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By Edward Zelinsky

Much discussion of the Patient Protection and Affordable Care Act emphasizes the partisan division from which this health care legislation emerged. At one level, this emphasis on partisan rancor is accurate and understandable: The Act was bitterly contested, narrowly passing both chambers of Congress without a single Republican vote.

At another level, this emphasis on partisan conflict obscures an important truth: There is a strong, albeit unspoken, consensus among the leaders of the Democratic and Republican parties on the rhetoric of health care apocalypse, rhetoric which is quite misleading.

Democrats advance this narrative of crisis to convince the public that they have accomplished something of overwhelming magnitude by adopting the Act. In their triumphalist version of the story, the Act is a culmination which finally resolves the nation’s health care problems; an important crossroad has successfully been traversed.

In contrast, Republicans advance the narrative of health care apocalypse to summon support in the upcoming congressional elections to “repeal and replace” the Act. In this telling of the story, it is now-or-never to preserve the strengths of the American health care system. Beyond Obamacare lies the abyss.

Everybody needs to calm down. For three reasons, the bi-partisan rhetoric of apocalypse is overstated and obfuscates the sobering reality that Americans must, into the indefinite future, confront difficult issues of health care and health care costs.

First, the Patient Protection and Affordable Care Act, while significant, is more incremental in nature than either side cares to acknowledge. Second, many provisions of the Act have delayed effective dates. It is questionable whether future Presidents and Congresses will permit these provisions to go into effect as written. Third, the Act merely postpones many tough decisions which must be made about health care and about health care cost control in particular. At its core, the Act’s efforts to control health care costs are tepid and deferred. Indeed, for the long run, the Act is likely to exacerbate the nation’s problem of health care costs and will thus require further confrontation with this intractable problem.

Given the overheated rhetoric of both the Act’s proponents and its critics, it is easy to overlook the incremental nature of much of this new law. The Act continues – indeed reinforces – the existing system of employer-provided health care including the income tax incentives for such care. The Act imposes penalties for certain firms failing to offer satisfactory coverage to their employees and provides tax credits to subsidize smaller businesses offering medical coverage to their workers. In the end, most working Americans will see relatively little change in their employer-provided medical care.

Much of the expanded coverage projected under the Act stems from the extension of Medicaid to people currently not participating in that state-run program for low-income persons. This expansion will be an important development if it occurs, but one which builds quite firmly on the status quo by enlarging the existing Medicaid program.

Private insurance remains central to the American health care system. The Act subjects the insurance industry to new federal regulation on such matters as pre-existing conditions. However, this industry has always been heavily regulated. The insurance industry and its role in the financing of medical care will both grow as the industry acquires millions of new customers as a result of the A

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Reminder! Applications for the inaugural GennY Award are due this Wednesday. Winner gets to present their case study on the main stage at this year's Youth Marketing Mashup. Also, "early adopter rates" end this Friday so register and save... Read the rest of this post

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However you feel about the Patient Protection and Affordable Care Act signed into law today, it’s a historic day. Dangerous social engineering? Desperately needed legislation? It depends what side you’re on. In the midst of all the opinions whirling around, I coincidentally encountered a quote I’ve heard many times but never with the impact it had today. Noted anthropologist (and social agitator) Margaret Mead is credited with saying, “Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.” And I believe it with all my heart. But then, so do people with worldviews polar to mine. So, if everyone thinks they are the righteous little David, who is the evil giant Goliath? Pondering all this made the choice of Patricia A. Pingry’s The Story of Joshua even more thought-provoking. Granted, it is a child’s board book with a few simple pages and a condensed storyline, but the one-sided account made me a bit uncomfortable. The basic story: Joshua and his people are given land, including Jericho, by God. The brave little band calls upon all their resources to bring down the walls of Jericho and claim their rightful property. But the problem for me is that there is no mention of why Joshua’s people deserve ownership of the land over the current residents. And this got me thinking even more. I decided that, if you and yours are going to change the world, you better be right.

http://www.amazon.com/Story-Joshua-Patricia-Pingry/dp/0824941535


http://www.amazon.com/Patricia-A.-Pingry/e/B000BPFPMC


http://www.brainyquote.com/quotes/authors/m/margaret_mead.html

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This is how we can have a rational conversation about health insurance. Ask yourself and everyone you know three questions:

1. What percentage of your annual income do you spend on health care costs?*
2. How many people does that cover?
3. What do you think is a reasonable percentage?

My husband and I (both self-employed) spend about 20% of our income on health insurance and medical costs. How about you?

 

One more question: Should all Americans have access to affordable health care like we have access to water, electricity, & education?

Here is what I think.

There was a time in America when education was totally private: people who wanted their children to go to school paid for it. Eventually, Americans decided that public education was such an incredible public good, i.e., something everyone benefits from, that we moved to a taxpayer-funded system of education, open to all. And, of course, there are still private schools for families who want to make that choice.

There was a time in America when clean water and electricity were available only to the wealthy. The poor pulled up water from wells or dipped buckets into dirty rivers, and lit their homes with candles and lanterns because they had no choice. (My father-in-law, who died in July, did not have electricity on his street until he was 10 years old.)

Our fellow citizens argued and grumbled, but eventually decided that it was a benefit to the entire nation if all Americans had access to water and electricity. So programs were put in place, funded in part by taxpayers and in part by consumers, to make that happen.

Now the debate has turned to health insurance. My grandparents did not have it when they were young. In the middle of the last century, it became a widespread job benefit, and programs were put in place to insure the vulnerable; elderly, poor and disabled people. (The other place you are guaranteed health care is in prison.)

In the past three generations, insurance has moved from the privilege of the rich to something that most Americans consider a basic part of life, like education, electricity, and water.

I am all about capitalism. I love capitalism. I am a small business owner and so is my husband and it's working for us. Almost.

One of our three adult kids doesn't have insurance. Another one will lose her coverage in three months. My friends who are out of work have no insurance. People who might take the plunge into small business ownership don't because they are afraid to leave their job and give up their health insurance. Americans die and suffer needlessly every day because health care in this country has become a trip to the roulette wheel.

The time has come for us to agree that all Americans deserve basic health care coverage - the same for all people in all states. If you want a fancier program with bells and whistles, you can pay extra. The insurance companies have to buck up. When your service is considered a public good - a public necessity - you have to trade in outrageous short-term profits for long-term secure cash flow.


*Health care costs = insurance premiums, co-pays, out-of-pocket expenses

PS - Check out this comparison of our system to Japan's.

PPS - Are you sure that what you pay for will be enough? According to a

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Elvin Lim is Assistant Professor of Government at Wesleyan University and author of The Anti-intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. In the article below he looks at health-care reform. See Lim’s previous OUPblogs here.

After attempting a pivot to jobs, the Obama administration has realized that a hanging cadence on health-care will not do. Perhaps they should never have started it, but closure is what the administration now must have. An encore after the strident audacity of hope on health-care reform was temporarily dashed after the election of Scott Brown to the Senate.

