Thersites

The "Ben Kenobi" Clause That Might Have Been

File this under "wishful thinking":

I wish the Affordable Care Act ("ACA") had had what corporate M&A types call a "poison pill" but I'll name a "Ben Kenobi clause":

A "Ben Kenobi clause" in the context of healthcare reform would be a clause that provided, simply, that if the individual mandate (which is what makes the ACA fiscally sound) were struck down as unconstitutional, then an unquestionably-constitutional Public Option automatically would go into effect, and if the entire ACA were struck down, then the unquestionably-constitutional alternative of Medicare-for-All automatically would go into effect.

Legally, such a clause would have acknowledged the Constitutional precariousness of the individual mandate and the stronger constitutional basis for socialized medicine. (Congress clearly has the power to tax the People and spend the resulting money on their healthcare. That's why Medicare exists: it's an appropriate exercise of the taxing and spending power. Not even Scalia or Thomas can argue with that.) 

But more important are the pragmatics of such an approach: a "Ben Kenobi" clause would have presented the Supreme Court with a stark choice: either uphold the ACA as-is, thus allowing private businesses to continue providing most of America's healthcare services (which is what conservatives want), or be the speed bumps that jolted America onto a new track, the track to socialized medicine (which is what conservatives don't want).

In fact, the Administration is arguing before the Court that obligating people to purchase their own insurance amounts to the same thing as taxing them directly. If the ACA survives, it will be precisely because Justice Kennedy buys that argument and understands that the individual mandate is nothing more or less than an attempt to make a healthcare tax palatable. But I doubt he'll do it; it's much more likely that he, and the more conservative members of the Court, will kill some or all of the law, and trust that conservative obstructionism will prevent a constitutional alternative from becoming reality for at least another generation.

Which is why I wish the law made the choice more immediate and more clear. The only clearly constitutional national healthcare plan is one that taxes the People and then provides them with care -- the more paternalistic, socialistic alternative. Making that alternative automatic might have opened some Justices' eyes and prompted them to uphold the more moderate law currently before them.

Don't get me wrong: I'm not trying to second-guess Barack Obama. The healthcare reform fight was as complex a piece of public policy sausagemaking as there's ever been, and I'm aware that winning such a clause would have been tough sledding (though the key cloture votes, Lieberman and paleoDems like Nelson and Lincoln, might have accepted such a clause as a quid-pro-quo for killing the public option.)  I certainly don't mean to undercut Obama's signature accomplishment in a critical election year. Although I floated this concept elsewhere during the healthcare battle, mentioning it now amounts to legislative "fan fiction."

Nevertheless, I mention it now for three reasons: First, it helps explain the central issue currently before the Supreme Court (the power to regulate commerce versus the power to tax and spend). Second, if SCOTUS strikes down the heart or the whole of the ACA, a Ben Kenobi clause might be an idea to tuck in our back pocket and pull out the next time a president renews the battle for national healthcare, because such an approach might be the only way to pry paleoAmerica into doing the right thing.

Third, like all writers of fan fiction (or imagining what I'll do with the money when I win the lottery) I find it pretty to think of Scalia and Thomas fuming about such an inescapable and distasteful choice instead of gloating in their power to kill progress, which is what I'm pretty sure they're doing right now. If things go poorly when the Court announces its decision in June, as I suspect they will, I'm afraid that pretty imaginings of what might have been will be all we have left.

Emails Quoting Rush Limbaugh Too Offensive for Department of Defense Email Servers

The United States Department of Defense email server's automatic spam filter may have higher standards for decency than top military officials do.

The U.S. military operates several television and radio networks, both for domestic troops and for servicemembers and their families deployed at sea and abroad. In accordance with the Department of Defense's laudible free-speech policy, a broad spectrum of views are represented, including liberal commentators Ed Schultz and Alan Colmes and conservative pundits Sean Hannity and Rush Limbaugh. 

