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Zoë Carpenter | The Nation

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Zoe Carpenter

Zoë Carpenter

DC dispatches. E-mail tips to zoe@thenation.com.

Military Stifling Support for Sexual Assault Reforms, High-Ranking Officer Says

Gen. Martin Dempsey

As Congress debates an overhaul of the military justice system to stem an epidemic of sexual assault, the armed forces are struggling to conceal their own internal divisions over the scope of reform. According to a senior officer who spoke with The Nation, the military is actively encouraging service members to lobby against legislation that would curb commanders’ authority over the prosecution of sexual assault cases, while suppressing pro-reform voices within the ranks.

Asked what would happen if he advocated publicly for limiting the power of commanders, the officer, a high-level Air Force lawyer (known as a Judge Advocate General, or JAG) with decades of experience with sexual assault and other criminal cases said, “It would kill my chances of ever having a good job again… I would be ostracized.” He concluded, “It would be the end of my career.”

At issue is a proposed change to the military justice system to give military lawyers, rather than commanding officers, the power to determine whether accusations of a serious crime warrant a trial. The Senate is divided over the proposal (introduced by Senator Kirsten Gillibrand and known as the Military Justice Improvement Act, or MJIA), one of several reforms being considered. Survivors’ advocates say MJIA is critical to shield victims from retaliation, but it has elicited total opposition from the top brass, who argue that commanders’ authority to convene a court-martial is essential to their ability to maintain good order and discipline.

The JAG’s account raises the question of whether Congress has heard a representative range of military opinions as it considers historic reforms. According to the JAG, perspectives on taking prosecutions out of the chain of command are decidedly more mixed within the ranks than the brass’ testimony would suggest. As a result, he believes, the debate in Congress has been skewed.

“The people who are opposed to the Gillibrand amendment don’t understand that there is a different view within the DOD,” he told The Nation. “There is not this monolithic view that they want Congress to believe that all commanders support [preserving convening authority], at all.” But because of the strict hierarchy within the military, officers who support MJIA have not been able to make the case for reform to Congress. (At press time, the Department of Defense had not responded to inquiries from The Nation.)

Other active-duty service members are beginning to speak privately to lawmakers about the importance of MJIA, said Anu Bhagwati, executive director of the Service Women’s Action Network and a former Marine Corps captain. “The First Amendment is an interesting gray area when it comes to wearing a uniform,” she told The Nation. Another prominent survivors’ advocate told The Nation that “behind the scenes, many commanders support this reform.”

Already, a number of retired generals, veterans groups and the DOD’s own advisory committee on women in the services have recommended removing the decision to prosecute serious crimes from the chain of command. That has left the top brass scrambling to maintain the impression of unified opposition.

“The reason we have so many generals is not to fight a war but to keep Congress off balance,” said Brig. Gen. David L. McGinnis (retired), who sent a letter of support to Senator Gillibrand, the New York Democrat working to add MJIA to the Defense Authorization Act, which will receive a vote in the Senate sometime before Thanksgiving. McGinnis, who is in contact with active-duty commanders, told The Nation that he agrees with the JAG that opposition to MJIA is not uniform throughout the ranks. “I believe there is a lot of angst at mid-level leadership, at least in the Army,” he said. He accounts the pushback from the top to “a hidden law among the military cultures: Don’t let Congress change anything. If they find out they can change one thing, they’ll be willing to change a lot more.”

As Congress debates MJIA, commanders have encouraged service members to weigh in against the measure. In October, Air Force Lt. General Richard C. Harding, the Air Force’s legal adviser, and Col. Jeffrey Rockwell sent a letter to fellow Air Force lawyers explaining the importance of the chain of command in the military justice system. “[M]any of us have engaged with members of Congress, their staffs and members of the media to teach, implore and explain the reasons, or the ‘why’ behind commanders’ authority and the current set-up of the military justice system,” Harding wrote. “Please read, absorb and share with your commanders and media types wherever you are located. This will truly make a difference.”

Susan Burke, a lawyer who has worked with several survivors of military sexual assault, asked the Air Force inspector general to investigate the letter’s authors. “General Harding and Colonel Rockwell improperly seek to use their influence as leaders in the Air Force to rally support against the political movement attempting to remove sexual assault claims from the military chain of command,” she wrote. Burke cited Air Force rules requiring members to “remain politically neutral and divorced from partisan politics” and prohibiting them from using “official authority or influence to…solicit votes for a particular candidate or issue.”

An Air Force spokesperson denied any impropriety, and said in a statement that the intent of the letter “is to ensure AF [Air Force] leaders and commanders are current on the issue and communicate it properly and clearly to interested publics, nothing more.”

The Air Force JAG who spoke to The Nation confirmed that he also had been encouraged by superiors to write editorials and otherwise argue publicly in favor of preserving commanders’ convening authority. “We’re constantly told in staff meetings and other meetings that we need to fight this, that if Gillibrand’s proposal is passed it will destroy the system,” he said. “There’s never an opportunity to give a contrary opinion.”

All of the active-duty military personnel who have testified before Congress and before the independent panel charged with recommending reforms have expressed opposition to MJIA. According to the Air Force JAG, this reflects deliberate decisions about who is sent to the Capitol. “When they send people to Congress to talk to staffers…they will only send people who support commanders in charge. They will not send anybody who disagrees with that position.”

That leaves only outside advocates and retired officers to challenge statements made by top brass, many of which have been misleading, the JAG believes. He pointed to the claim, made repeatedly by the Pentagon and Gillibrand’s opponents in the Senate, that convening authority is critical to a commander’s ability to enforce good order and discipline within the ranks. But convening authority is not always a function of command; although all commanders are responsible for good order and discipline, many already lack the power to take serious criminal cases to court martial.

“This idea that ‘oh, gosh, I can’t do my job unless I’m a convening authority,’ is laughable,” the JAG said. Brig. Gen. McGinnis agreed. “Don’t talk to me about readiness,” he said. “Once you violate the dignity of individuals in your command, your whole readiness equation starts to deteriorate. It’s like rotten apples.”

Commanders’ lack of legal experience also leaves victims and anyone falsely accused of a crime vulnerable. “We would never expect somebody who is getting medical treatment to ask your commander what kind of treatment they should get, or give commanders the authority to tell them what kind of medical treatment they get, because it’s just ludicrous. Yet when it comes to our area of expertise, the justice system, we defer to commanders in making these decisions. It makes no sense,” the JAG said.

