CNN interview. He elaborates: “At the end of the day, there's a big bubble coming out of their heads saying, 'Can we just lynch him?'”

     Fellow actor Morgan Freeman had previously stated in a CNN interview that Tea Party activists' approach is “Screw the country. We're going to do whatever we can to get this black man out of here.”  He argues that the rising influence of the Tea Party movement “just shows the weak, dark underside of America” and that Americans are “better than that.” Actress and comedian Janeane Garofalo's description of Tea Party activists as “redneck racists” is apparently not so unpopular in the entertainment industry, and it goes virtually unchallenged by CNN interviewer Piers Morgan who never fails to give conservatives the third-degree on gay marriage (Morgan claims that Tea Party activists are “violently opposed” to gay marriage). Are we to infer from Piers Morgan's selective indignation that it is more respectable for someone to brand millions of people as racists for opposing Barack Obama than it is for someone to not support gay marriage?

     What does the Hollywood left have to say about presidential hopeful and Tea Party favorite Herman Cain or Florida congressman Allen West? What about South Carolina congressman Tim Scott? Supreme Court Justice Clarence Thomas? Black men like Cain, West, Scott, and Thomas arguably have greater claim on black “authenticity” than Barack Obama, and they are amongst the Tea Party's most celebrated. But don't tell that to HBO's Bill Maher who notes that Clarence Thomas “does not represent 95% of black people” (a remark that earned him effusive approval from his in-studio audience).

     Liberals generally demure from commenting on black conservatives because referring to someone as an “Uncle Tom” or an “Oreo” would grate against their self-portrait of tolerance and open-mindedness.

     The Tea Party movement's advocacy of smaller government is essentially race neutral. Imputing racist intentions on deficit reduction, limited government, and opposition to Obama's health care reform requires some combination of over-sensitivity (perhaps paranoia?) and a lack of candor. Yet, unchallenged accusations of racism abound. The word “racist” has become the go-to-epithet for liberals to employ against conservatives, and its overuse turns simple political disagreements into a racial issue.

     Suppose Hilary Clinton had won the presidency. Are we to believe that the Tea Party would never have existed? Or would they merely be redneck sexists instead of redneck racists?

     Race has undoubtedly influenced the tone of political rhetoric surrounding President Obama, but it has primarily been his supporters who continue to make race an issue. The promise of a post-racial America and a post-racial president has been undermined by those who made the promise.

In the Name of Fairness

     

    President Obama has found a platform for his re-election campaign. He will the be the one that we are waiting for. He will be the guarantor of fairness, health insurance, and jobs in a time of economic anxiety. Republicans will be put in a position to defend a tax code that punishes the middle-class, to deprive people of health care, and to oppose Obama's jobs program. But behind the rhetoric of fairness, the positions of the Obama administration leave much to be desired.

    White House Senior Advisor David Plouffe tells us that President Obama believes “that the right way to get the fiscal house in order is to ask the wealthy to pay their fair share” and raise their taxes. The so-called Buffett rule (named in honor of billionaire investor Warren Buffett) and other tax proposals advocated by Obama would raise taxes on most individuals (small business are frequently taxed as individuals) with an annual income of $1 million or more. The Obama administration does not scruple to note that the wealthy already pay more in taxes as a percentage of their income than everybody else.

    In their fact-checking, the Associated Press (hardly a right-wing organization) found that households exceeding $1 million in annual income pay roughly 29.1 percent of their income in federal taxes. Households in the $50,000 to $75,000 range pay roughly 15 percent. Those in the $20,000 to $30,000 range pay 5.7 percent.

    Of course, a small number of the very wealthy do not pay their “fair” share. For example, Warren Buffett is one of the wealthiest people on the planet and he apparently pays less in federal taxes than his secretary – a feat he achieves by taking advantage of the tax loopholes and shelters that he derides. Dramatic tax reform similar to one achieved during the 1980's would be a remedy as would a simpler (and flatter) tax, but Obama's proposals fall well short of that goal and by advocating tax hikes during an economic downturn he appears to be ignoring his own advice from 2009: “The last thing you want to do is raise taxes in the middle of the recession because that would just suck up and take more demand out of the economy and put business in a further hole.”

