Journalism: The Next Individual Mandate


Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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289 Responses

  1. Avatar Ethan Gach says:

    Great idea, not constitutional.

    My feeling is that, prior to being dressed up in legalese, the main difference would be that, as a form of commerce, people can reasonably go through life without needing to resort to newspapers at some point, for some thing.

    Unlike health insurance, which everone will need to have, or to have had, at some point (except in extreme border cases), and which inaction more directly/strongly affects commercial outcomes.

    Whether or not that is a good enough difference, it certainly seems as though that would cross Roberts imaginary, self-drawn line between okay commerical regulation and not okay commercial regulation.

    If we are talking about constitutionality outside of the current justices, I would still hold that it would be unconstitutional, but for a different set of reasons.Report

    • Avatar Jason Kuznicki says:

      My feeling is that, prior to being dressed up in legalese, the main difference would be that, as a form of commerce, people can reasonably go through life without needing to resort to newspapers at some point, for some thing.

      That would be germane if we were still dealing with the Commerce Clause. But we’re not. Also I don’t think I really buy the premise. How many people do you know who never benefit from newspapers in any way, whether directly or indirectly, even if it’s just weather, gossip, or sports?Report

      • Avatar Ethan Gach says:

        Ignore my earlier comment.

        Having re-read the tax/spend clause. It certainly seems as though that would be a valid Federal policy.Report

        • Avatar Jason Kuznicki says:

          Are there any limits at all on the purposes to which tax money can go?

          Suppose Congress decreed that everyone must pay a special tax, but that people who bought products from the Koch brothers could escape it?

          Or people who contributed to Planned Parenthood?

          The whole point here is that this is a can o’ worms. I hope Congress will not be dumb enough to re-open it. I hate having to put my trust in the intelligence of that institution. But there you go.Report

          • Avatar Ethan Gach says:

            I definitely agree Jason, but that seems to require we change the Constitution, rather than paper over the worms.

            And though it’s very subjective territory, it seems there might be at least some common consensus that newspapers function for the general welfare more so than, say, something specific like Planned Parenthood.

            Obviously, plenty of libererals would argue that Planned Parenthood does a lot for general welfare, but the analogy would probably require that you pay a tax unless you subscribe/annually donate to any organization which claims to do the sexual reproductive education/etc.

            Taxing people unless they buy something from a class of things seems different from taxing them unless they buy a specific thing from a specific organization (more general/fair).

            Still, a completely literal interpretation of the clause would seem to allow that, or at least make any decision regarding its constitutionality subject to partisan beliefs about general welfare.Report

            • Avatar Jason Kuznicki says:

              This is exactly why I read the general welfare clause in the way that I do.

              I do not regard the general welfare clause as a license for Congress to collect taxes and do whatever it thinks is good with the money.

              If “provide… for the general welfare” were an operative, self-sufficient description of the powers of Congress, then that description would obviously encompass everything in the rest of Article I section 8 — plus a whole lot more. Entire large sections of the Constitution would be useless and redundant; just so much wasted ink and paper.

              The canons of legal construction forbid that kind of reading, both at the time of the founding and today. Whenever an intelligible, non-redundant reading exists, we are obliged to use it instead. In other words, the general welfare clause must do something else.

              We can debate what that might be, but I think it serves as more or less a pointer to what follows: It says that the following provisions constitute the general welfare for which collecting taxes is okay. If you collect taxes, it can’t be for particular, private ends. It can’t be for arbitrary or vindictive ends, either. It has to be for the general welfare, by which we mean the following.Report

              • Avatar Tom Van Dyke says:

                Entire large sections of the Constitution would be useless and redundant; just so much wasted ink and paper.

                Exactly what Madison said, although based on recent discussions, that may hurt your case.

                “To refer the power in question to the clause “to provide for common defense and general welfare” would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper.

                Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms “common defense and general welfare” embracing every object and act within the purview of a legislative trust.


              • Avatar Chris says:

                It would also have hurt your case in 1800.Report

              • Avatar Jason Kuznicki says:

                I now introduce the Zeroth Canon: The canons of statutory interpretation only operate when the result would increase the power of the government.Report

              • Avatar Chris says:

                OooooK… I’m not quite sure what that’s responding to (by the way, I meant to say before 1800, not in 1800).

                Let me be clear, by the way. I do not like the PPACA, I don’t think that it will solve many of the most important problems our health care system has, I don’t think it will lead to a better system, and I don’t give a shit, not even a little tiny one, about whether the PPACA includes a penalty or a tax. Also, I don’t like the government giving money to private, for-profit companies, directly or indirectly (by forcing me to pay them). Also, I’m not for arbitrarily epxanding state power in any case (I don’t think that should need to be said, but it seems at some point you’re just saying that people on the left, of whatever sort, just want an increase in state power for no reason other than to increase state power).

                The only health care system I would support, given our current shitty ass economic and social systems, is single payer. If it is not about single payer specifically, then you’re probably not responding to anything I think.Report

  2. Avatar KipEsquire says:

    Given PBS & NPR (& NEA & NEH & …), how is this a new question?Report

    • Avatar Jason Kuznicki says:

      In a sense it’s not. I’m just trying to push back on the suspiciously sudden intuition shared by everyone to my left that the power to tax is in fact a previously unheralded free-range, no-limits power to run around and do good by handing money to for-profit corporations.

      I find that curious, to say the least.Report

      • Avatar Chris says:

        “Everyone” is a stretch.Report

      • I’m just trying to push back on the suspiciously sudden intuition shared by everyone to my left that the power to tax is in fact a previously unheralded free-range, no-limits power to run around and do good by handing money to for-profit corporations.

        I know I sound like a broken record on this, but there is nothing previously unheralded about this. Even the dissent acknowledges this – the dissent is based solely and entirely on the words Congress chose, and does not even attempt to address what the mandate actually does or how it actually functions.Report

    • Avatar DensityDuck says:

      I can’t mail in an opera ticket and get a refund on the portion of my taxes that went to PBS.Report

  3. Jason, this is an intriguing idea, but my familiarity with the press of the era of Washington, Adams, et al. that you invoke makes me want to pour some cold water on the modest proposal and then flip the question.

    The problem of “free riders” is not new – it defined the business of newspapers in the early Republic. In fact, it was worse than today in some respects, not least that publishers and editors couldn’t get even people who had subscribed to the newspaper to pay for it. And then of course you take into account the people who read newspapers in taverns or coffeehouses, or who borrowed someone else’s paper, and you have many “free riders” per copy.

    The financial support for a newspaper came from two sources. The first was advertising, for which you could actually get people to pay (you could withhold something they wanted). The problem now, I would argue, is not too many free riders, but too few. Advertising in the print media is no longer worth it given that you can’t reach as many eyeballs. So the dollars go to radio, TV, internet, pretty much anything else.

    The second source of support was … surprise! the government (or at least political institutions). Andrew Jackson was no fool — one of his earliest actions in office was to hire an editor for a pro-Jackson Democratic newspaper that could circulate favorable news from Washington out to the states. The press through the Civil War was largely funded by the political parties, as I’m sure you know. And as several historians have argued, the press actually constituted most of the party infrastructure in the early Republic.

    I’m not a lawyer, so I’m going to ignore your idea that the government could institute a tax to force people to subscribe to newspapers (though I understand in part the point you’re trying to make, I think). But there seems to me nothing constitution-wise standing in the way of the government instituting a “Free Press” tax to support journalism – and the best arguments for it come from the Revolution and early Republic, when government officials (indirectly) subsidized the press, either by directly contributing to the costs (what in Europe was a “court paper”) or by providing the key personnel with other jobs – giving the work of printing laws and journals to a favored printer, or hiring an editor for a post in a federal department.

    Based on all of that, my question is not whether the federal government can enforce newspaper subscriptions, but whether journalism is as important a commodity to subsidize as sugar or corn.Report

    • Avatar Jason Kuznicki says:

      You’re right that there have long been newspaper subsidies, often for official organs that announced government business. (Political parties, being private, are a different matter to me.)

      What government employees do in their spare time doesn’t bother me too much, provided they are doing genuine work for the government and not just collecting a sinecure. We have a professional civil service for just that reason nowadays. It’s quite far from perfect, but it does tend to stop outright abuse.

      Your last paragraph is the most interesting to me. Of course the sugar and corn industries would do better if we taxed everyone for failure to buy enough of their products. The same is true of the industries that give us fracked hydrocarbons, pork rinds, and abortions. Every industry would do better with a nice little tax like that, wouldn’t they?Report

      • Avatar ktward says:

        “Of course the sugar and corn industries would do better if we taxed everyone for failure to buy enough of their products. The same is true of the industries that give us fracked hydrocarbons, pork rinds, and abortions. Every industry would do better with a nice little tax like that, wouldn’t they?”

        Sure, but I don’t see a useful comparison to your position regarding a tax that supports The Fourth Estate. Is there not a critical distinction here?Report

        • Avatar Jason Kuznicki says:

          There is only a critical distinction if we read “provide for… the general welfare” as a specific authorization to solve free rider problems alone.

          If we view it as an open-ended invitation to do good, then we have no reason for any distinction. In that case, all we need to do is focus harder on what is seen, and ignore the unseen bits just a little more carefully.Report

          • Avatar ktward says:

            “There is only a critical distinction if we read “provide for… the general welfare” as a specific authorization to solve free rider problems alone.”

            And so, who is it, exactly, that contends the “general welfare” provision is a specific authorization to “free-rider problems”? Sorry, but I’m really not getting your point. It seems to me you’re imagining an antagonist here.

            I’ll say it out loud: there is an obvious and critical distinction between subsidizing for-profit industries which have, demonstrably, only a marginal [i.e. self-interested] stake in our general welfare vs. subsidizing services that inarguably benefit not only the individual but society as a whole.

            In the US, Health Care and The Fourth Estate are, currently, under the purview of for-profit industries. To my mind, the more important question is, should they be?Report

  4. Avatar Jaybird says:

    There’s a little local rag that is given out weekly FOR FREE. It’s pretty much our own local Izvestia but, hey, it’s free.

    Which means, of course, *WE* are the product being sold to all of the advertisers (who, overwhelmingly, seem involved with grey markets).Report

  5. Terrible idea, Constitutional under taxing power jurisprudence, but potentially unconstitutional on First Amendment grounds (Br. Likko probably has the answer on this). Regardless, it’s a terrible idea.

    On the First Amendment problem, I suspect it might be Constitutional on the same basis that government-sponsored speech in general is Constitutional. On the other hand, the structure of it would be hugely at issue, and the manner in which the list of “approved” newspapers were selected would be subject to a lot of scrutiny. The list would, at minimum, have to have entirely content neutral criteria, and there’d have to be a requirement that any entity meeting those objective criteria get approved for the list.Report

    • Avatar Ryan Noonan says:

      I’m with Mark here. Terrible idea, probably okay under the taxing power. I’m also a little with Kip – how is this fundamentally different from NPR?

      And, obviously, I think this is a good case where my preferred distinction would matter: this is surely not constitutional under the Commerce Clause.Report

      • Avatar Jason Kuznicki says:

        1. NPR gets very little public funding, so it’s a minor problem.
        2. It’s a nonprofit.

        But why is this a terrible idea? Several people have said as much, but no one has offered a reason why. Have I not identified a genuine free rider problem?Report

        • Avatar Jaybird says:

          It might be a good idea… if only we make sure that the right journalistism gets the funding. Stray too far into untruths and propaganda? WHAM! Lose your funding.

          This is the only way to maintain objectivity.Report

          • Avatar Ethan Gach says:

            See my comment below, but my take is that this doesn’t present the problems that NPR does, because it’s not picking a specific organization.

            It’s picking a common noun, and saying buy this or you will be minorly inconvenienced with a tax for (half the cost of your average subscription?)

            Truth be told, a lot of people would probably jump on to the big news papers, but plenty of others would join with their local ones. Super cheap ones would spring out of the wood work, allowing you to subscribe for very little, with them using the reader influx to cover the rest of costs via advertising. And also, like I note, there would be a boom in underground/partisan/niche zines that would take advantage of the huge new market.

            If anything, because newspapers can be much more different than health insurance plans, and offer lots of different content, in different ways, for different people, a mandate for them would actually have much more robust market effects.Report

            • Avatar Jaybird says:

              So we could pick “Bob and Doug’s Local Manitou Newspaper” and subscribe to that and that would meet our obligation as citizens?Report

              • Avatar Jason Kuznicki says:

                Let’s hope it makes the list!Report

              • Avatar Ethan Gach says:

                If it’s a newspaper, than clearly.

                Newspaper puts the news on peices of paper. We can argue over whether the content is good or bad, but it’s not hard to decide whether something is or isn’t a newspaper.Report

        • Avatar Ryan Noonan says:

          Sure, there is a genuine free rider problem here. You are certainly correct. But it’s not a free rider problem worth solving. I’m not inclined to believe that newspapers serve any particular purpose that’s worth saving. Someone else will do their job if they go away.Report

          • Avatar Jeff says:

            I’m not inclined to believe that newspapers serve any particular purpose that’s worth saving. Someone else will do their job if they go away.

            I don’t know about that. Actual reporting (with fact-checking, and labeling opinion as such) seems to be shrinking, and may be close to disappearing. Where is our Minnow, our Cronkite?Report

            • Avatar MikeSchilling says:

              This is an excellent point (though not completely specific to newspapers). There’s more opinion and “analysis” out there than any hundred people could possibly consume. But the reporting that you’d hope it was all based on? That’s labor-intensive, time-consuming, and just plain expensive to produce, and there’s currently no business model to pay for it. Thus the “news” becomes more and more a conduit for press releases and “reporter” becomes another word for “stenographer”.Report

              • Avatar Jaybird says:

                Thus the “news” becomes more and more a conduit for press releases and “reporter” becomes another word for “stenographer”.

                If this is what Newspapers will end up looking like (and, lemme tell ya, our local newspaper looks like it will be nothing more than that any day now), then this has been a long time coming (probably since Craigslist).

                There needs to be a new paradigm for “the press”. If it is going to disappear as a Profession, we need to figure out how to let amateurs get in there to ask questions.Report

              • Avatar MikeSchilling says:

                I’m less than enthused about our current crop of amateurs (the ones who breathlessly “reported” on Graeme Frost’s granite countertops.)Report

              • Avatar ktward says:

                My profound hope is that Journalism doesn’t disappear as a well-paid profession, and if it does we will absolutely be the worse for it.

                To my mind, it is the height of ignorance and arrogance to think that bloggers–even well-informed bloggers like The Gents–have the wherewithal to do what the likes of Jane Mayer and Richard Engel do.

                It’s not about just asking questions, it’s about asking useful and informative questions. Unless these hypothetical amateurs of yours aren’t concerned with actually making a living, you can bet they’re not concerned with bleeding the overwhelming time it actually takes to uncover well-guarded information much less what banal questions they should ask.Report

              • Avatar MikeSchilling says:

                It’s also about living with the community [1], understanding how it works and how it thinks, and cultivating sources of information there. It’s a full-time, highly skilled job.

                1. Where community might be a neighborhood, Pakistan, or the State Department.Report

              • Avatar ktward says:

                Agreed. Useful journalism requires full-time, passionate commitment of highly skilled individuals. There are precious few amateurs who can fill those shoes.Report

              • Avatar Jaybird says:

                To my mind, it is the height of ignorance and arrogance to think that bloggers–even well-informed bloggers like The Gents–have the wherewithal to do what the likes of Jane Mayer and Richard Engel do.

