Patient Protection and Affordable Care Act
 |
| Long title |
The Patient Protection and Affordable Care Act |
| Acronyms(colloquial) |
PPACA, ACA |
| Nicknames |
Affordable Care Act, Health Insurance Reform, Healthcare Reform, Obamacare |
| Enacted by |
the 111th United States Congress |
| Effective |
March 23, 2010; 7 years ago
Most major provisions phased in by January 2014; remaining provisions phased in by 2020 |
| Citations |
| Public law |
111–148 |
| Statutes at Large |
124 Stat.119through 124 Stat.1025(906 pages) |
| Legislative history |
- Introduced in the Houseasthe “Service Members Home Ownership Tax Act of 2009” (H.R. 3590) byCharles Rangel (D–NY) on September 17, 2009
- Committee consideration byWays and Means
- Passed the House on October 8, 2009 (416–0)
- Passed the Senate as the “Patient Protection and Affordable Care Act” on December 24, 2009 (60–39) with amendment
- House agreed to Senate amendment on March 21, 2010 (219–212)
- Signed into law by PresidentBarack Obamaon March 23, 2010
|
| Major amendments |
Health Care and Education Reconciliation Act of 2010
Comprehensive 1099 Taxpayer Protection and Repayment of Exchange Subsidy Overpayments Act of 2011 |
| United States Supreme Court cases |
National Federation of Independent Business v. Sebelius
Burwell v. Hobby Lobby
King v. Burwell |
The Patient Protection and Affordable Care Act, often shortened to the Affordable Care Act (ACA) and nicknamed Obamacare, is a United States federal statute enacted by the 111th United States Congress and signed into law by PresidentBarack Obama on March 23, 2010. Under the act, hospitals and primary physicians would transform their practices financially, technologically, and clinically to drive better health outcomes, lower costs, and improve their methods of distribution and accessibility.
The Affordable Care Act was designed to increase health insurance quality and affordability, lower the uninsured rate by expanding insurance coverage and reduce the costs of healthcare. It introduced mechanisms including mandates, subsidies and insurance exchanges.[1][2] The law requires insurers to accept all applicants, cover a specific list of conditions and charge the same rates regardless of pre-existing conditions or sex.[3]
The ACA has caused a significant reduction in the number and percentage of people without health insurance, with estimates ranging from 20-24 million additional persons covered during 2016.[4][5] Increases in overall healthcare spending have slowed since the law was implemented, including premiums for employer-based insurance plans.[6] The Congressional Budget Office reported in several studies that the ACA would reduce the budget deficit, and that repealing it would increase the deficit.[7][8]
As implementation began, first opponents, then others, and finally the president himself adopted the term “Obamacare” to refer to the ACA.[9]
The law and its implementation faced challenges in Congress and federal courts, and from some state governments, conservativeadvocacy groups, labor unions, and small business organizations. The United States Supreme Court upheld the constitutionality of the ACA’s individual mandate as an exercise of Congress’s taxing power,[10]found that states cannot be forced to participate in the ACA’s Medicaid expansion,[11][12][13] and found that the law’s subsidies to help individuals pay for health insurance are available in all states, not just in those that have set up state exchanges.[14]
Together with the Health Care and Education Reconciliation Act amendment, it represents the U.S. healthcare system‘s most significant regulatory overhaul and expansion of coverage since the passage of Medicare and Medicaid in 1965.[15][16][17]
Provisions
The President and White House Staff react to the House of Representatives passing the bill on March 21, 2010.
The ACA includes provisions to take effect between 2010 and 2020, although most took effect on January 1, 2014. Few areas of the US health care system were left untouched, making it the most sweeping health care reform since the enactment of Medicare and Medicaid in 1965.[15][16][17][19] However, some areas were more affected than others. The individual insurance market was radically overhauled, and many of the law’s regulations applied specifically to this market,[15] while the structure of Medicare, Medicaid, and the employer marketwere largely retained.[16] Most of the coverage gains were made through the expansion of Medicaid,[20] and the biggest cost savings were made in Medicare.[16] Some regulations applied to the employer market, and the law also made delivery system changes that affected most of the health care system.[16] Not all provisions took full effect. Some were made discretionary, some were deferred, and others were repealed before implementation.
Individual insurance
Guaranteed issue prohibits insurers from denying coverage to individuals due to pre-existing conditions. States were required to ensure the availability of insurance for individual children who did not have coverage via their families.
States were required to expand Medicaid eligibility to include individuals and families with incomes up to 133% of the federal poverty level, including adults without disabilities or dependent children.[21] The law provides a 5% “income disregard”, making the effective income eligibility limit for Medicaid 138% of the poverty level.[22]
The State Children’s Health Insurance Program (CHIP) enrollment process was simplified.[21]
Dependents were permitted to remain on their parents’ insurance plan until their 26th birthday, including dependents that no longer live with their parents, are not a dependent on a parent’s tax return, are no longer a student, or are married.[23][24]
Among the groups who remained uninsured were:
- Illegal immigrants, estimated at around 8 million—or roughly a third of the 23 million projection—are ineligible for insurance subsidies and Medicaid.[25][26] They remain eligible for emergency services.
- Eligible citizens not enrolled in Medicaid.[27]
- Citizens who pay the annual penalty instead of purchasing insurance, mostly younger and single.[27]
- Citizens whose insurance coverage would cost more than 8% of household income and are exempt from the penalty.[27]
- Citizens who live in states that opt out of the Medicaid expansion and who qualify for neither existing Medicaid coverage nor subsidized coverage through the states’ new insurance exchanges.[28]
Subsidies
Households with incomes between 100% and 400% of the federal poverty level were eligible to receive federal subsidies for policies purchased via an exchange.[29][30] Subsidies are provided as an advanceable, refundable tax credit[31][32] Additionally, small businesses are eligible for a tax credit provided that they enroll in the SHOP Marketplace.[33] Under the law, workers whose employers offer affordable coverage will not be eligible for subsidies via the exchanges. To be eligible the cost of employer-based health insurance must exceed 9.5% of the worker’s household income.
Subsidies (2014) for Family of 4[34][35][36][37][38]
| Income % of federal poverty level |
Premium Cap as a Share of Income |
Incomea |
Max Annual Out-of-Pocket Premium |
Premium Savingsb |
Additional Cost-Sharing Subsidy |
| 133% |
3% of income |
$31,900 |
$992 |
$10,345 |
$5,040 |
| 150% |
4% of income |
$33,075 |
$1,323 |
$9,918 |
$5,040 |
| 200% |
6.3% of income |
$44,100 |
$2,778 |
$8,366 |
$4,000 |
| 250% |
8.05% of income |
$55,125 |
$4,438 |
$6,597 |
$1,930 |
| 300% |
9.5% of income |
$66,150 |
$6,284 |
$4,628 |
$1,480 |
| 350% |
9.5% of income |
$77,175 |
$7,332 |
$3,512 |
$1,480 |
| 400% |
9.5% of income |
$88,200 |
$8,379 |
$2,395 |
$1,480 |
| a.^ Note: In 2014, the FPL was $11,800 for a single person and $24,000 for family of four.[39][40] See Subsidy Calculator for specific dollar amount.[41] b.^ DHHS and CBO estimate the average annual premium cost in 2014 would have been $11,328 for a family of 4 without the reform.[36] |
Premiums were the same for everyone of a given age, regardless of preexisting conditions. Premiums were allowed to vary by enrollee age, but those for the oldest enrollees (age 45-64 average expenses $5,542) could only be three times as large as those for adults (18-24 $1,836).[42]
Mandates
Individual
The individual mandate[43] is the requirement to buy insurance or pay a penalty for everyone not covered by an employer sponsored health plan, Medicaid, Medicare or other public insurance programs (such as Tricare). Also exempt were those facing a financial hardship or who were members in a recognized religious sect exempted by the Internal Revenue Service.[44]
The mandate and the limits on open enrollment[45][46] were designed to avoid the insurance death spiral in which healthy people delay insuring themselves until they get sick. In such a situation, insurers would have to raise their premiums to cover the relatively sicker and thus more expensive policies,[43][47][48] which could create a vicious cycle in which more and more people drop their coverage.[49]
The purpose of the mandate was to prevent the healthcare system from succumbing to adverse selection, which would result in high premiums for the insured and little coverage (and thus more illness and medical bankruptcy) for the uninsured.[47][50][51] Studies by the CBO, Gruber and Rand Health concluded that a mandate was required.[52][53][54] The mandate increased the size and diversity of the insured population, including more young and healthy participants to broaden the risk pool, spreading costs.[55] Experience in New Jersey and Massachusetts offered divergent outcomes.[50][53][56]
Business
Businesses that employ 50 or more people but do not offer health insurance to their full-time employees pay a tax penalty if the government has subsidized a full-time employee’s healthcare through tax deductions or other means. This is commonly known as the employer mandate.[57][58] This provision was included to encourage employers to continue providing insurance once the exchanges began operating.[59] Approximately 44% of the population was covered directly or indirectly through an employer.[60][61]
Excise taxes
Excise taxes for the Affordable Care Act raised $16.3 billion in fiscal year 2015 (17% of all excise taxes collected by the Federal Government). $11.3 billion was an excise tax placed directly on health insurers based on their market share. The ACA was going to impose a 40% “Cadillac tax” on expensive employer sponsored health insurance but that was postponed until 2018. Annual excise taxes totaling $3 billion were levied on importers and manufacturers of prescription drugs. An excise tax of 2.3% on medical devices and a 10% excise tax on indoor tanning services were applied as well.[62]
Insurance standards
Essential health benefits
The National Academy of Medicine defined the law’s “essential health benefits” as “ambulatory patient services; emergency services; hospitalization; maternity and newborn care; mental health and substance use disorder services, including behavioral health treatment; prescription drugs; rehabilitative and habilitative services and devices; laboratory services; preventive and wellness services and chronic disease management; and pediatric services, including oral and vision care”[63][64][65][66][67][68][69] and others[70] rated Level A or B by the U.S. Preventive Services Task Force.[71] In determining what would qualify as an essential benefit, the law required that standard benefits should offer at least that of a “typical employer plan”.[68] States may require additional services.[72]
Contraceptives
One provision in the law mandates that health insurance cover “additional preventive care and screenings” for women.[73] The guidelines mandate “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity”.[74] This mandate applies to all employers and educational institutions except for religious organizations.[75][76] These regulations were included on the recommendations of the Institute of Medicine.[77][78]
Risk management
ACA provided three ways to control risk for insurers in the individual and business markets: temporary reinsurance, temporary risk corridors, and permanent risk adjustment.
