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Miles Mogulescu Headshot

Health Care Was Only the Supreme Court's 2nd Most Important Decision Last Week

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The Supreme Court's decision upholding most of the Affordable Care Act may have grabbed the majority of the headlines last week, but important as it was both practically and constitutionally, it was not the decision that will have the most lasting impact on the future of American democracy.

More important, long-term, was the Court's 5-4 decision overturning Montana's century-old campaign finance law that banned corporate contributions to candidates and so-called "independent" committees, thus insuring, without even hearing arguments, that American elections will continue to be auctions up for sale to the highest bidder.

The Court's decision upholding the individual health care mandate has been hailed in the press as a case of conservative Chief Justice Roberts siding with the Court's four "liberals" (actually center-moderates). The decision may have the short-term effect of modestly helping President Obama's reelection prospects (certainly more than its defeat). Looking deeper, however, the decision was actually completely consistent with a corporatist like Roberts who has spent his career as a lawyer serving the business elite.

In fact, the type of corporatist social reform embodied in the individual mandate and many other aspects of the Affordable Care Act ("ACA") was only possible because the role of money in politics -- again upheld last week by the Supreme Court with Roberts siding with the conservative majority. Money in politics and revolving door lobbying allowed the ACA to be shaped by a series of deals between the Obama administration and the pharmaceutical industry, the for-profit hospital industry and the insurance companies who threw their political money and muscle into supporting (or at least not actively opposing) Obamacare.

The individual mandate -- the concept that the road to wider insurance coverage is to compel the uninsured to buy insurance from private for-profit companies -- was a conservative idea hatched by the right-wing Heritage Foundation; promoted in the '90s by the likes of Newt Gingrich and Bob Dole; first enacted by Mitt Romney as governor of Massachusetts; and which benefits private insurance companies and the for-profit hospitals by adding tens of millions of additional customers and the pharmaceutical industry by banning Medicare from using its market power to negotiate lower drug prices.

Meanwhile, the ACA does little to regulate insurance rates or to reduce the price of healthcare in America which costs twice per person than in most other democratic capitalist countries while providing Americans with a lifespan several years shorter. The continued impact of escalating healthcare costs on the federal budget -- which the ACA does little to constrain -- may ultimately help conservatives like Grover Norquist achieve their goal of shrinking government until it's small enough to drown in a bath tub.

The alternative to the ACA would have been Medicare For All -- the only way to insure all Americans while controlling costs. Medicare For All has been the long-time goal of progressives and Democrats like Ted Kennedy and was supported by Barack Obama when he was a state legislator, but has been vehemently opposed by corporate special interests like the private insurance, hospital and drug industries. In fact, unlike the ACA which has never enjoyed majority support and has been albatross to Democrats -- helping spur the creation of the Tea Party and leading the Republican Congressional landslide of 2010 -- numerous polls prior to the passage of Obamacare showed a majority of Americans supporting Medicare For All.

For example, in one of many polls showing similar results, a December 2007 AP-Yahoo poll asked,

Which comes closest to your view?

a. The United States should continue the current health insurance system in which most people get their health insurance from private employers, but some people have no insurance, or

b. The United States should adopt a universal health insurance program in which everyone is covered under a program like Medicare that is run by the government and financed by taxpayers

65% chose "a program like Medicare that is run by the government and financed by taxpayers", while only 34% preferred the current system.

Nevertheless, in the run up to the 2008 elections, all of the major Democratic presidential contenders supported a national version of Romneycare -- the proposal of choice for Republican leaders in the '90s -- and threw Medicare For All under the bus. Their apparent political calculation was that money and lobbying by the for-profit healthcare industry would scare off too many in Congress -- including key Democrats -- from supporting Medicare For All, while they could get the financial backing of the for-profit healthcare industry for expanded Romneycare.

In other words, Obamacare is the product of the outsized influence of corporate-raised big money and revolving door lobbying in American politics.

Thus Chief Justice Roberts' opinion upholding the ACA, coupled with his rejection of limits on campaign contributions, is completely consistent with his history as a servant of America's corporate oligarchy.

The result in the case benefits the for-profit health care industry. But the Constitutional rationale in Robert's majority opinion will make it more difficult for the Federal government to regulate private businesses in the future. By finding the ACA constitutional under Congress's power to tax, but unconstitutional under its powers to regulate commerce, Roberts laid the groundwork for the Supreme Court to overturn future regulations of business.

And by finding it unconstitutional for the federal government to condition future federal Medicaid funding to the states on the states increasing Medicaid eligibility, Roberts may have laid the groundwork for the Court to overturn Congressional action which uses funding to get the states to uniformly regulate things like the environment and financial institutions.

Meanwhile, only two days earlier Roberts joined the five-Justice conservative majority in refusing to even hear arguments by the state of Montana that its century-old Corrupt Practices Act which limited corporate political contributions to candidates and so-called "independent" committees, helping to prevent "corruption or the appearance of corruption" which, even under the restrictive rules of Citizens United, would make such restrictions Constitutional. This despite overwhelming factual evidence that the history of political corruption in Montana, as well as the post-Citizens United escalation of corporations and billionaires donating tens or hundreds of millions of dollars to fake "independent" committees supporting candidates who will protect their economic interests, massively corrupts the political system and leads to apathy by citizens that they can't do anything to combat the oligarchy.

In the long run, the Montana decision will have even more impact on the future of America than the decision upholding the ACA. So long as conservatives control the Supreme Court, all judicial remedies to the corrupt campaign finance system are foreclosed. The Supreme Court guarantees that most politicians will spend most of their time raising money from billionaire oligarchs and upholding their interests and that it will be impossible for America to solve any of its pressing problems including the environment, taxes, the deficit, economic inequality, or a real solution to healthcare.

Future generations may write that it was the Supreme Court's decisions on campaign finance that were the leading cause of the decline of America.

The last best hope for the nation now may be a Constitutional amendment overturning the Supreme Court's campaign finance decisions and guaranteeing that "one man, one vote" is matched by "one dollar, one vote."