                They certainly aren’t doing what they do at my little local newspaper. My little local newspaper has pretty much outsourced all of its reporting to UPI and the AP retaining only “reporters” who cover local high school sports and have pretty much traded objectivity for access at the city hall.

                Who do you suggest will pay for Jane Mayer and Richard Engel (let alone keep them “well-paid”) if not the marketplace?Report

              • Avatar ktward says:

                Please tell me you’re not going to argue that teeny tiny local papers play the same role as, for example, the Gray Lady. (Or, at least the role the NYT once played. That’s another convo.)

                Seriously. Are you expecting some kind of Foreign Policy insights from your local? The locals are meant to cover, you know, local news. Sorry to have to break it to you, but that generally means HS Sports and the latest hapnins at City Hall. Some locals are better than others. Them’s the breaks.

                Is this really what we’re talking about here? The veracity and depth of local rags? That wasn’t my impression, but maybe I’m wrong.

                Mayer and Engel are indeed paid by the marketplace, but Mr. K.’s suggesting that that particular marketplace is declining in revenues (he’s right) and might be, he hypothesizes, subject to the same kind of legislative oversight that the health care industry finds itself under with no small thanks to Chief Justice Robert’s siding with them damn libruls. (I’m mostly kidding on that last part, but you get my point. I hope.)

                FWIW, I was okay with broadcast news when there were, like, dozens of owners. Now, we’re down to [less than?] a handful of corporate overlords, thanks to years of complicated failures on the part of the FCC and anti-trust laws.

                And no, I don’t believe the FCC should be abolished. I want its policies improved and made more effective.Report

              • Avatar BlaiseP says:

                News and Talking Heads have moved into their own market segments. Of course, with Fox, they’re one and the same, but then, propaganda has always found financial backing and I’m not sure I’m ready to call Fox News anything but propaganda.

                AP, Agence France-Presse, UPI, Reuters, they’re buying stories from many different sources. Xinhua may be state controlled but they’re not as bad as you might think. Kyodo and Jiji both produce good stories out of the Far East.

                Local papers, local news, local politics. Even little Augusta, Wisconsin, population 1510 has a newspaper, pay-only, thank you very much, both online and dead tree editions. People do subscribe.Report

              • Avatar Jaybird says:

                Are you expecting some kind of Foreign Policy insights from your local?

                Not at all, not for a second.

                Is this really what we’re talking about here? The veracity and depth of local rags?

                I thought that we were talking about the journalism mandate to cover the gap in journalism caused by such things as me not subscribing to my local rag. Is that not what we were discussing?Report

          • Avatar DavidTC says:

            In fact, the reason they _are_ going away is that the internet is doing about 90% of their job. The internet has replaced notifying people of local events and things (webpages, Facebook), editorials/letters to the editor (blogs), classified ads (craigslist/ebay), etc.

            About the only thing it hasn’t replaced is actual reporting…but, in a very poorly timed cost-saving measure, newspapers stopped that in the mid-90s, replacing that with stenography. Which it turns out the internet can also do.

            And to get back on topic of a ‘newspaper’ or ‘internet’ mandate: The point of the insurance mandate isn’t (supposedly) to make sure health insurance companies survive. The point is to make sure that people _have health insurance_.

            In this analogy, if we needed to make sure that people had access to newspaper, or the internet, the way to do it would be the way we already do…by putting it in a library open to the public. (And I would not be opposed to the government doing more with internet access. For example, by providing free, time-limited dialup, and by collecting and loaning old computers with modems for that.)Report

        • I see two reasons why it’s a terrible idea:

          1. The same reason that, despite my belief in its Constitutionality, I object to the health insurance mandate on political grounds – I’m not a fan of government-incentivized purchase of a private product, even though as a practical matter the government does that all the time; but more importantly,

          2. The free rider problem here is entirely market-created and, moreover, is not a true free rider problem. With health insurance, the free rider problem is largely the result of the legal requirement of treating patients in the ER, regardless of insurance. There is, by contrast, no legal requirement that newspapers provide online versions for free to all comers, regardless of whether they have a subscription (and, as a practical matter, larger papers are increasingly turning to a firewall model). For that matter, there’s not even a legal requirement that newspapers have online versions, period. Newspapers have the legal right and ability to protect themselves from this supposed free rider problem. They’re dying because of competition, not because people are reading their websites for free.Report

          • Avatar Ethan Gach says:

            “They’re dying because of competition, not because people are reading their websites for free.”

            Competition from outlets who get benefit from their reportage overheads, but don’t have to pay anything to support them.

            That problem could be indirectly addressed by expanding the pool of potential subscribers. If the market quadrupled (it would clearly do more than that) the New York Times/Wall Street paywalls would be much more doable for others.Report

            • That reportage overhead is their choice, however, not something that is mandated by law. Copyright law provides rights against people who outright scrape content (whether those rights are sufficient is another issue).

              I’d also wager that the most-read individual online article of an average newspaper on a given day generates more revenue than the pro-rated average article of a dead-tree newspaper a decade or two ago. In other words, the stuff that gets widely read for free, I’d wager, is not the cause of the problem. It’s instead that the online format means we’re not browsing the equivalent of the entire newspaper for interesting content, and with Craigslist, online jobseeking tools, and that sort of thing, we’re definitely not checking out the classifieds. Advertising is where newspapers historically made about 90% of their revenue. The problem is that advertising online is a tiny fraction of the cost of advertising in print. Dead tree newspapers create, more or less, a captive audience for advertisers in a way that online news cannot.

              Put it this way – if every person who cancelled their NYT subscription in the last decade was to become an online subscriber of the NYT, but not receive a print version of the times (much less actually read it), the effect on the NYT’s revenue would be negligible. To give you an idea of how much of this is just a question of the format in which we read the news, rather than whether we’re paying for the privilege, take a look at the NYT’s subscription rates. For the NYT’s All Digital Access plan, without a dead-tree subscription of any sort, it costs $8.75 per week. However, if you get a dead-tree subscription of any sort, even just a Sunday-only subscription, you get the All Digital Access plan for free:

              How much does a Saturday/Sunday-only (or, for that matter, a weekday-only) subscription cost? Well, right now, you can get 12 weeks at about $3.25 per week. The “regular price” is still less than $7.00 per week.

              In other words, it actually costs noticeably less to get a dead-tree subscription with full online access than it costs to get just full online access.

              Free-riding is not the problem.Report

              • Avatar Ethan Gach says:

                I’m not sure what you’re getting at with the digital/print part, so maybe you could explain that more (it makes sense that they would discount print copies since they still need to maintain its total circulation to make it viable).

                “I’d also wager that the most-read individual online article of an average newspaper on a given day generates more revenue than the pro-rated average article of a dead-tree newspaper a decade or two ago.”

                I think the point is, as it’s always been, that the most viewed article will not be one that took a lot of reporting/investigating or is on important policy matters, or explains those matters with any degree of depth/complexity. Those kinds of articles are subsidized by the fashion, real estate, and sports sections, etc.

                The internet unbundles those things, leaving the gum shoe reporting more exposed to cutting, and increasingly those articles, since they are info driven, rather than style, etc. are more likely to be poached.

                I’m not sure how requiring everyone give the Times, or something like it, $7.50 a week doesn’t help address that issue.

                You’re saying that if everyone in the country was required to purchase a newspaper, or pay a tax, news/foreign correspondance departements would continue to downsize/dissappear?Report

              • What I’m saying is that if everyone in the country started paying a $7.50 a week tax but did not otherwise change their newsreading habits, the impact on newspapers downsizing would be negligible. Not wholly non-existent, but certainly negligible.

                People who cancel their dead-paper subscriptions aren’t necessarily doing so because “hey, I can get this online for free.” They’re doing so in large part because they’re no longer using the newspaper in any meaningful sense, even if they’re still receiving it; add to that the fact that it’s a serious pain in the rear to dispose of seven newspapers a week. No doubt many (by no means all) of those who have cancelled their print subscriptions have replaced them with an equivalent amount of online subscriptions to some media outlet or another.

                You can’t require people to read something, and advertisers full well know what their return on investment is for their advertising – if print subscription numbers start to increase again but newsreading habits don’t change (or, more likely, continue to increase towards online newsreading), ad revenue will continue to fall.

                If you want to rebuild the newspaper industry, you need to find a way to better monetize online advertising. And most importantly, you need to find a way of getting people to pay for classifieds again.Report

              • Avatar Ethan Gach says:

                I calculate that the subscription revenue alone would be just under 20 billion, give or take (don’t know if that’s accurate; I speculated that half of all households pay $5 a week for a subscription, the other half pay the $2.5 tax each week, and 20% of households are given a waiver because of poverty).

                Total ad revenue for the highest year in the 2000s was just under 50 billion. The lowest was 25 billion.

                I have to think that would make a big difference.Report

              • Hmmm…..a few problems with this.

                First, keep in mind that the NYT is well above average in terms of the price it charges for its subscriptions. My local paper here in NJ, which has a circulation of around 30,000, making it a fairly medium-sized paper in a high-income area with a high cost of living, charges only $2 a week for home delivery (which includes online access), and $3 a week for just online access. The Bergen County Record, which is actually one of the biggest local papers in the country with a circulation of about 150,000 (and again in an area with a high cost of living), even charges only $4 a week (though it actually does charge less for online-only access). To get out of a high COLA area, I looked at the KC Star, which is about $2.25 a week for 7 day delivery. So a $5 a week average for a paid subscription seems rather on the high side.

                Also keep in mind that for every print edition that goes out, the newspaper is going to have higher overhead on the printing and delivery. So if you successfully increase print circulation, any additional subscription fees are going to go right back into printing and delivery, with little or no commensurate increase in advertising revenue due to the lack of changed reading habits.

                Even if the new subscribers are online-only, without a way of better monetizing online advertising, then those subscription fees are close to the only revenue the newspaper is going to see from them.

                Worse, in order to have online-only subscribers, you’re going to have to put a lot of your content behind a firewall. Doing that means giving up virtually all online advertising revenue from random passersby, at least unless you want to make all of your content free (which deprives any incentive for a subscriber to choose your online subscription over a paper that is behind a firewall) or do something similar to the NYT, putting any articles above a certain allotment behind a firewall (which is going to be of limited effectiveness if you’re not a big paper).

                Point being that anything you do with something like this is going to be offset by further losses in advertising revenue. It’s a Catch 22 of the highest order.

                The reason for the decline in advertising revenue you note is almost entirely due to decline in classified advertising, which went from about $20 billion a year in revenue in 2000 to about $6 billion in 2009. The decline in other forms of advertising didn’t start until 2007, but it’s dropped from $21 billion in 2007 to $12 billion in 2011 (the rate of decline seems to have slowed between 2010 and 2011).

                And here’s where the Catch 22 becomes a really big problem:

                As noted above, the “tax” isn’t going to stop the trend away from print, since print is wholly dependent on advertising revenue, which is going to continue to dry up. So the “tax” will wind up as a subsidy for online subscriptions.

                Print circulation numbers will decline to virtually nothing….yet we still have a huge subsidy that is specifically directed to help dead-tree journalism. How now are we going to set standards for who is and is not entitled to the subsidy? Presumably at the outset, we’ve set the standard as any paper with a circulation over, say, 10,000. But eventually there’s only going to be a handful of papers with print circulations of any note whatsoever. As papers fall below the threshold number, they lose their eligibility under the program, and their customers can no longer satisfy the law by subscribing to them. Their business goes as a result to the behemoths who are able to maintain their print circulation numbers, and the local papers go out of business entirely rather than surviving in an online-only format. Eventually, only a handful of powerhouse newspapers remain able to satisfy the mandate eligibility requirements. These newspapers, behemoths that they are, would have been wholly able to survive without the mandate, and the mandate now serves as a sword for them, not a shield.

                So how do you avoid this result? Well, you come up with standards for eligibility that are not based on circulation of the print edition. What are those new standards based on? Web traffic? Well, there’s lots of websites with boatloads of traffic, ranging from Perez Hilton to the Daily Beast to CNN to Michelle Malkin to Football Outsiders. If you render each such site a qualifying site, then the amount you’re able to help the profession you really want to help is going to be diluted to the point of worthlessness. If you don’t render each such site a qualifying one, then the standards you’re going to have to promulgate are going to be inherently so content and viewpoint-based that the First Amendment problem is going to be impossible to overcome.Report

              • Avatar James Hanley says:

                half of all households pay $5 a week for a subscription, the other half pay the $2.5 tax each week, and 20% of households are given a waiver because of poverty).

                120% Damn, the best I’ve ever managed to give was 110%.Report

        • Avatar ThatPirateGuy says:

          My main reasoning for it being a terrible idea is that I want most of the newspapers to die.

          So I see no reason to solve the ‘problem’Report

    • Avatar Chris says:

      I was thinking the same thing about the First Amendment.

      Also, if we’re going to do this, let’s rename all newspapers Pravda.Report

      • Avatar Jason Kuznicki says:

        You’re not being compelled to do anything. The Roberts court sez:

        Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. See §5000A(b). That, according to the Government,means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory,the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.

        It’s not compelled speech. Going without a newspaper is just another thing the government taxes.Report

        • Avatar Chris says:

          I don’t think it’s about speech, I think it’s about the press and its freedom.Report

          • Avatar Jason Kuznicki says:

            Neither one is allowed to be compelled under First Amendment doctrine as I understand it. But if a tax is not a compulsion, then my system survives, at least on this point.Report

    • Avatar Ethan Gach says:

      It seems easy just to say, whatever you want to subscribe to, if it looks like, smells like, or even remotely resembles a merriam wesbster defined newspaper, than that counts.

      After all, this would either, on the one hand, lead to a diverse flourishing of partisan pamphlets, or a lot more people reading the Times, Post, Journal, or other new/old newspapers.

      The free market mechanism would still encourage newspapers to fight for subscribers by offering superior/more desirable content, so this might drive the newspapers to shit, but it would certainly drive competition, and my guess is, ghettoize/decentralize them for the best.

      Like health care, the law would increase the market but not pick winners/losers (assuming this is JUST a mandate, and doesn’t regulate this market in any other way).Report

    • Avatar Burt Likko says:

      The 1-A problem is “endorsement.” If the government endorses (say) the New York Times, it endorses a certain political viewpoint, at least in the editorial pages, a.d no amou.t of disclaiming is ever going to erase that endorsement. And if editorials are eliminated and content screened for issue neutrality now the government is getting into the nuts and bolts of editorial content. (This isn’t the NSA in-house newsletter advising about the next round of volleyball matches at Ft. Meade’s city park.)

      Of course, if you don’t object to goverment endorsement of religious speech, then maybe you don’t object to the government telling you who you should vote for, either.Report

      • Avatar Ethan Gach says:

        Why would the government have to endorse a newspaper?Report

        • Avatar Burt Likko says:

          By mandating that you subscribe to it.Report

        • Avatar Ethan Gach says:

          Wouldn’t that be the government endorsing “the newspaper” rather than a particular one?

          Of all the problems related to instituting ACA, figuring out which kinds of insurance counted for being insured didn’t seem to be one of the more difficult ones. I don’t see why it would be here either.Report

          • Figuring out what kinds of insurance count for being insured doesn’t typically involve evaluating the content of speech. That’s a huge difference.Report

          • Avatar Will Truman says:

            Of all the problems related to instituting ACA, figuring out which kinds of insurance counted for being insured didn’t seem to be one of the more difficult ones.