Risk corridor program
The risk-corridor program was a temporary risk management device defined under the PPACA section 1342[79]:1 to encourage reluctant insurers into the “new and untested” ACA insurance market during the first three years that ACA was implemented (2014-2016). For those years the Department of Health and Human Services (HHS) “would cover some of the losses for insurers whose plans performed worse than they expected. Insurers that were especially profitable, for their part, would have to return to HHS some of the money they earned on the exchanges”[80][81] According to an article in Forbes, risk corridors “had been a successful part of the Medicare prescription drug benefit, and the ACA’s risk corridors were modeled after Medicare’s Plan D.”[82] They operated on the principle that “more participation would mean more competition, which would drive down premiums and make health insurance more affordable” and “[w]hen insurers signed up to sell health plans on the exchanges, they did so with the expectation that the risk-corridor program would limit their downside losses.”[80] The risk corridors succeeded in attracting ACA insurers. The program did not pay for itself as planned with “accumulated losses” up to $8.3 billion for 2014 and 2015 alone. Authorization had to be given so that HHS could pay insurers from “general government revenues”. Congressional Republicans “railed against” the program as a ‘bailout’ for insurers. Then-Rep. Jack Kingston (R-Ga.), on the Appropriations Committee that funds the Department of Health and Human Services and the Labor Department “[slipped] in a sentence” — Section 227 — in the “massive” appropriationsConsolidated Appropriations Act, 2014 (H.R. 3547) that said that no funds in the discretionary spending bill “could be used for risk-corridor payments.” This effectively “blocked the administration from obtaining the necessary funds from other programs”[83] and placed Congress in a potential breach of contract with insurers who offered qualified health plans, under the Tucker Act[79] as it did not pay the insurers.[84][84] On February 10, 2017, in the Moda Health v the US Government, Moda, one of the insurers that struggled financially because of the elimination of the risk corridor program, won a “$214-million judgment against the federal government”. Justice Thomas C. Wheeler stated, “the Government “made a promise in the risk corridors program that it has yet to fulfill. Today, the court directs the Government to fulfill that promise. After all, ‘to say to [Moda], ‘The joke is on you. You shouldn’t have trusted us,’ is hardly worthy of our great government.”[85]
Temporary reinsurance
Temporary reinsurance for insurance for insurers against unexpectedly high claims was a program that ran from 2014 through 2016. It was intended to limit insurer losses.[citation needed]
Risk adjustment
Of the three risk management programs, only risk adjustment was permanent. Risk adjustment attempts to spread risk among insurers to prevent purchasers with good knowledge of their medical needs from using insurance to cover their costs (adverse selection). Plans with low actuarial risk compensate plans with high actuarial risk.[citation needed]
Other provisions
The ACA has several other provisions:
- Annual and lifetime coverage caps on essential benefits were banned.[86][87]
- Prohibits insurers from dropping policyholders when they get sick.[88]
- All health policies sold in the United States must provide an annual maximum out of pocket (MOOP) payment cap for an individual’s or family’s medical expenses (excluding premiums). After the MOOP payment cap is reached, all remaining costs must be paid by the insurer.[89]
- A partial community rating requires insurers to offer the same premium to all applicants of the same age and location without regard to gender or most pre-existing conditions (excluding tobacco use).[90][91][92] Premiums for older applicants can be no more than three times those for the youngest.[93]
- Preventive care, vaccinations and medical screenings cannot be subject to co-payments, co-insurance or deductibles.[94][95][96] Specific examples of covered services include: mammograms and colonoscopies, wellness visits, gestational diabetes screening, HPV testing, STI counseling, HIV screening and counseling, contraceptive methods, breastfeeding support/supplies and domestic violence screening and counseling.[97]
- The law established four tiers of coverage: bronze, silver, gold and platinum. All categories offer the essential health benefits. The categories vary in their division of premiums and out-of-pocket costs: bronze plans have the lowest monthly premiums and highest out-of-pocket costs, while platinum plans are the reverse.[68][98] The percentages of health care costs that plans are expected to cover through premiums (as opposed to out-of-pocket costs) are, on average: 60% (bronze), 70% (silver), 80% (gold), and 90% (platinum).[99]
- Insurers are required to implement an appeals process for coverage determination and claims on all new plans.[88]
- Insurers must spend at least 80–85% of premium dollars on health costs; rebates must be issued to policyholders if this is violated.[100][101]
Exchanges
Established the creation of health insurance exchanges in all fifty states. The exchanges are regulated, largely online marketplaces, administered by either federal or state government, where individuals and small business can purchase private insurance plans.[102][103][104]
Setting up an exchange gives a state partial discretion on standards and prices of insurance.[105][106] For example, states approve plans for sale, and influence (through limits on and negotiations with private insurers) the prices on offer. They can impose higher or state-specific coverage requirements—including whether plans offered in the state can cover abortion.[107] States without an exchange do not have that discretion. The responsibility for operating their exchanges moves to the federal government.[105]
State waivers
From 2017 onwards, states can apply for a “waiver for state innovation” that allows them to conduct experiments that meet certain criteria.[108] To obtain a waiver, a state must pass legislation setting up an alternative health system that provides insurance at least as comprehensive and as affordable as ACA, covers at least as many residents and does not increase the federal deficit.[109] Such states can exempt states from some of ACA’s central requirements, including the individual and employer mandates and the provision of an insurance exchange.[110] The state would receive compensation equal to the aggregate amount of any federal subsidies and tax credits for which its residents and employers would have been eligible under ACA plan, if they cannot be paid out due to the structure of the state plan.[108]
In May 2011, Vermont enacted Green Mountain Care, a state-based single-payer system for which they intended to pursue a waiver to implement.[111][112][113] In December 2014, Vermont decided not to continue due to high expected costs.[114]
Accountable Care Organizations
The Act allowed the creation of Accountable Care Organizations (ACOs), which are groups of doctors, hospitals and other providers that commit to give coordinated, high quality care to Medicare patients. ACOs were allowed to continue using a fee for service billing approach. They receive bonus payments from the government for minimizing costs while achieving quality benchmarks that emphasize prevention and mitigating chronic disease. If they fail to do so, they are subject to penalties.[115]
Unlike Health Maintenance Organizations, ACO patients are not required to obtain all care from the ACO. Also, unlike HMOs, ACOs must achieve quality of care goals.[115]
Others
Legislative history
President Obama signing the Patient Protection and Affordable Care Act on March 23, 2010
Background
An individual mandate coupled with subsidies for private insurance as a means for universal healthcare was considered the best way to win the support of the Senate because it had been included in prior bipartisan reform proposals. The concept goes back to at least 1989, when the conservativeHeritage Foundation proposed an individual mandate as an alternative to single-payer health care.[125] It was championed for a time by conservative economists and Republican senators as a market-based approach to healthcare reform on the basis of individual responsibility and avoidance of free rider problems. Specifically, because the 1986 Emergency Medical Treatment and Active Labor Act (EMTALA) requires any hospital participating in Medicare (nearly all do) to provide emergency care to anyone who needs it, the government often indirectly bore the cost of those without the ability to pay.[126][127][128]
President Bill Clintonproposed a healthcare reform bill in 1993 that included a mandate for employers to provide health insurance to all employees through a regulated marketplace of health maintenance organizations. Republican Senators proposed an alternative that would have required individuals, but not employers, to buy insurance.[127]Ultimately the Clinton plan failed amid an unprecedented barrage of negative advertising funded by politically conservative groups and the health insurance industry and due to concerns that it was overly complex.[129] Clinton negotiated a compromise with the 105th Congress to instead enact the State Children’s Health Insurance Program (SCHIP) in 1997.[130]
John Chafee
The 1993 Republican alternative, introduced by Senator John Chafee as the Health Equity and Access Reform Today Act, contained a “universal coverage” requirement with a penalty for noncompliance—an individual mandate—as well as subsidies to be used in state-based ‘purchasing groups’.[131] Advocates for the 1993 bill included prominent Republicans such as Senators Orrin Hatch, Chuck Grassley, Bob Bennett and Kit Bond.[132][133] Of 1993’s 43 Republican Senators, 20 supported the HEART Act.[125][134] Another Republican proposal, introduced in 1994 by Senator Don Nickles (R-OK), the Consumer Choice Health Security Act, contained an individual mandate with a penalty provision;[135] however, Nickles subsequently removed the mandate from the bill, stating he had decided “that government should not compel people to buy health insurance”.[136] At the time of these proposals, Republicans did not raise constitutional issues with the mandate; Mark Pauly, who helped develop a proposal that included an individual mandate for George H. W. Bush, remarked, “I don’t remember that being raised at all. The way it was viewed by the Congressional Budget Office in 1994 was, effectively, as a tax.”[125]
Mitt Romney’s
Massachusetts went from 90% of its residents insured to 98%, the highest rate in the nation.