In the last few days, however, Limbaugh has come under fire, not for his conservative political views, but for a torrent of personal, sexualized attacks against a Georgetown law student, Sandra Fluke, who had testified at a Congressional hearing in support of insurance coverage for contraceptives (citing, among other things, the need for such care to treat medical conditions like ovarian cysts).

Limbaugh's attacks on Fluke were so virulent that over 30 of his advertisers have withdrawn support from his show, and a groundswell of citizen objections to Limbaugh's inclusion on Armed Forces broadcast networks has arisen. Among those complaining are female Iraq and Afghanistan war veterans (who, among other things, may be concerned about the impact Limbaugh's misogynism may have on servicewomen's unwillingness to report cases of rape and sexual harassment). Nevertheless, the Department of Defense has affirmed its support for including Limbaugh in its lineup, stating that it "does not censor content and [does] not seek to protect the overseas Department of Defense audience from hearing views with which they may disagree."

Apparently in response to mistargeted complaints, one of the military's broadcast arms, the Armed Forces Radio Network ("AFRN"), posted a message on its website saying, "PLEASE NOTE: AFRN does not air Rush Limbaugh. He is on AFN [American Forces Network] - EUROPE which is operated by AFRTS [American Forces Radio & Television Service], email them afrtops1@hq.afis.osd.mil."

On March 6, acting as a citizen and not as a writer, I attempted to email the American Forces Network at the email address provided. My email (copy viewable here) quoted some of Limbaugh's slurs against Ms. Fluke, in case its recipients did not know precisely what kinds of things had been said on military-sponsored, taxpayer-subsidized airwaves. Those quotations included the following:

"[She] says that she must be paid to have sex, what does that make her? It makes her a slut, right? It makes her a prostitute."

 [People like Ms. Fluke] "want to have sex any time, as many times and as often as they want, with as many partners as they want."

 "She and her co-ed classmates are having sex nearly three times a day for three years straight, apparently these deadbeat boyfriends or random hookups that these babes are encountering here, having sex with nearly three times a day.”

“Ms. Fluke and the rest of you feminazis, here's the deal: If we are going to pay for your contraceptives and thus pay for you to have sex, we want something for it. And I'll tell you what it is. We want you to post the videos online so we can all watch.”

 [Ms. Fluke] “is happily presenting herself as an immoral, baseless, no-purpose-to-her-life woman.”

 "She wants all the sex in the world, whenever she wants it, all the time.”

But my email was rejected by the Pentagon's email server. Why? Because it contained "Banned Words":

"The error that the other server returned was: 554 554 5.7.1 Message refused by BannedWord check. This email has been rejected."

I rewrote and resent my email, replacing the word "sex" with "s_x," "slut" as "sl_t," etc. -- and it appears to have gone through with no problem.

Of course, the algorithm of a spam filter and the censorship policy of a government agency are different things -- but it's still intriguing: if words are so offensive that they make the Pentagon's "Banned Words" list and cause a citizen's email to be rejected, shouldn't the military re-examine the propriety of providing a taxpayer-funded, worldwide, privileged platform to the man who originally said them?

The issue, of course, is not "liberal vs. conservative." It's "civility vs. abuse." There are many outspoken, conservative commentators who would be ecstatic to have Limbaugh's slot on American Forces Radio -- but who would use that platform to discuss issues, not to slander individual citizens, or reinforce (mission-damaging) sexist stereotypes, as Limbaugh regularly does.

So the question for both civilian and military leaders like Assistant Secretary of Defense for Public Affairs Douglas B. Wilson (who oversees AFTRS) remains a valid one: why does the military insist on spending taxpayer money to broadcast words that the Department of Defense's own email system considers too offensive to even be read?

 

Call to Arms: Do Your Part to Take Rush Limbaugh Off American Forces Radio

(Updated twice thrice four times: to add fax # for the Department of Defense office in charge of AFN, to add a .pdf of the letter I faxed to them, to add a link to VoteVets' petition to pull Rush off AFN, and now to add a link to the AFN website feedback page. Please read to the end for more things you can do to help!)

