The Heritage Insider: Unions lose, religious liberty wins, how to really expand access to health care, and more
Updated daily, InsiderOnline (insideronline.org) is a compilation of publication abstracts, how-to essays, events, news, and analysis from around the conservative movement. The current edition of The INSIDER quarterly magazine is also on the site.
July 5, 2014
Latest Studies: 33 new studies, including a Competitive Enterprise Institute report on how Congress is making infrastructure upgrades more expensive, and a Mercatus Center report on what can go wrong when the FDA thinks tobacco is food
Notes on the Week: Unions can no longer unionize people who are not even employees, the method behind the Left’s madness, if the government really wants to increase health care it should get out of the way, and more
To Do: Go to Las Vegas, learn about liberty and global warming alarmism
Budget & Taxation
• Taxing Online Sales: Key Features of Reforming the Collection of Online Sales Taxes – American Action Forum
• The Advantage of Fair-Value Accounting – American Action Forum
• The IMF Is Following the Obama Administration’s Playbook on the Federal Budget – The Heritage Foundation
• Phoenix Pension Reform Initiative Eliminates Taxpayer Risk, Saves Hundreds of Millions – Reason Foundation
Crime, Justice & the Law
• Attorney Fees in Patent Cases: There is a Middle Ground – American Enterprise Institute
• The Futility of Gun Control – Hoover Institution
Economic and Political Thought
• Four Speeches that Changed the World – Centre for Policy Studies
• The Language of Despotism – Hoover Institution
Education
• How "Waiting for Superman" (Almost) Changed America – American Enterprise Institute
Family, Culture & Community
• The Worldview that Makes the Underclass – Hillsdale College
Foreign Policy/International Affairs
• Obama’s World Disorder – Hoover Institution
• The Consequences of Syria – Hoover Institution
Health Care
• The Genetics Revolution and How To Incentivize Biomedical Research – American Enterprise Institute
• The Price of Public Health Care Insurance – Fraser Institute
• The Surprising International Consensus on Healthcare – Hoover Institution
Information Technology
• Sharing the Road: When Hogging Spectrum Lanes Requires Redirecting Government Traffic – Free State Foundation
• Read My Bits: No New Taxes (Permanently) – The Heritage Foundation
International Trade & Finance
• Repeal “Buy America” Law – Competitive Enterprise Institute
Labor
• How To Improve Economic Opportunity for Women – American Enterprise Institute
• De Blasio and Friends – Capital Research Center
• The Untold, Racist Origins of Progressive Labor Laws – Capital Research Center
• Process for Unionizing Non-State Workers Raises Red Flags – Illinois Policy Institute
Monetary Policy/Financial Regulation
• The G-7 Weighs In on SIFI Designations – American Enterprise Institute
• The Centennial Monetary Commission Act of 2013: A Second Look at the Fed and the 2008 Financial Crisis – The Heritage Foundation
National Security
• Why Isn't Mexico's Security Strategy Working? – American Enterprise Institute
Natural Resources, Energy, Environment, & Science
• The Natural Gas Boom: Questions and Complications – American Enterprise Institute
• Mora County and the Parachute Organizers – Capital Research Center
• Climate Change, Energy Policy, and National Power – Heartland Institute
• Hot Air on Climate Change – Hoover Institution
Philanthropy
• A Church of Community Organizers – Capital Research Center
• The Philanthropy of Pierre Omidyar, the eBay Billionaire – Capital Research Center
Regulation & Deregulation
• Deeming Tobacco Products to Be Subject to the Food, Drug, and Cosmetic Act – Mercatus Center
The Constitution/Civil Liberties
• Uncommon Hypocrisy – Capital Research Center
Notes on the Week
Private for-profit companies have religious rights, too. On Monday, the Supreme Court ruled 5 to 4 that the government cannot force closely held private businesses to provide insurance coverage of contraception services against the companies’ sincerely held religious objections. The ruling, in Burwell v. Hobby Lobby, allows three retailers (Hobby Lobby, Connestoga Wood Specialties, and Mardel Christian Book Stores) to decline to cover the contraception services that the Department of Health and Human Services had included in its list of essential health benefits that must be covered by private employers. HHS had adopted those rules following the passage of ObamaCare. The retailers objected to four of the 20 services on the list, including the intrauterine device, because they believe those procedures or drugs can results in an abortion.
The Court agreed with the retailers that applying the contraception mandate violates their rights under the Religious Freedom Restoration Act, a 1993 law that says government may not impose substantial burdens on the practice of religion unless the burden is the least restrictive means of serving a compelling government interest. Justice Samuel Alito, writing for the Court, explained that the mandate is not the least restrictive means of ensuring women have access to cost-free birth control, pointing to the accommodation that HHS has already created for religious nonprofit corporations that had religious objections to the mandate. Alito wrote:
HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty. […]
The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero.