In the immediate aftermath of that election, Democrats were in danger of exchanging over-confidence for excessive humility. After Obama’s historic election the year before and Arlen Specter’s party switch, Democrats were overtaken by hubris that Obama’s tune of change could be used to overturn Washington and to compel it toward a Progressive utopia. But just as Democrats were foolhardy to think that 60 votes in the Senate gave them invincible power, they somehow thought after the Massachusetts Senate election that 59 made them completely impotent.

In the media, we hear, conversely, about the conservative comeback in hyperbolic terms. On Saturday, Glenn Beck, not Sarah Palin or Mitt Romney, delivered the keynote speech in the largest annual conservative gathering, the CPAC conference. If Beck’s stardom exceeds that of the winner of the CPAC straw poll this year, Ron Paul, it is because the conservative movement, charged as it is, remains a movement in search of a leader. It is also a movement, as Beck’s criticism of Progressive Republicans in his speech reveals, which is not exactly in sync with the Republican party – the only machine capable of taking down liberal dreams.

And so a Democratic comeback on health-care reform is afoot. With one vote shy of a fillibuster-proof majority, Senator Harry Reid has opened the door to the Budget Reconciliaton process that more Progressive advocates of health-care reform like Governor Howard Dean have been pushing for a while. While it is not clear that there are 50 votes in the Senate for the public option, assuming that Vice-President Biden will cast the 51st, what is clear is that Democrats are much more likely to push through a liberal bill with the veto pivot sliding to the left by ten Senators.

In the White House too, we see a coordinated move to bring Reconciliation back as an option. Obama used his weekly address on Saturday to lay the ground work when he warned that “in time, we’ll see these skyrocketing health care costs become the single largest driver of our federal deficits.” He said this because in order to use Reconciliation, Democrats must show a relationship between health-care reform and balancing the federal budget.

No one in Washington believes that Thursday’s Health-care Summit will magically generate a consensus when in the past year there has been nothing but partisan bickering. If so, the President is not being naive, but signali

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We missed our precious Lhasa Apso/poodle, Toby, so much that we wanted another small dog to fill the hole in our lives. My husband spotted an ad in the paper for a free Shih Tzu. It was in our price range so we called the number. Sadly, the advertised dog was gone...but they did have another Shih Tzu they were considering giving up. We asked if we could see him and the owner offered to bring him by the house. She delivered a ragged, semi-clean dog of questionable health. His name was Dallas and he didn't move a muscle when I removed him from the owners arms. He was seven years old and very small...less than eight pounds. We said we would take him on the condition that he passed a Veterinary exam. The owner hesitated but then she agreed.

We took him into the Vet's office and quickly received the bad news, fleas, worms, tapeworm, malnourished, dehydrated, and a severe infection in both ears. In addition he had a heart murmur. I started to cry. Toby had a heart murmur and I couldn't face going through the expense and the sadness again. That was when the Vet said "This is abusive treatment, whatever you do, do not give this dog back to those people!" So there we stood, between a rock and a hard place. My husband and I looked at each other and we knew we couldn't turn back. Dallas was now our dog.

(The picture above is of Dallas. I apologize for the glowing eyes, they are actually black. I'm not a photographer.)

It is expensive to own a pet. Animals need health care just as people do, and if you can't afford to take care of a pet you shouldn't own one. They need regular exams and vaccinations, and treatment when they have health problems. Animals also have feelings, they are not like stuffed animals, they feel pain and fear. They deserve to be treated with respect.

I didn't like Dallas' name so I call him Dustbunny, although his name is still Dallas. He is a pretty quiet pet unless he wants something, then he becomes very vocal. He doesn't like to be left alone so he  usually travels with us when we go to the coast for a few days. He travels well in the car and is good in the motel, but he llimits our ability to go into food establishments. We travel in warm weather so we pick places where we can eat outside...or occasionally in our car.

Shih Tzu's have bug eyes and they are very suseptible to injury. Sadly an accidental injury made it necessary to have Dallas's eye removed recently. He still gets around okay, but he looks a bit like a pirate.

We have had Dallas for three years and we were feeling that Amber and Dallas made for a good sized family...then it happened again.

To be continued...

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Elvin Lim is Assistant Professor of Government at Wesleyan University and author of The Anti-intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. In the article below he looks at Howard Dean. See Lim’s previous OUPblogs here.

The year is 1964, the high watermark of Liberalism. Lyndon Johnson takes 61.1 percent of the popular vote in his election contest against Barry Goldwater, an electoral feat that was bigger than Franklin Roosevelt’s 60.8 percent in 1936 and one that has not been surpassed in the years since. The Democratic tsunami sweeps down Pennsylvania Avenue to the Capitol, where Democrats would out-number Republicans two to one in the 89th Congress, and in the Senate they take 68 seats – the biggest supermajority held by any party to this day. The era of Liberalism had entered its Golden Age.

Unified by the inspiring memory of John Kennedy, Democrats were able to enact health-care legislation that even Franklin Roosevelt, the father of modern Liberalism did not have the stomach to attempt as part of his New Deal. It would be Lyndon Johnson, not Harry Truman, not FDR, and not his counsin, Theodore Roosevelt (running as the Progressive Party candidate in 1912) who would enact the single biggest health-care legislation in US history, offering single-payer, comprehensive health-care benefits to seniors over the age of 65 (Medicare) and an option for states to finance the health-care of the indigent (Medicaid) in the Social Security Act of 1965.

We remember the New Deal, and perhaps the Fair Deal, but it is the Great Society that is the apotheosis of 20th century Liberalism. And if 1965 is Liberalism’s high water-mark, then those who would stymie health-care reform today because of the lack of a robust (or indeed, any) public option have gravely gotten their decades mixed up.

There was a time when Liberals did not have to call themselves “Progressives.” That was four decades ago, when Lyndon Johnson attacked Barry Goldwater for wanting to roll back social security and openly campaigned for a further expansion of the welfare state. Times have changed. Today’s Progressives must cagily wrap their Liberal agenda with talk of choice, competition, and bending cost curves. And if the era of Liberalism as FDR and Johnson knew it is over, The Age of Reagan lingers on in the Tea Party Movement. Despite his aspiration to build an even Greater Society than Johnson, Barack Obama’s electoral mandate is 18 percent short of what Johnson possessed in 1965; the Democratic majority is the House is much smaller; and, despite the new cloture rules post-1975 in the Senate which has reduced the fraction of votes needed to end debate from 2/3 to 3/5, Joe Lieberman et al remind us every day that the Senate is anything but filibuster-proof.

To Governor Dean and his compatriots, it is 2009, not 1965.

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Elvin Lim is Assistant Professor of Government at Wesleyan University and author of The Anti-intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. In the article below he looks at the health-care reform bill that the House passed. See his previous OUPblogs here.