            That’s only because those that disagreed checked out of the conversation. (Their fault, not Obama’s.)Report

      • Yeah. The only way I see that the government could get around this problem here would be, as I suggest above, by setting up a bunch of content-neutral regulations, with any paper meeting the criteria added to the list. The criteria would need to be pretty light, something akin to “all daily/weekly printed publications with print circulations in excess of 5000.” As a matter of policy, it would need to include a requirement that the publication charge a subscription fee of at least a certain amount. Otherwise, the list would become unmanageably long, and would be dominated by free advertising circulars.Report

      • Avatar Plinko says:

        Burt, how does the designation of newspapers of record play into this? Currently, plenty of newspapers are endorsed in a somewhat similar fashion by governments at various levels as a, if not the only, viable place to make a public notice (which are usually paid for and a notable revenue stream for a lot of local newspapers), I’m not sure how that could be Constitutional in one context and not the other?Report

  6. Avatar Mike Schilling says:

    Seeing this directly below Erik’s fundraising post, it became clear that the real free-rider problem is with blogs.Report

  7. Avatar Shannon's Mouse says:

    Most likely unconstitutional unless the “list of approved newspapers” were content-neutral.

    I get to pay a lower amount of income tax if I make a donation to Pro Publica. So in that sense, I’m also “forced” to donate to Pro Publica.Report

  8. Avatar North says:

    Out of curiosity Jason do you consider the laws which require hospitals to treat patients regardless of the ability to pay to be constitutional? Do you think they’re good policy?

    To your newspaper question I don’t have the expertise to say for certain but I’d guess the law would be constitutional… maybe. But I suspect it would get kicked out of the courts because as Ethan noted newspaper use is optional in a way that health care use is not. For instance there is no law that says newspapers are required to inform an ignorant person who stumbles derping into their lobby without first establishing their ability to pay.

    As for if it’d be an advisable policy I’d say obviously not. The internet is arguably free riding off of the information infrastructure of the traditional news media. This is likely an unstable equilibrium but one that should self correct. In time the traditional media will either find a way to monetize the services the internet is currently using for free or they will fold at which point the internet will either develop a funding system for those services they need or else lose them.Report

    • Avatar Jason Kuznicki says:

      Out of curiosity Jason do you consider the laws which require hospitals to treat patients regardless of the ability to pay to be constitutional? Do you think they’re good policy?

      It’s something I would handle at the state level, but I don’t think they are bad laws. I would support a general tax to support those services. As Tom mentioned on the other thread, this isn’t it.Report

      • Avatar North says:

        Agreed PPACA isn’t single payer, I gather when it was drafted that was considered a feature not a bug. Thanks for the frank answer, I had no idea you were positively inclined towards single payer writ small.Report

      • Jason,

        Would you endorse the constitutionality a federal law that required hospitals to treat all comers? I’m thinking, specifically of “constitutional” in a pre-PPACA ruling sense, not whether it would comport with, say, your view that Wickard was wrongly decided*

        *I assume that’s your view, but I’m not sure I recall seeing you write it, so I stand to be corrected.Report

      • Avatar trizzlor says:

        It’s something I would handle at the state level

        Jason, I’m curious what about EMTALA would be benefited by a state-based implementation? On the face of it, it seems like a fairly straightforward decree – hospitals must treat all emergency inpatients and figure out a way to pay for it – with little room for local tweaking; certainly individual states are not prohibited from implementing their own specifics on top of this baseline (as MA has done). On the other hand, having a different baseline for ER treatment depending on what state you’re in seems like it would be a nightmare (never mind what happens for border towns).

        Is your desire out of a general principle (whatever can be state-level should be state-level), because this kind of law seems to me like exactly the kind of thing where the federal government offers a better solution.Report

    • Avatar Mike Schilling says:

      Obviously, in return for this, we’d place certain obligations on newspapers:

      * Covering all local sports teams, men’s, women’s, and co-ed
      * Equal listings for traditional and same-sex marriages
      * Printing large-type and braille editions

      And more, to be developed under the leadership of the Newshound General (whose logo features Ernie Pyle ripping off his short to reveal the costume of Superman.) .Report

      • Avatar Jaybird says:

        My mom gets a newspaper for the Sudoku and the daily Jumble. She gets her news from online.

        I suggested that a Sudoku book might be cheaper and she pointed out that she only had to pay for the Sunday, which paid for itself with coupons, and got the rest of the week free.

        This struck me as closer to “makework” for everybody (I mean *EVERYBODY*) involved with the process than a process in which value was being added.

        Hey, everybody needs a hobby, right?

        That said: I think that the amount that sudoku has done to save journalism is undervalued.Report

        • Avatar Mike Schilling says:

          There’s a really crappy throwaway in San Francisco that I picked up every day when I worked downtown, for the puzzles and the sports page. (I find Sudoku boring, but they had one I’d never seen before called Ken-ken. I got to where I could do the 4x4s in my head, but still needed a pencil for the 6×6’s.)Report

  9. Avatar Plinko says:

    Constitutional, not a good idea.

    Back in the BHL constituitonal law post, I wanted to craft a comment along the lines that what I’d like to see a lot more of people showing their work on what’s Consitutional/Not Constitutional mapped against what’s just/unjust or even moral/immoral, never got around to writing one that made enough sense.

    This is an excellent example – as posted this sounds extremely Constitutional to me. That has zero bearing on whether or not it’s a moral idea or a good idea. In this case, I don’t see how it’s a good idea. There is no comparable free-rider problem in journalism to the one in health care and there are no entrenched government regulation/subsidy/credentialling program status quo that makes it unduly difficult for any kind of market function to arise.Report

    • Avatar Jason Kuznicki says:

      It surprises me that you think there is no free rider problem. Journalists themselves complain about it constantly. Are they wrong about their industry? If so, why is it tanking so badly in profitability, subscription base, and other metrics?Report

      • The answer to that question, I think, lies in the difference between and CNN. I really do pay for access to both, but through intermediaries. The problem is that when I pay Verizon for internet service, I then pay nothing additional to find any news website. When I pay for my cable service, however, Verizon has paid CNN/MSNBC/Fox for access to their signals. That’s the essence of the free rider problem. I’m not getting my online news for free (my bill certainly seems to indicate otherwise). It’s that everybody pays the ISP for access to the wider world, rather than money flowing from consumer to intermediary to provider.Report

        • Avatar DensityDuck says:

          And, incidentally, the CNN Headline News online-streaming feed requires that you have a cable subscription to view it.Report

        • Avatar Plinko says:

          I don’t think you’re parsing “free rider” correctly.

          You are not free-riding by viewing
 has a business model based on letting people read for free and trying to make money on ads. What you pay for internet service has zero to do with that.Report

          • I may grant that, but my underlying point is that there’s a whole in the revenue model for online content providers that doesn’t exist in print or on TV (and the problem is that print revenue is collapsing).

            When you buy a newspaper, the transaction moves in something like this fashion:

            [customer] -> [vendor/service provider] -> [content provider]

            You pay a vendor for the newspaper (who, for the sake of comparison, is a “service provider” for newspapers), who has in turn bought (at some reduction or wholesale price) that item from the newspaper producer. The same model holds for CNN or other cable TV. You pay the cable TV service, and the service pays to carry CNN.

            In the internet model, the money doesn’t flow that way:

            [customer] -> [vendor/service provider] <- [content provider]

            Everybody pays the service provider (Verizon, Comcast, TW, etc.). We pay for internet service to see websites; content providers pay to put their content on the web. We don't all pay the same service provider, but that's the rough model.

            That leaves a small gap to make up for TV companies, which still get tons of revenue from advertising. For print media, whose advertising revenue is drying up, that's a huge gap to fill.Report

            • Avatar Plinko says:

              That’s not the model for newspapers or for Internet content, period.

              You’re straining way too hard to make those models square up to cable. They don’t and they won’t. Cable, tv and radio are models that exist in their current form due largely to various monopolies and oligopolies granted by Federal, state and local governments (spectrum rights/limits, local cable monopolies). Newspaper and internet-based content distribution are vastly less regulated, and so lots of rents simply aren’t available to them.

              It’s quite true that the real business models for most mass-media are completely opaque to most of us, and that does weigh heavily on their opinion on what fair prices are for the services, but it has minimal to do with the discussion of whether or not anyone is free-riding. If anything, the free-riders are those whose favorite cable networks are subsidized by others since almost no one can buy cable TV content a la carte.Report

              • I think you’re right that my reply strayed a bit from the free-rider problem (in fact, as I read back I may have done so from my initial reply within this sub-thread). I still think there’s merit to the idea of a revenue-gap in internet business models as compared other media, but that’s probably a discussion better had in a post on a different subject.Report

            • Avatar DensityDuck says:

              “We pay for internet service to see websites; content providers pay to put their content on the web.”


      • Avatar Mike Schilling says:

        The biggest problem with newspaper revenue is Craigslist, which destroyed their want ad revenue, leading to my local paper, at least, being both more expensive and much thinner. I’ll admit that I occasionally check their website, but only occasionally : there’s almost nothing there worth reading either.Report

        • Avatar Michael Cain says:

          Yeah. Newspapers were aggregators of content, both for those who wanted to consume and for those who wanted to distribute (eg, classified and display advertising, but also including local governments). It was a valuable service. Data networks, cheap processing, and high-quality computer displays have allowed for the creation of many different types of aggregators. Who among us doesn’t regularly visit at least one blog site just to look at today’s list of links to interesting things to read?

          Nothing stopped the city daily newspapers from creating Craigslist before someone else did it. But they didn’t think about being in the information aggregation business, independent of the medium; they thought they were in the paper-and-ink business. They’re not the first industry to make that mistake.Report

      • Avatar Plinko says:

        I don’t think there is “no” free rider problem, it’s that there is no comparable free-rider problem.
        Newspapers are not required by law to provide the daily news needs of anyone, so no one can truly free-ride in the same way that they can with medical care.
        They free-ride in the way that I benefit because other people get vaccines (that I benefit from living in a society where other people kinda know what’s up), not in the if I fail to have the money to pay for an emergency room visit they cover me anyway.Report

  10. Avatar Ethan Gach says:

    By the way Jason, thanks for this post. Now that you mention it, it’s an obvious analogy to draw, but one I hadn’t previously thought of.Report

  11. Avatar Stillwater says:

    Seems to me the argument for a newspaper mandate would require the prior passage of something equivalent to mandatory newspaper emergency room services. Like, a law that required all media outlets to provide news to people who’s lives are threatened by a failure to access it. But without that, I don’t think the arguments are analogous.Report

    • Avatar Jason Kuznicki says:

      Everyone relies on the journalism provided by newspapers during emergencies.Report

      • Avatar Stillwater says:

        Sure. But the ACA mandate was justified in large part (I mean, read the language in the bill!) because the imposition of EMTALA created the free-rider problem that required a fix. Along the way, other free-rider problems were also addressed (young people not paying into a system that they statistically speaking will avail themselves of at some point) as well as other issues.

        For your argument by analogy to go through, it seems to me that government would have been justified in imposing an insurance mandate even if EMTALA (or its equivalent) was never passed. And maybe that’s exactly what you’re suggesting here. That’s counterfactual, but it may be the case.Report

        • Avatar Stillwater says:

          If you don’t have your own newsaper, and need one, will the government provide one for you in exchange for payment of the newspaper tax? If so the analogy is complete, assuming one “needs” a newspaper in the first place.

          This might be better:

          If you don’t have your own newspaper, and need one, will the government provide access to an already existing government funded paper-program for you if you can’t afford it, subsidize your purchase of a privately-published newspaper if your income is marginal, or impose a tax on you if you can afford one to buy a privately-published paper but refuse to do so? If so, the analogy is complete.

          And then, as you say, there’s the whole issue of “need”.Report

        • Avatar Will Truman says:

          Where does the bill cite EMTALA as the rationale for the Mandate? My understanding on the Mandate is that it is required to justify Guaranteed Issue. It makes much more sense as a justification for Guaranteed Issue than EMTALA, since emergency room care is only one small part of the puzzle while Guaranteed Issue without some sort of counterbalance (like the Mandate) could take the whole ship down.Report

          • Avatar Stillwater says:

            All thru those section both you and I quoted the yesterday, the ones dealing with the mandate. It talks extensively about the costs incurred by people without insurance.Report

          • Avatar Stillwater says:

            It makes much more sense as a justification for Guaranteed Issue than EMTALA,

            The mandate is not a justification for guarantee issue (and all the rest), it’s a precondition for those provisions. So government had to have an independent justification for the mandate. And that’s where EMTALA comes in: it was a government created program which incurred massive free-riding. The way to close that was to impose a penalty of some sort (in the form of a tax). Once the argument justifying the mandate as constitutional is made, then government can tinker with insurance reform.

            I’ll look into this a bit more tonight and see if I can put together a post on it or something. But the idea that the mandate is justified by guarantee issue gets things backwards, at least as far as my understanding goes.Report

            • Avatar Will Truman says:

              “Precondition” may be a better word than “justification”, but the relationship with Guaranteed Issue is what makes the Mandate crucial.

              I don’t see why, constitutionally speaking, EMTALA is more legitimate than Guaranteed Issue. Both are response to legislation being passed (one passed many years ago, the other passed concurrently with the Mandate), except that Guaranteed Issue represents a much more significant problem with which there are very few ways to address. There are a number of ways to deal with EMTALA, which presents far less of a free rider problem than GI.

              I mean, there’s no way that I would forgo insurance on the basis that emergency rooms “have to treat me” because I still incur the financial obligations. Financial obligations that, unlike the Mandate, I cannot so easily waive off without at the least a significant hit on my credit rating. However, if I had a right to Guaranteed Issue, I very much might hold off getting insurance until I need it, or more likely get some sort of catastrophic plan, since the full monty guaranteed to me anyway.

              It could be said that EMTALA+GI is an important vertex and that one or the other isn’t sufficient to justify or necessitate a Mandate but both together are, but EMTALA by itself doesn’t even come close. If it weren’t GI, I would probably oppose the Mandate outright.Report

              • Avatar Stillwater says:

                I’m actually gonna stick my neck out pretty far on this. I think EMTALA would, all on it’s own, justify the mandate. I’m not sure this specific argument has been made, but I think it’s the logic behind all the other convolutions that became the ACA. EMTALA established a privilege (in the constitutional, taxing sense of the word) by requiring health care providers to not turn away emergency care patients. Given that receiving ER care independently of ability to pay is a privilege, an excise tax can be imposed on the individual receiving that privilege. Since any one of us can exercise that privilege, the tax imposed is a blanket tax that applies to everyone. But, if someone already has a qualifying plan (either governmental or private) then they don’t need to avail themselves of that privileged activity, so they are exempt from the fine.

                Back in the day, I thought this was obviously the argument being put forward. The administration’s defense of the mandate, however, is radically different – I actually don’t even understand it anymore. But it struck me as the foundational argument establishing the government’s authority to impose an excise tax on everyone, but which functionally acts as a penalty on those who aren’t covered by a qualifying plan.

                Aaaaaand, after the mandate is established, the other provisions of the ACA come into play.Report

              • Avatar Stillwater says:

                I also think what I wrote upthread is exactly what Robert’s was basing his decision on, fwiw. He refers to the taxing powers of congress, and how the mandate doesn’t expand or create any new powers, that it uses existing powers. Congress’s taxing powers are limited to two kinds: direct taxes on income, and indirect (excise) taxes on privileged activities.

                How can the commerce clause justify a tax? That’s the question Robert’s was asking – and answered: the Administration’s argument that it’s a penalty is incoherent, and furthermore, taxes cannot be justified by the commerce clause. Taxes come in two kinds, and the one imposed by the mandate clearly isn’t a direct (income) tax. So it’s an excise tax. Which leads to the next question: what privileged activity is the mandate taxing? The requirement that ER services be rendered independently of an individuals ability to pay.Report

              • Avatar Will Truman says:

                I would argue that the “privileged activity” is the ability to get immediate coverage for PECs far more than ER services rendered.