[137]
In 2006, an insurance expansion bill was enacted at the state level in Massachusetts. The bill contained both an individual mandate and an insurance exchange. Republican Governor Mitt Romney vetoed the mandate, but after Democrats overrode his veto, he signed it into law.[138] Romney’s implementation of the ‘Health Connector’ exchange and individual mandate in Massachusetts was at first lauded by Republicans. During Romney’s 2008 presidential campaign, Senator Jim DeMint praised Romney’s ability to “take some good conservative ideas, like private health insurance, and apply them to the need to have everyone insured”. Romney said of the individual mandate: “I’m proud of what we’ve done. If Massachusetts succeeds in implementing it, then that will be the model for the nation.”[139]
In 2007, a year after the Massachusetts reform, Republican Senator Bob Bennett and Democratic Senator Ron Wyden introduced the Healthy Americans Act, which featured an individual mandate and state-based, regulated insurance markets called “State Health Help Agencies”.[128][139] The bill initially attracted bipartisan support, but died in committee. Many of the sponsors and co-sponsors remained in Congress during the 2008 healthcare debate.[140]
By 2008 many Democrats were considering this approach as the basis for healthcare reform. Experts said that the legislation that eventually emerged from Congress in 2009 and 2010 bore similarities to the 2007 bill[131] and that it was deliberately patterned after Romney’s state healthcare plan.[141]
Healthcare debate, 2008–10
Healthcare reform was a major topic during the 2008 Democratic presidential primaries. As the race narrowed, attention focused on the plans presented by the two leading candidates, Hillary Clinton and the eventual nominee, Barack Obama. Each candidate proposed a plan to cover the approximately 45 million Americans estimated to not have health insurance at some point each year. Clinton’s proposal would have required all Americans to obtain coverage (in effect, an individual mandate), while Obama’s proposal provided a subsidy but rejected the use of an individual mandate.[142][143]
During the general election, Obama said that fixing healthcare would be one of his top four priorities as president.[144] Obama and his opponent, Sen. John McCain, proposed health insurance reforms though they differed greatly. Senator John McCain proposed tax credits for health insurance purchased in the individual market, which was estimated to reduce the number of uninsured people by about 2 million by 2018. Obama proposed private and public group insurance, income-based subsidies, consumer protections, and expansions of Medicaid and SCHIP, which was estimated at the time to reduce the number of uninsured people by 33.9 million by 2018.[145]
After his inauguration, Obama announced to a joint session of Congress in February 2009 his intent to work with Congress to construct a plan for healthcare reform.[146][147] By July, a series of bills were approved by committees within the House of Representatives.[148] On the Senate side, from June to September, the Senate Finance Committee held a series of 31 meetings to develop a healthcare reform bill. This group — in particular, Democrats Max Baucus, Jeff Bingaman and Kent Conrad, along with Republicans Mike Enzi, Chuck Grassley and Olympia Snowe — met for more than 60 hours, and the principles that they discussed, in conjunction with the other committees, became the foundation of the Senate healthcare reform bill.[149][150][151]
Congressional Democrats and health policy experts like MIT economics professor Jonathan Gruber[152] and David Cutler argued that guaranteed issue would require both community rating and an individual mandate to ensure that adverse selection and/or “free riding” would not result in an insurance “death spiral”.[153] This approach was taken because the president and congressional leaders had concluded that more progressive plans, such as the (single-payer)Medicare for All act, could not obtain filibuster-proof support in the Senate. By deliberately drawing on bipartisan ideas — the same basic outline was supported by former Senate majority leaders Howard Baker, Bob Dole, Tom Daschle and George J. Mitchell—the bill’s drafters hoped to garner the votes necessary for passage.[154][155]
However, following the adoption of an individual mandate, Republicans came to oppose the mandate and threatened to filibuster any bills that contained it.[125] Senate minority leader Mitch McConnell, who led the Republican congressional strategy in responding to the bill, calculated that Republicans should not support the bill, and worked to prevent defections:[156]
It was absolutely critical that everybody be together because if the proponents of the bill were able to say it was bipartisan, it tended to convey to the public that this is O.K., they must have figured it out.[157]
Republican Senators, including those who had supported previous bills with a similar mandate, began to describe the mandate as “unconstitutional”. Journalist Ezra Klein wrote in The New Yorker that “a policy that once enjoyed broad support within the Republican Party suddenly faced unified opposition.”[128] Reporter Michael Cooper of The New York Times wrote that: “the provision … requiring all Americans to buy health insurance has its roots in conservative thinking.”[127][134]
The reform negotiations also attracted attention from lobbyists,[158] including deals between certain lobby groups and the advocates of the law to win the support of groups that had opposed past reforms, as in 1993.[159][160] The Sunlight Foundation documented many of the reported ties between “the healthcare lobbyist complex” and politicians in both parties.[161]
During the August 2009 summer congressional recess, many members went back to their districts and held town hall meetings on the proposals. The nascent Tea Party movement organized protests and many conservative groups and individuals attended the meetings to oppose the proposed reforms.[147] Many threats were made against members of Congress over the course of the debate.[162][163]
When Congress returned from recess, in September 2009 President Obama delivered a speech to a joint session of Congress supporting the ongoing Congressional negotiations.[164] He acknowledged the polarization of the debate, and quoted a letter from the late Senator Edward “Ted” Kennedy urging on reform: “what we face is above all a moral issue; that at stake are not just the details of policy, but fundamental principles of social justice and the character of our country.”[165] On November 7, the House of Representatives passed the Affordable Health Care for America Act on a 220–215 vote and forwarded it to the Senate for passage.[147]
Senate
The Senate began work on its own proposals while the House was still working. The United States Constitution requires all revenue-related bills to originate in the House.[166] To formally comply with this requirement, the Senate used H.R. 3590, a bill regarding housing tax changes for service members.[167] It had been passed by the House as a revenue-related modification to the Internal Revenue Code. The bill became the Senate’s vehicle for its healthcare reform proposal, discarding the bill’s original content.[168] The bill ultimately incorporated elements of proposals that were reported favorably by the Senate Health and Finance committees. With the Republican Senate minority vowing to filibuster, 60 votes would be necessary to pass the Senate.[169] At the start of the 111th Congress, Democrats had only 58 votes; the Senate seat in Minnesota ultimately won by Al Franken was still undergoing a recount, while Arlen Specter was still a Republican (he became a Democrat in April, 2009).
Negotiations were undertaken attempting to satisfy moderate Democrats and to bring Republican senators aboard; particular attention was given to Republicans Bennett, Enzi, Grassley and Snowe. On July 7 Franken was sworn into office, providing a potential 60th vote. On August 25 Ted Kennedy—a longtime healthcare reform advocate—died. Paul Kirk was appointed as Senator Kennedy’s temporary replacement on September 24.
After the Finance Committee vote on October 15, negotiations turned to moderate Democrats. Majority leader Harry Reid focused on satisfying centrists. The holdouts came down to Joe Lieberman of Connecticut, an independent who caucused with Democrats, and conservative Nebraska Democrat Ben Nelson. Lieberman’s demand that the bill not include a public option[153][170] was met,[171] although supporters won various concessions, including allowing state-based public options such as Vermont’s Green Mountain Care.[171][172]
Senate vote by state.
Democratic yes (58)
Independent yes (2)
Republican no (39)
Republican not voting (1)
The White House and Reid addressed Nelson’s concerns[173] during a 13-hour negotiation with two concessions: a compromise on abortion, modifying the language of the bill “to give states the right to prohibit coverage of abortion within their own insurance exchanges”, which would require consumers to pay for the procedure out of pocket if the state so decided; and an amendment to offer a higher rate of Medicaid reimbursement for Nebraska.[147][174] The latter half of the compromise was derisively termed the “Cornhusker Kickback”[175] and was repealed in the subsequent reconciliation amendment bill.
On December 23, the Senate voted 60–39 to end debate on the bill: a cloture vote to end the filibuster. The bill then passed, also 60–39, on December 24, 2009, with all Democrats and two independents voting for it, and all Republicans against (except Jim Bunning, who did not vote).[176] The bill was endorsed by the AMA and AARP.[177]
On January 19, 2010, Massachusetts Republican Scott Brown was elected to the Senate in a special election to replace Kennedy, having campaigned on giving the Republican minority the 41st vote needed to sustain Republican filibusters.[147][178][179] His victory had become significant because of its effects on the legislative process. The first was psychological: the symbolic importance of losing Kennedy’s traditionally Democratic Massachusetts seat made many Congressional Democrats concerned about the political cost of passing a bill.[180][181]
House
House vote by congressional district.
Democratic yes (219)
Democratic no (34)
Republican no (178)
No representative seated (4)
Brown’s election meant Democrats could no longer break a filibuster in the Senate. In response, White House Chief of StaffRahm Emanuel argued that Democrats should scale back to a less ambitious bill; House SpeakerNancy Pelosi pushed back, dismissing Emanuel’s scaled-down approach as “Kiddie Care”.[182][183]
Obama remained insistent on comprehensive reform. The news that Anthem Blue Cross in California intended to raise premium rates for its patients by as much as 39% gave him new evidence of the need for reform.[182][183] On February 22, he laid out a “Senate-leaning” proposal to consolidate the bills.[184] He held a meeting with both parties’ leaders on February 25. The Democrats decided that the House would pass the Senate’s bill, to avoid another Senate vote.