    Yet some liberals are adamant in their support for (among other things) raising taxes in spite of the impact it could have on job growth (see Warren Buffett). Charlie Fink of the Agenda Project claims, “I have built and run businesses... through booms and busts... Taxes were never, ever, a factor in my decisions about hiring.” Never ever?

    Obama's latest job creation program (which would be called a stimulus package if the other one had worked) calls for a temporary reduction in payroll taxes and tax credits for businesses that hire new workers. The point of such reductions is to stimulate job growth. One wonders what economic rationale allows supporters of Obama's tax and job programs to claim that raising taxes on businesses does not impede job growth while simultaneously claiming that lowering taxes does encourage it.

    Perhaps it is the same sort of reasoning that motivates supporters of Obamacare like former House Speaker Nancy Pelosi to ban health insurance policies that charge females policyholders a higher premium than males and insurance policies where policyholders with a pre-existing condition are charged a higher premium than policyholders without one. We are told that “no longer would being a woman be a pre-existing condition.”

    Pelosi and others think it is unfair for insurance companies to charge women four or five dollars extra in monthly premiums. They don't seem to mind the idea of forcing a man to pay higher premiums for an individual health insurance policy that covers birth control pills, morning-after pills, maternity care, and well-baby visits. They think it is unfair to charge someone more if they have diabetes but find it acceptable to charge a healthy 60-year-old three times more than a sickly 30-year-old; apparently, fairness demands that pre-existing conditions must be ignored but age should not when one is trying to ban discrimination on the basis of medical history.

    Fairness is an almost universal human sentiment, but fairness as a political doctrine has serious limitations. For the Obama administration, it is a buzzword that barely disguises the weaknesses of its domestic policy.

Taking a Pass on Obamacare

    Following the passage of the Patient Protection and Affordable Care Act in 2010, opponents of what has been commonly referred to as Obamacare and the individual health insurance mandate began waging legal challenges against what has been President Obama's most notable domestic policy initiative. Nearly 30 states have jointly filed lawsuits claiming that Obamacare is unconstitutional because they believe that having the federal government compel citizens to purchase health insurance is not justified under the interstate commerce clause. Many supporters of Obamacare, including prominent legal scholars like Laurence Tribe, Akhil Amar, and Erwin Chemerinsky, believe that its constitutionality is doubtless.

    However, the lawsuits persist and opponents of Obamacare scored a notable victory when the 11^th Circuit Court of Appeals upheld a lower court's ruling against Obamacare. Their ruling conflicts with the 6^th Circuit Court ruling, and the Supreme Court awaits. The high court should, if it can, take a pass on this one.

    The arguments against the individual mandate basically center around the idea that the individual mandate is not a necessary and proper measure for the regulation of the health insurance industry because such a broad reading of the interstate commerce clause would grant too much power to the U.S. Congress and jeopardize the notion of our government as one of enumerated powers. Supporters of the individual mandate say that such an objection is rubbish and that the individual mandate is necessary and proper for the broader regulatory goal of making everyone eligible for health insurance independent of medical history. Neither side is decisively correct.

    Then what should the court do? It could defer to the determination of the legislative branch and implicitly accept that Obamacare is constitutional; many believe that the court will take such a route. However, expanding the power of the federal government (if it is an expansion) in such a way will stink in the nostrils of the conservative bloc who may wish to revisit the issue at a later date or assert the court's authority to prevent federal overreach in the name of social welfare; they may not be eager to overturn Obamacare, but what about the next legal conflict between economic autonomy and the regulatory powers of Congress?

    If the Supreme Court could punt the issue away on narrower legal grounds or some technicality then it could save itself a huge headache in the 2012 session. They could conjure an argument that questions whether or not state attorney generals and conservative legal groups have legal standing; they could point out that the individual mandate does not take effect until around 2014; they could ask if there have been any legal damages that would warrant such lawsuits; they could simply say that they would rather revisit the issue at a later date (although that is unlikely because that would be conceding fallibility) and promise to expedite similar lawsuits that are filed after a certain point. Such a tact essentially amounts to upholding Obamacare if only temporarily.