He also pushed back against a claim made by Senator Claire McCaskill, a former civilian prosecutor, that military lawyers would shy away from tough cases out of concerns for their win-loss ratio. “In the world [McCaskill] dealt with, where these prosecutors were elected and their win-loss records are something they trumpet in the campaign, yeah, I suppose that happens,” he said. “Military prosecutors have no political motivation to avoid difficult cases [because] they don’t have to worry about elections.”

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McCaskill is one of the most prominent opponents of MJIA, along with fellow Democrat and Armed Services Chairman Carl Levin, and Republicans Kelly Ayotte and Lindsey Graham. Gillibrand’s amendment is likely to draw a filibuster, meaning she’ll need fifty-nine supporters. So far forty-seven of her colleague have committed, including eight Republicans. Both sides are engaged in an intense campaign to win over some thirty undecided senators.

McCaskill and Ayotte have argued that “the victim community is not monolithic” in its support for MJIA. That may be true, but it appears neither is the military in its opposition.

“You know they always talk about how, you know, look how great we did with the end of segregation—yeah, because you were forced to do it,” the Air Force JAG said. “The same with this. They just resist change.”

Take Action: Tell Your Senators to Act Now to Address Sexual Assault in the Military

Zoë Carpenter on how the VA is discriminating against thousands of victims of military sexual trauma.

Elizabeth Warren to Regulators, Congress: End ‘Too Big to Fail’

Elizabeth Warren

It’s been more then five years since the financial sector collapsed, triggering a deep recession that many Americans are still struggling to shake off. Not so the big banks. They’re larger, more powerful and more dangerous than ever before, Senator Elizabeth Warren warned Tuesday at an event examining the state of financial reform since the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010.

Warren’s speech was an indictment not only of the financial institutions that “have fought to delay and hamstring the implementation of financial reform,” after “exploiting consumers, larding their books with excessive risk, and making bad bets,” but also of the regulators and lawmakers—many from her own party—who are refusing to hold the financial sector to account.

“Who would have thought five years ago, after we witnessed firsthand the dangers of an overly concentrated financial system, that the ‘too big to fail’ problem would only have gotten worse?” Warren said.

After the crash, there was widespread—if late—recognition that allowing a handful of institutions to become so large that their failure could bring down the economy encourages risk-taking and makes it difficult for smaller firms to compete. But instead of being forced to shrink, the biggest banks have become more concentrated and more complex. As Warren noted, the four largest banks are now 30 percent larger than they were at the onset of the crisis, and more than half of the nation’s banking assets are held by just five banks.

According to Warren, Wall Street behemoths still threaten to sink the system because regulators have failed to set the rules. The agencies responsible for implementing the reforms outlined in Dodd-Frank have missed more than 60 percent of their deadlines. Fewer than half of the regulations mandated under the law have been finalized, and more than quarter have not even been written. While missing deadlines, regulators have been busy meeting with the big banks—2,118 times since Dodd-Frank passed, fourteen times as many meetings as they’ve held with advocates of financial reform.

“Since when does Congress set deadlines, watch regulators miss most of them and then take that failure as a reason not to act?” Warren asked. “I thought that if the regulators failed, it was time for Congress to step in. That’s what oversight means.”

But lawmakers have been keener to dismantle, rather than enforce, financial reform legislation. In July, several Wall Street–friendly Democrats urged the Commodity Futures Trading Commission to delay rules for American banks engaged in derivatives trading overseas, a practice that has been unregulated. Last month, the House passed two bills delaying provisions in Dodd-Frank by a bipartisan vote. One was written by Citigroup lobbyists. Those votes brought the tally of bills passed in the House recently to undercut financial reform to ten.

Warren is trying to push her colleagues in the opposite direction. In July, Warren and Senators John McCain, Maria Cantwell and Angus King introduced a new version of the Glass-Steagall Act, which would force financial institutions to separate consumer banking activities like checking and savings deposits from the kinds of risky practices that sparked the crash in ’08, like credit swaps. The bill “would reduce failures of the big banks by making banking boring, protecting deposits and providing stability to the system even in bad times,” Warren said. “Big banks would still be big—but not too big to fail or, for that matter, too big to manage, too big to regulate, too big for trial or too big for jail.”

Not all reforms have failed. As Warren pointed out, the Consumer Financial Protection Bureau has met all of its deadlines. A 125-page report by the Roosevelt Institute and Americans for Financial Reform unveiled ahead of Warren’s keynote concluded that Dodd-Frank has had other modest successes. But on balance, the report suggests, Dodd-Frank has not altered the balance of power between financial giants and regulators, and other problems, like shadow banking, exceed the scope of the legislation. That’s not to say there aren’t solutions: the report details many ways to limit risk and constrain mega-banks. The barrier to effective regulation is not a dearth of policy ideas but political will too weak to enact them.

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“Congress must act to protect our economy and prevent future crises,” Warren said. “What we need is a system…that recognizes we don’t grow this country from the financial sector; we grow this country from the middle class.” Invoking the middle class is hardly radical. But the kind of deep reform Warren advocates for is, considering how much lawmakers’ war chests have profited from turning a blind eye to Wall Street. Any legislative efforts to confront inequality will run up against that fact—that the people who determine policy and the institutions perpetuating the imbalances in the economy are locked in mutually beneficial relationship.

John Nichols: Elizabeth Warren might not be running for president in 2016, but her economic agenda resonates with Americans.

Twice Betrayed, Survivors of Military Sexual Trauma Face Discrimination at the VA

Military sexual assault

According to Ruth Moore, she was 18, just months out of Navy boot camp when an officer raped her, twice. Although Moore reported the crimes to a chaplain, her attacker was never prosecuted. After a suicide attempt and a stay in a psychiatric facility, Moore was repeatedly denied disability compensation from the Department of Veterans Affairs for Post-Traumatic Stress Disorder, because the VA said she could not prove the rape.

The VA discriminates against thousands of military sexual trauma (MST) survivors like Moore each year, alleges a new report by the American Civil Liberties Union, the Service Women’s Action Network and the Veterans Legal Service Clinic at Yale Law School. In trying to obtain compensation for the impact of sexual trauma on their mental health, survivors face bureaucratic hurdles and long delays. Ultimately, a disproportionate number of their claims are rejected.