A key argument made by the government was that the RFRA does not protect for-profit corporations because they do not exercise religion. Alito explained why that is wrong:
A corporation is simply a form of organization used by human beings to achieve desired ends. An estab¬lished body of law specifies the rights and obligations of the people (including shareholders, officers, and employ¬ees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government sei¬zure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.
The Court’s decision does not resolve the hundreds of other cases that have been filed against the contraception mandate, but it does mean that private corporations may assert a claim under the RFRA. It also does not resolve the question of whether the government’s accommodation for nonprofits (which has been challenged by some religious non-profits) is the least restrictive way of providing cost-free access to birth control. Those cases will now work their way through the courts. Following the Hobby Lobby decision, a number of lower courts and the Supreme Court itself issued temporary injunctions against the mandate. [See commentary by Sarah Torre and Elizabeth Slattery, Daily Signal, July 1]
The method in the Left’s madness: There was a lot of misinformation peddled about the Supreme Court’s ruling in Burwell v. Hobby Lobby this week. Liberals claimed variously that corporations now have more rights than people, that they can prevent women from getting birth control, that they can refuse to cover any medical procedure at all, and that they will soon be opting out of minimum wage and anti-discrimination laws. Justice Ruth Bader Ginsberg herself expressed some of those views in her dissent. Other commentators even wondered whether paying taxes could become optional. For a sampling of the idiocy, see in particular the rundowns from James Taranto [Wall Street Journal, July 2], Megan McCardle [Bloomberg View, July 2], and Sean Davis [The Federalist, June 30].
Of course, contraception is still legal. It might even still be free (to the user at the point of delivery, that is) if the government extends to for-profits the accommodation it created for non-profits or decides to finance the benefit directly. So what’s all the outrage about? Julian Sanchez opines that it’s about cultural signaling:
The outrage does make sense, of course, if what one fundamentally cares about—or at least, additionally cares about—is the symbolic speech act embedded in the compulsion itself. In other words, if the purpose of the mandate is not merely to achieve a certain practical result, but to declare the qualms of believers with religious objections so utterly underserving of respect that they may be forced to act against their convictions regardless of whether this makes any real difference to the outcome. [Cato Institute, June 30]
Contrary to the Left’s fears, the Religious Freedom Restoration Act is not a blank check for anybody to opt out of any law simply by checking the religion box. Not any burden on religious practice is forbidden, but only substantial ones. And even substantial burdens may be imposed when there is a compelling government interest that cannot be served with a less restrictive means.
(By the way, the Religious Freedom Restoration Act was passed in 1993 by a bipartisan vote—unanimous in the House and 97-3 in the Senate—and signed by President Bill Clinton. Many liberals at that time supported the law because they felt that the Supreme Court was not solicitous enough of religious practice in its application of the Free Exercise clause of the First Amendment.)
In Burwell, the Court suggested a number of less restrictive ways the government could have ensured cost free access to birth control, but it didn’t definitively decide what the least restrictive way was. Veering into economics for a moment, the idea of cost-free access is an accounting illusion. Employees get health care for the same reason they get a salary: Their employer values their work—up to a certain point—and wants to retain their services. But the price the employer is willing to pay for labor doesn’t vary by the composition of employees’ compensation packages. If government mandates better health insurance, then employees will pay for that in the form of lower salary.
How compelling can the government interest be when the means it has chosen don’t even accomplish the ends it thinks it is accomplishing? If the federal government hadn’t first encouraged (through the tax code) and then mandated (via ObamaCare) employer-provided health insurance, then employees would have more salary that they could spend on whatever they want, including whatever health insurance coverage they desire.
So if the critics of Hobby Lobby want to get their bosses out of their health care, they should really be in favor of getting the government out of their health care. But that can be a hard point to see for those who believe that all businesses are Scrooges who want to take away the Christmas presents. And that is just the point. Megan McArdle perfectly lampoons the mania of the week:
What if my employer says it has a sincere religious belief in human sacrifice – can he kill me?
Yes. If your employer has a deeply held religious belief in human sacrifice, they can strap you in a cage, reach into your chest with their bare hands to pull out your still-beating heart, then drop the cage into a fiery pit. It’s a tough break, but from time to time, the Tree of Liberty must be watered with the blood of patriots. Sorry about that. [Bloomberg View, July 2]
H.L. Mencken, meanwhile, remains spot on:
Civilization, in fact, grows more and more maudlin and hysterical; especially under democracy it tends to degenerate into a mere combat of crazes; the whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, most of them imaginary. [In Defense of Women by H.L. Mencken (1918)]
Unions can no longer unionize people who are not even employees. That’s what the Supreme Court said on Monday in Harris v. Quinn, the big case out of Illinois. Paul Kersey of the Illinois Policy Institute reports:
During the administration of disgraced ex-Illinois governor Rod Blagojevich, the Service Employees International Union (SEIU) saw an opportunity to expand by organizing two groups of people: home-based caregivers in the state’s Medicaid program and daycare providers.