     After all, Republicans are poised to take both houses of Congress following the 2012 election and have a better than even chance of capturing the White House. A Republican administration with any of the current frontrunners at the helm will more than likely overturn Obamacare and replace it with something else which would make the lawsuits a moot point. Alternatively, if President Obama is reelected and Obamacare doesn't get axed then voters will have more of a chance to evaluate if Obamacare is effective and desirable in action and not just in theory; in that case, there may be little demand for the court to overturn the law and the high court can comfortably uphold it. The legislative process can spare the Supreme Court some grief.

     And what grief it would be! Any decision will create a storm of controversy that would further politicize the Supreme Court and possibly put the court front and center on the stage of a presidential election. On the other hand, allowing the issue to ripen before judicial intervention would be palatable for many Americans even if it does resemble a political calculation because it is a calculation that reflects judicial modesty. Lawyers, legal activists, and some legislators may find the lack of resolution and direction on commerce clause jurisprudence from the high court undesirable, but the electorate doesn't care about legal purity. They want something that works.

No Bone Marrow for You!

“Instead of getting a felony conviction for it, you would get a gold star.”

 - 9^th Circuit Judge Andrew Kleinfeld, on the contrast between selling and donating bone marrow

     The LA Times article “Ban on Paid Marrow Challenged” (2/21/20) tells the story of how the National Organ Transplant Act of 1984 is being challenged in the court system by plaintiffs that fault the law for contributing for a shortage of bone marrow donations through its ban on the sale of human organs for medical use. This shortage leaves many who are suffering from life-threatening illnesses like leukemia waiting in a long queue for a good match. In some cases patients expire during their wait or accept less than optimal bone marrow matches that leave their bodies vulnerable to graft-versus-host complications which can be fatal. The plaintiffs legal case may be lacking (a lower court tossed their lawsuit because it lacked legal grounds), but their grievance is eminently legitimate.

     The ban originated from several considerations. Chief among those reasons was the fear that poorer Americans would be disadvantaged by the commercialization of organ donation. In particular, if organs could be bought and sold then a wealthier patient could get the pick of the litter (a better match) while a poorer patient might be forced to settle for an inferior match because the poorer patient is likely to be outbid. Alternatively, a rich man could overpay for a decently matched kidney that would have been a near perfect match for someone else. These concerns help explain the establishment of the Organ Procurement and Transplantation Network where patients are matched with organs based on compatibility and medical outlook.

     By banning the sale of organs and bone marrow in the name of equal access, the government prevents a legal market from emerging and exacerbates shortages. Price controls and government rationing of goods and services generally fail because the former distort the market and the later destroys it. The ban on organ selling essentially forces the government to ration organs. Markets create incentives (a profit motive) for suppliers of goods and services to increase to supply when shortages exist. If potential suppliers are denied compensation then shortages persist.

     If the ban were lifted, a dramatic increase the supply of organs would largely mitigate the potential problem of poorer patients settling for interior matches. After all, even if rich patients were to receive the pick of the litter it may not force poor patients into settling for inferior organ matches because the size of the litter is much larger. But even if dramatic inequalities in organ quality persist between rich and poor recipients, the government can impose modest regulations to ensure greater equality without destroying the market altogether through rationing.

     The fears over unequal access to organ transplants are misguided, and they parallel the fears over unequal access to medical care in general. Concern over inequality in health care largely motivates those who support single-payer (nationalized) health care. In this case, it is also partly to blame for the organ rationing program that mostly succeeds in creating shortages while still allowing people to cut in line if they take extraordinary measures like organ bartering or if they are wealthy and well-connected (as some have said of Steve Jobs).

     Of course, the idea of selling organs raises ethical questions. Is it proper for the law to allow poorer Americans to jeopardize their health by selling kidneys or parts of their liver for money?  Perhaps not, but the idea of selling organs should still be viable because the selling of organs can be recast as a selling of rights to organs after death. Someone who may not otherwise consent to being a donor may give consent if he is compensated for his consent or if his estate or family is compensated.