The report is based on previously withheld data that the VA released to settle Freedom of Information Act lawsuits brought by the Yale clinic. The numbers reveal that the VA grants disability claims for PTSD related to sexual assault at significantly lower rates than for PTSD caused by other types of trauma. In 2011, for example, the VA granted benefits to 74.2 percent of veterans who submitted non-MST-related trauma claims, but only to 44.6 percent of those with MST-related PTSD, a gap of nearly 30 percent.

“Under the current regulations, survivors of military sexual trauma have to provide a decent amount of documentation in order to get a compensation pension exam, as part of the benefits process,” explained Rose Carmen Goldberg, one of the authors of the report. Because of widespread retaliation, only a fraction of those who are sexually assaulted while in service report the crimes against them. Without a paper trail it is difficult for them to meet the VA’s evidentiary standards. Even with it, the report found, “claims adjudicators often fail to give adequate weight to the evidence that MST survivors do produce.”

Veterans with PTSD linked to combat or other sources of trauma, on the other hand, don’t bear the same burden of proof: their own testimony is sufficient to prove that their trauma is connected to their military service. “We think that very obvious and overt discrimination in the regulations is definitely an underlying factor, but there are probably many factors at work,” Golberg said. For example, until 2011 the Defense Department destroyed all restricted reports of sexual assault that were more than five years old.

As incidences of sexual assault in the military have risen, so have associated claims of PTSD, which increased by more than half between 2010 and 2011. Women who suffered a sexual assault in the military are nine times more likely to develop PTSD than other female veterans. More than 15,800 veterans filed claims for PTSD related to sexual trauma in the five years spanning 2008 and 2012. About two-thirds of the applicants were women.

The VA’s ruling determines whether they have access to an essential lifeline. Female veterans are the fastest growing sector of the homeless population, according to The New York Times, and more than half of female veterans living on the street were sexually assaulted in the service. “The mental health effects of PTSD related to sexual trauma can make it very difficult if not impossible to work, so in many cases [disability benefits] will be their only source of income,” said Goldberg.

Overall, men are 10 percent more likely to be granted benefits for PTSD than women. That’s because so many women with PTSD link it to sexual trauma, while men are more likely to suffer PTSD related to combat and other traumas, which the VA grants benefits for at much higher rates. However, male survivors of sexual assault are even less likely to receive PTSD benefits than female MST survivors.

A veteran’s chance of receiving benefits for MST-related PTSD also varies by location. For example, the VA regional office in St. Paul, Minnesota, granted only a quarter of PTSD benefit claims related to sexual trauma. Compared with non-MST claims, the discrepancy was 35 percent.

Congress is considering several bills aimed at ending the discrimination detailed in the report. One, named for Ruth Moore, who was eventually granted full benefits after twenty-three years, would allow an assessment from a mental health professional to serve as corroborating evidence, and shift the burden of proof to put “every reasonable doubt in favor of the veteran.” That bill passed the House in June, but has languished in the Senate. Two other bills to reform the claims process are pending in the House.

“The reforms that are needed are very urgent,” said Golberg. “We’re hoping the data will speak strongly for the changes that are needed.”

Anu Bhagwati, the executive director of the Service Women’s Action Network and a former Marine Corps captain whose disability claim related to sexual harassment was initially denied, pointed out that a rejection from the VA is a veteran’s second betrayal. “VA’s claims process often serves as a brutal and extended retriggering of veterans’ most horrific experiences, when no one believed them, when no one supported them and they were made to feel as though they did something to deserve being raped, assaulted or harassed in uniform,” she said.

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The Senate is now debating reforms to the military justice system responsible for that first betrayal. The Defense Authorization Act, expected to pass before Thanksgiving, includes measures preventing commanders from overturning jury convictions and criminalizes retaliation against victims who report crimes. Several senators are expected to offer amendments that would institute even greater reform. The most contentious is a proposal from Senator Kirsten Gillibrand that would give military lawyers, rather than commanding officers, the authority to decide whether an alleged crime warrants prosecution.

Since many perpetrators are within the victim’s chain of command, the measure is intended to limit retaliation and improve reporting, which would make it easier for survivors who develop PTSD to obtain benefits as veterans. The Pentagon and top Democrats on the Armed Services Committee, however, are fighting to maintain commanders’ authority. The authorization bill could hit the Senate floor as early as this week, and opponents are likely to use procedural rules to make sure Gillibrand’s amendment cannot pass with less than sixty votes. So far, forty-seven senators have pledged their support.

Take Action: Tell Your Senators to Act Now to Address Sexual Assault in the Military

Mychal Denzel Smith: misogyny has no place in progressive politics.

Campaigning (and Winning) on Climate Change

Ken Cuccinelli

With a population of little more than 200,000, Washington’s Whatcom County has rarely been an electoral battlefield. But this year, nearly a million dollars in outside donations flooded races for four seats on the county council, which will vote on a controversial coal export facility in the coming years. All of the candidates supported by environmental groups won, marking a rare political triumph for climate hawks over the energy industry.

Such victories could become more common, as mainstream environmental groups and new political action committees (PACs) leverage millions to make climate change a key issue in political campaigns. This year, green groups targeted three races with the intention of putting climate on the ballot: June’s special election for a Massachusetts senate seat, the governor’s race in Virginia, and the Whatcom County elections. Environmentalists established a robust grassroots presence and outspent fossil fuel and industry lobbies in each race. They won all three.

“It shows the environmental community is able to play in a serious way, politically,” said Navin Nayak, vice-president for campaigns at the League of Conservation Voters. In Virginia, the League’s state organization funneled nearly $1 million to Terry McAuliffe, making the group his second-largest donor behind the Democratic Governors Association. Nayak estimated that the League ran the largest field program outside the official campaigns, knocking on 300,000 doors. McAuliffe won by just 55,000 votes.

“The fact that both sides went head to head on climate change…and the pro-climate candidate prevailed is a big deal, especially in a state like Virginia,” said Nayak. The implication for 2014 is that climate change denial can be turned into a losing issue. McAuliffe is no climate hawk, but he has been supportive of renewable energy and said in early October that he supported the EPA’s new carbon pollution rules for power plants. Ken Cuccinelli, on the other hand, is a close friend and beneficiary of the fossil fuel industry, and a climate change denier who made opposition to environmental regulation a prominent part of his platform. Energy contributed more than any other industry to his campaign, with Big Coal accounting for over half those donations.

