Monday, October 20, 2014

Mark Warner, no friend of the First Amendment

Mark Warner was elected to the U.S. Senate from Virginia in 2008. In the time since then, the senior senator from Virginia has voted against medical privacy, against rights of free assembly through insurance for health care, against rights of conscience and religious liberty, and against free speech for the American people.

In 2009, as President Obama was taking office, Congress passed the massive $800 billion stimulus bill. While many have heard of this legislation, relatively few know about the health care law it contained. President Obama's first major health care law is the Health Information Technology for Economic and Clinical Health Act, also known as HITECH.

HITECH begins with the premise of supposedly modernizing health care records to make them more accessible to doctors, nurses, clinicians, and even patients. These are but small steps in a much longer journey toward centralizing access to comprehensive medical information about the American population in the name of controlling federal health care spending.

Mark Warner voted for this privacy-invading legislation. Mark Warner's support for “health care IT,” as he calls it, extends well beyond his vote. He is the go-to supporter in the Senate for the government's big data agenda on your entire medical history. When the personal health data industry looks for support in Congress, Mark Warner is its leader.

Mark Warner made his fortune in technology, and he is aware of our nation's growing fiscal problems and the largest portions of federal spending going to the health care sector of our economy. He seeks to be known as someone who has sought solutions across the aisle. I expect he considers his support for health IT to be one of his strengths: his expertise applied to one of our largest problems.

Yet, there are better ways to control federal spending than taking away the right of patients to make their own decisions and cloaking that usurping of authority as a superior use of technology.

In 2010, President Obama staked the entire legacy of his presidency on what became the Affordable Care Act. This legislation passed with exclusively partisan support, and Mark Warner's vote was essential to that support. If he had not voted for the Affordable Care Act, it would not be law today.

Much has been said and still could be said about the Affordable Care Act. I will only summarize a few key points here.

Proponents begin with the claim that everyone “has a right to health care.” The federal government's method of “affording” this right is through the income tax code by requiring everyone to purchase health insurance so that they have this right. After all, if you have health insurance, you get health care, and then everyone gets treated fairly, right?

Not stopping there, the federal government also dictates what kind of insurance is acceptable, what it covers, who it covers, how much cost difference there can be according to age, and tens of thousands of pages of regulations with further new controls on the health insurance industry. Guess which direction all those requirements drive costs. The regulations are also moving targets so these costs continue.

Supposedly for purposes of “social justice,” the legislation attempts to make it affordable to everyone. The idea is to have those who can afford insurance buy it themselves, and subsidize increasingly down the income scale so that those of least means also pay the least. On the income side, young people (typically poorer with less work experience) get the highest subsidies.

However, on the insurance side, ACA age banding requires insurance premiums for young people to be no less than one third of premiums for elderly who are more expensive to cover (as long as we are still covering and actually providing care for them). The net result is that even with subsidies, insurance coverage is unnecessarily more expensive for young people because of an arbitrary banding ratio mandate that subsidizes the elderly (typically richer with more work experience).

Health insurance is becoming a misnomer as true health insurance is now illegal under the Affordable Care Act for anyone 30 and older. With the ban on pre-existing conditions, “health insurance” has really just become a shared payment plan for health expenses. We now have new pre-existing conditions: being too young or too old to be worthy of care.

The federal government doesn't really stop at health insurance either. In the name of handling all of the existing and added chronic conditions for which the government has assumed responsibility, it has put forward the cause of “prevention.” After all, if we can stop people from getting sick, then we can reduce the costs of curing them, or more accurately, managing their sickness, pain, condition, etc., right? What this argument leaves out is the health care system is already overloaded, and increasing that workload with additional mandates to provide care to healthy people does not do much to reduce the existing burden.

The system we had before was not as inferior as we were told. For reasons cited here and many more, the Affordable Care Act is actively eroding the system of health care in America.

Mark Warner voted for these corrosive effects of the Affordable Care Act on the American health care system.

In 2011, under preventive health policy authority granted by Congress under the Affordable Care Act, President Obama's administration issued regulations requiring that all health insurance policies cover “the full range of FDA-approved contraceptive coverage.”

Included in that range were drugs that did not just prevent pregnancy, but also terminated pregnancy at its earliest stages. For those who believe that life begins at conception, this is tantamount to abortion.

Introducing a policy of the United States requiring all of its citizens to materially participate in a morally objectionable activity marked a defining transition in the debate over protecting life in America.  No longer is this supposedly about “a woman's right to choose.” Now they want you and me to pay for her “right.” (This is even more directly reprehensible than taxpayer funding of abortion which has been prohibited since 1976 and has now been circumvented by ACA.)

This affront to Americans' rights of conscience spawned a host of lawsuits.  The issue ultimately went to the U.S. Supreme Court which decided in favor of religious liberty in the Burwell v. Hobby Lobby decision.