                The thing is, we don’t need a Mandate for EMTALA. EMTALA has been around for thirty years and we’ve found other ways to pay for the cost. Guaranteed Issue, though? That’s new (at least on this scale). That’s the part that the government agreed would have to go if the Court struck down the Mandate.

                You seem to be (correct me if I’m wrong) arguing that EMTALA holds a special place because it is existing law. I don’t see that as the case at all. Whether it’s existing law or law passed concurrently with the requirement, I don’t see how it matters. What matters is that congress can force hospitals to accept patients who can pay and they can force insurance companies on GI&CR. So the arguments there are equally strong (the question of whether congress can pass a law and then require a mandate in order to make the law work).

                What’s far less equally strong is the ramifications. ER care is only one relatively small piece of the puzzle. Requiring the purchase of insurance on the basis of this relatively small piece strikes me as overkill (albeit constitutionally permissible overkill). Requiring the purchase of insurance on the basis of GI&CR and adverse selection that could bring the whole system down… well that strikes me as much more reasonable.

                (We may be talking past one another on “justification.” I’m not talking about constitutional justification but rather policy justification. On constitutional justification, EMTALA may well be sufficient justification, but GI&CR friggin’ requires a mandate or something like it, from my perspective. Therefore that’s where the justification really lies, in my view.)Report

      • No, they don’t. They rely on television and radio to a much greater degree than they rely on newspapers.Report

        • Avatar Jason Kuznicki says:

          After the recent storm I definitely accessed the Washington Post on my smartphone. I didn’t have TV or radio.Report

          • But you didn’t rely on the paper version, you used the online version. Your post pertains specifically to the pulped-up tree newspapers. And you could have put batteries in the radio and used it.Report

            • Avatar Jason Kuznicki says:

              The online version could never exist without the paper. But I’m not a subscriber. I’m only a free rider on those who are.

              I could have put batteries in the radio, but… meh. That’s what the iPod is for.Report

              • There’s no reason they can’t simply charge for online content and put everything behind a paywall. If you need it badly enough, you can pay the fee, which is not at all prohibitive, particularly when compared to the $Assload you’ll have to shell out if that nagging cough turns out to be the first symptom of a mediastinal mass.Report

              • Avatar Ethan Gach says:

                If only paywalls were feasible. Until media outlets can collude and price fix though, they probably won’t be.Report

  12. Avatar Grant says:

    First time visitor. Great piece of journalism!Report

  13. Avatar Burt Likko says:

    If you don’t have your own newsaper, and need one, will the government provide one for you in exchange for payment of the newspaper tax? If so the analogy is complete, assuming one “needs” a newspaper in the first place.Report

  14. Avatar Tod Kelly says:

    “Is it constitutional?”

    Clearly, it is constitutional. The case you’re patterning it off of was legislation that was passed, signed, and upheld. (Should it be constitutional is another matter, but since the question you asked was is it, I’m not sure how you can argue that it isn’t.)

    “Is this a good idea?”

    I think it’s a terrible idea; what’s more, I don’t think it’s the apples to apples case you believe it to be.

    The issue with healthcare reform is not that doctors or insurers are losing money and need a radical change to make them profitable. Doctors are doing fine financially. Health insurers are set up to make 2-3% profit per premium dollar – their profits are growing exponentially. The issue with healthcare is that using the system we have been using for more than 70 years, in ten years a family of four making a mid-four figure annual income will not be able to insure their family; in twenty a family in the high five figure will not be able to. In the years between 2000 and 2012 real wages went up about 10%, but real income went down 7%. That 17% swing is rooted in the exponential annual growth of healthcare costs.

    The crisis isn’t newly on anyone’s radar screen. The Nixon administration saw it coming; in the years non-intervention has yielded no change. There are a lot of ideas about what to do, ranging for libertarian to socialist, but any of them would be a profoundly radical shift, and each would take hugely radical legislation to make them happen.

    Newspapers not being profitable is just one segment of an industry becoming obsolete and changing due to technology and competition. The fate of our economy and the majority of our citizen’s livelihood is not at stake, so there is no reason to make such a law.

    The two are not comparable.Report

    • Avatar Brandon Berg says:

      That 17% swing is rooted in the exponential annual growth of healthcare costs.

      Correction: Health care expenditures. Saying that health care costs have gone up implies that we’re spending more but getting the same. quality of care. This isn’t obviously correct, unless you have more information than I do. The more likely explanation is that we’re shifting our consumption patterns towards more health care.Report

  15. 1. I think it’s a bad idea.

    2. Probably unconstitutional. First, for the 1st amendment reason Mark suggests.

    Second, for the following reason:

    I wouldn’t justify the constitutionality of such a law–or the ACA–merely on the grounds that it addresses a free rider problem. Nor do I want to make the claim that the taxing power is absolute. (Nor do I think that such is the necessary implication of Roberts’s decision). But I do think that taxing has to be related to some enumerated power. Say, taxing to facilitate interstate commerce.

    Of course, I see two problems right away that I don’t know how to answer. It’s a backdoor way to ignore the activity / inactivity distinction, a distinction that make sense to me. It’s also probably not otherwise a meaningful limitation because once something is “taxed,” it probably becomes “commerce,” and because it’s a federal tax, it becomes interstate commerce. I’m not sure how far I’d want to travel down that path. But, I’ve accepted the medicine, and I might as well swallow it.Report

  16. Terrible idea.

    First of all, there isn’t really a parallel between propping up the newspaper industry and paying for people’s healthcare. Nobody needs to read Maureen Dowd. If people want to be well-informed (a commendable thing to be), they can pay for it. But since many of our fellow Americans seem to live happy, healthy, fulfilling lives without being able to locate any of the countries we’re bombing on a map or name the three branches of government, it’s not a need. On the other hand, if you develop any of a host of unpleasant illnesses and go without healthcare, you die. The comparison is inapt.

    Further, the newspaper industry can find some other means of making money. They can charge for Internet content, display ads, offer some other wonderful whiz-bang for an added fee. Whatever.Report

    • I have a similar answer, but then I try to reconcile the ACA (which I support) with an enumerated power granted the federal government, which I think is part of what Jason is getting at. If we are to assume a federal government of enumerated powers (it can only do what the constitution says it can), it is hard for people like me to reconcile the ACA mandate.

      For me, the answer is to say that the ACA, if it works, is worth going beyond the enumerated powers, unless someone can explain to me why it falls within those enumerated powers. But I am reluctant, because I do buy some libertarians’ argument that there are rules and the government ought to follow them and if it’s allowed to break this rule (in addition to the other instances well documented on this site), are there others it might break?

      Still, although I’m intellectually concerned. I’m not losing a lot of sleep over it.Report

  17. Avatar Ethan Gach says:

    On the individual mandate: isn’t the main reason for it the fact that health insurance rolls will be filled with sick people unless we force the healthy ones on as well? It has very little to do with the ER, last minute, free lunch problem.Report

    • Avatar Jason Kuznicki says:

      Yes. My sense is that proponents have conveniently confused the two.Report

    • Avatar Stillwater says:

      Insofar as Jason’s analogy goes, if eliminating free riders is a sound justification for mandating the purchase of a privately produced product, then government must have a legitimate and justified reason to intervene. In the case of the PPACA, government does have the justification: EMTALA created a free-rider problem that cost (I could be wrong about the exact number, something like) 407 billion to private health providers.

      I agree with you about the bigger motivations behind the mandate. It wasn’t merely to end ER-related free-riding. Part of the justification, in fact, went the other way: in order to get insurance companies to agree to guarantee issue and community rating and the rest of the basket, they needed to know that young people would pay into the system.

      But, and this was the point I was getting at: the mandate could have been justified – it seems to me – as closing the free-rider problem created by EMTALA, even if insurance company reform were never addressed.Report

      • Avatar Stillwater says:

        And I should add, I think that’s the way the argument logically proceeds. It starts with closing a gap created by EMTALA, them moves on to leveraging that mandate into health insurance reforms.Report

    • Most people who use the emergency department are insured.

      It’s not a question of where they present for care or initial diagnosis. It’s a question of how to subsidize care for people who need it.Report

  18. Avatar Patrick Cahalan says:

    > But why is this a terrible idea? Several people
    > have said as much, but no one has offered a
    > reason why. Have I not identified a genuine
    > free rider problem?

    You’ve identified half of a genuine free rider problem. The other half is that people are allowed to go through life and vote based on 30 second ad spots… without reading any fishing news.

    Not that I think this is a solvable problem.Report

    • Avatar Jaybird says:

      Maybe we could institute some kind of national service program that includes such things as instilling a habit of reading approved media every day.

      Make this a pre-req for voting.Report

    • Avatar Tod Kelly says:

      ” But why is this a terrible idea? Several people
      > have said as much, but no one has offered a
      > reason why. Have I not identified a genuine
      > free rider problem?”

      Not sure who said this where, Pat, so apologies for answering here.

      This assumes that a free rider problem by definition needs fixing; but I am unaware that this has been established – or even argued.Report

      • Avatar Jason Kuznicki says:

        This assumes that a free rider problem by definition needs fixing; but I am unaware that this has been established – or even argued.

        The pro-PPACA side has argued that solving their particular free rider problem is (a) necessary and (b) proper in the course of providing for the general welfare, under the taxation power.

        It’s interesting, however, that Roberts doesn’t take this position. It’s enough for him that it is a tax, and never mind about the purposes or the generality of the welfare.Report

  19. Avatar Richard says:

    Unfortunately, Chief Justice Roberts is the only person who knows if your proposed newspaper tax is constitutional. It would clearly fall into the same newly created class of taxes that the individual mandate does, but that new class of taxes has no legal precedent explaining the limits. This new class of taxes is a new creation by Roberts and so any such tax can be interpreted however Roberts wants, and any rules Roberts wishes to apply can be applied.

    But perhaps the next case will actually get to say more than a few dozen words about taxes before Roberts issues a ruling on the issue. While Roberts may have been right to say the individual mandate should be upheld as a valid tax, it certainly needed more debate in oral arguments and more depth in the explanation given in the opinion. For now, we’re stuck in legal limbo for every single financial-based penalty or tax until Roberts opts to provide more clarity on this new class of taxes he created.Report

    • Avatar MikeSchilling says:

      Ginsburg, Breyer, Kagan, and Sotomayor were also well aware that PPACA, including the mandate, is constitutional.Report

  20. Avatar balthan says:

    Option A:
    Government raises taxes by $x. Offers $x in tax credits for performing desired behavior.

    End result: Individuals performing desired behavior do not pay the tax increase. Those that do not perform the desired behavior do pay the tax increase.

    Option B:
    Government implements $x tax on those not performing the desired behavior.

    End result: Individuals performing desired behavior do not pay the tax increase. Those that do not perform the desired behavior do pay the tax increase.

    Based on the outcomes, Option A is clearly preferable.Report

  21. Avatar damon says:

    To answer your questions:

    Is this a good idea? That depends upon whether or not you own a newspaper or not or are a bureaucrat that would have his sphere of influence increased or not.
    Is it constitutional? Of course it is!
    Why or why not? ANYTHING can be constitutional with a LIVING document.

    A few other comments to your first paragraphs:
    “I’ve said several times that I understand the motivation for the individual mandate tax: It aims to solve an adverse selection problem in health insurance. If we didn’t have it, more healthy people would opt out of the system, catching a free ride on our public health. This would make it more expensive for everyone else.”
    This argument always comes down to “free riders”. If you simply eliminate the benefit, you no longer have free riders. Problem solved and I get more of my tax money back. And yes, I’m ok with people dying in the streets.

    “Like the majority of independent voters, I think it’s time to move on.”
    This is why the status quo continues. Folks move on. The supremes have decided. Nothing left to do. Let’s move along. Seems I recall in our history, when Manhattan was a Dutch colony, a minor tax increase caused rioting in the streets. Maybe we need a little less moving on and a little more “agitation”?Report

    • Avatar ThatPirateGuy says:

      I would like to congratulate you on making the argument that all targeted tax deductions are unconstitutional.

      No more:
      Mortgage deduction
      Student loan interest deduction
      Child tax credit
      Charitable donation/religious donation deduction

      Not many are willing to make that argument to make sure that people have to pay more/never get insurance for having a preexisting condition.

      It is also nice to see that you would prefer people to die of treatable conditions rather than consider paying more in taxes. Most people don’t feel comfortable saying that.Report

  22. Avatar ktward says:

    The Reply thread ran out. Rats.

    My comment is in response to Chris’s comment above:

    Chris, I don’t disagree with you on desired outcome: single-payer is demonstrably the direction we need to head in terms of US healthcare reform. But Josh Marshall best echoes my own thoughts wrt facts on the ground:

    “[T]his is a good moment to pierce the liberal delusion that single payer was out there for the taking — even possibly out there for the taking — had President Obama or any other president simply set his mind to it. After the ‘public option’ hit the brick wall that it did, it’s difficult to believe that anyone could really believe that single payer was even remotely possible. It was virtually impossible — with massive majorities in both houses — to push through a bill that left the mammoth health insurance industry intact and forced no one with their current private care plan to give what they know in exchange for something they don’t. So surely it would have been possible to push through a reform which essentially abolished the health insurance industry and forced big change on the overwhelming majority of the population who already has private coverage. To believe that you have to be totally submerged in the lethal progressive/liberal purism of loving defeat.”

    From his NYT link, this thought is indeed what I cling to after the uber-drama of the past 3 years:

    “The point worth celebrating is that last week’s ruling will at last enable our distinctly dysfunctional health care system to evolve into something better.”

    (Praying to the html gods that I didn’t screw up any of the code. If any of our esteemed gents feel forced to clean this up for me (lord knows it’s happened before) you have both my genuine apology and sincere appreciation.)Report

    • Avatar DensityDuck says:

      Interesting how it’s become Generally Understood that Medicare-for-all was just not an option because something something Republicans something.Report

      • Avatar ktward says:

        Interesting how some folks will twist or deny historical accounts, even the recently recorded, in defense of their own ideological paradigm. Welcome to Religion 101.Report

        • Avatar DensityDuck says:

          This is the part where you link to quotes from Republicans specifically speaking against Medicare-for-all.Report

          • Avatar Will Truman says:

            You think it’s a stretch to infer opposition to single-payer or Medicare-for-all with the repeated criticisms that the Public Option and PPACA were outrageous cases of “the government taking over health care”?

            I think that’s a fair inference. What’s less clear, however, is that there was the Democratic support for it. They had the numbers to pass any dang law they pleased. They didn’t need a single vote. They passed PPACA.Report

            • Avatar Richard says:

              While some people clearly oppose both Medicare-for-all and the public option, public support for Medicare-for-all has always been far greater than support for the public option as offered by Democrats during the ACA. Medicare-for-all has generally polled in the 70-80% range, and an undefined public option polls similarly. The specific version offered in ACA polled atrociously as it was designed to specifically guarantee it would offer no advantage whatsoever.