House Democrats had expected to be able to negotiate changes in a House-Senate conference before passing a final bill. Since any bill that emerged from conference that differed from the Senate bill would have to pass the Senate over another Republican filibuster, most House Democrats agreed to pass the Senate bill on condition that it be amended by a subsequent bill.[181] They drafted the Health Care and Education Reconciliation Act, which could be passed by the reconciliation process.[182][185][186]
As per the Congressional Budget Act of 1974, reconciliation cannot be subject to a filibuster. But reconciliation is limited to budget changes, which is why the procedure was not used to pass ACA in the first place; the bill had inherently non-budgetary regulations.[187][188] Although the already-passed Senate bill could not have been passed by reconciliation, most of House Democrats’ demands were budgetary: “these changes—higher subsidy levels, different kinds of taxes to pay for them, nixing the Nebraska Medicaid deal—mainly involve taxes and spending. In other words, they’re exactly the kinds of policies that are well-suited for reconciliation.”[185]
The remaining obstacle was a pivotal group of pro-life Democrats led by Bart Stupak who were initially reluctant to support the bill. The group found the possibility of federal funding for abortion significant enough to warrant opposition. The Senate bill had not included language that satisfied their concerns, but they could not address abortion in the reconciliation bill as it would be non-budgetary. Instead, Obama issued Executive Order 13535, reaffirming the principles in the Hyde Amendment.[189] This won the support of Stupak and members of his group and assured the bill’s passage.[186][190] The House passed the Senate bill with a 219–212 vote on March 21, 2010, with 34 Democrats and all 178 Republicans voting against it.[191] The next day, Republicans introduced legislation to repeal the bill.[192] Obama signed ACA into law on March 23, 2010.[193] Since passage, Republicans have voted to repeal all or parts of the Affordable Care Act over sixty times; no such attempt by Republicans has been successful.[194] The amendment bill, The Health Care and Education Reconciliation Act, cleared the House on March 21; the Senate passed it by reconciliation on March 25, and Obama signed it on March 30.
Impact
Coverage rate, employer market cost trends, budgetary impact, and income inequality aspects of the Affordable Care Act.
This chart illustrates several aspects of the Affordable Care Act, including number of persons covered, cost before and after subsidies, and public opinion.
Coverage
The law has caused a significant reduction in the number and percentage of people without health insurance. The CDC reported that the percentage of people without health insurance fell from 16.0% in 2010 to 8.9% during the January–June 2016 period.[195] From Q4-2013 to Q1-2016, a Gallup survey found that the uninsured rate among adults declined from 17.1% to 11.0%, a decline of 6.1 percentage points.[196] In a 2016 review, Obama presented data showing that the uninsured rate had declined by 43%, from 16.0% in 2010 to 9.1% in 2015, mostly in 2014.[197] The uninsured rate dropped in every congressional district in the U.S. between 2013 and 2015.[198]
In March 2016, the CBO reported that there were approximately 27 million people without insurance in 2016, a figure they expected would range from 26-28 million through 2026. CBO also estimated the percentage of insured among all U.S. residents would remain at 90% through that period, 92-93% excluding unauthorized immigrants.[4]
Those states that expanded Medicaid had a 7.3% uninsured rate on average in the first quarter of 2016, while those that did not expand Medicaid had a 14.1% uninsured rate, among adults aged 18 to 64.[199] As of December 2016 there were 32 states (including Washington DC) that had adopted the Medicaid extension, while 19 states had not.[200]
The Congressional Budget Office reported in March 2016 that there were approximately 12 million people covered by the exchanges (10 million of whom received subsidies to help pay for insurance) and 11 million made eligible for Medicaid by the law, a subtotal of 23 million people. An additional 1 million were covered by the ACA’s “Basic Health Program,” for a total of 24 million.[4] CBO also estimated that the ACA would reduce the net number of uninsured by 22 million in 2016, using a slightly different computation for the above figures totaling ACA coverage of 26 million, less 4 million for reductions in “employment-based coverage” and “non-group and other coverage.”[4] The Department of Health and Human Services (HHS) estimated that 20.0 million adults (aged 18–64) gained healthcare coverage via ACA as of February 2016, a 2.4 million increase over September 2015. HHS estimated that this 20.0 million included: a) 17.7 million from the start of open enrollment in 2013-2016; and b) 2.3 million young adults aged 19–25 who initially gained insurance from 2010-2013, as they were allowed to remain on their parent’s plans until age 26. Of the 20.0 million, an estimated 6.1 million were aged 19–25.[5]
By 2017, nearly 70% of those on the exchanges could purchase insurance for less than $75/month after subsidies, which rose to offset significant pre-subsidy price increases in the exchange markets.[201] Healthcare premium cost increases in the employer market continued to moderate. For example, healthcare premiums for those covered by employers rose by 69% from 2000-2005, but only 27% from 2010 to 2015,[6] with only a 3% increase from 2015 to 2016.[202]
The ACA also helps reduce income inequality measured after taxes, due to higher taxes on the top 5% of income earners and both subsidies and Medicaid expansion for lower-income persons.[203] CBO estimated that subsidies paid under the law in 2016 averaged $4,240 per person for 10 million individuals receiving them, roughly $42 billion. For scale, the subsidy for the employer market, in the form of exempting from taxation those health insurance premiums paid on behalf of employees by employers, was approximately $1,700 per person in 2016, or $266 billion total in the employer market. The employer market subsidy was not changed by the law.[4]
Insurance exchanges
As of August 2016, 15 states operated their own exchanges. Other states either used the federal exchange, or operated in partnership with or supported by the federal government.[204]
Medicaid expansion
Medicaid expansion by state.[205]
Adopted the Medicaid expansion
Medicaid expansion under discussion
Not adopting Medicaid expansion
As of December 2016 there were 32 states (including Washington DC) that had adopted the Medicaid extension, while 19 states had not.[200] Those states that expanded Medicaid had a 7.3% uninsured rate on average in the first quarter of 2016, while those that did not expand Medicaid had a 14.1% uninsured rate, among adults aged 18 to 64.[199] Following the Supreme Court ruling in 2012, which held that states would not lose Medicaid funding if they didn’t expand Medicaid under the ACA, several states rejected expanded Medicaid coverage. Over half of the national uninsured population lived in those states.[206] In a report to Congress, the Centers for Medicare and Medicaid Services (CMS) estimated that the cost of expansion was $6,366 per person for 2015, about 49 percent above previous estimates. An estimated 9 million to 10 million people had gained Medicaid coverage, mostly low-income adults.[207] The Kaiser Family Foundation estimated in October 2015 that 3.1 million additional people were not covered because of states that rejected the Medicaid expansion.[208]
States that rejected the Medicaid expansion could maintain their Medicaid eligibility thresholds, which in many states were significantly below 133% of the poverty line.[209]Many states did not make Medicaid available to childless adults at any income level.[210] Because subsidies on exchange insurance plans were not available to those below the poverty line, such individuals had no new options.[211][212] For example, in Kansas, where only able-bodied adults with children and with an income below 32% of the poverty line were eligible for Medicaid, those with incomes from 32% to 100% of the poverty level ($6,250 to $19,530 for a family of three) were ineligible for both Medicaid and federal subsidies to buy insurance. Absent children, able-bodied adults were not eligible for Medicaid in Kansas.[206]
Studies of the impact of state decisions to reject the Medicaid expansion calculated that up to 6.4 million people could fall into this status.[213] The federal government initially paid for 100% of the expansion (through 2016). The subsidy tapered to 90% by 2020 and continued to shrink thereafter.[214] Several states argued that they could not afford their 10% contribution.[214][215] Studies suggested that rejecting the expansion would cost more than expanding Medicaid due to increased spending on uncompensated emergency care that otherwise would have been partially paid for by Medicaid coverage,[216]
A 2016 study led by Harvard University health economics professor Benjamin Sommers found that residents of Kentucky and Arkansas, which both accepted the Medicaid expansion, were more likely to receive health care services and less likely to incur emergency room costs or have trouble paying their medical bills than before the expansion. Residents of Texas, which did not accept the Medicaid expansion, did not see a similar improvement during the same period.[217] Kentucky opted for increased managed care, while Arkansas subsidized private insurance. The new Arkansas and Kentucky governors have proposed reducing or modifying their programs. Between 2013 and 2015, the uninsured rate dropped from 42% to 14% in Arkansas and from 40% to 9% in Kentucky, compared with 39% to 32% in Texas. Specific improvements included additional primary and preventive care, fewer emergency departments visits, reported higher quality care, improved health, improved drug affordability, reduced out-of-pocket spending and increased outpatient visits, increased diabetes screening, glucose testing among diabetes patients and regular care for chronic conditions.[218]
A 2016 DHHS study found that states that expanded Medicaid had lower premiums on exchange policies, because they had fewer low-income enrollees, whose health on is worse than that of those with higher income.[219]
Healthcare insurance costs
The law is designed to pay subsidies in the form of tax credits to the individuals or families purchasing the insurance, based on income levels. Higher income consumers receive lower subsidies. While pre-subsidy prices rose considerably from 2016 to 2017, so did the subsidies, to reduce the after-subsidy cost to the consumer. For example, a study published in 2016 found that the average requested 2017 premium increase among 40-year-old non-smokers was about 9 percent, according to an analysis of 17 cities, although Blue Cross Blue Shield proposed increases of 40 percent in Alabama and 60 percent in Texas.[221] However, some or all of these costs are offset by subsidies, paid as tax credits. For example, the Kaiser Foundation reported that for the second-lowest cost “Silver plan” (a plan often selected and used as the benchmark for determining financial assistance), a 40-year old non-smoker making $30,000 per year would pay effectively the same amount in 2017 as they did in 2016 (about $208/month) after the subsidy/tax credit, despite large increases in the pre-subsidy price. This was consistent nationally. In other words, the subsidies increased along with the pre-subsidy price, fully offsetting the price increases.[222]
Healthcare premium cost increases in the employer market continued to moderate after the implementation of the law. For example, healthcare premiums for those covered by employers rose by 69% from 2000-2005, but only 27% from 2010 to 2015,[6] with only a 3% increase from 2015 to 2016.[202] From 2008-2010 (prior to Obamacare) health insurance premiums rose by an average of 10% per year.[223]
Several studies found that the financial crisis and accompanying recession could not account for the entirety of the slowdown and that structural changes likely share at least partial credit.[224][225][226][227] A 2013 study estimated that changes to the health system had been responsible for about a quarter of the recent reduction in inflation.[228] Paul Krawzak claimed that even if cost controls succeed in reducing the amount spent on healthcare, such efforts on their own may be insufficient to outweigh the long-term burden placed by demographic changes, particularly the growth of the population on Medicare.[229]
In a 2016 review of the ACA published in JAMA, Barack Obama himself wrote that from 2010 through 2014 mean annual growth in real per-enrollee Medicare spending was negative, down from a mean of 4.7% per year from 2000 through 2005 and 2.4% per year from 2006 to 2010; similarly, mean real per-enrollee growth in private insurance spending was 1.1% per year over the period, compared with a mean of 6.5% from 2000 through 2005 and 3.4% from 2005 to 2010.[230]
Effect on deductibles and co-payments
While health insurance premium costs have moderated, some of this is because of insurance policies that have a higher deductible, co-payments and out-of-pocket maximums that shift costs from insurers to patients. In addition, many employees are choosing to combine a health savings account with higher deductible plans, making the impact of the ACA difficult to determine precisely.
