Topic: Regulatory Studies

ObamaCare’s Premium Refunds: Bad News for the Sick

USA Today and Politico Pulse report that ObamaCare has prompted BlueCross BlueShield of North Carolina to rebate $156 million to its customers in the individual market.  This may seem like good news.  It’s actually bad news, particularly for BCBS’s sickest customers.

Pre-ObamaCare, BCBS’s customers – whether healthy or sick – had coverage with an insurer that had already pre-funded their future medical needs. Competition protected them from BCBS skimping on care: if BCBS got a reputation for skimping, it would have a hard time enrolling new customers.

Post-ObamaCare, BCBS no longer needs that pile of cash, so they’re returning it to their customers. That hurts sick enrollees because BCBS is doling it out to all enrollees – not just the sick enrollees whom that money is supposed to serve. This cash-out is actually a transfer from the sick to the healthy.

Also, every BCBS customer who is sick or becomes sick in the future will have less protection against their insurer skimping on care. Competition used to discourage insurers from providing lousy access to care, but under ObamaCare competition will reward skimping. Under ObamaCare’s price controls, insurers that gain a reputation for providing quality coverage to the sick will attract sick people and go out of business.  Insurers that gain a reputation for providing lousy access to care will drive away sick people and thrive.

Regulator, Leave Those Kids Alone

“These kids today and their violent [blank]….” This refrain has been around for as long as there have been kids – and elders to shake their fists at them. In the 19th century, dime novels and “penny dreadfuls” were blamed for social ills and juvenile delinquency. In the 1950s, for example, psychologist Fredric Wertham’s attack on comic books – in his bluntly titled book Seduction of the Innocent – so ignited the national ire that Congress held hearings on the cartoon menace. In response, the comic book industry voluntarily adopted a ratings system. Similarly, backlash against the movie industry and the music industry (e.g., Tipper Gore’s attack on gangsta rap) caused those respective industries to also adopt voluntary ratings systems.

The videogame industry also adopted an effective and responsive ratings system after congressional hearings in the early ’90s. Thinking this ratings system ineffective, however, California passed a violent videogame law, which prohibits minors from purchasing games that are deemed “deviant,” “patently offensive,” and lacking in artistic or literary merit. The gaming industry challenged the California law and the Ninth Circuit struck it down on First Amendment grounds.

California now seeks to overturn the lower court’s ruling by arguing that violent videogames deserve an exemption from First Amendment protection. Cato’s brief supports the videogame manufacturers and highlights not only the oft-repeated and oft-overblown stories of the “seduction of the innocent,” but the less-repeated stories of the effectiveness and preferability of industry self-regulation.

We show that not only does self-regulation avoid touchy First Amendment issues but that entertainment industries take self-regulation very seriously. Moreover, evidence from the Federal Trade Commission shows that the existing videogame ratings system works more effectively than any other regulatory method. Adding a level of governmental control, even if were constitutional, would be counterproductive.

The case of Schwarzenegger v. Entertainment Merchants Association will be argued November 2 (coincidentally election day).

Another Judicial Takings Case Headed to the Court

The Montana Supreme Court overturned more than 100 years of state property law concerning navigable waters by effectively converting the title in hundreds of miles of riverbeds to the State. The majority of that court ruled that the entirety of the Missouri, Clark Fork, and Madison rivers were navigable at the time of Montana’s statehood, producing a broad holding that eradicates property rights to the rivers and riverbanks that Montanans had enjoyed for over a century.

Before this case, the hydroelectric energy company PPL Montana and thousands of other private parties exercised their property rights over these non-navigable stretches that the state never claimed.  Today, Cato joined a brief filed by the Montana Farm Bureau Federation supporting the PPL Montana’s request that the U.S. Supreme Court review the Montana high court’s ruling for possible Takings Clause violations under the Fifth Amendment.

We argue two main points.  First, that the Court should adhere to its standard for navigability rights set out in Utah v. U.S. in 1933. Unlike the approach taken by the Montana Supreme Court’s majority — that entire rivers were navigable simply because certain reaches of the river were navigable — the U.S. Supreme Court in Utah used an approach of meticulously analyzing the rivers at issue section-by-section. Second, this arbitrary ruling against rights long protected by Montana law amounts to a “judicial taking,” as explained last term Stop the Beach Renourishment v. Florida Dept. of Environmental Protection (in which Cato also filed a brief). There, a plurality of the Court held that there is no “textual justification” for limiting takings claims deriving from executive or legislative action, thereby extending it to a judicial action of the same nature (and two other members of the Court found potential relief in the Fourteenth Amendment’s Due Process Clause). Here, the Montana court did exactly that, violating due process rights that the Montana legislature could not and further violating the procedural due process rights of the thousands harmed by the decision in not affording them notice or a hearing.

The U.S. Supreme Court should thus review the case to reinforce its Utah precedent and ensure that arbitrary judicial takings of this sort cannot continue.  The name of the case is PPL Montana, LLC v. Montana.  The Court will decide later this fall whether to take it up.

John Stossel, the ADA, and the Art of Selective Outrage

On September 3 John Stossel’s Fox Business show took an unsparing look at the seldom-criticized Americans with Disabilities Act on its 20th anniversary (I was a guest commentator during part of the show, including this segment.) Now the American Association of Persons with Disabilities has reacted with outrage and urged its constituents to fire off protest letters to Stossel, to Fox, and also to me since my criticisms of the law were featured on the show.