              I personally would be fine with Medicare-for-all, but absolutely hate PPACA and the associated public options (before they failed). Obamacare takes a broken private system, doesn’t really try to fix it, and attempts to shove tons more people into it by threat of fine/tax/fee/whatever. Obamacare also takes a broken Medicaid system, doesn’t really try to fix it, and attempts to shove tens of millions more people into that system. What we needed was solutions to the broken health care system, not shoving more people into the broken system while also making it illegal to offer any alternative (as an example, coops are no longer permitted since they don’t meet the minimum required coverage as they were meant only to cover doctors while you’d get a catastrophic-only insurance plan to cover hospitals and specialists).Report

              • Avatar Will Truman says:

                Fair enough. I know some people who at least act like they would be more supportive of single-payer than PPACA, but I’ve always considered them outliers. Maybe not.

                It would be interesting to see what happened to Medicare-for-all if there were a political apparatus organized against it. A lot of the lowest-common-denominator complaints about PPACA (socialist, government control of health care, etc.) apply to a far greater extent to MFA. It’s curious that these arguments got traction if people are not against MFA.Report

            • Avatar Scott Fields says:

              Will –

              This is a version of history that relies heavily on how you define “they.” Broad consensus in the Democratic Party in favor of single-payer does not equal 60 Democratic Senators willing to vote for it. Polls show single-payer is favored by the rank and file – within the political class, I agree it is debatable where the consensus lies. The Blue Dogs, however, make the question moot.

              They did NOT have the numbers to pass any dang law they pleased.Report

              • Avatar Will Truman says:

                “They” refers to congressional and senatorial members of the Democratic Party and independents aligned with it. That they did not have the support of the Blue Dogs doesn’t really negate the fact that they didn’t need a single Republican vote to get it through. That was my point. It’s hard to say it’s the Republican’s fault when they weren’t necessary. Blaming the Blue Dogs is entirely fair.Report

              • Avatar ktward says:

                Is there anyone at all who isn’t aware that filibuster abuse hasn’t entirely handcuffed the Senate?

                That said, because of the drama surrounding Franken’s seating and then filling Kennedy’s seat after his death, during Obama’s admin the Dems only briefly and intermittently enjoyed a 60-seat majority in the Senate.

                You’re very wrong, Mr. Truman: it was entirely necessary to wrangle a Republican vote or two for anything to get done in the Senate. IIRC, the Ladies of Maine were compelled, on certain occasion, to vote with Dems to get at least a few things done.Report

              • Avatar James Hanley says:

                It’s worth noting that filibuster abuse became possible primarily through the Senate deciding to indulge in concurrent legislation. That means if item 1 is being filibustered, they can work on item 2 in the meanwhile. This makes it easy to filibuster. In the old days, a filibuster of item 1 blocked up item 2 (and 3, 4….), meaning nothing got done until the filibuster was broken or the party pushing the bill backed down. If the Democrats would simply reinstate that rule they could really put the onus on the Republicans to be willing to keep the Senate from getting anything done, thus bearing the brunt of the public’s frustration about Congress not getting anything done.

                Of course when the majority changes, as it will, the Repubs could use the same rule to constrain Demo filibusters, which is why the Dems won’t do that now. But they should, for the good of the process and the country.Report

              • Avatar Will Truman says:

                I didn’t say that they had 60 seats for long, just that they had 60 seats. It was with those 60 seats that they passed PPACA (with, that and some jujitsu). No Republican vote was necessary. None.

                (They did get one GOP vote in the House, but it was not necessary.)

                So apparently, for a little while, it was not at all necessary to wrangle a Republican vote. Not if they had the votes of their own party.

                As far as PPACA is concerned, the filibuster abuse is neither here nor there. Filibuster abuse is real, but this was one case where it would have been used regardless. This wasn’t “any old bill” or some judicial appointment, this was something they rather passionately opposed.Report

          • Avatar ktward says:

            It’d be simpler for you to link to quotes from Republicans–any Republicans, in or out of office–who support Medicare for all.

            Got links? I’m sure there are few enough to avoid blog moderation.Report

  23. Avatar damon says:

    “The point worth celebrating is that last week’s ruling will at last enable our distinctly dysfunctional health care system to evolve into something better.”

    50 dollars says it will evolve into something worse than what we have now.Report

    • Avatar Scott Fields says:

      Are you talking about ultimately evolving into something worse or evolving to something worse before it gets better? Because, I’ll take that bet if it’s on the ultimate outcome.

      What we have now is bad and it’s unsustainably bad to boot.Report

      • Avatar Murali says:

        Are you talking about ultimately evolving into something worse or evolving to something worse before it gets better?

        To be clear, you don’t win if they have to carry out further reform in order for it to get better. If that happens, we will see how things have been going till then and take the results at that point as definitive. i.e. is the point of further amendment to make an okay thing awesome or to stave off disaster?

        I’m willing to take that bet as wellReport

  24. Avatar Brandon Berg says:

    I get a bit of a chuckle over all this talk of how we need government to solve the free rider problem, when government created the free rider problem in the first place. It’s like what Harry Browne used to say about government breaking your legs, giving you crutches, and saying “If it weren’t for us, you wouldn’t be able to walk!”

    And also because it’s coming largely from people who think that the basic problem with America is that we don’t create enough opportunities for free riding.Report

  25. Avatar DensityDuck says:

    Gotta say, I don’t see a problem with it.

    Providing that the proposed legislation makes it through both houses of Congress and the President’s desk.

    And, given that this will be described as a tax, and presented as a tax, and fought over as a tax, that’s not necessarily a done deal.Report

  26. Avatar ktward says:

    FWIW, I haven’t had time to read through all the comments. (Working on it.)

    Mr K., your hypothetical seems, to me, perhaps a spiteful response to the upholding of ACA which, cleverly, you’ve veiled behind a fascinating navel-gazing exercise. (C’mon. Nobody does navel-gazing better than The Gents.)

    Am I wrong?

    I mean, has anyone of merit, anywhere, suggested a tax penalty for folks who don’t pay for News? Has there been suggestion of a News bailout tantamount to the auto bailout? Is there legislation–even the remotest suggestion of legislation–that requires such a thing? The only legislation I’m aware of is the constant “Defund PBS/NPR” drumbeat of the uber-partisan right that, in recent times, controls the Hill’s GOP critters.

    Are you actually making a useful point here, or are you simply lamenting over ACA’s upholding?

    Quick thought: I don’t need News to live my life. I do, however, require comprehensive health care and no amount of trips to any emergency room will provide the health care that I require.Report

    • Avatar DensityDuck says:

      My car needs regular comprehensive care, as well, but I don’t expect State Farm to kick in a check to help pay for my oil changes.Report

      • Avatar BlaiseP says:

        Nonsense. If you’re still paying for that car, try claiming it as a total loss if you don’t change the oil and burn up the engine.Report

        • Avatar DensityDuck says:

          So if I don’t pay for preventive maintenance on my car and it breaks down, I’m a moron who deserves everything bad that happens.

          But if I don’t pay for preventive maintenance on my body and it breaks down, then it’s all your responsibility to cover my bills, and if you show any hesitation about it then you’re the bad guy.Report

          • Avatar BlaiseP says:

            Your non-sequiturs are amazing, Duck. It’s like one of those Fronchofied surrealist plays by Vitrac, les grands squelettes sans fourrure

            Here’s the use case.
            1. Obtain a loan for a new car.
            2. Insurer obliges you to purchase full-coverage insurance.
            3. Run the engine out of oil until engine seizes.
            4. Collect insurance.

            Do you think the insurance company will pay off? Let’s just get that far.Report

            • Avatar Will Truman says:

              Duck’s point is that the insurance company does not pay for you to change your oil. They don’t force you to change it. At most, they merely make you live with the consequences if you don’t.

              Meanwhile, on the health care side of things, we expect someone else to pay for you to change your oil. And if you don’t, they are expected to mitigate the cost of the consequences.

              That’s the distinction that Duck is making. That you can’t collect on an insurance policy of a car you ruined is neither here nor there.Report

              • Avatar BlaiseP says:

                You will go on paying the note on that car, ruined or not. Duck’s point was this:

                My car needs regular comprehensive care, as well, but I don’t expect State Farm to kick in a check to help pay for my oil changes.

                This is obviously a case of fallacious substitution. State Farm isn’t going to pay for Duck’s groceries, either. I would like Duck to go to the doctor every so often for a checkup. It will save money down the line, for if our poor Duck were to develop a malignant melanoma, it will eat him up in a matter of months. Melanoma is a quick and hugely efficient killer. Caught early, a melanoma is trivial to resect. Even if I had to pay for 100 people to get checkups, it would still cost less than one serious hospitalisation.Report

              • Avatar Plinko says:

                Exactly. I want to bang my head every time someone makes that kind of analogy to car insurance.Report

              • Avatar Will Truman says:

                I get the difference between auto and health insurance. I just don’t see the relevance of your point about changing the oil. Anyway, I mostly interjected because it seemed like you two were talking past one another.

                On the latter point, you do realize that the studies done have suggested that preventative medicine is not, in the aggregate, a money-saver, right? A life saver, but not a money saver.Report

              • Avatar BlaiseP says:

                Your money or your life. You’d do your argument a great service by citing something to the effect that preventative medicine doesn’t save money. You might consider, while you’re digging around for those numbers that we have no aggregate numbers. The health insurance companies treat their payouts as trade secret information.Report

              • Avatar Will Truman says:

                Google “Does preventive medicine save money.” Not a lot of reason for optimism there.

                (Where preventive care does save money, going forward with it is a no-brainer. Where it doesn’t, it still might be a good idea depending on the cost/benefit analysis. There have been a lot of claims, though, that the preventive care will save money more broadly. There hasn’t been much to back it up, however.)Report

              • Avatar BlaiseP says:

                I’m not going to make a case without data. I said 100:1 might be a working number. Those are my numbers, based on what I know about the costs of hospitalisation.

                But we both know that’s a WAG. I know what a per-day and per-hour cost analysis looks like, based on the current burn rates. They’re all distorted for various reasons which I’ve tried to outline, saying we won’t get a clear picture of this problem until we’ve un-distorted this market a fair bit, and PPACA is a first draft of the legislation we really need. I say it’s 100:1 based on what I can see.

                If we want meaningful cost reductions, I’d want loads more input from the medical community, especially GPs, but there aren’t many of them left. This situation is out of control. We’re now faced with an onslaught of Baby Boomers, crowding out the rest of the population as they’ve done for their entire overprivileged lives. The WW2 generation sure fed heavy at the trough in their turn but they’re a walk in the park compared to the bennies the Baby Boomers will demand — and get.Report

              • Avatar Plinko says:

                Will, you’re quite right in a way. Being healthier quite clearly seems to generally raise lifetime health care costs, not lower them (and that’s setting aside even potentially unnecessary interventions which would only make it worse).
                But that doesn’t mean that private health insurers don’t still see a financial incentive to get their customers in to see the doctor, they really do and it’s because preventative health maintenance pushes those higher costs into the future.
                You know who pays for medical care costs in the future? Maybe another insurance company (if you change jobs), maybe Medicare or Medicaid, but a pretty high chance of it being someone else.
                That’s no small part of why health insurers don’t want you to smoke. It’s not that smokers have higher lifetime health care expenditures (in aggregate, they definitely don’t), just that those groups will be much more likely to have their high cost incurred while still on private insurance.Report

              • Avatar Will Truman says:

                That’s no small part of why health insurers don’t want you to smoke. It’s not that smokers have higher lifetime health care expenditures (in aggregate, they definitely don’t), just that those groups will be much more likely to have their high cost incurred while still on private insurance.

                This isn’t central to your thesis, but I wanted to point it out for your future reference: insurance companies don’t care about smoking in any reasonable capacity. At least, they aren’t interested in helping. Bupropion has never been covered by any insurance program I’ve ever been with unless it’s for depression. Chantix isn’t covered by the insurance company around here, so anti-smoking groups are raising money themselves to subsidize it.

                PPACA actually changes this, I think, or will.

                This isn’t central to your case because I think, contrary to what you’re saying here, it’s not in the insurance companies’ best interest for you to quit smoking. Or not worth the cost, anyway. It may be in the government’s best interest, financially speaking, though even there I don’t think it is. Or, at least, the government’s primary financial interest in smoking is not related to health care costs but rather something else (such as, for instance, maintaining a healthy workforce for the good of the economy) outside of the insurance companies’ interests.

                On the broader point, to the extent that coverage saves an insurance company money, it never has to be regulated. To the extent that coverage saves the government money, then bankrolling it should be a n0-brainer (on-the-cheap diabetes management and vaccines, from what I understand, fall into this category).

                In any event, the case has to be made for it. My original comment to Blaise was more critical than it should have been. It was just an instinctual response to “preventative care saves money” which, sometimes it does, but very often it doesn’t. That doesn’t mean it’s not worth doing, but a case has to be made on the financial end at least.Report

              • Avatar Plinko says:

                I suspect it would have been more accurate for me to say that private insurers prefer to sign up customers who are not smokers.
                Once they have you, I wouldn’t be surprised at all if the actuarial analysis says paying for smoking cessation costs more than it saves.

                I feel strongly (without much analysis, I’m long, long removed from any time I spent writing on the subject), that no small part of our health care cost problems are related to that fractured system where no entity has responsibility for the whole picture of lifetime health costs. One of the stronger arguments (for me at least) when it comes to UHC is that at least then there’s no beggar thy neighbor incentive to delay and deny just out of the hope that eventually someone else will be responsible for paying the price tag.Report

              • Avatar Snarky McSnarkSnark says:

                I’m totally missing the argument here.

                Of course it’s cheaper for your insurance company if you’re a non-smoker. Lung cancer treatment is really expensive!

                Private insurance stops receiving payments for you after you die. And your chance of getting lung cancer are 23 times higher.

                You might be thinking from a public policy angle, in which dying of lung cancer obviates the need to provide retirement and other benefits to a smoker who has died–but I would, nonetheless, find that hard to accept.Report

              • Avatar Will Truman says:


                It’s not a comparison of smoker vs. non-smoker, but rather whether smoking cessation costs are justified by the number of people who quit smoking. Industry behavior suggests it is not. Smokers may be a drain to a company, but smoking cessation is apparently more expensive than letting them smoke.Report

            • Avatar DensityDuck says:

              “Your non-sequiturs are amazing, Duck.”

              Me: “We consider it a moral imperative to pay for other people’s regular health checkups. We do not consider it a moral imperative to pay for other people’s oil changes.”

              You: “But if you don’t get your oil changed then your car breaks down! THEREFORE YOU ARE WRONG. Also, stop with the non-sequiturs!”

              Me: :confused:


              “Do you think the insurance company will pay off?”

              …how can you possible believe I was arguing that they would or should?Report

      • Avatar ktward says:

        So, you’re likening your car’s “health” to a person’s health? I’ll have to remember this, I’m sure it will prove useful.Report

    • Avatar Jason Kuznicki says:

      I don’t mean to offer it out of spite at all. I plead guilty to the navel-gazing.

      To my knowledge no one else has suggested a tax-penalty for journalism. I came up with it myself as an attempt to extend the principle seemingly articulated in this decision. I’m not sure a better parallel can’t be found, but I think it’s a good one.

      You are mistaken to think that this post is simply a lament. It is part of an ongoing search for the limits to federal power, if any exist.

      You are also mistaken when you say that you do not need news to live your life.Report

      • Avatar North says:

        I suppose she’s debatably mistaken about being able to live without news (we are social animals after all) but print news specifically? Certainly not. Plenty of people lived and live without print news. Before the internet they used radio and television and before those (and during) they used word of mouth and gossip.Report

      • Avatar ktward says:

        How is it, exactly, that I am mistaken that I don’t need News to live my life?