McAuliffe attacked Cuccinelli in a TV ad for using taxpayer money to investigate a prominent climate scientist at the University of Virginia named Michael Mann, known for his “hockey stick” chart showing a sharp rise in temperatures in the last century. Similar ads were run by NextGen Climate Action Committee, a PAC founded by the San Francisco billionaire Tom Steyer who is best known for his opposition to the Keystone XL pipeline. In total, NextGen mobilized more than $2 million against Cuccinelli. “It’s a very clear signal to candidates who deny the basic science of climate change,” said Nayak.

The results in Whatcom County suggest that climate can be winning issue, too. What drew the flood of money into the council elections is a proposal to build an export terminal in the town of Cherry Point, which would transfer 48 million tons of coal carried from Montana and Wyoming by rail to cargo ships bound for Asia. While the implications of the port are global, its fate may be decided locally. Siting permits require the council’s approval, and a no vote could halt development indefinitely.

The millions of tons of carbon pollution that the port would unleash, along with the local impacts of coal trains, drew environmentalists into the fight. (Read my report from the Powder River Basin, the source of the coal, here.) The league’s Washington affiliate spent $279,000 on mailers, phone banks and door-to-door canvassing in the Whatcom County. The group’s PAC raised a total of $676,666, including $275,000 from Steyer’s campaign committee.

With the domestic market collapsing, coal producers see the export terminal—along with two others proposed in the Pacific Northwest—as a vital gateway to new customers. Coal interests gave more than $140,000 to Save Whatcom, a PAC that supported the four opposing candidates for the council. Cloud Peak Energy, a coal producer that plans to ship 16 million tons annually through Cherry Point, kicked in $50,000, as did Ohio-based Global Coal Sales. A Houston couple that owns one of the largest private coal reserves in the country and has financial interests in Arch Coal, another producer lobbying for the port facilities, donated $32,000.

Carl Weimer, an incumbent on the council whom environmental groups supported, told The Nation that the ports were the pivotal issue in the council elections, even though candidates could not take an explicit stance on them because the council operates as a judicial body. “The coal terminal brought out a lot of volunteers on our side,” Weimer said. (He won his race 56 to 42.) “It drove a lot of grassroots motivation,” agreed Ken Mann, another incumbent backed by the greens who kept his seat, although he saw the election less as a referendum on coal than a vote of no confidence in an anti-government, anti-science conservative platform.

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Weimer and Mann said the unprecedented amount of money spent by the candidates and by outside groups changed the local elections significantly. “I have never seen so many mailers in Whatcom County as I did this year,” said Mann. But both councilmen were hesitant to give too much credit to outside influence. “I think the money sort of cancelled [itself] out,” Mann said. “Frankly, yes—the money was great to have. But with enough smart people and organization you can overcome money and get the message out and rally the voters.”

It’s that combination of money and mobilization that could make climate a real issue in future races. “Our public so strongly supports our policies and positions that as long as we don’t just cede terrain, and invest enough to get the message out, we’ve got a very good shot,” said Navin Nayak. He acknowledged that in bigger election years environmental groups would be outspent by energy and other industry interests. “Our huge advantage is our ability to run a grassroots program built in advance. The Koch brothers don’t have the energy or the message to go door-to-door.”

Bill McKibben: Will Obama block the Keystone Pipeline or just keep bending?

Will ENDA Be the Next Casualty of the GOP’s Internal Crisis?

Gay Rights

Last night the Senate voted 61-30 to consider a law barring employers nationwide from discriminating against gay and transgender workers. Seven Republicans joined Democrats in support of the Employment Non-Discrimination Act (ENDA), marking the first time the Senate has taken up workplace protections for transgender Americans, and the chamber’s first consideration of legal rights for gay workers since 1996, when a version of ENDA was defeated 50-49.

Although the bill is expected to pass the Senate later this week behind overwhelming popular support, ideological resistance from House Republicans may keep it from becoming law. On Monday, Speaker John Boehner indicated that he will refuse to bring ENDA up for a vote. “The Speaker believes this legislation will increase frivolous litigation and cost American jobs, especially small business jobs,” said a spokesman.

ENDA’s dim prospects in the House illustrate how far right of the American mainstream the GOP has been pulled. More than 70 percent of the country supports legislation extending legal protections to gay and transgender workers, according to a recent Washington Post poll. In Mississippi, the state with the lowest level of support, 63 percent of residents approve of such legislation. Pollsters found the highest level of support in Massachusetts, with 81 percent in favor. Twenty-two states already bar employers from discriminating based on sexual orientation, and seventeen of those laws cover transgender workers.

“The movement of the country is way ahead of where Congress is,” said Liz Abzug, a political consultant, civil rights advocate and the daughter of Bella Abzug, who introduced the original legislation protecting gays and lesbians from discrimination in 1974. “It’s taken too long, and it’s unfortunate it may not pass the House at this point in history when we’ve gotten all sorts of gains for the LGBTQ community, including gay marriage and repealing ‘Don’t Ask, Don’t Tell.’ ”

Republicans themselves acknowledge they need to revise their position on gay rights in order to stay relevant. “Already, there is a generational difference within the conservative movement about issues involving the treatment and the rights of gays—and for many younger voters, these issues are a gateway into whether the Party is a place they want to be,” reads the RNC’s 2012 autopsy. The American Unity Fund, led by heavyweight conservative donor Paul Singer and former Republican National Committee chairman Ken Mehlman, recently hired former Republican lawmakers to lobby for ENDA. Two Republicans, Susan Collins of Maine and Mark Kirk of Illinois, co-sponsored the legislation in the Senate, and it has a handful of Republican co-sponsors in the House.

But in the lower chamber, the ideological flank that has been pulling the party to the right since 2010 is calling the shots. Fresh from triggering last month’s shutdown, the Heritage Action Fund plans to punish Republican lawmakers who vote for ENDA by marking them down on Heritage’s legislative scorecard. In opposing workplace protections for gay and transgender Americans, Heritage claims to be standing up for “business owners’ civil liberties,” which “would be trampled upon” by the law.

Business owners don’t seem particularly worried, themselves. According to the Government Accountability Office, employers have received “relatively few” discrimination complaints based on sexual orientation or gender identity in states with such protections. Almost 90 percent of Fortune 500 companies have put anti-discrimination policies in place to protect gay employees, and more than half of those policies also cover transgender workers. Dozens of prominent corporations including Apple, BP America, Citigroup, Coca-Cola, General Motors, Google and Hewlett-Packard explicitly support ENDA. Even the Chamber of Commerce is neutral on the law.