Democrats must be thinking: what happened to the halcyon days of 2008? It is almost difficult to believe that after the string of Democratic electoral victories in 2006 and 2008, the vast momentum for progressive “change” has fizzled out to a mere five vote margin over one of the most major campaign issues of 2008, a health-care bill passed in the House this weekend. If you raise hopes, you get votes; but if you dash hopes you lose votes. That’s the karma of elections, and we saw it move last Tuesday.

Democratic Party leaders scrambled, in response, to keep the momentum of “Yes, we can” going, by passing a health-care reform bill in the House this weekend. But despite claims of victory, Democratic party leaders probably wished that their first victory on the health-care reform road came from the Senate and not from the House. President Obama and Speaker Nancy Pelosi have always hoped to let the Senate pass its health-care reform bill first, initiating a bandwagon effect so that passage in the House would follow quickly and more easily, and a final bill could be delivered to the president’s desk.

Instead, the order of bill passage has been reversed, making a final bill less likely than if things had gone according to plan. If even the House, which is not subject to supermajority decision-making rules, barely squeaked by with a 220-215 vote, then it has now set the upper limit of what health-care reform will ultimately look like. Potentially dissenting Democratic Senators see this, and there might now be a reverse band-wagoning effect. Already, we are hearing talk from the Senate about the timeline for a final bill possibly being pushed past Christmas into 2010. This is just what Nancy Pelosi and Barack Obama were hoping against, by pushing the Senate to pass a bill first. Unfortunately for them, the Senate took so long that to keep the momentum going (and amidst the electoral losses in NJ and VA last week), they felt compelled to pass something in the House to signal a token show of progress.

But the danger is that the move to regain control may initiate a further loss of control. The less than plenary “victory” in the House bill has only made it clearer than ever that if a final bill is to find its way to the President’s desk, it will have to be relieved of its more ambitiously liberal bells and whistles. Even though the House Bill, estimated at a trillion dollars, is more expensive than the Senate version being considered, and it has added controversial tax provisions for wealthier Americans earning more than $500,000, what the House passed was already a compromise to Blue Dogs. On Friday night, a block of Democratic members of Congress threatened to withhold their support unless House leaders agreed to take up an amendment preventing anyone who gets a government tax credit to buy insurance from enrolling in a plan that covers abortion. If even the House had to cave in some, there will have to be many more compromises to be made in the Senate, especially on the “public option.”

Sequencing matters in drama as it does in politics. It is at the heart of the Obama narrative, the soul and animating force behind the (now unraveling) Democratic majority in 2009. “Yes, we can” generates and benefits from a self-reinforcing bandwagon effect that begins with a whisper of audacious hope. From the State House of Illinois to the US Senate, from Iowa to Virginia – the story of Barack Obama is a narrative of crescendo. “They said this day would never come” is a story of improbable beginnings and spectacular conclusions. The structural underpinnings of the Obama narrative are now straining under the pressure of events. To regain control of events, the President must first regain control of his story.

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Elvin Lim is Assistant Professor of Government at Wesleyan University and author of The Anti-intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. In the article below he argues that the coverage of Balloon-Boy wasn’t all bad. See his previous OUPblogs here.

Last week, America came to a stand-still as we stood enraptured by television images of a runaway balloon carrying, so we thought, a six-year-old boy. Flimsy as the silver contraption appeared, we gladly suspended all disbelief that the balloon contained enough helium to be carrying a boy within so we could enjoy the side show. (Just as we did for Pixar’s animated movie, “Up,” which featured an old man who used balloons to move his house to a South American paradise.) So for almost two hours, most of the major news networks displaced all coverage of “hard” news to cover what Latimer County Sheriff Jim Alderman has now concluded to be a “publicity stunt.” And I’m going to argue that this was not a bad thing.

As the Balloon Boy story continued to dominate the weekend news cycle, the president and his advisers continued to deliberate on whether or not to send more troops into Afghanistan, and Senators worked behind the scenes to reconcile two different bills on healthcare. So let it be said that our “watchdog” media will switch its attention as soon as it is thrown an infotaining bone. But this is not necessarily a bad thing as long as we are clear-eyed about the media’s priorities. Instead, I think there is something strangely comforting that we allow ourselves such trivial pleasures. If we do not need an ever-vigilant watchdog, it is because we believe – by revealed preference – that government will mind government’s business, and we can tend to our own. Better no coverage of “hard” news than bad coverage, I say.

And this is exactly what the media did at least momentarily last week even as the President and Congress debated world and country-changing policies. Instead of another round of predictable punditry, or fact-checking of the CBO’s estimates of heath-care reform, we were fed images of a helium-filled balloon shaped like a UFO traversing the Colorado landscape. As we are with car chases, we, and therefore the media, were drawn to the balloon chase like flies are drawn to a light. We weren’t so much interested in the outcome – indeed knowledge of the outcome would have waken us up from our trance – as we were in the process, which was visually enrapturing.

For over a year we have watched a presidential campaign turn into a permanent campaign, and the American public is fatigued. We see this in Barack Obama’s dwindling approval numbers; and we also see it in our captivation by a drifting balloon. We are tired, and we are withdrawing from the public political sphere. The infotaining media detected this, and gave us a welcome reprieve.

And perhaps this is as it should be. Ours is a representative, and not a direct democracy. We vote and delegate; they, the elected officials, decide. The constitutional calendar is very clear that the people speak only every 2, 4, and 6 years. As far as the US constitution is concerned, our voices do not matter when we speak at any other time at the federal level. (Though our voices do matter at the state level where such devices as recall and refederanda are sanctioned by state constitutions.) If we didn’t believe this, than we have to deal with the conundrum that if last year’s elections were held in the second week of September, John McCain would have won. Clearly then, what you and I believed on November 4, 2008 matters much more than what you and I believe in October, 2009 (or September, 2008). Opinion polls may capture majority or minority sentiment at any moment in time, but these sentiments (should) have no import on constitutionally sanctioned officers exercising their delegated powers.

The deliberation of troop increases and health-care reform involve complex proceedings in closed-door war room meetings and conference committees reconciling details many Americans know and care little about. Such decisions make bad television, so maybe we shouldn’t try to force a message into an unreceptive genre lest we alter the message. Maybe those we put in charge should simply be let alone to do their job, for our constitution envisioned and sanctioned a low-effort, Rip Van Winkle approach to citizen participation. Sometimes we care a lot and we participate, but other times we tune out; and perhaps that is just as it should be. Last week, as we sat enraptured by the alleged antics of Balloon Boy, we embraced the implicit satisfactions of a representative democracy.

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Ugh. Ibe zick.