        Since you like hypotheticals, here’s one:

        If my electricity gets turned off for, say, a few months because I can’t pay my ComEd bill and, therefore, I don’t know what’s happening via broadcast/cable/internet News, it’s pretty safe to say that neither my life nor my overall health will be directly affected. Crikey, all I really need is a battery powered radio.

        If, however, I have any one of a multitude of health conditions that aren’t ever assessed nor addressed by an Emergency Room visit, then my very life may indeed be affected, and certainly my overall health.

        I’m simply suggesting that oranges shouldn’t be compared to apples in your quest to discover the limits that exist to federal powers.Report

        • Avatar Brandon Berg says:

          You’re missing the salient point of the analogy. The point is that if Congress can use its taxing authority to mandate the purchase of health insurance, it can use its taxing authority to mandate just about anything.Report

          • Avatar Tom Van Dyke says:

            You’re speaking a foreign language. There is no Constitution, only policy.Report

          • Avatar BlaiseP says:

            When Congress created an unfunded mandate to make emergency rooms provide care, nobody took that to SCOTUS. So let’s say the government obliged the Chicago Tribune to hand out newspapers to anyone who asked. I presume someone would get upset about that.

            But now, let’s say you were shot in the course of a robbery. Want the rescue squad to run your AMEX card before they transported you? What if your card was declined? Now what?

            All this bullshit about Taxing Authority makes me sick. As a society, we have fire departments and rescue squads to save lives. Even yours. I think you deserve a competent EMT and an IV and maybe even intubation, and I’m willing to pay for it, because I might need that service myself.Report

  27. Avatar James Hanley says:

    The real question that Jason’s hinting at but nobody’s answering is, “Do you see any Article 1, section 8 limits to Congress’ regulatory power, or only section 9 and Bill of Rights limits?” I would add, “If not, do you have any qualms about such a fundamental reversal of the Founders’ intentions?” “Do you not worry about how your political enemies could use such an extensive regulatory power?”Report

    • Avatar MikeSchilling says:

      In the mental model of the world, Congress is very close to Section 8.Report

    • Avatar Jason Kuznicki says:


    • Avatar Scott Fields says:

      Can I agree that the ACA decision appears to grant “extensive regulatory power” and still not be overly worried about how that will be used by my “political enemies”?

      The Constitution does not stand alone as a bulwark against political excess. That’s what elections are for, isn’t it?Report

      • Avatar James Hanley says:


        You will lose elections.Report

        • Avatar Patrick Cahalan says:

          This just in: occasionally idiots will be in power, and will do idiotic things!

          Not that we shouldn’t protest when they do, but this is a fundamental problem.Report

          • Avatar James Hanley says:

            It’s why we should be careful about how much power we insist on making available when the non-idiots are in power.Report

            • Avatar Patrick Cahalan says:

              This just in: the people who seek power will always insist they need more, whether or not everybody else insists that it be made available.

              Whether or not a piece of paper allows them to have it, or not.

              And, history shows, power-seekers can quite often game either the system… or sway public opinion… to get that power in the short term. In spite of the fact that a piece of paper insists they ought not to have it.Report

            • Avatar aaron david says:

              You are suggesting that we have had non-idiots at some point.Report

              • Avatar Brandon Berg says:

                Our Team’s Guys aren’t idiots. Only the Other Team’s Guys are.Report

              • Avatar Mike Schilling says:

                Politicians are idiots, always have been idiots, and always will be idiots. That’s why it’s so important to follow every word the Founders ever spoke.Report

              • Avatar Stillwater says:

                But … which Founder?

                The central issue this whole discussion revolves around reduces to this: some people like to cite immutable, univocal, transcendental conception of the way things ought to be, and other people think that the way things are ought to determine, in part, by the way things ought to be.

                Take Jason K as an example. He as an a posteriori view of gay marriage, one he thinks ought to be the case. And yet, he wants to argue (mistakenly) about the a priori limits of the commerce clause. What the fuh?

                The Founders were silent on the issue of gay marriage. Is the only way to alleviate his worries the ratification of a constitutional amendment to grant him his wishes? Or is there another way: that our constitution is recursively informed by the wishes, desires, and legitimate gripes of the citizens its rules ostensible serves?

                There is nothing so tiring as arguing about whether someone’s a priori conception of the world ought to be realized.Report

              • Avatar James Hanley says:

                I’m not askin about particular founder’s views on particular issues. For clarification, see my comment below, about whether, in your view, our government is properly one of enumerated powers or of plenary powers.Report

              • Avatar Mike Schilling says:

                But … which Founder?

                The one that wasn’t a politician, of course.Report

              • Avatar James Hanley says:

                Ah, Wahington.Report

              • Avatar Brandon Berg says:

                Or is there another way: that our constitution is recursively informed by the wishes, desires, and legitimate gripes of the citizens its rules ostensible serves?

                That would be the amendment process, which is described in Article V. Note that the process described therein differs significantly from the process you advocate, which is that any five members of the Supreme Court may choose to disregard the text of the Constitution and substitute rules of their own choosing.Report

        • Avatar Scott Fields says:

          Patrick has this covered… but I’d just add that I find it preferable that elections have consequences, even if I lose.Report

          • Avatar James Hanley says:

            Agreed. But that’s why I want to limit the magnitude of those consequences. If that means I have to limit the magnitude of consequences when I win, that’s a trade off I’m more than willing to make. Same reason I’m unlikely to agree to a wager whose cost to the loser is death, even if I think it likely I’ll win.Report

            • Avatar Patrick Cahalan says:

              To some point I’m sympathetic to this.

              To another point, I’m not. If you’re going to run constantly on “smaller government”, and people are going to elect you, deliver. If you’re going to run constantly on “the corporations are running your lives”, deliver on that, too.

              Because “I want smaller government” is a principle. An actual, demonstrable, reduced government has consequences. And then people have to live with them.

              And then they might decide they don’t like that, after all.

              Right now, our political parties deliver huge rafts of bullshit, and people eat it up, and then the bullshit doesn’t come about and the party blames the other party.

              Because they’ve both rigged the system so that they cannot fail, they can only be failed. By the system that they rigged. It’s not the Democrat’s fault we don’t have single payer, that’s the fillibuster. It’s not the GOP’s fault we have PPACA, that’s SCOTUS.

              Right now, I think we can use a lot more in the way of consequences. Everybody needs to have the results of what they say they want shoved in their face.

              Maybe then they’ll wake up.Report

              • Avatar James Hanley says:

                Then again, if there are no actual consequences, maybe we, the people are actually better off. Better kabuki thank blitzkrieg.Report

    • Avatar Stillwater says:

      The real question that Jason’s hinting at but nobody’s answering is, “Do you see any Article 1, section 8 limits to Congress’ regulatory power, or only section 9 and Bill of Rights limits?”

      As I’ve mentioned in other comments on this post, the argument justifying the insurance mandate isn’t based on regulatory power, but on taxing power. Robert’s said that the mandate didn’t rely on any new Congressional taxing power. Taxing powers are circumscribed by two kinds: direct taxes and indirect (excise) taxes. He scoffed at the idea that it could be justified by commerce clause regulatory powers. In effect, he said the mechanism of the so-called penalty is a tax, and the commerce clause doesn’t justify the imposition of taxes. Only Congress’s taxing power can do that.

      So Jason’s hypothetical is entirely misdirected.Report

      • Avatar James Hanley says:

        I was using regulatory power more broadly, not just meaning ICC power, but power to regulate anything Congress wants to regulate, through one means or another–in this case via taxes. I don’t think the question should be avoided by complaining about misdirected hypotheticals. So far none of our liberal friends has actually tried to tackle it.Report

        • Avatar Stillwater says:

          I can think of two responses to this. The first is that the intention of Jason’s hypothetical misunderstands the courts ruling on the PPACA, and rather than accept what he’s writing as a misunderstanding, he doubles down on it to make – what I think is – a point about how he understands the bill and subsequent ruling. Thas bad.

          The other thing I could say is that the hypothetical exists in space without any context, so it’s not really elucidatory (is that a word?). As a hypothetical, it certainly motivates people to think about constitutional limits wrt congressional legislation. But it seems to me that devoid of a context, and a compelling reason to enact that legislation (which may have justifications we can’t possibly imagine right now), the quest for an a priori determination of the limits of Congressional power are pretty counterproductive.Report

          • Avatar James Hanley says:

            Constitutional limits can’t be thought about in the abstract? This is why I get frustrated with you–again it looks like avoidance of any serious effort to defend and articulate liberalism. If you can’t define any standards you might use to judge the limits of Congress’s power, then you have no way of recognizing those limits when there is more context. More and more you persuade me that your whole approach is purely ad hoc.Report

            • Avatar Stillwater says:

              In this case, it’s not ad hoc at all. In fact, it’s the argument that Robert’s made in support of the mandate, reulting in sustaining the major provisions of the bill.

              I don’t know why you would accuse me of denying that abstractions have a role to play here. I answered his question upthread and didn’t get any feedback from Jason. My criticism isn’t that the hypothetical under consideration isn’t an abstraction, it’s that it’s based on a fundamental confusion of the Congressional power it’s attempting to elucidate.Report

        • Avatar Stillwater says:

          So far none of our liberal friends has actually tried to tackle it.

          Actually, one of our liberal friends has addressed it. Me. The hypothetical rests on a fundamental confusion about how the mandate works. It’s justified by congress’s taxing powers, not by a desire to correct the a public sector free-rider problem. That means, to make it explicit, that a public sector free-rider problem is not inherently within Congress’s powers to tax or regulate. Some independent justification for action must be provided, presumably that the activity being taxed is either privileged (in the taxing powers conception of that term) or results in rights violations of individual (insofar as we agree that the Federal government has a role to play on protecting individual rights).

          So I have tackled it. Jason’s hypothetical (as stated) is insufficient to make Congressional action justified.Report

          • Avatar James Hanley says:

            No, you didn’t tackle the bigger question, the real question that underlies the specific phrasing in Jason’s post. By focusing on that detail you dodge the real question and once again avoid the libertarian’s question about liberalism. I like you, and I don’t want this to get ugly, but it’s gotten old. Does liberalism actually give any guidance we can look to?Report

            • Avatar Stillwater says:

              Well, if that’s the way you took Jason’s question – as a challenge to liberals to account for themeselves – them we’re understanding it quite differently.

              I dunno James. I like you to. But why criticize me for criticizing a ridiculous analogy (not hypothetical)? You do that shit all.the.time. If you want to know that I, or any other liberal, thinks about a specific constitutional provision or the constitutionality of an imagined policy, then ask us.

              Guaranteed tho, you won’t like the answer.Report

              • Avatar James Hanley says:

                Well, Jason did respond to my interpretation above with, “This.” so I think my understanding is more correct.

                I did ask a question. Is there any limit to Congress’s section 8 power, or only the explicit limits found in section 9 and the Bill of Rights? And if not, do you have any qualms about that reversal of the original understanding, or any qualms about that power in the hands of right wingers?

                It doesn’t matter whether I like the answer. I know you don’t like many of my answers, either. I just want sincere answers, because in all seriousness, it looks to me like you liberals are trying to avoid that question. For god’s sake just be bold enough to say, “no, no, and no,” if that’s the answer. If it’s more nuanced, just say so.

                Or to put it another way, governments traditionally claim plenary power, the power to do anything they want unless it is expressly forbidden. The Constitution did not give the federal government plenary power, but only the powers enumerated in article 1 section 8. Do you view the government today as a government of plenary power or one that is still limited to its enumerated powers?Report

              • Nob Akimoto Nob Akimoto says:

                Given that the plenary vs. enumerated powers debate goes back all the way to the Washington Administration, I’m not actually sure you can make the argument that it ever was a government of enumerated powers.

                That said, I’m inclined to say that I”m perfectly comfortable with plenary powers if there’s a consensus between all three branches of governments on what those plenary powers are per branch. When there becomes disagreement between them (such as in the executive privileges that Yoo and company tried to argue) that becomes problematic for me.

                In some sense the role of the Supreme Court, since Marbury v. Madison has been to play referee in what each branch can justly claim as their own plenary power. I don’t see a problem with that.Report

              • Avatar James Hanley says:

                Given that the plenary vs. enumerated powers debate goes back all the way to the Washington Administration,

                Not really. Not in the sense that there was any real doubt about what was intended. Only in the sense that one handful of people (such as Hamilton) wanted it to have plenary power and another handful (anti-federalists) feared that it had plenary power.Report

              • Nob Akimoto Nob Akimoto says:

                Given Hamilton’s absolute importance in both the architecture of the Constitution and in establishing the precedents that helped organize much of the executive branch, I think his views are actually of a fundamental importance.Report

              • Avatar James Hanley says:

                Hamilton was hugely important in getting the Federal Convention going, but of limited influence in the convention itself. He was much too far from the median conventioneer, and rather than damage the prospects by scaring others away from an agreement he was actually absent for substantial portion of the convention. He was pretty much a lone wolf. As I said, the most far-sighted of the Framers, and a brilliant choice for SecTreas. But even he in the Fed Papers didn’t risk trying to claim the Const created a gov’t of plenary authority.Report

              • Avatar BobbyC says:

                “Most far-sighted of the Framers” … hogwash! Modern Hamilton appreciation is widespread, but maybe we can agree that he was the herald of the modern welfare state. He was an authoritarian who had all the trimmings of elite overconfidence – a hawk, a believer in centralized power, and opponent of states rights.Report

              • Avatar James Hanley says:


                Exactly. He, more than any other of the framers, certainly far more than the romantic Jefferson, understood what future states would be.

                Saying that isn’t the same as saying I like his vision.Report

            • “Does liberalism actually give any guidance we can look to?”

              I do think liberalism, like conservatism, but unlike, say, socialism or libertarianism, is more a constituency than an “ism.” So “liberalism” can’t and will refuse to give us any guidance, and now we have to rely on the checks built into the system.

              I’ve made no secret (to the small number of people who read my blog) that I support the ACA, but I am very bothered by the apparent violation of basic article 1, section 8 enumerations, because I believe in the rule of law, understood as limitations on government power.

              Having admitted that, where am I. I will advance a weak justification, but I don’t think it resolves the underlying objection (and it continues the objection to the mandate under the commerce clause): health insurance is commerce and is interstate commerce, under even a pre-Wickard understanding of the constitution. Under this guise, the federal government could propose reasonable regulations. (What makes something “reasonable”? That’s hard to say, because if it’s too unreasonable, it might be a taking. I’ll assume, without offering any evidence, that the current reforms are not a taking, even without a mandate.) Now, I don’t say the art. 1, sec. 1 taxing power is absolute, but I suggest that as long as it’s done to promote one of the enumerated powers (in this case, regulation of interstate commerce) and as long as it doesn’t violate any prohibition against Congress (i.e., I’m assuming that the regulations are not a taking and that the mandate is not “involuntary servitude”), then it is constitutional.

              But as I’ve said in another comment here, I have trouble reconciling this. It does not necessarily prevent the newspaper hypothetical. (I do believe that the hypothetical, in my view, is disanalogous when it comes to the free rider problem: the ACA creates the free rider problem while free ridership with newspapers is 1) already in existence and 2) partially not as bad as it seems, because the advertisers are the riders, and they pay for the ride). I would say that subsidy for newsprint manufacturers, or to newsprint importers, to help the struggling newspaper industry would be nominally, and not nearly so problematically, constitutional, even if such a policy would be a bad idea.Report

              • Avatar James Hanley says:

                liberalism, like conservatism, but unlike, say, socialism or libertarianism, is more a constituency than an “ism.” So “liberalism” can’t and will refuse to give us any guidance,

                That just sounds implausible to me. It sounds like an attack on liberalism, but I’m sure you don’t intend that (nor do I think Stillwater did when he made effectively the same argument some time back).