     However, this does not apply to bone marrow donations because they are almost always live donations and not from cadavers. The marrow donation process is highly inconveniencing for the donor because one method of extracting stem cells leaves the donor with flu like symptoms for several days and the other is surgical. Considering the level of inconvenience, shortages are not surprising.

     Employees of the bone marrow registry, medical technicians, nurses, doctors, administrators, and others who participate in pairing donor marrow to recipients all receive payment.  Why shouldn't someone receive modest compensation for donating marrow especially if they have to miss work?

     One common answer from individuals who work for the bone marrow registry is that donating marrow is someone's duty and people should not expect to be paid. It is not without irony that there are those who receive hourly pay to register bone marrow donors yet (piously) expect others to donate their time and body parts without compensation.

A Skirmish Against Our Sensibilities

    Writing for the Washington Post, Susan Brooks Thistlethwaite of the Center for American Progress proclaims that Republicans have declared a “war on poor women.” In the New York Times editorial “The War on Women,” readers were told that “Republicans in the House of Representatives are mounting an assault on women's health and freedom” by proposing to remove federal funding of Planned Parenthood. We are ominously warned that “this is just the beginning.” Those warnings are part of a chorus that includes U.S. Senators Barbara Boxer and Kirsten Gillibrand, and various media outlets.
    According to the Times editorial, a Republican resolution in the House of Representatives called for “egregious cuts” for Planned Parenthood and the federal family planning program known as Title X which helps low-income women gain access to contraception, cervical cancer screenings (Pap smear and HPV tests), and STD testing. The Times claims that without Title X, an increase in unintended pregnancies would preposterously “result in 400,000 more abortions a year.” The GOP bill “slices $50 million” for “prenatal health care... and health care for 31 million children” and leads the Times to conclude that “[t]hese are treacherous times for women's reproductive rights...”
    In others words, the Republican party is going to kill women, deny health care for 31 million children, and look the other way at “400,000 more abortions a year.” Right.
    Who really believes that dramatically reducing federal funding for Planned Parenthood and similar groups equates to “mounting an assault on women's health?” Such an assertion is tantamount to saying that proposed cuts and cost-saving measures in Medicare and Medicaid (as outlined in President Obama's health care reform law) are an assault on the poor, sick, and elderly.
    In what meaningful way are women's freedoms and reproductive rights assaulted if the government decides to remove subsidies for abortion providers like Planned Parenthood? The demand for the services that Planned Parenthood provides will persist without federal subsidy, and services will continue to be provided albeit at a higher cost for clients.
    The Supreme Court has decided that the Second Amendment entails an individual's right to own a firearm, and yet no one in his right mind would accuse the government of “assaulting” our freedoms if it decides to not subsidize a gun manufacturer or offer tax rebates for ammunition. By the same token, reproductive rights are not “assaulted” when the government doesn't subsidize Planned Parenthood.
    The Times is not alone. MoveOn.org also insists that the GOP is embarking on a War on Women. Speaking on behalf of MoveOn in the professionally produced “We Won't Go Back” video (http://www.youtube.com/watch?v=4zCJigrTb9Q), television actress Lisa Edelstein of “House” fame tells us that Republicans “launched an all-out assault on women's health” in an effort to send women “back to the back alley.” She warns of how the GOP aims to coerce women into implementing coat hangers in their quest for “vital services” (she means abortions), and her message was echoed by “House” co-star Olivia Wilde.
    Incidentally, Edelstein and Wilde are both vegans; abortion is fine, subsidizing abortion is virtuous... but please step away from the sardines.
    The heated rhetoric from the Left surrounding the so-called War on Women is particularly odd when one considers the mass shooting in Tucson, Arizona and the widespread condemnation of conservatives and Tea Party activists shortly afterward. The Times faulted “many on the right” for exploiting “invective” and “the arguments of division.” Times columnist Paul Krugman wrote that “violent acts are what happen when you create a climate of hate.” What exactly did conservatives invoke? Dangerous words, of course, like “in the crosshairs” and militaristic jargon like “campaign.”
    Yet, phrases like “War on Women” and “assault on women's health and freedom” are promiscuously being used against conservatives by some of the same outlets that fault conservatives for creating a “climate of hate.” Suppose that some madman (or madwoman) decides to shoot Congressman Mike Pence (R-Indiana) because of his opposition to federal subsidies of Planned Parenthood. Will the Times blame... itself?
    Let us hope that sensibility is restored in the debate over federal funding of Planned Parenthood. Many Republicans have already been unfairly derided as enemies of women – and “this is just the beginning.”