WHAT THIS POST IS:

A one-stop-shop for how to lobby to have Rush Limbaugh removed from so-called "Armed Forces Radio," including petitions, talking points, and (most important) direct contact info for the decision-makers involved, who will respond if we flood them with citizen input.

THE ISSUE:

 America's military personnel are not obligated to be politically neutral; they have every right to listen to the myriad, sometimes conflicting political viewpoints that inform a healthy, diverse democracy, and to form, discuss and vote their own opinions. They should be free to listen to liberal, conservative, progressive, Libertarian, and other voices; to read editorials on all sides of pressing issues, without political censorship. They are the front-line defenders of our freedoms; they deserve the liberties of speech and press at least as much as anyone else.

That's why the Armed Forces Radio & Television Service ("AFRTS") and the American Forces Network ("AFN") are absolutely right to air a variety of programming for our troops and their families overseas, ranging from conservative Sean Hannity to liberal Ed Schultz and everyone in between. When it comes to political viewpoints, AFN is correct to adopt a policy stating that it "does not censor content and they do not seek to protect the overseas Department of Defense audience from hearing views with which they may disagree." https://kb.defense.gov/app/answers/detail/a_id/718

We respect AFN's desire not to censor political content. We respect AFN's care in ensuring that voices across the political spectrum are available to deployed personnel. But we also know that America's sailors, airmen and Marines and their families are honorable men and women, who presumably would never want to be party to bullying, dishonesty, or lawbreaking. They exemplify the best of America, not the worst, and they are the protectors of our citizens, not in league with those who, for the sake of ratings and profits, would gleefully harm them.

 Rush Limbaugh, whose show is carried live on the Armed Forces Network - Europe, spent nine hours over three days, not discussing politics or ideas, but slandering one particular Georgetown college student, whose only "crime" was to testify, at the request of her Congressional representative, in favor of including contraception coverage in basic insurance plans offered by her university.

Mr. Limbaugh had every right to disagree with the student, Sandra Fluke, on the issues -- but he went much, much further, calling her a "slut" and "prostitute" and indulging in numerous personal, sexual attacks. Among other things, Mr. Limbaugh said the following about this American citizen:

 "[She] says that she must be paid to have sex, what does that make her? It makes her a slut, right? It makes her a prostitute."

 [People like Ms. Fluke] "want to have sex any time, as many times and as often as they want, with as many partners as they want."

 "Now, what does that make her? She wants us to buy her sex."

 "She and her co-ed classmates are having sex nearly three times a day for three years straight, apparently these deadbeat boyfriends or random hookups that these babes are encountering here, having sex with nearly three times a day.”

 “Ms. Fluke and the rest of you feminazis, here's the deal: If we are going to pay for your contraceptives and thus pay for you to have sex, we want something for it. And I'll tell you what it is. We want you to post the videos online so we can all watch.”

 "We want something in return, Ms. Fluke: And that would be the videos of all this sex posted online so we can see what we are getting for our money.”

 “Here this babe goes before Congress and wants thousands of dollars to pay for her sex.”

 [Ms. Fluke is] “a woman who is happily presenting herself as an immoral, baseless, no-purpose-to-her-life woman.”

 “She wants all the sex in the world, whenever she wants it, all the time.”

( Much, much more here.)

 Further, after issuing a tepid apology to Ms. Fluke, Mr. Limbaugh then continued to criticize her by name to his millions of listeners, suggesting that he in fact is not apologetic at all.

 AFN is correct to refuse to censor real free speech, but it is absolutely wrong to pretend that Mr. Limbaugh's behavior falls into that category. Personal abuse of American citizens has nothing to do with the marketplace of ideas, and should never be supported by the U.S. military. And, worse, demeaning women in this way increases the risk of sexual assault on U.S. servicewomen (which is why female Iraq and Afghanistan War veterans are among those calling for Mr. Limbaugh to be pulled off U.S. military airwaves).