I mean, I’m sick. I don’t do sick. Thankfully I rarely get really sick, beyond the occasional cold. This time I was out for the count, knocked down in Round 2, the fight was over before it began. I spent all day Saturday in bed. I’ll keep the gory details to myself (you’re welcome), but it wasn’t pretty. It’s some kind of flu, I don’t know, swine, chicken, puppy, muppet, or maybe human.

I tried a dose of Twitter but it wasn’t effective, aside from sympathy-wise (thanks @fabeku!). Two of our kids are also sick and they’re not allowed on Twitter so I had a control group. It doesn’t work.

I’ll never know what we all had (have) because we didn’t go to a doctor. Even if we had health insurance, we wouldn’t have gone to a doctor. We tend to try healing ourselves with natural remedies before getting doctors involved, so our monthly premium would be wasted anyway.

Is that scary? It is to a lot of people, especially freelancers. Being really, horribly sick this time made me start thinking about how I’ve never really said anything about it here. I write a lot about freelancing and independent business, but I’ve never touched on the topic of health care.

Our family’s views on health care and our system for healing ourselves is personal and very unconventional, to say the least. We’re not “doctor” people and we recognize that as a blessing and a luxury because none of has any chronic condition that need regular maintenance.

So we’re fortunate. Oddly enough, we were supposed to do this walk for the Juvenile Diabetes Foundation today. We have some friends with a daughter who has the disease and we joined their team to raise money to find a cure. Thankfully, the money we raised wasn’t dependent on whether or not we walked, so they will still benefit.

So I can only imagine what it must be like to need insurance to cover costs of caring for a child with diabetes.

As an independent business dude, I have health insurance options. There are national organizations like the AIGA where I have plans to choose from. So far we’ve chosen not to have insurance at all. We tried a plan last year, but since we never went to the doctor we never came close to meeting our insanely high deductible. Even if we had an emergency it wouldn’t have been covered, it would have been all out of pocket. There’s a lot more to it than that, of course, but when we thought about paying $3600/year for a bottom-of-the-barrel plan that didn’t even cover prescriptions, we thought that was kind of… stupid.

We think a lot about insurance here. About how the system we’ve got here in the U.S. is just a mess. No matter what side of the political argument you stand on, you have to admit it’s a big hot mess. Some dramatic changes need to happen.

So I’m curious about other independent creatives. What you do to meet your health care needs? What are your big concerns? What do you think is the best solution to the high cost of health care? What’s a pretty good solution? What’s the weirdest solution you can think of that will never happen but might get us thinking?

I’m happy that on sites like Biznik, they’ve put out a call to start talking about the issue in the public forums there. This is important. We’re not all going to agree on the best practice (In fact, I’m expecting to get a lot of flack for not having insurance), we all have our personal faiths and political views, but if we can be active in talking about possible solutions we’ll at least have a say in what health care will look like instead of passively hoping it will all turn out okay.

So let’s talk about it. I would love it if you would share your thoughts here, but if you regularly visit creative-type forums or blogs, make your thoughts known there. Just be respectful of others’ views, even if they don’t mesh with your own. The ultimate solution is going to be some combination of all ideologies.

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By Edward Zelinsky

Certain opponents of President Obama’s effort to revise the U.S. medical system claimed that the President sought “death panels” to deny medical care. Among those decrying such “death panels” was Governor Palin.

President Obama quickly disclaimed any desire to create such panels. The President said he favored permitting Medicare to pay for purely voluntary physician counseling about end-of-life choices. Using the unfortunate metaphor which came to dominate this discussion, President Obama affirmed that he does not want to “pull the plug on Grandma because we’ve decided that it’s too expensive to let her live anymore.”

This debate was apparently resolved when Senator Charles Grassley of Iowa, ranking Republican on the Senate Finance Committee, declared that any federal health care legislation will omit provisions concerning end-of-life counseling. This outcome, now seemingly endorsed by Republicans and Democrats alike, suggests that the United States can provide unlimited medical resources to the elderly during their final illnesses.

Regrettably, this debate obscured larger and more difficult truths: We do not have unlimited resources. No society does. We cannot afford to spend indefinite amounts on the care of the terminally ill, particularly as the large Baby Boomer cohort queues up to meet the Grim Reaper. We consequently need death panels to control medical costs. We already have such panels although we don’t openly label them as such.

There are many reasons that the United States’ outlays for medical care outstrip those of other nations. Among these reasons are our enormous expenditures for medical treatment at the end of life. Roughly thirty percent of Medicare’s expenditures occur within the patient’s last year of life.

Some of this care is palliative and thus relatively inexpensive. Some of this care is for patients who die unexpectedly. However, the American medical system provides aggressive treatment at the end of life which other nations do not. There is no way for us to reduce the burden of medical costs without curbing these end-of-life outlays for aggressive care.

Much political rhetoric on reducing medical costs implies that such cost cutting can be painless. Various formulas (“administrative costs,” “bureaucracy,” “ineffective care”) make cost cutting sound anodyne. Democrats and Republicans, liberals and conservatives have all avoided the unpleasant realities: Medical care costs cannot be controlled without denying services to somebody. Zealous end-of-life treatment is expensive, a prime candidate for cost control.

Every major hospital and medical institution today has an ethics panel. Such panels often address end-of-life issues, advising physicians and other caregivers when to terminate treatment. These are “death panels,” authoritative bodies which often conclude that treatment of the terminally ill should be discontinued.

Flippant references to pulling-the-plug on grandma resonate with me personally since, twelve weeks ago, I became a first time grandfather. That makes me part of the class which President Obama and Governor Palin apparently want to guarantee unlimited access to Medicare resources at the end of life.

Speaking as a new grandfather, there is another perspective I urge on the President and his Republican opponents: my grandson’s. My grandson is a lucky child, born into a loving family that lives in a great nation. But on the negative side of the ledger, his generation inherits a national debt which threatens its economic future.

We must do many things to put our economic house in order for my grandson and his peers. Controlling medical costs is one of them. Sometime, hopefully far in the future, that may indeed require pulling the plug on his grandfather when it is no longer sensible to treat his final illness. Death is a part of life. In a world of finite resources, “death panels” are and should be part of our national effort to control medical costs.

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Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America.

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Elvin Lim is Assistant Professor of Government at Wesleyan University and author of The Anti-intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. In the article below he looks at the health-care debate. See his previous OUPblogs here.

As America goes into intensive partisan-battling mode this summer over health-care reform, it may be helpful for President Barack Obama and his advisers to sit back and understand the basis of the rage against their plan. An understanding of the resurrected ghosts of Anti-Federalism in today’s conservative movement may offer him some strategies for bringing the Republicans and Blue-Dog Democrats back to the discussion table.

The rage that is out there among conservatives may seem excessive and irrational to liberals, but it is based on an ancient American quarrel. The differences between the “Birthers” and angry town-hallers and Obama precede the Democratic and Republican parties; they precede the Progressive, the Whig, and the Jeffersonian-Republican Party. They were there from the beginning. For the biggest fault-line in American politics was also the first political debate Americans ever had between themselves. It was the debate between the Federalists and the Anti-federalists about the need for a consolidated federal government with expanded responsibilities.

