Two amazing stories. The first is from last Monday:
"The government is investigating a major insurance company for allegedly trying to scare seniors with a mailer warning they could lose important benefits under health care legislation in Congress.
The Health and Human Services Department launched its investigation of Humana after getting a complaint from Sen. Max Baucus ….
The Senate committee that Baucus chairs — Finance — will vote this week on a sweeping health care plan that he's proposed to expand coverage and try to control costs. It would cut Medicare and Medicaid spending by about $500 billion over 10 years, but Baucus says that would lead to greater efficiency, not reduced benefits.
‘The health care reform bill we released ... strengthens Medicare and does not cut benefits,’ said Baucus. ‘From lower prescription drug costs, to free preventive care, to better treatment for chronic conditions, seniors have so much to gain from health reform — and I'm not going to let insurance company profits stand in the way of improving Medicare for seniors.’
Humana is one of the largest private carriers serving seniors under a program called Medicare Advantage. About one-fourth of the elderly and disabled people covered under Medicare participate in the Advantage program, which offers a choice of private plans that usually deliver added benefits. …
Government experts say the private plans are being paid too much — about 14 percent more than it costs to care for seniors in traditional Medicare. The Baucus plan — and other proposals — would reduce payments to the plans, and the health insurance industry is fighting back.
The Humana mailer focused squarely on the Medicare Advantage program.
‘While these programs need to be made more efficient, if the proposed funding cut levels become law, millions of seniors and disabled individuals could lose many of the important benefits and services that make Medicare Advantage health plans so valuable,’ it said."
This attempt, which has apparently been successful, by Senator Baucus (and the Department of Health and Human Services) to prevent Humana from talking with its policy-holders about the health care plans being considered in Congress is mind-boggling. I understand that the Supreme Court provides less protection under the First Amendment for what it calls "commercial speech," but I find it hard to see how any exception should apply here. Humana was trying to tell people who had bought health care insurance from it what it thought the effect of the various plans being considered in Congress might be on the policies they had bought from Humana. This is the essence of what the First Amendment is all about. This is not about pornography or other side issues like that This is about public policy and matters being considered right now by Congress And yet, Senator Baucus has used his power as a committee chair in Congress and the power of the executive branch to stop a private person (or entity) from talking.
Senator Baucus justifies his action on the grounds that it is "unacceptable for insurance companies to mislead seniors" about health care reform. But this is not an acceptable defense or justification. And it doesn’t matter whether what Humana was saying was right or wrong. (See below.) The point is that the purpose of the First Amendment is to protect the right of people to talk and argue about public policy. The First Amendment is designed to prevent those in power, such as Senator Baucus and the Obama administration, from trying to silence critics who disagree with what they are doing or proposing.
Actually, this seems to be a bit of a tendency in the Obama administration and for Democrats in Congress in general. They really do not seem to like people disagreeing with them. Speaker of the House Nancy Pelosi has attacked those who disagree with the President’s health care proposals. In the words of Debra Saunders, "a teary-eyed House Speaker Nancy Pelosi said that she is worried that the language being used by the critics of Obama’s health care plan will lead to ‘violence’", a concern that I do not remember Ms. Pelosi having about protests against the Bush administration’s policies in Iraq.
The President does it, too. Back in August, he said this about some of his critics:
"I don’t want the folks who created the mess to do a lot of talking. I want them to just get out of the way so we can clean up the mess. I don’t mind cleaning up after them but don’t do a lot of talking."
A week ago, in his Sunday news show marathon, the President, during an extended exchange with George Stephanopoulos about whether the amount that people would have to pay if they did not buy health insurance should be considered a tax, said that "[n]obdy considers that a tax increase." Except that is just not true. There are people who consider it that. (See here.)
The President did the same thing back in January, when he was promoting his stimulus program. On January 9, he said, "[t]here is no disagreement that we need action by our government, a recovery plan that will help to jumpstart the economy." Except it wasn’t true, either. The Cato Institute ran full page ads listing over two hundred economic professors who disagreed. (Wall Street Journal, February 9, 2009).
The President is great at giving speeches, and he talks about wanting to engage in discussions with people who disagree with him. But I am not sure he really means it, especially when people start to effectively disagree with his proposals. If people argue too persistently, the President seems to get upset.
I do not know how concerned we should be about this. Maybe the President and his party in Congress will, in due course, take a moment to reflect on their tactics. Maybe they will begin to understand that they need to pass their programs with the power of their arguments, as opposed to intimidating people into silence. But it is something that needs to be carefully watched because it has the potential to be dangerous.
One final point, a point that I did not want to raise earlier because it is not really relevant to my main concern. My main concern is the effort to silence debate, to stop certain people from talking and/or certain arguments from being made. It doesn’t matter whether arguments are right or wrong. People have the right to make them.
But in the case of Senator Baucus silencing Humana, the fact is that Humana was right. See this article, which appeared on Wednesday:
"Congress' chief budget officer is contradicting President Barack Obama's oft-stated claim that seniors wouldn't see their Medicare benefits cut under a health care overhaul.
The head of the nonpartisan Congressional Budget Office, Douglas Elmendorf, told senators Tuesday that seniors in Medicare's managed care plans would see reduced benefits under a bill in the Finance Committee.
The bill would cut payments to the Medicare Advantage plans by more than $100 billion over 10 years.
Elmendorf said the changes would reduce the extra benefits that would be made available to beneficiaries."
In other words, Humana was right. It may be that Senator Baucus does not like the Medicare Advantage program. He might think that it is waste of government money, that it unfairly helps some seniors over others, and that we should get rid of it. But the fact is, Senator Baucus’s plan would reduce the amount of money of that the government pays to insurance companies on Medicare Advantage plans, which would probably result in a reduction in benefits under the plans. Maybe it is appropriate to reduce these payments; maybe it is fair; maybe the overall program Senator Baucus is proposing will help people. But what Humana was saying was right; passing his plan could reduce benefits for some seniors. And Senator Baucus used his power as chairman of the Senate Finance Committee, and he got the Obama administration to use its power, too, to silence Humana because he did not like this argument being made.
During the Clinton administration, it was jokingly said that, when the President visited town, you should protect your daughters. If this continues, it may be that, during the Obama administration, we need to worry about protecting the First Amendment.
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