Neither group had previously been considered state employees, and for good reason: Most of these caregivers watched over disabled relatives at home, and the daycare providers were small businesses that took in children from low-income families that received state child-care subsidies. Calling people in either group “state workers” just because they took advantage of a public social program would be as crazy as classifying food stamps recipients as state employees.
Nevertheless, the governor cooperated, and soon the union was collecting $20 million in dues each year from the two groups.
Then the SEIU found itself on the wrong side of Pamela Harris, a Chicagoan caring at home for her some Josh. Kersey continues:
Josh, was born with a rare genetic disorder and faced severe physical and cognitive struggles. Rather than put Josh in a state institution or an adult daycare facility, Pam stayed home full time to take care of him and received a Medicaid benefit administered by the Illinois state government of roughly $25,000 a year.
Harris did not want her home to be a union workplace, so she rallied other families like hers and beat back the SEIU’s advances. But government unions in Illinois are nothing if not determined, and Harris knew they would soon try to force her again to join the union. To end the scheme once and for all, she joined with other parents and caregivers who already paid forced dues to file a lawsuit. […]
The state of Illinois and the SEIU claimed that the union was entitled to represent—and receive financial support—from home-based caregivers. But this week the U.S. Supreme Court rejected the SEIU’s theory of union organizing. The court echoed a point that the Illinois Policy Institute made in our amicus brief, arguing that as a result of mandatory dues, participants in the state’s Medicaid program were inevitably forced to either support the union’s political speech or withdraw from the program. Paying dues to a union should not be a condition of receiving help from the state to care for a loved one. [USA Today, June 30]
What sustains our independence? Thoughts from Calvin Coolidge:
Under a system of popular government there will always be those who will seek for political preferment by clamoring for reform. While there is very little of this which is not sincere, there is a large portion that is not well informed. In my opinion very little of just criticism can attach to the theories and principles of our institutions. There is far more danger of harm than there is hope of good in any radical changes. We do need a better understanding and comprehension of them and a better knowledge of the foundations of government in general. Our forefathers came to certain conclusions and decided upon certain courses of action which have been a great blessing to the world. Before we can understand their conclusions we must go back and review the course which they followed. We must think the thoughts which they thought. Their intellectual life centered around the meetinghouse. They were intent upon religious worship. While there were always among them men of deep learning, and later those who had comparatively large possessions, the mind of the people was not so much engrossed in how much they knew, or how much they had, as in how they were going to live. While scantily provided with other literature, there was a wide acquaintance with the Scriptures. Over a period as great as that which measures the existence of our independence they were subject to this discipline not only in their religious life and educational training, but also in their political thought. They were a people who came under the influence of a great spiritual development and acquired a great moral power.
No other theory is adequate to explain or comprehend the Declaration of Independence. It is the product of the spiritual insight of the people. We live in an age of science and of abounding accumulation of material things. These did not create our Declaration. Our Declaration created them. The things of the spirit come first. Unless we cling to that, all our material prosperity, overwhelming though it may appear, will turn to a barren scepter in our grasp. If we are to maintain the great heritage which has been bequeathed to us, we must be like-minded as the fathers who created it. We must not sink into a pagan materialism. We must cultivate the reverence which they had for the things that are holy. We must follow the spiritual and moral leadership which they showed. We must keep replenished, that they may glow with a more compelling flame, the altar fires before which they worshiped. [Address by President Calvin Coolidge at the Celebration of the 150th Anniversary of the Declaration of Independence, Philadelphia, July 5, 1926]
Video of the week: How to get more health care to more people without new entitlements. If the government really wanted to give people greater access to health care, it would get out of the way:
The campus speech police have been put on notice. Citrus College in California sets aside 1.37 percent of its campus as a “Free Speech Area,” in which students can say whatever they want—as long as the college doesn’t deem the speech to be “offensive” or “inappropriate.” Iowa State won’t let students wear T-shirts with the words “NORML ISU Supports Legalizing Marijuana.” Chicago State adopted a cyberbullying policy in an attempt to shut down a professor’s blog about corruption in the school’s administration. And at Ohio University, wearing a T-shirt with the words “We get you off for free”—a marketing slogan for a student group that defends fellow students accused of campus offenses—is forbidden.