In 1787 and 1788, Anti-Federalists hurled charges of despotism and tyranny against those who proposed the need for a stronger federal government with expanded responsibilities than was envisioned in the Articles of Confederation. Today, the analogous charges against the neo-Federalist Obama are of fascism and socialism. As Federalists reviled the Anti-federalists for their shameless populism, Obama has likened the angry protests staged by his health-care opponents as mob-like thuggery. Conservatives, in turn, have recoiled at liberal condescension; just as Anti-Federalists fulminated against the Federalist aristocracy.

The Anti-Federalists envisioned a small republic because they could not conceive of their representatives - sent far away into a distant capital and surrounded by the temptations of a metropole - would ably be able to represent their communities. The fear of the beltway and of faceless, remorseless bureaucrats directing the lives and livelihood of honest workers and farmers struck fear into the heart of every true republican (lowercase is advised), as it does the modern conservative. Death-panels weren’t the first Anti-Federalist conspiracy theory.

Today’s “birthers” and “enemies list” conspiracy theories are not new stories in themselves other than the fact that they reveal the visceral distrust conservatives have of Barack Obama, just as many Anti-Federalists turned (Jeffersonian) Republicans accused Alexander Hamilton of illicit connections with the mother country, England. Today’s “Tea Parties” are but the modern conservative articulation that they are, like the Anti-Federalists were, the true bearers of the “spirit of ‘76.’”

As Cecilia Kenyon observed decades ago, the Anti-Federalists were “men of little faith.” This characterization is both accurate and one-sided at the same time, so it is no surprise that contemporary Democrats have taken the same line of attack, calling Republicans the “party of ‘No.’” The Anti-Federalists, like today’s conservatives, cannot bring themselves to trust the federal government or Barack Obama. Conservatives are using “scare tactics” because they are scared.

But their fears are not entirely unfounded and certainly not illegitimate, because a measure of distrust of government is the first defense against tyranny and the first implement of liberty. Liberals who have been so quick to trust the federal government should not only have a look at Medicare and Social Security, but acknowledge the mere fact that with one half of the country unconvinced (legitimately or not), the country’s faith in its government has been and will almost always be a house divided. This is a given fact of a federal republic; it is the blessed curse that is America. That is why in all areas in which there is concurrent federal and state responsibility - such as in education and immigration policy - lines of authority and execution are invariably confused and American lags behind almost every other industrialized country. In areas in which federal prerogative is clear and settled - that is to say in areas in which the federal government acts like any other non-federal, centralized government in the world - such as in foreign policy, the president can typically act very quickly (if not too quickly).

The conservative grassroots movement (staged or not) is a real threat to Obama’s health-care plan. But if the movement doth protest too much, it should ironically also be a source of comfort to the president. That there is so much anxiety and push back suggests that conservatives feel genuinely threatened. With Democratic control of all branches of government (and the open possibility of passing the health-care bill via the reconciliation process which will only need a simple majority in the Senate), conservatives believe that the liberals can transform their America into something their parents and grandparents would no longer recognize.

Here then, is the lesson to be learned. If the president wants to get anything done - he must strike at the heart of the problem: it is one of a fundamental, thorough-going(dis)trust. Barack Obama must convince Republican and Blue-Dog dissenters that he is one of them. Bowing before foreign Sultans and mouthing off about racial profiling did not endear him to conservatives, who only want to feel assured that the president is for them, not against them. These are minor gestures, which is why it won’t be tremendously costly for the president to present them as a peace offering. And calling protesters to his health-care plan a “mob” is definitely not a peace offering. It invokes the very perception of condescension the Anti-Federalists felt in 1787, reinforcing the ancient and original “us” versus “them.” To unite the county, he must transcend not only party, but ideology, and history itself. Barack Obama must break the legacy and transcend the language of our 222-year-old, bimodal politics. Quite simply, he must convince conservatives that he too can feel, and talk, and protest, and hurt, and fear, and agitate like a latter-day Anti-Federalist; and he is no less intelligent, no less rational, no less compassionate, no less constructive,  and certainly no less American for trying to do so.

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Elvin Lim is Assistant Professor of Government at Wesleyan University and author of The Anti-intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. In the article below he looks at reconciliation. See his previous OUPblogs here.

There is a lot of hushed talk about using the Reconciliation procedure to pass health-care reform in the Congress these days, so Americans need to know something about this obscure parliamentary procedure, and what is at stake.

Reconciliation is an optional, deficit-reducing procedure that was created in the 1974 Congressional Budget Act. The Reconciliation process is a two-stage process. First, Reconciliation directives must be included in the annual Budget Resolution (as they were in the 2010 Budget Resolution passed on April 29). These directives instruct the relevant Congressional committees to develop (in this case, health-care) legislation by a specific date (in this case, October 15) to meet certain spending or revenue targets. The instructed committees then send their legislative recommendations to their respective Budget Committees, who then package all recommendations into one omnibus Reconciliation bill. Enter Stage 2, when this bill is then considered on the floor of both chambers of Congress under expedited procedures; of greatest political note is the 20-hour limit on debate on any Reconciliation measure, which effectively strips the minority party of the filibustering option in the Senate. That means the Democrats can pass health-care reform with a simple majority.

But there is an attendant cost to the majority party for using Reconciliation. The Byrd rule, passed in 1985, sets out the rules for what Reconciliation can and cannot be used for. In particular, it specifies that Senators will be allowed to raise a point of order against “extraneous” provisions in a Reconciliation bill which, among other things, “would increase the deficit for a fiscal year beyond those covered by the reconciliation measure.” Critically, cloture must be invoked to overcome a point of order. So the filibuster power is back.

Here’s the bottom line. Since the Budget Act states that the Reconciliation measure covers the next ten years, the Byrd Rule had the effect of allowing a point of order to be raised against any spending increase (or tax cut) that does not contain a ten-year sunset provision. That’s why the Bush tax cuts, passed via the Reconciliation route in 2001, 2003, and 2005, had sunset provisions written into them. If Democrats use Reconciliation, they will get a health-care bill, but it will expire.

Now let’s talk politics. There’s a debate within the debate that only seasoned politicos know about. Since the actual benefits of Reconciliation are mixed - a health-care bill can be passed with a simple majority in the Senate but it must have a sunset provision - the real power of Reconciliation is not in its actual usage, but in the mere threat of its usage.

The benefits of issuing the threat of going the Reconciliation route are akin to the threat of a presidential veto. The threat of a presidential veto sets the boundaries of permissible legislative action; it lets Congress know what is out-of-the-question and therefore powerfully guides legislative outcomes in the direction of the president’s preferences. By letting it be known that they will resort to Reconciliation if they had to, Democrats in Congress are incentivizing Republicans to be part of the making of a bi-partisan bill rather than be shut out of a purely partisan one. In making the threat, Democrats are specifying the costs of Republican non-compliance to the tune of: “if we let you stay in the kitchen, at least you can determine some of the ingredients in the cake. Make us shut you out and you won’t have even the slightest say.”