But it didn’t play fair. In a related syndicated column, after recounting some of the abuses and excesses associated with ADA litigation – including settlement mills that file assembly-line suits against Main Street businesses and Equal Employment Opportunity Commission demands that alcoholics in rehab be put back on safety-sensitive jobs – Stossel says prolonged litigation over such matters means “more money for the parasites”. Harsh words, perhaps, but in context he’s clearly referring to those who profit from ADA litigation, and in particular opportunistic lawyers.

Now observe how the AAPD edits his words. By cutting most of what precedes “more money for the parasites,” it encourages readers to assume that Stossel is somehow referring to disabled persons themselves as parasites. And in case readers don’t pick up on that implication, AAPD makes it explicit: Stossel, it charges, “sees people with disabilities as manipulative parasites.” For the past day, disabled persons have been dashing off furious emails to Stossel (and cc’ing them to me) on variations of the theme, “How dare you call me a parasite!?”

But that’s not what he said. And AAPD owes both its readers and Stossel an apology for pretending otherwise. There’s nothing wrong with having a public debate over the ADA, but wouldn’t it be more constructive to respond to what Stossel actually did argue?

What If Cuccinelli Had Sent that Letter to Planned Parenthood?

The following analogy may help to explain why everyone should be troubled by HHS Secretary Kathleen Sebelius’ efforts to intimidate insurance companies who say unflattering things about ObamaCare.

Last month, Virginia Attorney General Ken Cuccinelli (R), issued an opinion that state regulatory boards already have the authority to impose additional regulations on abortion clinics.  Critics pounced, claiming that the measure could shut down 17 of the state’s 21 clinics. What if Cuccinelli responded with a letter threatening to investigate clinics that “misinform” the public about the costs of such regulation?

Sebelius’ Prior Restraint on Speech

Here’s something else to consider about HHS Secretary Kathleen Sebelius’ threatening letter to health insurers who dare to tell their enrollees about how much ObamaCare is costing them.

Sebelius threatened insurers for claiming ObamaCare will increase premiums by as much as 9 percent.  Yet there were no threats issued against the RAND Corporation when it estimated ObamaCare will increase premiums for young adults by an average of 17 percent beginning in 2014, or against Milliman Inc. when it likewise estimated premium increases of 10-30 percent for young adults.  The reasons for the disparate treatment are fairly obvious. Sebelius has less power over RAND or Milliman, and bullies always find it easier to pick on the unpopular kid.

But an equally important implication is that Sebelius knows that ObamaCare’s largest premium increases are yet to come.  Sebelius may be intimidating insurers now to prevent them from blaming those much larger premium increases on ObamaCare.

ObamaCare’s Threat to Free Speech

On Friday, I blogged about HHS Secretary Kathleen Sebelius’ letter to the health insurance lobby, in which she attempts to stifle political speech by using the new powers that ObamaCare grants her to threaten health insurance companies that claim ObamaCare’s coverage mandates are one cause behind rising premiums.  (Never mind that the insurers’ estimates – which project that ObamaCare will increase premiums in 2011 by as much as 9 percent – are in line with those put forward by HHS.)

Here’s a smattering of reactions from others.

  • The Wall Street Journal: “The Health and Human Services secretary…warned that ‘there will be zero tolerance for this type of misinformation and unjustified rate increases.’   Zero tolerance for expressing an opinion, or offering an explanation to policyholders? They’re more subtle than this in Caracas.”
  • Chicago Tribune: “President Obama’s health care reform plan, enacted in March, is not terribly popular with the American people…The administration can’t tell the public to stop grousing. It can, however, try to silence health insurers who have the nerve to say out loud what basic economic theory indicates…Apparently, harsh punishment is in store for anyone who refuses to parrot the administration line. But there is every reason to think this alleged libel is true.”
  • Tyler Cowen: “Nowhere is it stated that these rate hikes are against the law (even if you think they should be), nor can this ‘misinformation’ be against the law…[The letter] is worse than I had been expecting.”
  • Ed Morrissey: “Rarely have we heard a Cabinet official tell Americans to stay out of political debates at the risk of losing their businesses. It points out the danger in having government run industries and holding a position where politicians can actually destroy a business out of spite.”
  • Michael Barone: “Sebelius is threatening to put health insurers out of business in a substantial portion of the market if they state that Obamacare is boosting their costs…The threat to use government regulation to destroy or harm someone’s business because they disagree with government officials is thuggery. Like the Obama administration’s transfer of money from Chrysler bondholders to its political allies in the United Auto Workers, it is a form of gangster government.”
  • Eugene Volokh: “even if such action would be constitutionally permissible, it would be quite troubling, as would threats that seem to hint as such action: It would involve the Administration’s deliberately trying to suppress criticism of its policies, under a ‘misinformation’ standard that sounds highly subjective and politically contestable. (Consider [Sebelius’] reference ‘to our analysis and those of some industry and academic experts’ — what about the analysis of other industry and academic experts?) Perhaps I’m missing some important context here. But my first reaction is that this is ominous behavior on the Administration’s part, and seems to have both the intent and effect of suppressing criticism of the Administration’s policies — including criticism that simply expresses opinions the Administration dislikes, and makes estimates that it disagrees with, and not just criticism that contains objectively demonstrable ‘misinformation.’”

In The Wall Street Journal, economist Russ Roberts recently explained one of the main themes of Friedrich Hayek’s The Road to Serfdom:

When the state has the final say on the economy, the political opposition needs the permission of the state to act, speak, and write. Economic control becomes political control.

One need not agree with all of Hayek’s conclusions to see how ObamaCare is threatening political freedom.