Super-Rich Pharisees

     Billionaire investor and philanthropist Warren Buffett has called on Congress to “stop coddling the super-rich” and raise taxes on the wealthy to deal with our nation's fiscal woes in his most recent New York Times op-ed (www.nytimes.com/2011/08/15/opinion/stop-coddling-the-super-rich.html). He claims that the taxes he pays are only 17.4 percent of his taxable income and that it is time to engage in shared sacrifice and raise taxes on him and his “mega-rich friends” (those who make $1 million or more a year in income, dividends, and capital gains). Buffett's seemingly altruistic recommendations parallel that of fellow billionaire philanthropist Bill Gates' proposal in 2010 for Washington state to create an income tax for those making more than $200,000 annually. His tax proposals might seem like a quick and easy way to raise revenue, but what are the real consequences of his proposals?

     

     According to Buffet, we need not worry about how raising such taxes might undermine economic growth. He writes, “I have worked with investors for 60 years and I have yet to see anyone... shy away from a sensible investment because of the tax rate on the potential gain.” Such an assertion flies in the face of elementary microeconomics. Increasing taxes on the potential profit from an investment alters the expected return and rational investors will adjust their behavior accordingly.

     He insists that “people invest to make money, and potential taxes have never scared them off.” Never? Does Buffett expect people to believe that investment behavior is somehow different from all other forms of economic behavior where people weigh costs against benefits? If so, one wonders why we don't have a capital gains tax of 99.9 percent!

     During the 1950's, America's top marginal income tax rate was roughly 90 percent. Some liberals look upon those tax rates with nostalgia but only because they do not realize how little revenue the government was able to collect; few of the rich ever paid the top tax rate because they either didn't bother earning additional income that would be taxed at 90 percent or they found other ways of earning wealth so that it would be not taxed. President Kennedy changed that when he dramatically reduced taxes for the rich and revenue collection grew.

     But it is not the 1950's and the top marginal tax rate is roughly 35 percent. Increasing taxes on the wealthy might very well lead to increased revenue. However, many conservatives fear that increasing revenue collection through tax increases on the wealthy will take the pressure off Washington D.C. to reduce spending and reform entitlements. Furthermore, higher taxes could make America less business friendly and less competitive in the global economy. Soaking the rich might seem like a good idea... until you run out of rich people.

     The contrast between California and Texas is illuminating. High taxes in California hasn't translated into generous benefits for California where the unemployment rate is amongst the nation's highest. In Texas, tax rates are low, government services are comparable, and unemployment is amongst the nation's lowest. 

     Warren Buffett has undoubtedly heard such arguments but he dismisses them and proclaims, “My friends and I have been coddled long enough by a billionaire-friendly Congress,” and that it is time for shared sacrifice. If Mr. Buffett feels that he should be paying more taxes, he could easily forgo his dividends and capital gains (where he pays a roughly 15% tax) and collect a comparable salary from Berkshire Hathaway instead (where he would pay roughly 35%). He does not need to declare his charitable contributions and claim associated deductibles on his tax return. Yet, he states that he and many other mega-rich folks “wouldn't mind being told to pay more in taxes.” If Mr. Buffett likes paying taxes so much, why doesn't he pay more?

     If he did so without announcing it in a Times op-ed, it would nullify the most tangible consequence of his tax proposals: convincing people that he is a great guy. It is that same impulse that compels someone to hold a press conference for his own philanthropy and lands him on the cover of Fortune magazine. Note the reference in his op-ed to the Giving Pledge (which he helped create) and the title of a previously published NYT Buffett op-ed: “Buy American. I am.”

     To be fair, Mr. Buffett is hardly alone. Bill Gates' tax-the-rich proposal would have created a 5% percent income tax in the state of Washington for those making over $200,000. The ballot measure was defeated with 65% of voters opposing it.