Like the presidential veto, the power of Reconciliation is maximal at the level of a threat. For between the time a threat is issued and the time when a bill is passed (via Reconciliation or not), there is a powerful incentive for Republican Senators to come back to the bargaining table because there is the distinct possibility that they could be shut out. Reconciliation is the Democratic antidote to the Republican Party becoming the “Party of ‘No’” For if Republicans keep saying “No,” then they box themselves into the plea of Nolo Contendere.

That is why different spokespersons for the Democratic Party are keeping the Republicans guessing and making sporadic and cryptic references to the Reconciliation possibility. And Republicans are trying to minimize the power of the threat by characterizing it as a no-go “nuclear option.” Unfortunately for Republicans, theirs is an empty threat because there is no Mutually Assured Destruction in this asymmetric power situation, and it is both a legal and political fact that, as the White House says, the Reconciliation option “is out there.” It is a win-win situation for Democrats to issue the threat, for if Republicans are unmoved by the threat, Democrats could materialize the threat and get what they wanted having known that an effort at bipartisanship had failed anyway.

What is missed in the debate out there now is that the effect of Reconciliation is already underway, for its power lies in its threat.

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Elvin Lim is Assistant Professor of Government at Wesleyan University and author of The Anti-intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. In the article below he looks at what happens when you judge too quickly. See his previous OUPblogs here.

In his press conference on July 22, President Obama’s knee-jerk reaction to call what the Cambridge police department did “stupid” was poor form. The president thought he was avoiding the hot spot when asked about the Gates arrest by saying that the controversy offered a “teachable moment.” But having admitted that he had imperfect knowledge of the facts, he went on and assumed that this particular incident invited a lesson about racial profiling and made the very indictment that his conversational segway was intended to avoid. In so doing, Obama confirmed conservatives’ belief that minorities love to whine about their beleaguered status (also another knee-jerk belief, incidentally) even if Obama could have made a case had he marshalled the evidence appropriately. Obama spoke like a liberal before he thought, and that was his mistake.

In so doing, he repeated the same mistake that Professor Gates made. Like Obama, Gates, too, jumped to the conclusion that Sgt Crowley was racist. I do not know if Sgt Crowley acted hastily in arresting the Professor for allegedly exhibiting “tumultous” behavior, so I won’t jump to conclusions but simply note my suspicion that there was probably a contest of egos on both sides. Those who have rushed to Crowley’s defense should ask themselves if they do not also have a knee-jerk reaction to give the benefit of the doubt to a law enforcement officer (or a soldier or a partisan affiliated with the Commander-in-Chief.)

Gates, Obama, and possibly Crowley were not the only people who have been jumping to conclusions, substituting unreflected intuition for a careful weighing of the evidence. Frank Luntz and his political students are encouraging Americans to become thoughtless automatons responding to carefully researched code words like “government takeover” and “health-care rationing.” The issue domain is different, but the error is the same.

It is very difficult to prove racial-profiling, for it demands an investigator to go inside the head of the alleged perpetrator. It is equally difficult to prove that the president’s and Democratic Congress’s plan for a “public option” is a precursor to a completely government-run health-care system. If it is not appropriate to rush to accuse someone of being racist, then it is at least premature to rush to accuse of someone of being socialist (assuming that that is a bad thing).

Those who are accusing Obama and Gates for rushing into judgment should look into the mirror to see if they too have not rushed to conclude that liberals are whiners and socialists who want a government takeover of health-care. At some level, we all have the instinct to cherry-pick the evidence to come to the conclusions we want.

Ideologies, like stereotypes, are cognitive cues or heuristics. They help us to “think” before we get the facts. They allow us to abdicate our duty to make sense of the world with our own independent judgment. They do the easy but intellectually dishonest work of guiding our reactions to the conclusions we want without us having to do the hard work of getting to know a person or a proposed policy before we came to a judgment. The people who are reinforcing such behavior in our politics are destroying our democracy and robbing us of our first freedom - the freedom of independent thought.

So the Gates controversy is a teaching moment, and the lesson is quite simple. Look before you leap; think before you conclude. It is probably the first lesson  of critical thinking, but two professors forgot it last week. If Obama wants us to learn this lesson, he should have been clearer about what the nature of his lapse was. It wasn’t that the president miscallibrated his words - for the question wasn’t about the intensity of what he said, but the very fact that he said something at all. Obama should have apologized for expressing what he felt and intuited without having first perused the evidence. If he had done that, he would have claimed the moral ground to shame some of his opponents in Congress into admitting that they too are doing the same thing in their knee-jerk opposition to what they call “Obamacare.”

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Accept the fact – life is a pre-existing condition. Any health insurance that denies this fact is not health insurance; it’s death insurance. Sad to say, that’s what the United States’ so-called health care has become. Except for the rich, of course. The poor don’t count. The middle class don’t count. They’re going to die anyway. May as well be sooner as later.

The opposition to healthcare reform comes mainly from Republicans but also from a small group of “blue dog” Democrats, and it’s gotten ugly. These politicians, elected to serve the American people are, instead, serving health insurance and pharmaceutical lobbyists. Once again, the power of money trumps the health of a nation.

Forget single-payer – the plan some 72 percent of polled Americans want. It’s socialism, cry the corporate flunkies. But the two government programs that really help people – Medicare and Social Security – are both socialism. Without those programs, millions of Americans would be suffering more than they are. They’re the only two programs the United States has that return benefit to citizens who have worked and paid taxes all their lives. Why not solve the health crisis by extending Medicare to everyone?

It’s striking that the same crowd of public citizens who oppose single-payer health insurance didn’t mind socializing debt through the bank bailouts. Okay for the government to be the single payer in those transactions. Mercy! What would happen if we really had universal health care in the United States like most other civilized Western countries? If we cherished and nourished that pre-existing condition we call life instead of denying it coverage? The big bad wolf of socialism would eat up some of those inflated profits of health insurance and pharmaceutical companies. Oh mercy, health care just might become affordable for our citizens if we had a single-payer system. People might go for check-ups more often. Maybe our citizens would be healthier and wouldn’t have to wait until they are so ill, they have to use hospital emergency rooms as their family physician. Sickness is costly. Untreated diseases that reach advanced stages when diagnosed require the most expensive treatment. Fostering health is a lot more cost-effective than the current neglect and denial built into our wretched healthcare system. It’s no accident our health care is the most expensive in the world but our outcomes are among the worse. In our current system, only the lives of the rich seem worth saving. Do they think they aren’t going to die?