For those who obtain their insurance through their employer (“group market”), a 2016 survey found that:
- Deductibles grew by 63% from 2011 to 2016, while premiums increased 19% and worker earnings grew by 11%.
- In 2016, 4 in 5 workers had an insurance deductible, which averaged $1,478. For firms with less than 200 employees, the deductible averaged $2,069.
- The percentage of workers with a deductible of at least $1,000 grew from 10% in 2006 to 51% in 2016. The 2016 figure drops to 38% after taking employer contributions into account.[231]
For the “non-group” market, of which two-thirds are covered by the ACA exchanges, a survey of 2015 data found that:
- 49% had individual deductibles of at least $1,500 ($3,000 for family), up from 36% in 2014.
- Many marketplace enrollees qualify for cost-sharing subsidies that reduce their net deductible.
- While about 75% of enrollees were “very satisfied” or “somewhat satisfied” with their choice of doctors and hospitals, only 50% had such satisfaction with their annual deductible.
- While 52% of those covered by the ACA exchanges felt “well protected” by their insurance, in the group market 63% felt that way.[232]
Health outcomes
Insurance coverage helps save lives, by encouraging early detection and prevention of dangerous medical conditions. According to a 2014 study, the ACA likely prevented an estimated 50,000 preventable patient deaths from 2010 to 2013.[233]City University public health professors David Himmelstein and Steffie Woolhandler wrote in January 2017 that a rollback of the ACA’s Medicaid expansion alone would cause an estimated 43,956 deaths annually.[234]
Federal deficit
CBO estimates of revenue and impact on deficit
The CBO reported in several studies that the ACA would reduce the deficit, and that repealing it would increase the deficit.[7][8][235][236] The 2011 comprehensive CBO estimate projected a net deficit reduction of more than $200 billion during the 2012–2021 period:[8][237] it calculated the law would result in $604 billion in total outlays offset by $813 billion in total receipts, resulting in a $210 billion net deficit reduction.[8] The CBO separately predicted that while most of the spending provisions do not begin until 2014,[238][239] revenue would exceed spending in those subsequent years.[240] The CBO claimed that the bill would “substantially reduce the growth of Medicare’s payment rates for most services; impose an excise tax on insurance plans with relatively high premiums; and make various other changes to the federal tax code, Medicare, Medicaid, and other programs”[241]—ultimately extending the solvency of the Medicare trust fund by 8 years.[242]
This estimate was made prior to the Supreme Court’s ruling that enabled states to opt out of the Medicaid expansion, thereby forgoing the related federal funding. The CBO and JCT subsequently updated the budget projection, estimating the impact of the ruling would reduce the cost estimate of the insurance coverage provisions by $84 billion.[243][244][245]
The CBO in June 2015 forecasted that repeal of ACA would increase the deficit between $137 billion and $353 billion over the 2016–2025 period, depending on the impact of macroeconomic feedback effects. The CBO also forecasted that repeal of ACA would likely cause an increase in GDP by an average of 0.7% in the period from 2021 to 2015, mainly by boosting the supply of labor.[7]
Major new sources of increased tax receipts include:[95] higher Medicare taxes; annual fees on insurance providers; fees on the healthcare industry such as manufacturers and importers of brand-name pharmaceutical drugs and certain medical devices; limits on tax deductions of medical expenses and flexible spending accounts; a 40% excise tax on plans with annual insurance premiums in excess of $10,200 for an individual or $27,500 for a family; revenue from mandate penalty payments; a 10% federal sales tax on indoor tanning services. Predicted spending reductions included a reduction in Medicare reimbursements to insurers and drug companies for private Medicare Advantage policies that the Government Accountability Office and Medicare Payment Advisory Commission found to be excessively costly relative to government Medicare;[246][247] and reductions in Medicare reimbursements to hospitals that failed standards of efficiency and care.[246]
Although the CBO generally does not provide cost estimates beyond the 10-year budget projection period because of the degree of uncertainty involved in the projection, it decided to do so in this case at the request of lawmakers, and estimated a second decade deficit reduction of $1.2 trillion.[241][248] CBO predicted deficit reduction around a broad range of one-half percent of GDP over the 2020s while cautioning that “a wide range of changes could occur”.[249]
Opinions on CBO projections
The CBO cost estimates were criticized because they excluded the effects of potential legislation that would increase Medicare payments by more than $200 billion from 2010 to 2019.[250][251][252] However, the so-called “doc fix” is a separate issue that would have existed whether or not ACA became law – omitting its cost from ACA was no different from omitting the cost of other tax cuts.[253][254][255]
Uwe Reinhardt, a Princeton health economist, wrote. “The rigid, artificial rules under which the Congressional Budget Office must score proposed legislation unfortunately cannot produce the best unbiased forecasts of the likely fiscal impact of any legislation”, but went on to say “But even if the budget office errs significantly in its conclusion that the bill would actually help reduce the future federal deficit, I doubt that the financing of this bill will be anywhere near as fiscally irresponsible as was the financing of the Medicare Modernization Act of 2003.”[256]Douglas Holtz-Eakin, CBO director during the George W. Bush administration, who later served as the chief economic policy adviser to U.S. Senator John McCain‘s 2008 presidential campaign, alleged that the bill would increase the deficit by $562 billion because, he argued, it front-loaded revenue and back-loaded benefits.[257]
Scheiber and Cohn rejected critical assessments of the law’s deficit impact, arguing that predictions were biased towards underestimating deficit reduction. They noted that for example, it is easier to account for the cost of definite levels of subsidies to specified numbers of people than account for savings from preventive healthcare, and that the CBO had a track record of overestimating costs and underestimating savings of health legislation;[258][259] stating, “innovations in the delivery of medical care, like greater use of electronic medical records[260] and financial incentives for more coordination of care among doctors, would produce substantial savings while also slowing the relentless climb of medical expenses… But the CBO would not consider such savings in its calculations, because the innovations hadn’t really been tried on such large scale or in concert with one another—and that meant there wasn’t much hard data to prove the savings would materialize.”[258]
In 2010 David Walker, former U.S. Comptroller General then working for The Peter G. Peterson Foundation, stated that the CBO estimates are not likely to be accurate, because they were based on the assumption that the law would not change.[261] The Center on Budget and Policy Priorities objected that Congress had a good record of implementing Medicare savings. According to their study, Congress followed through on the implementation of the vast majority of provisions enacted in the past 20 years to produce Medicare savings, although not the payment reductions addressed by the annual “doc fix”.[262][263]
Economic consequences
CBO estimated in June 2015 that repealing the ACA would:
- Decrease aggregate demand (GDP) in the short-term, as low-income persons who tend to spend a large fraction of their additional resources would have fewer resources (e.g., ACA subsidies would be eliminated). This effect would be offset in the long-run by the labor supply factors below.
- Increase the supply of labor and aggregate compensation by about 0.8 and 0.9 percent over the 2021-2025 period. CBO cited the ACA’s expanded eligibility for Medicaid and subsidies and tax credits that rise with income as disincentives to work, so repealing the ACA would remove those disincentives, encouraging workers to supply more hours of labor.
- Increase the total number of hours worked by about 1.5% over the 2021-2025 period.