                If liberalism can’t give us guidance, then how do liberals know what they want? Without some guidance, some standards, how can liberals make an intellectual defense of their preferred policy regime?

                The thing is, I don’t think liberals do actually lack such a defense. I think it would be insulting and false of me to claim so. But I can’t see how that meshes with what you’re saying.Report

              • I see “liberalism” in the post-New Deal U.S. as a hodge podge of “who votes for the Democratic party” and “what policies does the party endorse.” I am a “liberal” because I support “liberal” policies. So my “definition” is question-begging (it’s a constituency because it’s a constituency).

                I do see your point, and if I had to give some definition for post New Deal liberalism, I would say it has the following attributes:

                1. Faith in government manipulation of the economy primarily through deficit spending, trade policy, and regulation, and secondarily through antitrust prosecutions. (Conservatives do these things too, but they at least claim not to have a lot of faith in these mechanisms, while liberals are less critical of them.)

                2. A respect for individual social rights and an antipathy toward arbitrary discrimination. This is what conservatives say they believe in, but liberals are more likely to endorse a group-oriented approach. Not only, for example, would they outlaw discrimination based on certain categories, they would have more faith than conservatives do in analyses that tend to show patterns of discrimination to meet the burden of proof that discrimination has happened. Accordingly, liberals are more likely to endorse affirmative action, understood as proactive efforts to increase minority participation (not necessarily by quotas).

                3. A corporatist view of economic rights: unions are to be encouraged, or at least the state ought to make it easier for workers to organize and bargain collectively.

                4. The belief in a robust social welfare state and the belief that the federal government, and not local government or private charities, should bear the burden of financing and coordinating this social welfare state.

                5. A robust defense of constitutional civil liberties against the state, but a corresponding willingness to disregard putatively “economic” liberties, even if that means fudging the line between exercising enumerated and unenumerated powers.

                Numbers 4 and 5, in my mind, inform what I would call a “liberal” jurisprudence, a deference to lawmakers’ determinations of good (or at least constitutional) policy when it comes to managing the economy, but a strong distrust and lack of deference when it comes to individual civil (and non-“economic”) liberties.

                I still have a hard time finding a systematized way of thinking in these attributes. They seem, to me, more designed to appeal to a constituency and not a principled basis in the same way that, say, a libertarian might start with first principles of negative liberty. (I’m not saying there isn’t a “libertarian” constituency, only that libertarianism, perhaps because there is not a “libertarian” party with wide appeal, is more ideology consistent, notwithstanding all the variant interpretations of what libertarianism is.)Report

              • I’ll have to think more on this. It is perhaps claiming too much when I claim to be a “liberal” and yet don’t particularly want to defend “liberalism.” As my academic adviser says, one of my challenges in my scholarship is actually taking a side and defending it.Report

              • Avatar James Hanley says:


                Thanks. Understand I’m not asking for ideological consistency. As you note, conservatives aren’t really ideologically consistent (claiming to dislike regulation while engaging in it, etc.). And as I am more than willing to admit, I’m far from a perfectly ideologically consistent libertarian.

                I’ve just been bothered by the apparent reluctance here to really address what principles tend to guide liberalism (whether they are an internally coherent set or not, and whether liberals tend to follow them consistently or not, as I don’t really expect such things of any group/ideology). As you show here, with a set of principles that seem largely correct to me (without presuming it’s necessarily complete), it’s not a terribly difficult task.Report

              • I guess if I had a principle here, it would be that I would stretch Congress’s regulatory and taxing powers (to my mind, they go hand in hand, even though as you point out below Jason seems to be talking about taxing) to cover enacting a program that *might* help less affluent people and others who are denied coverage, even if that plan ends up subsidizing rent-seeking corporations.

                I wouldn’t endorse the type of corporate welfare program that a tax mandate for newspapers would be. I hedge on whether such a plan would be constitutional….it would have to depend on the form. I’m not sure if I’m an advocate of formalism, and I do believe that formalism does not imply any real limitations on power (as Stanley Fish has argued, the law “wants to have a form,” but this “form” is merely just a goal post one has to get around in order to do whatever one wants).Report

              • Avatar Roger says:


                Thanks for providing such a clear list.

                It seems to emphasize the top down role of the state as an active agent in improving society. Is this correct?Report

              • I’d say so. I do think, however, that present-day (American) liberalism does have a hippy-esque element of bottom up, or at least individual “freedom,” but I understand it as a top-down project.

                Personally, the more I’ve read from libertarians (and from my own study of history), the less faith I have in the top-down portion of liberalism, especially when it comes to the mechanisms of, say, antitrust and union/management relations.

                In other words, you understand me correctly.Report

              • Avatar Roger says:

                Thanks Pierre,

                Yeah, I would say most libertarians distrust both the motives and ability of a centralized state to lead us to a better society. We are more of a bottoms up, multiple experiment mindset. Of course, we could be wrong.Report

              • Avatar Alex Knapp says:

                “Yeah, I would say most libertarians distrust both the motives and ability of a centralized state to lead us to a better society. We are more of a bottoms up, multiple experiment mindset. ”

                Funny thing – history doesn’t record too many great civilizations with a “bottoms up, multiple experiment mindset.” Indeed, it doesn’t record any.Report

              • Avatar James Hanley says:

                Alex, that stuff doesn’t tend to get written about. But any civ that makes extensive use of markets is allowing lots of bottom up, any federalist country is allowing it to some extent, and any country that allows lots of individual freedom to organize in voluntary groups is doing so.

                I think you misunderstand what we’re looking for. Or you’re focused on great power civilizations, the type that conquer and kill, as the goal toward which we should strive. (not that you actually want that, but that you may inadvertently be using that as the measure.)Report

              • Avatar Alex Knapp says:


                Without a strong, centralized state to enforce laws and contracts, markets can’t exist, and interest groups devolve into criminal gangs.

                In the case of Federalism, it kept Africans in bondage far longer than it needed to in the United States. Federalism was the excuse for slavery until asskicking Hamiltonian Lincoln broke the back of the Southern States and established that the Federal Government reigns supreme. But Lincoln’s successors were weak and allowed the “bottoms-up” terrorist organization the Ku Klux Klan to run amok and eventually take over the Southern establishment and install Jim Crow.

                It then took the Federal government to break the back of Jim Crow, but to do so, it had to overcome the Constitution’s federalism that allowed the Southern states to have a disproportionate amount of power and block attempts at reform.Report

              • Avatar Roger says:


                I guess you are unfair with the following concepts:

                Markets — decentralized competitive cooperative problem solving systems
                Science — decentralized competitive cooperative problem solving system

                For that matter are you famiar with federalism? Subsidiarity? How about cultural evolution? Have you considered studying Greek history? How about European history as opposed to let’s say Chinese?

                Here may be an interesting place to start….


              • Avatar Roger says:

                My speller seems to have an aversion to the word “unfamiliar.”Report

              • Avatar Alex Knapp says:


                Markets are wonderful and so is science. But without the institutionalized support of a centralized government, neither can flourish. Both suffered under the ridiculous balkanization of Europe we call feudalism and both flourished under the Emperors of China at the same time.Report

              • Avatar Roger says:

                We are almost in agreement. James and I both agree with the value of a central government a a great way to enforce clear, simple, consistent rules that enable and foster bottoms up, decentralized problem solving as seen in markets.

                I would add that the benefit of classical Greece or Post Renaissance Europe over the various empires of antiquity were that they allowed a level of competition to exist over what those rules and institutions and protocols were. Both were examples of what I call Contructive, Competitive-Cooperative Complexes. Both had hundreds of smaller states competing yet learning from each other. They became a discovery process for better institutional or state solution sets. The Netherlands became an early winner, followed by England, which took the best from the Dutch and improved upon the model. Later the US and Germany tried to build even better states. One of which failed miserably.

                Science and wide spread free markets blossomed like never before in Europe. They were institutionalized. The result has been that for the first time humans have actually flourished. We have outrun Malthusian forces. We have solved problems faster than nature (and fellow men) can create them.Report

          • Avatar James Hanley says:

            On re-reading Jason’s hypothetical, he is talking about the taxing power, not the ICC regulatory power, so I’m not catching on to how you think his hypothetical is “entirely misdirected.”. Did you misunderstand him, or am I misunderstanding you?Report

  28. Avatar Michael Cain says:

    So here’s at least one difference in the two cases. Health care is a thriving business, with enormous profits, having grown to nearly one-sixth of GDP. In the process of that growth, almost everyone has been priced out of the expensive part of the service if they have to pay cash, so the only way those are accessible to the typical person is by creating a financing system that levelizes payments and incorporates risk sharing. That is, some of us will never have that bypass surgery that we’ve been “paying for” on the installment plan all these years. Some of us will never have our house burn down.

    Newspapers, OTOH, are a dying industry. Their information aggregation function is being taken over by a new set of web-based aggegators. Also, essentially no one is priced out of using the newspaper product — at worst, you can stop at the public library and read the local paper (I know, I know…). The so-called health care debate is not about how we’re going to provide health care; it’s about how we’re going to finance health care. If you’re going to pick another service/good to propose paying for with taxes, pick one that is expensive enough that financing is necessary. Housing. Transportation. Maybe higher education. How many things does everyone use that are expensive enough to require financing?Report

    • Avatar James Hanley says:

      essentially no one is priced out of using the newspaper product —at worst, you can stop at the public library and read the local paper (I know, I know…)

      Typical one-percenter with your home delivery and not caring that the 99% have to settle for going to the library!Report

  29. Avatar Kolohe says:

    It should be noted that it’s more Craiglist that have put papers out of business than having news on the internet (which still can have and has advertisers). Classified ads, especially for jobs, real estate, and autos, were paying a good portion of the bills, and now are mostly unnecessary for those people that used to buy them.Report

    • Avatar Jason Kuznicki says:

      A lot of people have said this, and they are correct. But we’re still consuming the news. We’re still getting it for free. The newspapers are still dying. And my little tax would save the whole industry…Report

      • Avatar MikeSchilling says:

        The other point that’s been made repeatedly is that the real problem isn’t the death of newspapers, it’s the death of reporting. The real value of your proposal is that it could provide funding for that. After all, where are the next generation of Woodwards and Bernsteins going to come from if the government won’t pay for them?Report

        • Avatar BlaiseP says:

          Hee hee. There are more freelance reporters in the field than ever, producing top-notch news. Every imaginable facet of the news is besieged by these guys and girls. Stringers have always had a huge role to play in the dissemination of news since the first newspapers.Report

  30. Avatar BlaiseP says:

    The newspaper isn’t exactly dying. The technologies behind it are changing. Many sites are now charging for their content: LATimes, NYTimes, FT, Rolling Stone and the like are doing okay. I get market data and news in real time and I pay top dollar for it.

    And what’s with this about octogenarians? Think old people are stupid or something, that anyone over sixty is somehow irrelevant and can only consume information off the printed page?

    My son-in-law is Finnish. His family’s firm runs the Turun Sanomat, one of Finland’s oldest newspapers. He wants to distribute a flexible piece of plastic, think a Kindle Fire which can automatically update from a newspaper site with content geared to expatriates.

    People will pay for content. People will also pay for health care. Let’s not try to substitute markets here. I can’t run the same models against gasoline futures and gold. Don’t try to same-same newspapers and health insurance.

    Even this joint needs money to run. Why should I contribute? But if I don’t, am I a free rider?Report

    • Avatar North says:

      With as much content as you contribute in the form of guest posts and eloquent interesting and lengthy comments I don’t think you’d qualify as a free rider by any lights.
      I on the other hand threw in some dough because I have no illusions of my literary contributions and have enough fondness for the League not to free ride on it.Report

      • Avatar BlaiseP says:

        Truth is, I think I ought to contribute some money. But if I make a noise like that, someone’s going to say “But there’s a difference, one’s a tax, the other’s just a contribution… etc. etc. ad nauseam, et dimitte nobis debita nostra sicut et nos dimittimus debitoribus nostris, Amen.”

        Those who want good things ought to support them or they’ll go away. What’s so terrible about paying taxes? I never worry about them. I just work out what I need to net on a gig, apply it to a spreadsheet to estimate my tax exposure, thereafter it’s an addition problem and that’s what goes on the bid. Why should I think the government is the enemy? What have they got against me? I pay their salaries. I don’t like the way they spend my money on war making but I don’t begrudge the servicemen their salaries, so it’s a wash.

        All this Libertarian crap about how the government is the enemy is all so much unpatriotic malingering. Everyone knows it, that’s why nobody’s going to elect any of them. Where they’ve managed to back off a bit, they’ve made some headway. But every time I get out of bed in the morning, there’s a fresh batch of news about how Rand Paul’s opened his mouth and exchanged feet again.

        Want better news? I do. So I get a subscription to a product like Bloomberg Premium and TradeStation. So I want to read a better blog? I have to write better comments and posts. Want a better government? I have to contribute with my taxes. No thinking involved, beyond the obvious conclusions: if I don’t, who will?Report

        • Avatar James Hanley says:

          All this Libertarian crap about how the government is the enemy is all so much unpatriotic malingering.

          Ah, patriotism really is the last refuge of a scoundrel.Report

          • Avatar BlaiseP says:

            It’s the first refuge, according to Ambrose Bierce. But really, it is so fucking tiresome, this Libertarian introit about how the government’s so awful. Tellin’ you Libertarians, until you lay off this Tinfoil Hat Conspiracy shit, you’ll never get anywhere. Just so y’all know what set me off here, that jackass Ilya Shapiro says:

            In the 1966 film A Man for All Seasons (an Oscar-winning adaptation of a play about the life of Sir Thomas More), an ambitious young lawyer named Richard Rich perjures himself so that the Crown can secure More’s conviction for treason. (Sir Thomas More was the 16th-century Lord Chancellor of England who refused to sign a letter asking Pope Clement VII to annul King Henry VIII’s marriage to Catherine of Aragon and resigned rather than take an oath declaring the king to be the head of the Church of England.) Rich is promoted to Attorney General of Wales as a reward. Upon learning of Rich’s connivance, More plaintively asks, “Why Richard, it profits a man nothing to give his soul for the whole world . . . but for Wales?”

            So it is with John Roberts, who like his namesake Justice Owen Roberts changed his vote on Obamacare in service to political considerations. (That’s actually unfair to Owen Roberts because his so-called “switch in time that saved nine,” which provided the decisive vote to uphold the New Deal after years of reversals, came before FDR announced his Court-packing scheme.)

            Let’s see. The Supreme Court’s Chief Justice renders an opinion Cato doesn’t like, and now he’s being compared to a fucking perjurer.Report

            • Avatar James Hanley says:

              But really, it is so fucking tiresome, this Libertarian introit about how the government’s so awful.

              Probably as tiresome as your belief that libertarians ought to take any advice from you.Report

              • Avatar BlaiseP says:

                Haw. The day a Libertarian takes any advice from anyone, whales will come walking out of the sea as their ancestors walked in. Come to think of it, Libertarians don’t even take advice from other Libertarians. It’s always the Judean People’s Front versus the People’s Front of Judea.

                Reg: All right, but apart from the sanitation, medicine, education, wine, public order, irrigation, roads, the fresh water system and public health, what have the Romans ever done for us?
                Attendee: Brought peace?
                Reg: Oh, peace – shut up!
                Reg: There is not one of us who would not gladly suffer death to rid this country of the Romans once and for all.
                Dissenter: Uh, well, one.
                Reg: Oh, yeah, yeah, there’s one. But otherwise, we’re solid.