As companies and states put forward their own protections, mistreatment in the workplace continues to be a real and pervasive experience for gay and transgender Americans. As many as 43 percent have experienced discrimination at work, from earning less than straight colleagues to being fired based on their sexual orientation. In one study, 90 percent of transgender employees reported being harassed or discriminated against, or concealed their gender identity to avoid it. House Speaker John Boehner claims that such discrimination “is covered by existing law,” but in fact LGBT workers in more than half the states have no legal protection from being fired or passed over for a position because of their identity.

“A federal, enforceable law is the strongest thing you can get to protect your full civil rights,” said Abzug. “I don’t think we’ve done a good job at making this a number-one priority.” She noted that many Americans have no idea workplace discrimination is still legal in many states. “I think that if the gay community put as much pressure around this… as it did on ‘don’t ask, don’t tell’ and gay marriage, this thing would have passed already.”

It’s true that ENDA hasn’t been as prominent in the national conversation as gay marriage, but the bill’s advocates are still far stronger than its opponents. There’s big money behind conservative PACs like American Unity that are rewarding Republican candidates who support gay rights. Beyond Heritage Action and conservative Christian lobbies like the American Family Association and the Family Research Council, there is little organized resistance to the law.

Partly, weak opposition reflects that significant concessions were made to win over conservatives, such as language ensuring that companies are not liable for disparate outcomes, only up-front discrimination. Advocates are worried that the religious exemption, which the Senate may revise this week, will be so broad that the law will not provide adequate protection. The exemption would allow any organization that may discriminate based on religion—for example, religious schools allowed hire teachers of a particular faith—to also discriminate against LGBT workers. “It gives a stamp of legitimacy to LGBT discrimination that our civil rights laws have never given to discrimination based on an individual’s race, sex, national origin, age or disability,” reads a joint statement issued by the American Civil Liberties Union, Lambda Legal, National Center for Lesbian Rights and the Transgender Law Center. Republican Senators Kelly Ayotte and Rob Portman, who provided the final votes needed to advance ENDA on Monday, only did so after a cloakroom deal in which Democrats agreed to allow votes on several amendments that would widen the religious exemption.

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What’s truly holding ENDA back now is Boehner’s capitulation to the hard right. If ENDA fails to get even a vote in the House, it will be another symptom of a gerrymandered political landscape in which Republican representatives fear primary attacks from the right more than punishment from popular opinion. That’s what has empowered the wing-nut coalition in the House, already at great cost. Adding basic rights to that tally should be a sobering reminder that undemocratic electoral processes produce undemocratic governance.

Sean Guillory on the LGBT movement’s fight against repression in Russia.

Tallying Obamacare’s Winners and Losers

Healthcare rally

We know now that President Obama wasn’t exactly right when he said that when Obamacare debuts, “If you like your insurance plan you will keep it. No one will be able to take that away from you.” This month many Americans began getting letters from their insurer informing them that plans were being cancelled because they do not meet the minimum coverage standards mandated by the Affordable Care Act. Naturally, these letters shocked many of their recipients, and drew accusations of deception from the right.

A more important question than whether Obama lied is what will really happen to the people getting the letters. Many are worried that they’ll now be forced to pay more for coverage they don’t need. There are three things to unpack here: how many people will lose their current policies, how much they’ll pay for their new plans and whether they need insurance that meets the new minimum requirements at all.

The first question is the simplest to answer. It turns out that only 3 percent of the population may pay higher premiums for new insurance policies. That’s according to numbers that Jonathan Gruber, an economist at MIT who helped to design Romneycare and Obamacare, broke down for Ryan Lizza yesterday.


Source: Justin Wolfers

Here’s how the math works: the “winners” are the 14 percent of people who are currently uninsured and should gain coverage because of the healthcare law. (This figure depends in part on how many states expand Medicaid, and leaves out the 11 million undocumented immigrants excluded from the ACA’s provisions.) For another 80 percent of Americans, who have insurance through their employer or through Medicaid, Medicare or the VA, little will change. That leaves those who purchase their own insurance on the private market, about 6 percent of the population. Gruber estimates that half of those people will be able to purchase new plans so similar to their current policies that the change will amount to “relabeling,” effectively.

We end up with 3 percent compelled to buy significantly different coverage. At this point it’s impossible to say exactly how many will pay higher premiums for those new plans or how significant their rate hikes will be. Many of the people receiving cancellation letters likely chose inexpensive insurance because of financial constraints, and so may be eligible for subsidies.

Still, there will undoubtedly be people who will pay more, and many of them will be mad about it—like David Frum, who says that he will fork over an extra $200 a month for a worse policy, because of the way the law pools risk. “Presumably somewhere there is a DC resident who smokes or who has some pre-existing condition who will receive a corresponding $200 a month windfall,” Frum wrote earlier this week.

That’s how the law works. The outrage over cancelled policies is, at heart, an old song rejecting the suggestion of collective responsibility. Someone receiving a cancellation letter and then facing higher premiums will undoubtedly be unpleasantly surprised, but the fact that 3 percent of Americans may pay more than they do now—so that another 14 percent can be insured—shouldn’t be news to anyone who’s followed healthcare reform. It may not be fair, but neither is charging women higher premiums or locking sick people out of the insurance marketplace. “The ACA was ingeniously designed to deliver benefits to Democratic constituencies and impose costs on Republican ones,” Frum complains. Never mind that red states stand to benefit most from Obamacare, and that there’s no polling I’ve ever seen correlating pre-existing conditions and liberalism. Of course, a better way to ensure that all constituencies receive the same benefits would be a single-payer system.

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I can’t evaluate Frum’s charge that his new plan will be worse than his old one, but that’s unlikely to be the case for most people receiving cancellation letters. As Jonathan Chait notes, it’s patronizing to tell people they are only happy with their cheap plans because they don’t know better, but it’s also true. “Even highly educated consumers within this market were frequently snookered by insurance plans that turned out to leave them exposed to surprise costs,” Chait writes. In 2009, 78 percent of Americans who filed for bankruptcy because of medical problems had insurance at the onset of their illness.