- Remove the higher tax rates on capital income, thereby encouraging additional investment, raising the capital stock and output in the long-run.[7]
In 2015 the Center for Economic and Policy Research found no evidence that companies were reducing worker hours to avoid ACA requirements[264] for employees working over 30 hours per week.[265]
The CBO estimated that the ACA would slightly reduce the size of the labor force and number of hours worked, as some would no longer be tethered to employers for their insurance. Cohn, citing CBO’s projections, claimed that ACA’s primary employment effect was to alleviate job lock: “People who are only working because they desperately need employer-sponsored health insurance will no longer do so.”[266] He concluded that the “reform’s only significant employment impact was a reduction in the labor force, primarily because people holding onto jobs just to keep insurance could finally retire”, because they have health insurance outside of their jobs.[267]
Employer mandate and part-time work
The employer mandate requires employers meeting certain criteria to provide health insurance to their workers. The mandate applies to employers with more than 50 employees that do not offer health insurance to their full-time workers.[268] Critics claimed that the mandate created a perverse incentive for business to keep their full-time headcount below 50 and to hire part-time workers instead.[269][270] Between March 2010 and 2014 the number of part-time jobs declined by 230,000, while the number of full-time jobs increased by 2 million.[271][272] In the public sector full-time jobs turned into part-time jobs much more than in the private sector.[271][273] A 2016 study found only limited evidence that ACA had increased part-time employment.[274]
Several businesses and the state of Virginia added a 29-hour-a-week cap for their part-time employees,[275][unreliable source?][276][unreliable source?] to reflect the 30-hour-or-more definition for full-time worker.[268] As of yet, however, only a small percent of companies have shifted their workforce towards more part-time hours (4% in a survey from the Federal Reserve Bank of Minneapolis).[270] Trends in working hours[277] and the effects of the Great Recession correlate with part-time working hour patterns.[278][279] The impact of this provision may have been offset by other factors, including that health insurance helps attract and retain employees, increases productivity and reduces absenteeism; and the lower training and administration costs of a smaller full-time workforce over a larger part-time work force.[270][277][280] Relatively few firms employ over 50 employees[270] and more than 90% of them offered insurance.[281] Workers without employer insurance could purchase insurance on the exchanges.[282]
Most policy analysts (on both right and left) were critical of the employer mandate provision.[269][281] They argued that the perverse incentives regarding part-time hours, even if they did not change existing plans, were real and harmful;[283][284] that the raised marginal cost of the 50th worker for businesses could limit companies’ growth;[285] that the costs of reporting and administration were not worth the costs of maintaining employer plans;[283][284] and noted that the employer mandate was not essential to maintain adequate risk pools.[286][287] The effects of the provision generated vocal opposition from business interests and some unions not granted exemptions.[284][288]
A 2013/4 survey by the National Association for Business Economics found that about 75 percent of those surveyed said ACA hadn’t influenced their planning or expectations for 2014, and 85 percent said the law wouldn’t prompt a change in their hiring practices. Some 21 percent of 64 businesses surveyed said that the act would have a harmful effect and 5 percent said it would be beneficial.[289]
Hospitals
From the start of 2010 to November 2014, 43 hospitals in rural areas closed. Critics claimed that the new law caused these hospitals to close. Many of these rural hospitals were built using funds from the 1946 Hill–Burton Act, to increase access to medical care in rural areas. Some of these hospitals reopened as other medical facilities, but only a small number operated emergency rooms (ER) or urgent care centers.[290]
Between January 2010 and 2015, a quarter of emergency room doctors said they had seen a major surge in patients, while nearly half had seen a smaller increase. Seven in ten ER doctors claimed that they lacked the resources to deal with large increases in the number of patients. The biggest factor in the increased number of ER patients was insufficient primary care providers to handle the larger number of insured patients.[291]
Insurers claimed that because they have access to and collect patient data that allow evaluations of interventions, they are essential to ACO success. Large insurers formed their own ACOs. Many hospitals merged and purchased physician practices. The increased market share gave them more leverage in negotiations with insurers over costs and reduced patient care options.[115]
Public opinion
Prior to the law’s passage, polling indicated the public’s views became increasingly negative in reaction to specific plans discussed during the legislative debate over 2009 and 2010. Polling statistics showed a general negative opinion of the law; with those in favor at approximately 40% and those against at 51%, as of October 2013.[292][293] About 29% of whites approve of the law, compared with 61% of Hispanics and 91% of African Americans.[294]Opinions were divided by age of the person at the law’s inception, with a solid majority of seniors opposing the bill and a solid majority of those younger than forty years old in favor.[295]
Congressional Democrats celebrating the 6th anniversary of the Affordable Care Act in March 2016 on the steps of the U.S. Capitol.
Specific elements were popular across the political spectrum, while others, such as the mandate to purchase insurance, were widely disliked. In a 2012 poll 44% supported the law, with 56% against. By party affiliation, 75% of Democrats, 27% of Independents and 14% of Republicans favored the law overall. 82% favored banning insurance companies from denying coverage to people with pre-existing conditions, 61% favored allowing children to stay on their parents’ insurance until age 26, 72% supported requiring companies with more than 50 employees to provide insurance for their employees, and 39% supported the individual mandate to own insurance or pay a penalty. By party affiliation, 19% of Republicans, 27% of Independents, and 59% of Democrats favored the mandate.[296] Other polls showed additional provisions receiving majority support, including the creation of insurance exchanges, pooling small businesses and the uninsured with other consumers so that more people can take advantage of large group pricing benefits and providing subsidies to individuals and families to make health insurance more affordable.[297][298]
In a 2010 poll, 62% of respondents said they thought ACA would “increase the amount of money they personally spend on health care”, 56% said the bill “gives the government too much involvement in health care”, and 19% said they thought they and their families would be better off with the legislation.[299] Other polls found that people were concerned that the law would cost more than projected and would not do enough to control costs.[300]
Some opponents believed that the reform did not go far enough: a 2012 poll indicated that 71% of Republican opponents rejected it overall, while 29% believed it did not go far enough; independent opponents were divided 67% to 33%; and among the much smaller group of Democratic opponents, 49% rejected it overall and 51% wanted more.[296] In June 2013, a majority of the public (52–34%) indicated a desire for “Congress to implement or tinker with the law rather than repeal it”.[301] After the Supreme Court upheld the individual mandate, a 2012 poll held that “most Americans (56%) want to see critics of President Obama’s health care law drop efforts to block it and move on to other national issues”.[302]A 2014 poll reported that 48.9% of respondents had an unfavorable view of ACA vs. 38.3% who had a favorable view (of more than 5,500 individuals).[303]
A 2014 poll reported that 26% of Americans support ACA.[304] Another held that 8% of respondents say that the Affordable Care Act “is working well the way it is”.[305] In late 2014, a Rasmussen poll reported Repeal: 30%, Leave as is: 13%, Improve: 52%, i.e., 65% wanted to leave ACA alone or improve upon it.[306]
In 2015, a CBS News / New York Times poll reported that 47% of Americans approved the health care law. This was the first time that a major poll indicated that more respondents approved ACA than disapproved of it.[307] The recurring Kaiser Health Tracking Poll from December 2016 reported that: a) 30% wanted to expand what the law does; b) 26% wanted to repeal the entire law; c) 19% wanted to move forward with implementing the law as it is; and d) 17% wanted to scale back what the law does, with the remainder undecided.[308]
Separate polls from Fox News and NBC/WSJ both taken during January 2017 indicated more people viewed the law favorably than did not for the first time. One of the reasons for the improving popularity of the law is that Democrats who opposed it in the past (many prefer a “Medicare for All” approach) have shifted their positions since the ACA is under threat of repeal.[309]
A January 2017 Morning Consult poll showed that 35% of respondents either believed that Obamacare and the Affordable Care Act were different or did not know.[310] Approximately 45% were unsure whether the repeal of Obamacare also meant the repeal of the Affordable Care Act.[310] 39% did not know that “many people would lose coverage through Medicaid or subsidies for private health insurance if the A.C.A. were repealed and no replacement enacted,” with Democrats far more likely (79%) to know that fact than Republicans (47%).[310]
A 2017 study found that personal experience with public health insurance programs leads to greater support for the Affordable Care Act, and the effects appear to be most pronounced among Republicans and low-information voters.[311]
Political aspects
“Obamacare”
The term “Obamacare” was originally coined by opponents as a pejorative. The term emerged in March 2007 when healthcare lobbyist Jeanne Schulte Scott used it in a health industry journal, writing “We will soon see a ‘Giuliani-care’ and ‘Obama-care’ to go along with ‘McCain-care’, ‘Edwards-care’, and a totally revamped and remodeled ‘Hillary-care‘ from the 1990s”.[9][312] According to research by Elspeth Reeve, the expression was used in early 2007, generally by writers describing the candidate’s proposal for expanding coverage for the uninsured.[313] It first appeared in a political campaign by Mitt Romney in May 2007 in Des Moines, Iowa. Romney said, “In my state, I worked on healthcare for some time. We had half a million people without insurance, and I said, ‘How can we get those people insured without raising taxes and without having government take over healthcare?’ And let me tell you, if we don’t do it, the Democrats will. If the Democrats do it, it will be socialized medicine; it’ll be government-managed care. It’ll be what’s known as Hillarycare or Barack Obamacare, or whatever you want to call it.”[9]
By mid-2012, Obamacare had become the colloquial term used by both supporters and opponents. In contrast, the use of “Patient Protection and Affordable Care Act” or “Affordable Care Act” became limited to more formal and official use.[313] Use of the term in a positive sense was suggested by Democrat John Conyers.[314] Obama endorsed the nickname, saying, “I have no problem with people saying Obama cares. I do care.”[315]
In March 2012, the Obama reelection campaign embraced the term “Obamacare”, urging Obama’s supporters to post Twitter messages that begin, “I like #Obamacare because…”.[316]
In October 2013 the Associated Press and NPR began cutting back on use of the term.[317] Stuart Seidel, NPR’s managing editor, said that the term “seems to be straddling somewhere between being a politically-charged term and an accepted part of the vernacular”.[318]
Common misconceptions
“Death panels”
On August 7, 2009, Sarah Palin pioneered the term “death panels” to describe groups that would decide whether sick patients were “worthy” of medical care.[319] “Death panel” referred to two claims about early drafts.