In their zeal to “kill” healthcare reform, Republicans have declared war against President Obama, predicting a defeat will be the President’s “Waterloo” and will “break” him. Isn’t there something a bit unpatriotic about trying to bring down a President who is heroically working to repair the severe damage inflicted on the United States by the previous Republican administration? The gang that for eight years self-righteously promoted itself as the party of family values and country now turns its back on both and acts as if it wishes nothing other than revenge against the American people for electing President Obama.

As the President said in his press conference about healthcare last week, this isn’t about him. It’s about the health of the American people and the future of our economy. But nobody gets rich looking out for the poor and middle class in this country. Only the corporate rich deserve tax breaks, health care, and bonuses.

The party that racked up the largest deficit in American history – more than that of all previous Presidents combined – now complains about the cost of healthcare reform. Do they really think Americans are too stupid to see through the hypocrisy?

What a sorry bunch of human specimens that would rather, through their cynical inaction and sudden onset of fiscal conservatism, kill a healthcare bill that could prevent so much suffering and save people’s lives. Life is cheap. It’s health industry dollars that line politicians’ pockets.

As for the blue dog Democrats, their opposition to healthcare reform places them in the same alternate universe as the right-wing Republicans who have sold their souls to lobbyists and turned their backs on the only condition that afflicts any of us -- life.

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Elvin Lim is Assistant Professor of Government at Wesleyan University and author of The Anti-intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. In the article below he looks at Obama’s health care debacle. See his previous OUPblogs here.

As the wise saying goes “if you’ve nothing good to say, don’t say anything.” But President Barack Obama went ahead anyway with a prime time press conference, and as Bill O’Reilly was right to observe on Wednesday night - he said practically nothing specific about what the shape of the health-care bill would look like and viewers were left scratching their heads.

President Obama wanted to let Congress take ownership of the bill, rather than hand them a fait accompli (as Hillary Clinton did back in 1993/4), I hear Democrats chant in his defense. But if Obama wants to stay on the side-lines, then he should do so consistently. Either be genuinely deferential to Congress and stay out of the picture until a consensus emerges, or take complete ownership of the agenda - don’t try to do both. Yet the president is back in the limelight doing prime-time press conferences, and attending town hall meetings in Cleveland and such. Obama should decide which way he wants to go. If he is the salesman-in-chief, then he has to have something to sell, if not his consumers would be left completely befuddled as to why he’s putting on a show for no particular reason at all.

Liberals are mad that Obama didn’t throw a few more punches at Republicans. I think many are unwilling to admit the more pointed fact that he just didn’t do a very good job at all, because he didn’t have much to say.

So Wednesday’s press conference was a squandered opportunity. We are not in 2008 anymore when Barack Obama would announce that he is giving a speech and the whole world would stop to listen. The clock is ticking on his presidential luster, and the next time he says “hey, listen to me,” it’s going to be that much harder.

Let us be clear why health-care reform has stalled, at least till the Fall. Because the Congress, and in particular the Senate Finance Committee could not agree on a way forward. I don’t see why the President and his advisers thought that a prime time press conference last Wednesday night would have gotten things moving. In fact it probably achieved the exact opposite, when we heard on Thursday morning from Senator Harry Reid that a Senate vote before the August recess would not be possible. The president’s time would have been better spent persuading his former colleagues up on the hill in private conversations to compromise on a bill. When they’ve got a bill and all/most are united, then go out and do the media blitzkrieg, by all means. Wednesday night just wasn’t the time for that.

So it looks like the Permanent Campaign is back. The President has chosen to go back to campaign mode, selling himself. Because without a specific plan to sell, all his public appearances amount to going public for the sake of going public. This strategy belies a serious misunderstanding of American politics. Personal approval ratings do not translate to public support for specific policy proposals (not that they were forthcoming) - the president should have known this by now. They barely even translate into congressional support for presidential policies.

This error - of going public with nothing specific to sell - was compounded, and probably encouraged, by a complete underestimation of the push back from the conservative wing of the Demcoratic party (the “Blue Dogs”) worried about spiraling deficits. These were the people Obama should have been talking to. And given he’s still out town hall-ing and speechifying, I’m not sure he fully understands what came over him.

To make matters worse, Obama had to pour fuel over the fire of the Henry Louis Gates controversy during the press conference, accusing the Cambridge police of of a “stupid” arrest when he had incomplete possession of the facts. Have something to say about anything all the time has become the rhetorical ethic of the modern presidency. Obama’s observance of this ethic was a disastrous distraction to what little point he had to make at his press conference. The news cycles are now spending more time covering the Gates controversy than they are covering the health-care debate.

I’m afraid to say - though this is water under the bridge - that Hillary Clinton would have known better. This week, for the first time in his fledgling presidency, Obama looked like a total novice in Washington. His 4th press conference was a waste of time, and probably the first time since Obama broke onto the national scene in 2004 that his rhetorical wizardry had fallen so flatly on death ears. He seems to have bought the bad conventional advice - whenever you’re in trouble, just go out and give a speech - wholesale. The president should take heed:

1. The public is less attentive between election years and he must have something meaningful to say if he wants to keep their attention.
2. Especially on a complex issue like health-care where there are too many details to cover, the media is much more likely to jump at an opportunity to take the path of least resistance to cover something juicier, like Henry Louis Gates and racial profiling.
2. Just because the public (still) loves Obama doesn’t mean that they will love what he is doing as president (and not as presidential candidate).
3. It is often more important to talk to members of Congress - the people who actually pass legislation - than to deliver speeches around the nation where the only tangible return of applause is a fleeting sense of psychic gratification that one is loved.

President Obama, it’s crunch time. Stop yakking.

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Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. In this article, he criticizes proposals for the states to administer private sector retirement savings plans. Read his past OUPblog posts here.

Legislators throughout the country are proposing that states start to administer private sector retirement savings plans. While the details of these proposals vary from state to state, they all provide that the states should embark upon the business of managing private sector individual account arrangements.

In Connecticut, for example, the state senate, before recently adjourning, passed S.B. 652 which would have created a state-sponsored “universal 401(k).” This legislation would have mandated the state’s comptroller to establish and administer a state-run “tax-qualified defined contribution retirement program” for the self-employed, the tax-exempt institutions, and the “small employers” of the Nutmeg State.

On the other side of the country, currently pending in the California legislature is AB 2940. If enacted, this legislation would authorize CalPERS, the Golden State’s public pension plan, to accept from California residents payroll deposits for state-administered individual retirement accounts. Similar legislation has been introduced in a variety of other states.

The concern animating all these proposals is well-founded. The defined contribution paradigm has worked well for many American households, in particular, middle- and upper-middle families who save and invest through 401(k) plans and IRAs as well as the employees of large employers which sponsor and typically match such employees’ 401(k) contributions. Despite this success, it is troubling that lower-income workers and smaller employers are severely underrepresented in the individual account system.