Those higher rates don’t only guarantee a minimum range of essential health benefits, limited co-pays and the elimination of lifetime caps. They’re also an assurance that later on, should someone like Frum fall ill, he can still get coverage. That’s what the latest outrage about Obamacare victims misses: the losers and winners aren’t fixed.

Zoë Carpenter on the damaging effects of some states’ refusal to expand Medicaid.

How States Taken Over by the GOP in 2010 Have Been Quietly Screwing Over the American Worker

Union worker

Last year, Tennessee school teachers lost their collective bargaining rights. So did municipal workers in Oklahoma. And farm workers and childcare providers in Maine. Research assistants in Michigan, too.

These attacks on labor were not isolated instances of ideological union-busting, according to a report released today by the Economic Policy Institute. The study traces the rise of a broad and coordinated campaign, fueled by corporate cash and conservative state legislators, to strip workers in both public and private sectors of their rights.

Since Republicans gained full control of eleven state legislatures in the 2010 midterm elections, states have passed a series of bills modeled on legislation written by the American Legislative Exchange Council and promoted by employers’ groups like the Chamber of Commerce and the National Restaurant Association. Between 2011 and 2012, four states rolled back or limited the minimum wage, which has already fallen behind inflation and greater hikes in the cost of education and medical care. Four states eased restrictions on child labor, and sixteen made it more difficult for the unemployed to get benefits. Fourteen states restricted the collective bargaining rights of public employees, or their ability to collect “fair share” fees from workers choosing not to become union members.

Source: EPI

“The most striking feature of the pattern of state legislation,” wrote Gorden Lafer, a political economist at the University of Oregon and the author of the report, “is the extent to which similar legislation has been introduced, in largely cookie-cutter fashion, in multiple legislatures across the country.”

Such legislation is neither locally inspired nor driven by economic necessity. “None of this comes from individual legislators,” Lafer said at a press conference today. “This is coordinated and national.” Corporate groups like the Koch brothers–funded Americans for Prosperity and the Club for Growth have poured money into state elections, helping to elect right-wing lawmakers who then peddle ALEC’s model bills, which incrementally shift the balance of power between employers and employees.

The results are wage and benefit cuts, poorer working conditions and fewer legal protections for all workers—unionized, nonunionized, public and private. Workers have lost overtime and sick leave. Others have been misclassified as independent contractors, losing unemployment insurance and workers’ compensation. While more than two-thirds of workers have some pay stolen from their paychecks each week by their employers, states have reduced support for the enforcement of wage laws.

The same corporate lobbies weakening labor protections are also trying to stop people from voting in support of workers’ rights. Broadly, both conservatives and liberals support sick leave and minimum wage increases; accordingly, popular referendums have often rejected anti-worker bills favored by state legislators, and many municipalities have instituted their own employee protections. Employers’ groups have tried to roll back and pre-empt voters in several states, including Wisconsin, where lawmakers voted to prohibit localities from setting sick leave standards and nullified the sick leave law that 68 percent of voters in Milwaukee approved in 2008. Louisiana banned all local governments from instituting a right to sick leave.

“What we see simultaneously is a massive effort to directly cut down wages and benefits, take away rights, like the right to collect on wages or collective bargaining, but also…shrink democracy, to shrink the number of things about our economy citizens have the right to vote on,” Lafer said today.

The report also digs into the contradictions of anti-worker legislation. For example, ALEC argues against raising the minimum wage by citing studies that show “increasing starting wages lures high school students into the full-time work force, resulting in an increase in high school drop-out rates”—while working successfully in other states to roll back restrictions on child labor. In Idaho, adolescents are now permitted to do manual labor for ten hours a week, while Wisconsin lifted all restrictions for 16- and 17-year-old workers.

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Perhaps the most glaring inconsistency is the fact that conservative lawmakers and employer lobbies often justify anti-union legislation as protection for non-unionized workers in the private sector. The report concludes that in fact these workers suffer the most when labor standards are undermined.

Fiscal crises are another oft-cited rationale for laying off public employees and cutting services. But the deepest cutbacks did not occur in states with the most significant budget deficits. The eleven states that became fully controlled by Republicans after the 2010 elections laid off five times as many of their employees in one year than the thirty-nine other states did on average. Nearly three-quarters of all the public workers laid off in 2011 worked for one of those states, or for the Texas government. Those twelve states accounted for just one-eighth of the deficits in all state budgets.

Workers were already vulnerable to rising inequality and the weak economy, and deliberate attempts to weaken labor standards only worsens poor employment trends. The campaign is likely to continue. Lafer noted that many Americans underestimate the impact of Citizens United at the state level, where “it’s cheap to buy a state legislator.”

“These are the most powerful lobbies in the country,” Lafer said. “We should expect to see more of this.”

Zoë Carpenter travels to coal country to investigate the future of mining in the Power River Basin.

The NSA Spied on Angela Merkel—and the Rest of Us, Too

Senator Dianne Feinstein

Of all the spying activities conducted by the National Security Agency and disclosed by Edward Snowden, the one provoking the most alarm in Washington is the revelation that the agency monitored the communications of at least thirty-five world leaders, including Angela Merkel. Suddenly there is concern that the agency has overstepped its authority regarding foreign dignitaries—but not necessarily when it comes to American citizens.

After an outcry from Europe, the Obama administration indicated it may order the NSA to stop monitoring the heads of American allies. Senator Dianne Feinstein, the chair of the Senate Intelligence Committee and a prominent defender of domestic surveillance, said in a statement that Congress was not “satisfactorily informed” about the program. “With respect to NSA collection of intelligence on leaders of US allies…I am totally opposed,” she declared.

The California Democrat said she will oversee “a total review” of “all intelligence collection programs,” which could be a watershed moment not only for the NSA, which faced little public scrutiny prior to the release of the documents obtained by Edward Snowden, but also for the entire intelligence community, including the CIA, the FBI and the Defense Intelligence Agency.

The sudden crack in Feinstein’s defense of the NSA is certainly noteworthy. However, declaring that “Feinstein Pulls the Rug Out From Under the NSA,” that she “Shivved the Spies” and is suddenly “off the NSA bus” perhaps overstates the impact of fallout from foreign spying. Ordering the NSA to stop eavesdropping on world leaders and rolling back the mass collection of communication records from millions of Americans represent different directives. It’s far from clear that Feinstein’s review will lead to the latter, or that it will thoroughly probe other domestic surveillance activities that have only been hinted at.