One was that under the law, seniors could be denied care due to their age[320] and the other that the government would advise seniors to end their lives instead of receiving care. The ostensible basis of these claims was the provision for an Independent Payment Advisory Board (IPAB).[321] IPAB was given the authority to recommend cost-saving changes to Medicare by facilitating the adoption of cost-effective treatments and cost-recovering measures when the statutory levels set for Medicare were exceeded within any given 3-year period. In fact, the Board was prohibited from recommending changes that would reduce payments to certain providers before 2020, and was prohibited from recommending changes in premiums, benefits, eligibility and taxes, or other changes that would result in rationing.[322][323]
The other related issue concerned advance-care planning consultation: a section of the House reform proposal would have reimbursed physicians for providing patient-requested consultations for Medicare recipients on end-of-life health planning (which is covered by many private plans), enabling patients to specify, on request, the kind of care they wished to receive.[324] The provision was not included in ACA.[325]
In 2010, the Pew Research Center reported that 85% of Americans were familiar with the claim, and 30% believed it was true, backed by three contemporaneous polls.[326] A poll in August 2012 found that 39% of Americans believed the claim.[327] The allegation was named PolitiFact‘s “Lie of the Year”,[319][328] one of FactCheck.org‘s “whoppers”[329][330] and the most outrageous term by the American Dialect Society.[331]AARP described such rumors as “rife with gross—and even cruel—distortions”.[332]
Members of Congress
ACA requires members of Congress and their staffs to obtain health insurance either through an exchange or some other program approved by the law (such as Medicare), instead of using the insurance offered to federal employees (the Federal Employees Health Benefits Program).[333][334][335][336][337]
Illegal immigrants
ACA does not provide benefits to illegal immigrants.[338] It explicitly denies insurance subsidies to “unauthorized (illegal) aliens”.[25][26][339]
Exchange “death spiral”
One argument against the ACA is that the insurers are leaving the marketplaces, as they cannot profitably cover the available pool of customers, which contains too many unhealthy participants relative to healthy participants. A scenario where prices rise, due to an unfavorable mix of customers from the insurer’s perspective, resulting in fewer customers and fewer insurers in the marketplace, further raising prices, has been called a “Death Spiral.”[340]During 2017, the median number of insurers offering plans on the ACA exchanges in each state was 3.0, meaning half the states had more and half had fewer insurers. There were five states with one insurer in 2017; 13 states with two; 11 states with three; and the remainder had four insurers or more. Wisconsin had the most, with 15 insurers in the marketplace. The median number of insurers was 4.0 in 2016, 5.0 in 2015, and 4.0 in 2014.[341]
Further, the CBO reported in January 2017 that it expected enrollment in the exchanges to rise from 10 million during 2017 to 13 million by 2027, assuming laws in place at the end of the Obama administration were continued.[342] Following a 2015 CBO report that reached a similar conclusion, Paul Krugman wrote: “But the truth is that this report is much, much closer to what supporters of reform have said than it is to the scare stories of the critics–no death spirals, no job-killing, major gains in coverage at relatively low cost.”[343]
Opposition
Opposition and efforts to repeal the legislation have drawn support from sources that include labor unions,[344][345]conservative advocacy groups,[346][347] Republicans, small business organizations and the Tea Party movement.[348] These groups claimed that the law would disrupt existing health plans, increase costs from new insurance standards, and increase the deficit.[349] Some opposed the idea of universal healthcare, viewing insurance as similar to other unsubsidized goods.[350][351] President Donald Trump has repeatedly promised to “repeal and replace” it.[352][353]
As of 2013 unions that expressed concerns about ACA included the AFL-CIO,[354] which called ACA “highly disruptive” to union health care plans, claiming it would drive up costs of union-sponsored plans; the International Brotherhood of Teamsters, United Food and Commercial Workers International Union, and UNITE-HERE, whose leaders sent a letter to Reid and Pelosi arguing, ” ACA will shatter not only our hard-earned health benefits, but destroy the foundation of the 40-hour work week that is the backbone of the American middle class.”[345] In January 2014, Terry O’Sullivan, president of the Laborers’ International Union of North America (LIUNA) and D. Taylor, president of Unite Here sent a letter to Reid and Pelosi stating, “ACA, as implemented, undermines fair marketplace competition in the health care industry.”[344]
In October 2016, Mark Dayton, the governor of Minnesota and a member of the Minnesota Democratic–Farmer–Labor Party, said that the ACA had “many good features” but that it was “no longer affordable for increasing numbers of people” and called on the Minnesota legislature to provide emergency relief to policyholders.[355] Dayton later said he regretted his remarks after they were seized on by Republicans seeking to repeal the law.[356]
Legal challenges
National Federation of Independent Business v. Sebelius
Opponents challenged ACA’s constitutionality in multiple lawsuits on multiple grounds.[357][358][not in citation given] In National Federation of Independent Business v. Sebelius, the Supreme Court ruled on a 5–4 vote that the individual mandate was constitutional when viewed as a tax, although not under the Commerce Clause.
The Court further determined that states could not be forced to participate in the Medicaid expansion. ACA withheld all Medicaid funding from states declining to participate in the expansion. The Court ruled that this withdrawal of funding was unconstitutionally coercive and that individual states had the right to opt out without losing preexisting Medicaid funding.[359]
Contraception mandate
In March 2012 the Roman Catholic Church, while supportive of ACA’s objectives, voiced concern through the United States Conference of Catholic Bishops that aspects of the mandate covering contraception and sterilization and HHS‘s narrow definition of a religious organization violated the First Amendment right to free exercise of religion and conscience. Various lawsuits addressed these concerns.[360][361]
On June 25, 2015, the U.S. Supreme Court ruled 6–3 that federal subsidies for health insurance premiums could be used in the 34 states that did not set up their own insurance exchanges.[362]
House v. Burwell
In United States House of Representatives v. Burwell the House sued the administration alleging that the money for premium subsidy payments to insurers had not been appropriated, as required for any federal government spending. The Obamacare subsidy that helps customers pay premiums was not part of the suit. Without the cost-sharing subsidies, the government estimated that premiums would increase by 20 percent to 30 percent for silver plans.[363]
Non-cooperation
Officials in Texas, Florida, Alabama, Wyoming, Arizona, Oklahoma and Missouri opposed those elements of ACA over which they had discretion.[364][365] For example, Missouri declined to expand Medicaid or establish a health insurance marketplace engaging in active non-cooperation, enacting a statute forbidding any state or local official to render any aid not specifically required by federal law.[366] Other Republican politicians discouraged efforts to advertise the benefits of the law. Some conservative political groups launched ad campaigns to discourage enrollment.[367][368]
Repeal efforts
ACA was the subject of unsuccessful repeal efforts by Republicans in the 111th, 112th, and 113th Congresses: Representatives Steve King (R-IA) and Michele Bachmann (R-MN) introduced bills in the House to repeal ACA the day after it was signed, as did Senator Jim DeMint (R-SC) in the Senate.[369] In 2011, after Republicans gained control of the House of Representatives, one of the first votes held was on a bill titled “Repealing the Job-Killing Health Care Law Act” (H.R. 2), which the House passed 245–189.[370] All Republicans and 3 Democrats voted for repeal.[371] House Democrats proposed an amendment that repeal not take effect until a majority of the Senators and Representatives had opted out of the Federal Employees Health Benefits Program; Republicans voted down the measure.[372] In the Senate, the bill was offered as an amendment to an unrelated bill, but was voted down.[373] President Obama had stated that he would have vetoed the bill even if it had passed both chambers of Congress.[374]
2017 House Budget
Following the 2012 Supreme Court ruling upholding ACA as constitutional, Republicans held another vote to repeal the law on July 11;[375] the House of Representatives voted with all 244 Republicans and 5 Democrats in favor of repeal, which marked the 33rd, partial or whole, repeal attempt.[376][377] On February 3, 2015, the House of Representatives added its 67th repeal vote to the record (239 to 186). This attempt also failed.[378]
2013 federal government shutdown
Strong partisan disagreement in Congress prevented adjustments to the Act’s provisions.[379] However, at least one change, a proposed repeal of a tax on medical devices, has received bipartisan support.[380] Some Congressional Republicans argued against improvements to the law on the grounds they would weaken the arguments for repeal.[284][381]
Republicans attempted to defund its implementation,[365][382] and in October 2013, House Republicans refused to fund the federal government unless accompanied with a delay in ACA implementation, after the President unilaterally deferred the employer mandate by one year, which critics claimed he had no power to do. The House passed three versions of a bill funding the government while submitting various versions that would repeal or delay ACA, with the last version delaying enforcement of the individual mandate. The Democratic Senate leadership stated the Senate would only pass a “clean” funding bill without any restrictions on ACA. The government shutdown began on October 1.[383][384][385] Senate Republicans threatened to block appointments to relevant agencies, such as the Independent Payment Advisory Board[386] and Centers for Medicare and Medicaid Services.[387][388]
2017 repeal effort
During a midnight congressional session starting January 11, 2017, the Senate of the 115th Congress of the United States voted to approve a “budget blueprint” which would allow Republicans to repeal parts of the law “without threat of a Democraticfilibuster.”[389][390] The plan, which passed 51-48 is a budget blueprint named by Senate Republicans the “Obamacare ‘repeal resolution.'”[391] Democrats opposing the resolution staged a protest during the vote.[392]
House Republicans announced their replacement for the ACA, the American Health Care Act, on March 6, 2017.[393] On March 24, 2017 the effort, led by Paul Ryan and Donald Trump, to repeal and replace the ACA failed amid a revolt among Republican representatives.[394]
Implementation history
Once the law was signed, provisions began taking effect, in a process that continued for years. Some provisions never took effect, while others were deferred for various periods.