This problem, however, has deeper roots than is acknowledged by the advocates of state-administered private sector retirement plans. The current retirement savings system relies heavily on the income tax benefits of contributing to tax-qualified arrangements such as 401(k) accounts and IRAs. Those tax benefits are substantial for middle class and more affluent workers who defer significant federal income taxation through their tax deductible contributions to such accounts.

However, low income workers today do not pay significant federal income taxes. They thus have little, if any, tax motivation to make 401(k) or IRA contributions. A deductible contribution is not a meaningful incentive for someone in a low or zero tax bracket. This would remain the case even if states compete with the private sector suppliers of retirement plans. A low-income worker who derives no tax benefit from a deductible IRA contribution at his neighborhood bank will similarly derive no tax benefit from contributing to an IRA administered by his state’s comptroller.

Moreover, even if they want to make such retirement savings contributions, most low-income workers lack the discretionary income to do so.

The private market for retirement savings products is broad and deep. Today, every reader of a major newspaper or of the internet is bombarded by the advertising of the financial services industry, selling 401(k) plans and IRAs. There is no market failure requiring state-provided retirement savings for the private sector.

There is, furthermore, an unintended irony in the idea that the states should ride to the rescue of the private retirement system. The states can’t keep in order in their own pension systems. The states’ underfunding of their own pension plans is today a serious problem. There is something untoward about states which cannot solve their own pension difficulties purporting to act as the saviors of the private sector retirement system.

There is an important step the states can take if they are serious about encouraging 401(k) and IRA participation among low-income individuals. In particular, the states could, in their own income taxes, match part or all of the federal savers’ tax credit which subsidizes the retirement saving of low-income persons by providing a tax credit if a low-income worker contributes to an IRA or 401(k) account.

However, there is no compelling case for the states to enter the private retirement savings business. Let them put their own pensions on solid financial footings first.

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Pondering transformative copyright, I found myself thinking about this: http://nielsenhayden.com/makinglight/archives/009050.html#191539

It's Abi Sutherland's translation of my poem, The Day The Saucers Came, into LOLcat. I like it better than the original, but I'm not sure that it would work if it wasn't informed by the existence of the not-LOLcat one (if you see what I mean). (Here's me on YouTube reading the original at Yale: http://www.you tube.com/watch?v=JUkEPaN_BFY).

And two from the mailbag:

I am a lawyer. I co-authored an article on fair use that was published last summer in the Journal of the Copyright Society of the United States. A large section of it was a wordier version (punctuated by many many legal citations) of what you wrote in your journal today. In practice, the most important single factor in determining whether a fair use has occurred is not money, it is how transformative a work is. You have a good grasp of copyright.

Moreover, you have a good grasp of the trickiness of copyrighting derivative works. The legal answer regarding that King James concordance is that the person who owns the copyright owns a "weak" copyright. (The more original creativity in a work, the "stronger" the copyright. If this concordance is completely uncreative - if it is really just a list of words that a computer could generate - there is no copyright whatsoever. If, however, the author has organized the concordance in a way to show some creativity, there is a "weak" copyright.)

Unfortunately, in practice, a "weak" copyright is pretty strong when owned by a powerful company. For example, the woodcut illustrations in the original edition of Alice in Wonderland are in the public domain and have no copyright protection. Disney's depiction of Alice - clearly a cartoon version of the public domain woodcut Alice - is, however, copyrighted. Technically, this derivative work should be a "weak" copyright. However, when the video game Alice by American McGee came out, American McGee's Alice was a brunette who looked nothing like the Alice most people think of. American McGee should have been able to copy the public domain Alice, just like Disney did, but I assume that American McGee didn't want to risk taking on Disney. (That was probably not the only consideration that went into it - they probably also didn't want little kids buying the game by accident, either - but Disney's copyright in the derivative work must have been something they considered.)

I really appreciate the fact that, despite being a writer, you do not seem to have a rabid approach to copyright. I think many readers, who feel defensive on behalf of their favorite authors, don't understand the benefits of having copyrights that are not absolute and that expire. The creative sphere as a whole gains something from a public domain and fair use. (Author's heirs are often anything but open to creative reimaginings, or even creative criticisms, of a work - the highly litigious Margaret Mitchell estate comes to mind.) If our modern attitudes towards copyright had always existed, you would not have been able to freely quote Shakespeare (who never had copyright protection) in Sandman, and the story would have lost some of its richness. Similarly, it would be ridiculous if you had to have Rudyard Kipling's heirs sign off on The Graveyard Book. Copyrights should not be powerful to the point where they suppress new ideas or criticisms.

I very much look forward to The Graveyard Book.

- Anne

and also

Your latest blog entry about legal court cases inspired me to put up a bit of information on my personal blog that goes into aspects of the joint authorship elements of your case, and the transformative works issues that will be important in J.K. Rowlings'. If you are interested you can read it at: http://wise-old-sage.blog-city.com/gaiman_joint_authorship_and_transformative_works.htm

I did link to your posting so my readers could reference it. I hope you don't mind.

Christopher Schiller

http://www.christopherschiller.com

while Scrivener's Error pointed me at

http://scrivenerserror.blogspot.com/2007/11/accio-lawsuit.html
and the hypothesis that this is primarily a trademark, not a copyright case.

Neil,

Considering your latest encounter with a large metal pole, I got to thinking about health insurance. As an author and one who is more or less self-employed (right?), how do you go about getting decent health insurance not only for yourself but for your family? Wouldn't it be much easier to move to Canada or back to the UK where they are reasonable enough to have universal health care?

Thanks,

Jon


How? I write movies.

True answer, even though it sounds silly. As long as I have a certain amount of income coming in from Hollywood, I'm covered by the Writer's Guild which had very good Health Insurance when I became a member, and has significantly less good health insurance these days, but it's still an awful lot better than having no insurance for me or my family.

(Occasionally friends ask why I'll write movies -- they're a huge drain on time and emotion, most of the scripts one writes simply do not get made, and when they do get made it's all-too-often nothing like the thing that you thought you were writing, and unlike novels you've given up control from the outset, you can find yourself being lied to or fired or cheated, and while I make a lot of money writing scripts I make a lot more money writing books, which I own and control for ever, and from which I get foreign income, and so on. And I say "Health Insurance," and if they're from America they normally get it, while people from countries that regard healthcare as a human right, like education, think I'm mad.)

Why not move? I like my house, and my youngest daughter loves her school and friends (my older daughter has already moved back to the UK) and I'm happy to write an occasional movie and get healthcare as a side-effect. (Also, I quite like writing film-scripts. It's everything that goes with them I put up with.)

(Incidentally, the pole was a heavy PVC pipe,and not metal, I'm glad to say. Otherwise my face would have been far more banged up than it was. Right now the black eye's mostly gone, the nose has mostly healed, and there's a cut on the lip that would heal better if I didn't keep talking...)

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