Feinstein went ahead with a markup of her own NSA reform bill yesterday, which would allow the agency to continue to vacuum up Americans’ call records indefinitely. Meanwhile, sympathetic lawmakers led by House Intelligence Committee chairman Mike Rogers lobbed softballs at NSA director Keith Alexander and National Intelligence director James Clapper during a hearing. Questioning did little to investigate the effectiveness of dragnet surveillance or to challenge officials’ assertion that “inaccurate reporting” is the essential concern.

Eavesdropping on Merkel and thirty-four other world leaders says plenty about the NSA’s disregard for the foreign policy implications of its actions. But it is not particularly surprising that the agency gathers information on foreign leaders, particularly since the NSA’s authority is for conducting foreign intelligence operations. Domestic surveillance programs, on the other hand, present a real threat to the civil rights of millions of Americans, and have the potential to dramatically refashion the relationship between the state and its citizens.

Just this afternoon, The Washington Post reported that the NSA has tapped into the links between Google and Yahoo data centers in order to intercept correspondence records as well as the contents of communications, and stores the information in its own data warehouses. Because the information flowing to and from overseas data centers is not delineated by national boundaries, the Post story explains, the NSA has “amassed content and metadata on a previously unknown scale from US citizens and residents.”

This is the kind of activity that warrants congressional investigation, and official condemnation. There is nothing praiseworthy in opposing the violation of the privacy of powerful world leaders while ignoring the rights of millions of ordinary citizens.

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Legislation introduced Tuesday in the House by James Sensenbrenner and in the Senate by Patrick Leahy would end the phone records program under section 215 of the Patriot Act. “The government has not made a compelling case that this program is an effective counterterrorism tool, especially when balanced against the intrusion on Americans’ privacy,” Leahy said in a statement. The legislation, which has seventy co-sponsors in the House and a sixteen in the Senate, would also limit the collection of Internet data under the FISA Amendments Act, institute a civil liberties advocates on the Foreign Intelligence Services Court and require public release of significant court decision and new inspector general audits.

Is the NSA spying on President Obama? asks William Greider.

Privacy Advocates Turn Up the Heat on the ‘Business-as-Usual Brigade’

Senator Dianne Feinstein


Stop Watching Us video courtesty of the Electronic Frontier Foundation.

On Saturday, thousands of people are expected to rally in Washington, DC, to protest the National Security Agency’s surveillance programs that, according to documents released by Edward Snowden, collect data from American citizens. Saturday’s rally comes at a key moment, as the Senate Intelligence Committee is expected to take up legislation to revise the NSA’s spying authority next week.

It’s clear that reform is needed—but less so that it will come out of the Intelligence Committee. Instead, committee chairwoman Dianne Feinstein wants to make the NSA’s bulk collection of phone records permanent. In an op-ed published in USA Today on Monday, the California senator called the program “legal,” “effective in helping to prevent terrorist plots,” and claimed it was “not surveillance.” She argued that the metadata program should continue, and said her bill would “codify existing procedures into law.”

Feinstein has made it clear in public comments that her main concern is the public’s “misperception” of the program, not the NSA’s activities or the authority of the Foreign Intelligence Surveillance Court, which authorizes the agency’s surveillance requests. To that end her legislation is targeted primarily at increasing transparency in the agency. It would require the NSA to release an annual report, clarify the benchmark of “reasonable, articulable suspicion” the agency has to meet in order to monitor an individual’s communications and Senate confirmation of the NSA’s director—needed revisions, but the most profound impact of her legislation would be to formally sanction and normalize the collection of vast troves of data about American citizens.

Senator Ron Wyden, Feinstein’s colleague on the Intelligence Committee, made a less-than-subtle jab at the superficiality of her proposal in remarks at the Cato Institute earlier this month. Wyden warned of a “business-as-usual brigade” that will “try mightily to fog up the surveillance debate and convince Congress and the public that the real problem here is not overly intrusive, constitutionally flawed domestic surveillance, but sensationalistic media reporting.” He continued: “their endgame is ensuring that any surveillance reforms are only skin deep.”

The Oregon senator, along with Republican Ron Paul and Democrats Mark Udall and Richard Blumenthal, introduced a comprehensive reform proposal last month that would have a more profound effect on the NSA’s domestic surveillance activities. Their bill would prohibit the collection of phone records under section 215 of the Patriot Act, close loopholes in section 702 of the FISA Amendment Act to ensure that domestic communications are not swept up along with foreigners’ data, and reform the Foreign Intelligence Surveillance Court to require declassification of major opinions and to install an independent civil liberties advocate to argue against the government in critical cases.

Senator Patrick Leahy, chairman of the Judiciary Committee, has also endorsed a sharper curtailment of the NSA’s authority under section 215, as well as the establishment of a special advocate. But Feinstein has vowed to fight the restrictions on metadata collection called for by Leahy and Wyden. “I will do everything I can to prevent this program from being canceled,” she said at a hearing in early October.

The crux of the disagreement comes down to efficacy. Feinstein has suggested that metadata analysis could have prevented the attacks of September 11, 2001, and that it is critical to ongoing counterterrorism operations. According to her USA Today op-ed, the program has “played a role in stopping roughly a dozen terror plots.” This language is a significant step back: in a previous op-ed, Feinstein parroted the NSA’s claim that “fifty-four terrorist events have been interrupted” by metadata collection and other programs, a wildly inflated figure that has been thoroughly debunked. So far, officials have publicly identified only four cases in which the controversial surveillance programs played a role, and in none of them is it clear that the section 215 and section 702 authorities were essential. Proponents of deeper reform like Wyden and Leahy have argued that the minimal national security value of the program does not justify the unprecedented intrusion into Americans’ private lives.

It is exceedingly difficult for the public to weigh these competing claims. Although various congressional committees have held hearings since the documents leaked by Snowden began appearing in the press, the hearings have been far less rigorous and illuminating than those conducted by the Church Committee, which formed in the 1970s after Seymour Hersh reported that the CIA was spying on Americans. The Church Committee invited testimony from hundreds of witnesses and uncovered a slew of abuses in the intelligence community. This time, the closest thing to an airing of intelligence laundry the public has heard are Wyden’s pointed questions, such as his continued insistence that officials give a full answer regarding the use of geolocation data.