To date, at least ten of Mr. Limbaugh's advertisers, and at least one of his local affiliates, have publicly withdrawn their support from Mr. Limbaugh's radio show. Is the U.S. military more tolerant of bullies like Mr. Limbaugh, and less supportive of citizens like Ms. Fluke, than ProFlowers or AOL?

 To send a moral message about what is and is not acceptable behavior by people privileged to use America's airwaves, and to protect Ms. Fluke from further abuse, AFTRS and AFN have a moral obligation to stop broadcasting the Rush Limbaugh Show to our servicemen and servicewomen, and to replace him with someone who -- whether "liberal" or "conservative" -- accepts that his or her first duties are to be fair, truthful and respectful of the citizens our military serves. Anything less is dishonorable and contrary to the traditions and purpose of the military.

 THE PLAN:

 If you agree, please restate something similar to the above in your own words, and forward it by emails, fax and telephone to the following people. IMPORTANT: our leaders respond to public outcry more than to organized media; listen more carefully to individual citizens than they do to advocacy groups; respond better to telephone calls and faxes than they do to online petitions; and weigh calls to their local (home state) offices more highly than they do to their D.C. offices. For those reasons, it is imperative that each of us make several contacts from the list below,preferably by telephone and fax, and that we keep up the pressure, ideally even filling up their D.C. and local-office voicemails every night and leaving piles of fax paper strewn on their floors.

 Please leave any helpful info on how these contacts go -- names of better people to lobby, positive/negative responses, etc. -- in the comments below.

WHO TO CONTACT:

At all times, be constructive and polite!

 AFTRS Plans & Policies Office: afrtops1@hq.afis.osd.mil , telephone 301-222-6496

American Forces Network feedback website: http://myafn.dodmedia.osd.mil/email.aspx

Leon Panetta, Secretary of Defense: (703) 692-7100 (explain you're a citizen and want to leave a message for Secretary Panetta on a policy matter).

Petitions to Secretary Panetta: from Daily Kos  WhiteHouse.gov and (NEW!) VoteVets

Douglas B. Wilson, Assistant Secretary of Defense for Public Affairs (in charge of AFTRS):   (703) 692-7100 (ask to be transferred to his office). UPDATE: DOD PUBLIC AFFAIRS OFFICE FAX NUMBER:  703-695-4299

Navy Captain John Kirby, Deputy Assistant Secretary of Defense for Media Operations (serves under Mr. Wilson):  (703) 692-7100 (ask to be transferred to his office).

U.S. Senate Armed Services Committee main office: telephone 202-224-3871, fax 202-228-0036

Chairman, Senate Armed Services Committee: Carl Levin (D-MI): http://www.levin.senate.gov/contact/offices/

Ranking Member, Senate Armed Services Committee: John McCain (R-AZ): http://mccain.senate.gov/public/index.cfm?FuseAction=Contact.OfficeLocations

U.S. House of Representatives Armed Services Committee main office: Phone: (202) 225-4151
Fax: (202) 225-0858

Chairman, House Armed Services Committee: Rep. Howard P. "Buck" McKeon (R, CA-25), Washington D.C. telephone (202) 225-1956, fax (202) 226-0683 (Also consider contacting his Santa Clarita, Calif. and Palmdale, Calif. local offices by telephone or fax; info here.)

Ranking member, House Armed Services Committee: Rep. Adam Smith (D, WA-09), Phone (202) 225-8901 Fax (202) 225-5893

FINALLY: Please check back here periodically for more information and suggestions. We'll keep gathering contact information and steering you toward the correct decision-makers; your job is to keep the pressure on until Mr. Limbaugh no longer is allowed on the publicly-owned signal beamed worldwide to fighting men and women who deserve better than him.