Those four colleges got sued today by the Foundation for Individual Rights in Education. The simultaneous suits, says the group, are just the first round in a new campaign aimed at ending unconstitutional speech codes at colleges across the country. According to FIRE President Greg Lukianoff, “25 years after the first of the modern generation of speech codes was defeated in court, 58% of public campuses still hold onto shockingly illiberal codes.” The group says its “Stand Up for Free Speech Litigation Project” will sue continuously until there are no more unconstitutional speech codes at American colleges: “Lawsuits will be filed against public colleges maintaining unconstitutional speech codes in each federal circuit. After each victory by ruling or settlement, FIRE will target another school in the same circuit—sending a message that unless public colleges obey the law, they will be sued.” [Foundation for Individual Rights in Education, July 1]
Conservatives need more novels. And now for something a completely—or at least a little—different. Adam Bellow makes the case that the conservative movement should do more to support conservative novel writers. He might be right. A couple years ago at a conference on social media when we heard a panelist overstate the case for Twitter by a little bit. The conservative movement, she claimed, doesn’t need 100-page think tank papers; it just needs cleverly composed tweets to get its message out. Let’s just stipulate that conservative scholarship has a role to play, too. For starters, it creates and sustains the intellectual climate that makes it possible to issue 140-character bursts that can be understood by a wide audience.
Bellow points to what might be a similar imperialism of method in the area of culture: He writes that conservatives are oversold on the idea that making a great movie is the next step in winning the culture wars. A great conservative movie, he points out, is often based on a great conservative novel:
Tolkien’s Lord of the Rings and the Narnia books by C. S. Lewis both produced big-budget movies that reached millions of people with what most of us would probably agree is a subtly conservative message. Yet both of these successful movie franchises ultimately pale in comparison with the impact of the books. Even at their best, movies are essentially cartoons and their effects are superficial and fleeting. Books engage the reader much more deeply, at a level of identification with the characters and plot that can instruct the soul and edify the mind. A hundred years from now, moreover, these classic books will still be read all over the world in dozens of languages when the films on which they are based are long forgotten or superseded by new forms of entertainment.
In short, conservatives should remember that mainstream popular culture is still largely driven by books. Fiction therefore is and will remain the beating heart of the new counterculture. This is not just my bias as a publisher. It is a practical reality—and a fortunate one for us, since there are hundreds if not thousands of conservative and libertarian writers out there today producing politically themed fiction. The conservative right brain has woken up from its enchanted sleep and it is thriving. Instead of banging on Hollywood’s front door, a better approach is to go in the back by publishing popular conservative fiction and then turning those books into films.
Conservative funders, writes Bellow, should think about ways to nurture the fiction-writing wing of the conservative movement:
Conservatives must beware of taking too literally their own free-market dogma. Just as funders and institution builders were needed to grow the conservative intellectual movement to the point where it could sustain a commercial entity like Fox News, the conservative counterculture also needs an institutional base and a means of delivering its products to market. […]
We need to invest in the conservative right brain. A well-developed feeder system exists to identify and promote mainstream fiction writers, including MFA programs, residencies and fellowships, writers’ colonies, grants and prizes, little magazines, small presses, and a network of established writers and critics. Nothing like that exists on the right.
This is a major oversight that must be urgently addressed. We need our own writing programs, fellowships, prizes, and so forth. We need to build a feeder system so that the cream can rise to the top, and also to make an end run around the gatekeepers of the liberal establishment. [National Review, June 30]
• Find out if big brother is here. That’s the theme of FreedomFest 2014, where you’ll also hear science fiction author David Brin, Whole Foods CEO John Mackey, author P.J. O’Rourke, Forbes Editor-in-Chief Steve Forbes and many other heavy hitters for liberty. FreedomFest 2014 will kick off at Planet Hollywood Las Vegas at 4 p.m. on July 9.
• Discover whether man-made global warming will be harmful to animals, plants, and human welfare. Leading scientists from around the world will converge on Las Vegas for the Heartland Institute’s 9th International Conference on Climate Change. The conference will run from July 7 to July 9 at the Mandalay Bay Resort and Casino.
• Learn what the Supreme Court got right and wrong in the term it just concluded this week. The Heritage Foundation will host panel discussions reviewing the cases. The event will begin at 11 a.m. on July 8.
• Students, meet other freedom-loving students from around the country at the Young America’s Foundation’s National High School Leadership Conference. You’ll also hear from top thinkers and strategists in the conservative movement. The conference will be held at the National 4-H Youth Conference Center in Chevy Chase, Md., from July 9 to July 12.
• Applaud the Clare Boothe Luce Institute’s 2014 Woman of the Year Winner, Katie Pavlich. Pavlich will accept the award and also talk about her new book Assault and Flattery: The Truth about the Left and Their War on Women at the Capitol Hill Club in Washington, D.C. The event will begin at 4 p.m. on July 10.
• Learn how our health care system isn’t designed to cover the cost of short-term life-saving therapies currently in development. A panel at the American Enterprise Institute will discuss ways to fix that problem. The event will begin at 7:45 a.m. on July 11.
(Want more stuff to do? Check out InsiderOnline’s Conservative Calendar.)
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