Congress is not expected to challenge the NSA’s activities overseas, which provoked a pair of vexed long-distance phone calls to the Oval Office this week. French president François Hollande called Obama on Monday, concerned about a report in Le Monde that the NSA snooped on the phone calls and e-mails of French citizens, and on Thursday, German Chancellor Angela Merkel called to express her anger over revelations that the NSA had monitored her cellphone. The White House did not fully refute her charge, saying only the US intelligence was not currently listening in on her calls, and would not in the future.

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The apparent impasse between top Democrats in the Senate makes a challenging context for reform. But that was the case when Republican Representative Justin Amash’s attempt to defund the bulk data collection program nearly prevailed in the House in July, indicating broad support for checking the NSA’s surveillance authorities. Expect similar bipartisanship at Saturday’s rally, which was organized by a coalition called Stop Watching Us that encompasses a political spectrum from libertarians to greens. As Wyden said earlier this month, reform “is going to take a groundswell of support from lots of Americans across the political spectrum…communicating that business as usual is no longer OK, and they won’t buy the argument that liberty and security are mutually exclusive.”

The rally will take place on Saturday, October 26 at noon, beginning at Union Station and ending on the National Mall at 3rd Street and Madison Drive NW, where a stage will be set up for speakers and performers.

Healthcare.gov Sucks, but That's Not the Real Threat to Obamacare

Affordable Care Act

As you may have heard, Healthcare.gov, the online insurance marketplace established under Obamacare, is having some trouble. The Washington Post reported Monday that tests conducted days before the site went live foreshadowed its current paralysis, while contractors predict it will be weeks before they can fully repair the system. As many as 5 million lines of code may have to be rewritten.

These are significant issues: without a functional web portal, people in more than half the states won’t be able to sign up for insurance. Why the site is such a mess is certainly an interesting story. But the sudden media swarm from the right and the left seems out of proportion, since practical and political repercussions will be minimal unless the site’s troubles fully wreck the rollout, which won’t be clear for several weeks.

The persistence of ideologically driven challenges to the healthcare law at the state level is more likely to keep millions uninsured. Healthcare.gov’s problems—and their solutions—are technical, not political. They may reflect unreadiness and even incompetence, but not cruelty and dishonesty.

Resistance to the expansion of Medicaid falls into that second category. Two-thirds of low-income blacks and single mothers, along with more than half of uninsured, low-wage workers, are likely to remain uninsured because they live in one of the states that have declined to expand the program.

Conservative groups like Americans for Prosperity, flush with cash from the billionaire Koch brothers, are running an aggressive ground game against expansion in undecided states including Virginia, Louisiana, Michigan and Pennsylvania. They are punishing supportive Republican lawmakers with radio spots and mailers, and by contacting their constituents directly via phone or at their doors. The Koch-backed National Center for Policy Analysis sent a witness to testify against expansion at a hearing in Virginia this week, where Obamacare is a major point in the gubernatorial race.

The decision these undecided states make about Medicaid could shift the calculus in other Republican-controlled states, even those that have already decided not to expand the program. Already there are signs that conservative governors are re-evaluating their positions, compelled by financial incentives.

On Monday, Ohio became the fourth GOP-controlled state to expand the Medicaid program. In a direct rebuttal of his fellow Republicans in the state legislature, governor John Kasich asked a state board that oversees adjustments in the budget to accept $2.5 billion in new Medicaid funds. The board voted to do so, extending eligibility to 275,000 adults. The conservative Buckeye Institute and the 1851 Center for Constitutional Law immediately declared that they would challenge the board’s jurisdiction in court.

Kasich’s push for the expansion does not represent a shift in his feeling for Obamacare, which he opposes. Rather, it reflects recognition of the economic benefits expected to result from accepting billions of federal dollars: it’s expected to save Ohio $404 million over two years. The Ohio Chamber of Commerce supported Kasich’s move, as did hospitals and clinics throughout the state.

Kasich’s decision may encourage other conservative governors to expand their Medicaid programs eventually, particularly if Kasich survives his re-election campaign next year. But a more likely trend has been set by Arkansas, which put forward an alternative model for low-income, uninsured adults through which federal money would subsidize the purchase of private plans on the state’s new insurance exchange, rather than go directly to the Medicaid program. Iowa is waiting for approval of a similar model, and Maine’s governor, who vetoed state legislators’ approval of the expansion, indicated that he will consider an alternative approach.

Certain measures in the Arkansas and Iowa plans could help reduce healthcare costs—for example, by encouraging preventive care and penalizing unnecessary visits to emergency rooms. But it costs the government more to subsidize beneficiaries on the exchange than to pay their bills through Medicaid, and it isn’t clear who would pick up the extra expense. And while Medicaid strictly limits deductibles and co-pays, many private plans offered through the insurance exchanges are expected to require significant cost-sharing.

In Pennsylvania, Republican Governor Tom Corbett has proposed a complete overhaul of the state’s Medicaid program in exchange for accepting federal funds to subsidize the purchase of private insurance for low-income residents. An analysis by the state’s Independent Fiscal Office concluded that these expansion funds would add a net $255 million a year to Pennsylvania’s budget, while a Rand Corporation study said expansion would add more than $3 billion to the state’s economy each year, along with 35,000 jobs. At the same time, Corbett wants to raise Medicaid recipients’ monthly co-pay, reduce the services covered by the program, and institute a work requirement.

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Clearly these alternative plans aren’t perfect, but little about healthcare reform is. What’s significant is the slow-growing recognition in some red states that refusing to extend insurance coverage to poor Americans out of ideological spite simply doesn’t add up.

In contrast to the clear fiscal and ethical reasons for expansion, the arguments against it are seriously flawed. Citing data indicating that Medicare patients tend to be sicker than the uninsured, opponents claim that no health insurance at all is better than enrolling in the program. That’s an unsubstantiated conclusion, as Paul Krugman explains: “Sick people are likely to have low incomes; more generally, low-income Americans who qualify for Medicaid just tend in general to have poor health.” Many of those who forego insurance are young, therefore more likely to be healthy.

A functioning Healthcare.gov is critical to the healthcare law’s success, but the Medicaid expansion is its heart: about half of those gaining insurance through Obamacare were expected to be new Medicaid recipients, many of whom live below the poverty line but above the eligibility threshold set by their home state. Unlike the federal exchange, the Medicaid website is working, and enrollment is strong. That makes an interesting case for a simpler system for everyone else. Single-payer, anyone?

Kansas slashed its mental health services, and now its suicide rate is on the rise. Allison Kilkenny reports.

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