In addition to his vote on the Affordable Care Act, Senator Mark Warner had another opportunity to reverse this particularly egregious policy imposed on the American people:

In 2012, prior to the Supreme Court's Hobby Lobby ruling, Senator Blunt introduced an amendment “to protect rights of conscience with regard to requirements for coverage of specific items and services.” There was both support and mocking of this amendment on the Senate floor.

The Senate voted to table (decline consideration of) the amendment 51-48.  Mark Warner was among the 51 senators voting to prevent protection for conscience rights from becoming law.

This vote stands in contrast to the 97-3 Senate vote that passed the Religious Freedom Restoration Act in 1993.  In the last two decades, the Democratic Party has dramatically shifted toward hostility to religious liberty.

Today some correctly point out that the law should apply the same to everyone, and not single out Christians—those most often citing their moral objection to the abortion mandate—for special treatment from the law.  What they fail to mention is that the HHS mandate, as the administration's policy came to be known, is an example of government stepping outside its purpose of punishing evil by declaring something to be good, and then mandating it.

While we may disagree on what is good, there is more room for agreement that a government mandating one particular form of good is particularly problematic.

This is not just a new page in the pro-life debate.  This is a new page in the scope-of-government debate.

In 2014, the Senate voted on amending the Constitution of the United States.  The proposed amendment was related to “contributions and expenditures intended to affect elections.”  It has been easy to promote under the popular banner of “getting money out of politics.”

The righteous-sounding argument is “no one should be able to buy an election or elected officials.” To be clear, no one is outright hiring their own senator, or paying cash for the votes of the American people.  We are not at that level of corruption.

Instead, the supporters claim that by being able to make large donations to candidates and political committees that support them, then people of means have an inflated level of influence in the political process than the average American has.  Putting the oversimplified thinking another way: “If there's too much money from some people in politics, then we can fix that by taking money out of politics.” (Inherent in the argument is the same shortsightedness that says, “People die because of guns, so if we take guns away, we solve the problem of people dying from guns.”)

Congress has passed various “campaign finance” laws before, and when they are challenged in court, the Supreme Court has struck them down as violations of free speech as protected under the First Amendment to the Constitution.  Recent examples of this include the Citizens United vs. FEC and McCutcheon vs. FEC cases.

Opponents of free speech are refusing to accept the Supreme Court's decision in these regards, and their argument is “money isn't speech.” Sometimes that may be true. That also misses the point. The question at hand is, When does speech not involve money? Ask anyone who has ever tried to promote any idea anywhere how much it cost them, and they can tell you it was higher than zero. Even the guy standing on the street corner speaking his mind to any who will listen still incurred transportation costs to get there. Courts reject the notion that one cannot assign a monetary value to the cost of speech.

If you cannot “get money out of speech,” then you cannot “get money out of politics” without also incurring damaging affects on free speech.

There is a tacit admission of this point in the Senate's proposed amendment to the Constitution. The text closes with “Section 3. Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.”

This should raise serious questions: If there is no possible damage to free speech by “getting money out of politics,” then why the disclaimer specifically exempting “the freedom of the press”? Why is only the free speech of the press protected, and not the free speech of the people?

Members of the media have not said or written much about this proposed exemption. Is that because they think they are safe since they are specifically exempted? Who decides who is press and who is not? Must one be a corporation to have protected speech under this amendment? What about a blogger? Is his speech protected as part of the press as well? Where is the line between who is press and who is not? Who decides where that line should be? Could that line move later and protect less speech?

The first amendment did not need to define who was included in “the press” because free speech was not limited to just them. If free speech no longer extends to anyone else, a lack of definition to the term “the press” becomes more problematic.

This proposed, supposedly campaign finance reform amendment seeks to abridge the First Amendment and redefine our idea of what free speech is and to whom that right applies.

A vote for this amendment was a vote to reduce free speech rights to only the press, and a vote to ignore the important and unanswered question of which people or corporations “the press” would then include.

Mark Warner voted to proceed with making that kind of ambiguous change to the Constitution and how our government recognizes our free speech rights.

The First Amendment to the Constitution specifically limits the government from abridging the free exercise of religion, freedom of speech, freedom of assembly, and the right to petition the Government for a redress of grievances.

In one single Senate term, the senior senator from Virginia has managed to directly or indirectly vote against the first three clauses of the First Amendment, and to encourage federal government activity that vastly increases the likelihood of needing to exercise the fourth clause of the First Amendment.

Is this a record of being faithful to uphold the Constitution?

Virginians would do well to give due consideration to this man's voting record, recognize the state-knows-best political philosophy it reflects, and reject Mark Warner for a second term in the United States Senate.

Protect your freedom.

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