              • Avatar Stillwater says:

                Heh. +1.Report

              • Avatar James Hanley says:

                No, Blaise, it’s you in particular. You combine more arrogance with more ignorance than anyone else on this blog. My lasting image of you is as the guy who tried to lecture the physicist about physics. Who in their right mind would take advice from someone operating under such delusions, such a pervasive inability to recognize their own limitations?Report

              • Avatar Brandon Berg says:

                You combine more arrogance with more ignorance than anyone else on this blog.

                I was going to object to this, but then I realized that the frontrunner has gone MIA.Report

              • Avatar BlaiseP says:

                I will consider the source, Hanley. A man cannot be too careful about the enemies he makes, for that is the truest measure of him.

                Do you think I actually care what you think about me? If ever there was a tiresome examplar of the Libertarian faith, you are that bad example. I will stand by my statements and you will get the hell over your little hissy fit. I have not come to bandy insults with petty zealots but like Peake’s Steerpike, I am not above pricking and poking until you yell like a cat.Report

              • Avatar James Hanley says:

                Blaise, I think you care deeply about what others think about you. That’s why you try so hard to pretend superior knowledge about everything. You come across as desperate for admiration. Nobody with such a monumental ego doesn’t care what others think.

                Oh, and trying to give me orders? Seriously? Do you imagine that comes across as serious and authoritative rather than juvenile and whiny?

                But please do keep giving “advice” to us libertarians. Coming from you, it’s comedy gold.Report

              • Avatar BlaiseP says:

                Dude, let me tell you a little something which might give you some insight. On March 21, 1971 at 0542 a Chinese made mortar round came my way and blew four of my friends to kingdom come. Covered my starboard side in mud and I’ve been picking bits of steel out of myself ever since.

                Every day since has been a fucking Bonus Round. I waste time here and enjoy myself as well as I may. Desperate for admiration? I have enough bits of US-issued ribbon and metal to warrant a fine opinion of myself, three superb kids and a well-lived life have given me plenty to talk about. You don’t have that life, but then, you don’t break razors when you shave because another piece of shrap is coming out.

                You are cordially invited to get a life, you miserable little man. I don’t give anyone orders. I’m a consultant, I do what I’m told. Suits me fine. I earned this life. I paid a high price for the little stories I tell. Now I charge for what I know.

                So don’t you attempt to psychologise me, you and your Libertarian ideology. Mene mene tekel upharsin you have been weighed in the balances and found wanting. You dime store pedant, I have no advice to give you. I charge for the advice I give. But I have seen you lot at close range long enough to know none of you have any fundamental understanding of markets or the underpinnings of the society which shelters you.Report

              • Avatar James Hanley says:

                I don’t give anyone orders.

                you will get the hell over your little hissy fit.

                Hmm, one of these things is not like the other.

                On March 21, 1971 at 0542 a Chinese made mortar round came my way and blew four of my friends to kingdom come. …Every day since has been a fucking Bonus Round

                Ah, you almost died once. I’ve been there, too, although not in war. I know precisely what it’s like to think, “and now it’s all over.” Big deal; lots of people have faced death.

                I have seen you lot at close range long enough to know none of you have any fundamental understanding of markets

                Says the guy who thinks businesses take returns because they’re so satisfied with how much of my money they’ve gotten that they’re willing to give some back, rather than that they’re hoping to get more in the future.

                I’ll make you a deal, Blaise. If you stop being an a**hole and pretending you understand libertarianism or have any useful advice to offer libertarians, I’ll stop poking at you. But if you want to spew more nonsense–false statements and clueless suggestions–about us, I’ll keep pointing out where you don’t know what you’re talking about.

                But what’s hilarious is that you want to tell us how stupid and misguided we are, with copious insults, then you take offense when someone treats you the same way you treat others. You want to be able to dish it out, even though you can’t take it. Serious, man up and accept the fact that if you want to piss in someone else’s Wheaties you can’t get outraged because they spit in your milk.Report

            • Avatar Mike Schilling says:

              Let’s see. The Supreme Court’s Chief Justice renders an opinion Cato doesn’t like, and now he’s being compared to a fucking perjurer.

              Not just a perjurer, but one whose lies cause the death of a man who had never been anything but good to him. And there’s no exaggeration; the comparison is there in black and white. Self-righteous bastard.Report

              • Avatar Jaybird says:

                Had Roberts ruled the other way, he would have been compared to a mass murderer.

                He’s kinda getting off light.Report

              • Avatar Mike Schilling says:

                Not at all. If Roberts had ruled the other way, the 5-4 decision would have been Kennedy’s fault.

                Anyway, if only I were a bit more vindictive, all the right-wing whining [1] would be music to my ears.Report

    • Avatar Jason Kuznicki says:

      And what’s with this about octogenarians? Think old people are stupid or something, that anyone over sixty is somehow irrelevant and can only consume information off the printed page?

      Well over a hundred comments in, you’re the first to accuse me of ageism. I don’t think old people are stupid. They are — as everyone is — creatures of habit. Their habit has been to buy the newspaper in print. It’s a stereotype with more than the usual grain of truth, as reader demographics immediately shows.

      Not only that, but they are the only ones in my portrayal who are clearly not free riders. It’s the young I’m criticizing, not the old. The old pay their fair share in this market.Report

      • Avatar BlaiseP says:

        Maybe you should get to know some old people.

        The newspaper owners are not much different than the owners of sports teams. It’s a vanity purchase for them, an outlet for their brand of journalism. They don’t give a shit about the people who work for them. That’s the problem with newspapers, my brother’s a local news editor, poor as a church mouse, graduated summa cum laude with scholars honors and a big award in journalism and he’s been screwed over for his own career.

        After missionarying, my old man did religious journalism for years, ended up as a book editor. This phenomenon has been going on for many decades. It’s not the newspapers, it’s the owners who are screwing up the business model. That may not fly as an explanation with you. Maybe it will, I don’t know. If a town has a great newspaper it also has a great owner.

        Look at WaPo, case in point, started out as a little bankrupt paper in the 30s. Once the Grahams started running that paper, it just gobbled up half the papers in town. Fiercely independent, always running neck and neck with NYTimes, hell of a paper while it had good leadership. Now look at it, poor bedraggled old thing, limping along, horrid leadership, no ass meat, still with all that Neocon shit on its Florsheims. WaPo lost its focus. The sports team analogy works very well with news organisations.

        Look who’s winning. Politico beats everyone with the story. That little nancy boy Matt Drudge pulls ’em in for their plateful of Outrage du Jour. Fox. LATimes. Bloomberg. It’s not like newspapers were ever the medium of choice, radio started making inroads on newspapers in the 1920s but the papers coped. TV didn’t damage the newspaper business all that much, TV news was always a loss leader, which is why CNN is having such trouble. People read newspapers for the same reasons they read websites, they don’t want the news. They want to be told what they want to hear.Report

        • Avatar ktward says:

          “People read newspapers for the same reasons they read websites, they don’t want the news. They want to be told what they want to hear.”

          Huh. I’ve long thought it was exactly the opposite: that folks read newspapers (and now digitally delivered news) for comprehensive reportage, vs. the vacuous clips and blips that pass for news on the teevee.Report

          • Avatar BlaiseP says:

            People, especially highly intelligent people, have a blind spot. They consider themselves objective, dispassionate, open to alternative opinions. Fact is, people are as predictable as clockwork. You read what you want to read. To be sure, intelligent people know better than to trust just one source, but they’re considerably more susceptible to propaganda than their lumpenprole counterparts. Google’s made a fortune based on this fact.Report

        • Avatar Kolohe says:

          “The newspaper owners are not much different than the owners of sports teams”

          The owners of newspapers are almost all public or private corporations, so it’s not at all like sports teams.Report

          • Avatar BlaiseP says:

            Maybe you’re right. All analogies fail, this one perhaps faster than others. News Corporation is publicly traded yet it represents the viewpoints of Rupert Murdoch et. al. Most of the larger newspapers represent the slant of their ownership.Report

  31. Avatar BlaiseP says:

    You might be amused to know, Jason, that the USA is funding a complete news and entertainment network. It’s called al-Hurra, the propaganda organ of the Iraqi government. Here’s the punchline: it’s illegal for Americans to listen to it.

    Alhurra TV, Broadcast Studio
    Springfield, Va.

    Anchor Mona Atari at the Alhurra news desk. Alhurra is a U.S. government-sponsored, Arabic-language television network devoted primarily to news and information. Established in Feb. 2004, the network broadcasts 24-hour, commercial-free satellite programming to an audience of 21 million weekly viewers in 22 Arab countries. In April 2004, a second, Iraq-focused channel, Alhurra Iraq, was launched.

    Section 501 of the U.S. Information and Education Exchange Act, passed by Congress in 1948, authorizes the U.S. government to disseminate information abroad about the U.S. and its policies. Section 501 also prohibits domestic dissemination of that same information. It is therefore illegal to broadcast Alhurra domestically. Alhurra is Arabic for “the free one.”Report

    • Avatar Jason Kuznicki says:

      It’s not illegal to listen to it. It’s illegal for the government to disseminate it to Americans. The difference is subtle and a bit pedantic, but it’s also real.

      Back in 1996 I interned for the U.S. Information Agency, a now-defunct propaganda arm of the U.S. government that was absorbed into the State Department. I helped write content for one of their websites. The law you refer to was a very important one for the USIA, and particularly in the dawning Internet age. Could we let Americans visit our sites? Could we effectively (and cost-effectively) deny them? The answers rapidly became “yes” and “no,” respectively. And the law became a practical nullity. At least if we didn’t want to shut down our Internet presence entirely.

      That was the single most interesting thing I learned on my internship. (The second was that the government really is pretty damn inefficient — I did a whole lot of nothing while I was there. For weeks on end, my most absorbing tasks were reading Usenet on a dial-up modem and learning to hold my liquor.)Report

      • Avatar BlaiseP says:

        (rolls eyes to heaven) Al-Hurra is not available on any domestic cable service. Why? Because it’s illegal to broadcast it in the USA.Report

        • Avatar James Hanley says:

          it’s illegal to broadcast it in the USA.

          (More eye rolling) That’s what Jason said. It doesn’t mean it’s illegal for Americans to listen to it, if they can get access.Report

          • Avatar BlaiseP says:

            The point remains. Jason’s point was this:

            To solve the problem, I propose a tax on every American. But don’t worry, you can always get a refund — by subscribing to at least one physical newspaper from a government-approved list.

            Now, we have 21 million Al-Hurra watchers somewhere in the world, watching a network paid for with Our Tax Dollars. I pay ’em a visit from time to time but it’s rather difficult to find a feed here in the States, audio or video, unless there’s a little mp4. As a speaker of Arabic I would like to see what my tax dollars are paying for and just what’s getting put out in our names.Report

  32. Avatar James Hanley says:

    The point remains, you made a silly error and aren’t man enough to just admit it and move on.Report

  33. Avatar BobbyC says:

    Obviously this is a bad idea. Also, note that this is not a genuine free rider problem – that a company is selling less of one product (print subscriptions) because it is giving away a similar product (online articles) for free does not constitute a free rider problem. Congress does some dumb stuff, but this one is thankfully preposterous.

    Less obviously, but still clear, I think the current Court would see this as constitutional. The limiting principles for the Taxing Power as currently articulated would allow this just as they allowed the individual mandate to stand. I think a tax on not buying a product should be considered unconstitutional – basically I am alive and the federal govt is taxing me unless I go buy something. That is a direct tax and should have been struck down by the Court as it is not apportioned among the states by population. Roberts erred and missed the chance to limit the Taxing Power just as he did the Commerce Power. The federal govt is a club created by the States and they did not want their citizens taxed simply for being alive. That the Framers would have seen this as a direct tax was a point made explicitly during oral argument; the Court decided to put legal precedents regarding what is a direct tax ahead of the meaning and intent of the Constitution. Nothing surprising or new in that.

    Now, I think Congress can pass the substance of PPACA or your idea, even satisfying an originalist jurisprudence. They just need to raise income taxes and provide a tax credit. Sotomayor alluded to this equivalence during orals. The federal income tax was a bad idea, a mistake from which has come much bad policy. Unfortunately, the real operative limit to bad, illiberal policies like PPACA and your hypothetical newspaper subsidy is the wisdom of the Congress. Ironically, the same reason that we needed a federal constitution, namely the rampant mismanagement of public affairs by legislatures, will be the same reason that we need further radical reform. The only question is whether we will have bipartisan statesmen act in advance of a crisis, as did the Framers, or if we will require a national economic and political crisis to reclaim the principles of limited govt.Report

    • Avatar BlaiseP says:

      But you’re actually buying health coverage. You’re getting something for your money. You have a choice. Do you want the government to tell you where to spend that money? This isn’t a Communist country, you’re not buying Government Brand Beer here, everyone needs health insurance.

      If you have health insurance already, you are already shouldering the burden for people who don’t. Want the grocery stores run this way, where you pay ten dollars for a gallon of milk so two other people get it free? You say you want to raise taxes and provide a tax credit: you can deduct the cost of your health insurance already. I do. I’m a sole proprietor, it’s a legit cost.

      Your solution is actually worse than the one we’ve got now. You seem to want government health care.Report

      • Avatar BobbyC says:

        You are responding to the wisdom of the law, whereas I was primarily focused on the Constitutionality until I started opining on the whole can-o-worms opened by the Sixteenth Amendment. But I’ll respond to you on the merits of the law.

        “You have a choice” – specifically the choice in the law is that I can spend money to enter a qualifying, govt-proscribed, health insurance contract with a private company or the govt will tax me the amount of money that such a policy would have cost. As the justices noted during orals, if the problem Congress wanted to address was uncompensated care, then there were simpler and clearly constitutional ways to address those problems. I think it was Scalia who pointed out that the whole underlying problem of uncompensated care is a problem created by federal statute, not a problem inherent to the the health insurance mkt. That’s why we don’t have a problem of uncompensated milk consumption; there is no federal law which requires private business to give away milk for free. The individual mandate was preferred by Congress because the govt-directed spending, all of us buying insurance, is off-budget and fully funded.

        “You seem to want government health care” – you have misread my comments as endorsing govt healthcare; all that I pointed out that it could have been done constitutionally. I do not want govt healthcare. Under PPACA we will have a form of govt healthcare, just a really bad system with products heavily proscribed by govt while administered for-profit by the private sector. I’m appalled at how bad some of the underlying ideas are in the law – the whole notion that a massive subsidy for buying healthcare via insurance, basically subsidizing a method of payment wherein consumers are the most removed from marginal costs, is deeply misguided. I’m broadly pro-liberty, but a single-payer system is a far more defensible policy than this muddled approach. It’s as if progressives put some crony capitalism into a socialist approach to make the sell easier for the population. The law may be constitutional under the Court’s expansive reading of the Taxing Power, but basic economics prevents it from being good policy.Report

  34. Avatar Alex Knapp says:

    Bad policy. No commerce clause issues, but probably First Amendment ones as noted above.

    For my own part, I am tired of people claiming that a policy is unconstitutional merely because they don’t like it. The wisdom of a policy has very little to do with its Constitutionality and vice versa.Report

  35. Avatar wardsmith says:

    Forget newspapers, we all need free guns:
    We need to act now. Too many poor and working-class families face injury and death from lack of self-protection in areas of high rates of violent crime, so if you oppose this, you must hate the poor and hope they die. Since no one does that, we should expect to see everyone celebrating this effort to realize the vision of our Founders, which was obviously a top-down federal government that can order its citizens to do anything it wants.Report