Existing individual health plans
Plans purchased after the date of enactment, March 23, 2010, or old plans that changed in specified ways would eventually have to be replaced by ACA-compliant plans.[citation needed]
At various times during and after the ACA debate, Obama stated that “if you like your health care plan, you’ll be able to keep your health care plan”.[395][396] However, in fall 2013 millions of Americans with individual policies received notices that their insurance plans were terminated,[397] and several million more risked seeing their current plans cancelled.[398][399][400]
Obama’s previous unambiguous assurance that consumers’ could keep their own plans became a focal point for critics, who challenged his truthfulness.[401][402] On November 7, 2013, President Obama stated: “I am sorry that [people losing their plans] are finding themselves in this situation based on assurances they got from me.”[403] Various bills were introduced in Congress to allow people to keep their plans.[404]
In the fall of 2013, the Obama Administration announced a transitional relief program that would let states and carriers allow non-compliant individual and small group policies to renew at the end of 2013. In March 2014, HHS allowed renewals as late as October 1, 2016. In February 2016, these plans were allowed to renew up until October 1, 2017, but with a termination date no later than December 31, 2017.[citation needed]
2010
In June small business tax credits took effect. For certain small businesses, the credits reached up to 35% of premiums. At the same time uninsured people with pre-existing conditions could access the federal high-risk pool. Also, participating employment-based plans could obtain reimbursement for a portion of the cost of providing health insurance to early retirees.[405]
In July the Pre-Existing Condition Insurance Plan (PCIP) took effect to offer insurance to those that had been denied coverage by private insurance companies because of a pre-existing condition. Despite estimates of up to 700,000 enrollees, at a cost of approximately $13,000/enrollee, only 56,257 enrolled at a $28,994 cost per enrollee.[405]
2011
As of September 23, 2010, pre-existing conditions could no longer be denied coverage for children’s policies. HHS interpreted this rule as a mandate for “guaranteed issue“, requiring insurers to issue policies to such children.[citation needed] By 2011, insurers had stopped marketing child-only policies in 17 states, as they sought to escape this requirement.[406]
The average beneficiary in the prior coverage gap would have spent $1,504 in 2011 on prescriptions. Such recipients saved an average $603. The 50 percent discount on brand name drugs provided $581 and the increased Medicare share of generic drug costs provided the balance. Beneficiaries numbered 2 million[407]
2012
In National Federation of Independent Business v. Sebelius decided on June 28, 2012, the Supreme Court ruled that the individual mandate was constitutional when the associated penalties were construed as a tax. The decision allowed states to opt out of the Medicaid expansion. Several did so,[408] although some later accepted the expansion.[409]
2013
In January 2013 the Internal Revenue Service ruled that the cost of covering only the individual employee would be considered in determining whether the cost of coverage exceeded 9.5% of income. Family plans would not be considered even if the cost was above the 9.5% income threshold. This was estimated to leave 2–4 million Americans unable to afford family coverage under their employers’ plans and ineligible for subsidies.[410][411]
A June 2013 study found that the MLR provision had saved individual insurance consumers $1.2 billion in 2011 and $2.1 billion in 2012, reducing their 2012 costs by 7.5%.[412] The bulk of the savings were in reduced premiums, but some came from MLR rebates.
On July 2, 2013, the Obama Administration announced that it would delay the implementation of the employer mandate until 2015.[281][413][414]
The Community Living Assistance Services and Supports Act (or CLASS Act) was enacted as Title VIII of Obamacare. It would have created a voluntary and public long-term care insurance option for employees.[121][123] In October 2011 the administration announced it was unworkable and would be dropped.[415] The CLASS Act was repealed January 1, 2013.[416]
The launch for both the state and federal exchanges was troubled due to management and technical failings. HealthCare.gov, the website that offers insurance through the exchanges operated by the federal government, crashed on opening and suffered endless problems.[417] Operations stabilized in 2014, although not all planned features were complete.[418][419]
CMS reported in 2013 that, while costs per capita continued to rise, the rate of increase in annual healthcare costs had fallen since 2002. Per capita cost increases averaged 5.4% annually between 2000 and 2013. Costs relative to GDP, which had been rising, had stagnated since 2009.[420] Several studies attempted to explain the reductions. Reasons included:
- Higher unemployment due to the 2008-2010 recession, which limited the ability of consumers to purchase healthcare;
- Out-of-pocket costs rose, reducing demand for healthcare services.[421] The proportion of workers with employer-sponsored health insurance requiring a deductible climbed to about three-quarters in 2012 from about half in 2006.[224]
- ACA changes[224] that aim to shift the healthcare system from paying-for-quantity to paying-for-quality. Some changes occurred due to healthcare providers acting in anticipation of future implementation of reforms.[120][225]
2014
On July 30, 2014, the Government Accountability Office released a non-partisan study that concluded that the administration did not provide “effective planning or oversight practices” in developing the website.[422]
In Burwell v. Hobby Lobby the Supreme Court exempted closely held corporations with religious convictions from the contraception rule.[423] In Wheaton College vs Burwell the Court issued an injunction allowing the evangelical college and other religiously affiliated nonprofit groups to completely ignore the contraceptive mandate.[424]
A study found that average premiums for the second-cheapest silver plan were 10-21% less than average individual market premiums in 2013, while covering many more conditions. Credit for the reduced premiums was attributed to increased competition stimulated by the larger market, greater authority to review premium increases, the MLR and risk corridors.[citation needed]
Many of the initial plans featured narrow networks of doctors and hospitals.[425][not in citation given]
A 2016 analysis found that health care spending by the middle class was 8.9% of household spending in 2014.[426]
2015
By the beginning of the year, 11.7 million had signed up (ex-Medicaid).[427] On December 31, 2015, about 8.8 million consumers had stayed in the program. Some 84 percent, or about 7.4 million, were subsidized.[428]
Bronze plans were the second most popular in 2015, making up 22% of marketplace plan selections. Silver plans were the most popular, accounting for 67% of marketplace selections. Gold plans were 7%. Platinum plans accounted for 3%. On average across the four metal tiers, premiums were up 20% for HMOs and 18% for EPOs. Premiums for POS plans were up 15% from 2015 to 2016, while PPO premiums were up just 8%.[citation needed]
A 2015 study found 14% of privately insured consumers received a medical bill in the past two years from an out-of-network provider in the context of an overall in-network treatment event. Such out-of-network care is not subject to the lower negotiated rates of in-network care, increasing out-of-pocket costs. Another 2015 study found that the average out-of-network charges for the majority of 97 medical procedures examined “were 300% or higher compared to the corresponding Medicare fees” for those services.[citation needed]
Some 47% of the 2015 ACA plans sold on the Healthcare.gov exchange lacked standard out-of-network coverage. Enrollees in such plans, typically received no coverage for out-of-network costs (except for emergencies or with prior authorization). A 2016 study on Healthcare.gov health plans found a 24 percent increase in the percentage of ACA plans that lacked standard out-of-network coverage.[citation needed]
The December spending bill delayed the onset of the “Cadillac tax” on expensive insurance plans by two years, until 2020.[429]
The average price of non-generic drugs rose 16.2% in 2015 and 98.2% since 2011.[426]
2016
As of March 2016 11.1 million people had purchased exchange plans,[citation needed] while an estimated 9 million to 10 million people had gained Medicaid coverage, mostly low-income adults.[207] 11.1 million were still covered, a decline of nearly 13 percent.[430] 6.1 million uninsured 19-25 year olds gained coverage.[431]
Employers
A survey of New York businesses found an increase of 8.5 percent in health care costs, less than the prior year’s survey had expected. A 10 percent increase was expected for 2017. Factors included increased premiums, higher drug costs, ACA and aging workers. Some firms lowered costs by increasing cost-sharing (for higher employee contributions, deductibles and co-payments). 60% planned to further increase cost-sharing. Coverage and benefits were not expected to change. Approximately one fifth said ACA had pushed them to reduce their workforce. A larger number said they were raising prices.[432]
Insurers
The five major national insurers expected to lose money on ACA policies in 2016.[433] UnitedHealth withdrew from the Georgia and Arkansas exchanges for 2017, citing heavy losses.[204] Humana exited other markets, leaving it operating in 156 counties in 11 states for 2017.[434] 225 counties across the country had access to only a single ACA insurer. A study released in May estimated that 664 counties would have one insurer in 2017.[435][not in citation given]
Aetna cancelled planned expansion of its offerings and following an expected $300 million loss in 2016 and then withdrew from 11 of its 15 states.[436] In August 2016 Anthem said that its offerings were losing money, but also that it would expand its participation if a pending merger with Cigna was approved.[437] Aetna and Humana’s exit for 2017 left 8 rural Arizona counties with only Blue Cross/Blue Shield.[438]
Blue Cross/Blue Shield Minnesota announced that it would exit individual and family markets in Minnesota in 2017, due to financial losses of $500 million over three years.[439]
Another analysis found that 17 percent of eligibles may have a single insurer option in 2017. North Carolina, Oklahoma, Alaska, Alabama, South Carolina and Wyoming were expected to have a single insurer,[440] while only 2 percent of 2016 eligibles had only one choice.[441]
Aetna, Humana, UnitedHealth Group also exited various individual markets. Many local Blue Cross plans sharply narrowed their networks. In 2016 two thirds of individual plans were narrow-network HMO plans.[425]
One of the causes of insurer losses is the lower income, older and sicker enrollee population. One 2016 analysis reported that while 81% of the population with incomes from 100-150% of the federal poverty level signed up, only 45% of those from 150-200% did so. The percentage continued to decline as income rose: 2% of those above 400% enrolled.[442]
Costs
The law is designed to pay subsidies in the form of tax credits to the individuals or families purchasing the insurance, based on income levels. Higher income consumers receive lower subsidies. While pre-subsidy prices rose considerably from 2016 to 2017, so did the subsidies, to reduce the after-subsidy cost to the consumer. For example, a study published in 2016 found that the average requested 2017 premium increase among 40-year-old non-smokers was about 9 percent, according to an analysis of 17 cities, although Blue Cross Blue Shield proposed increases of 40 percent in Alabama and 60 percent in Texas.[221] However, some or all of these costs are offset by subsidies, paid as tax credits. For example, the Kaiser Foundation reported that for the second-lowest cost “Silver plan” (a plan often selected and used as the benchmark for determining financial assistance), a 40-year old non-smoker making $30,000 per year would pay effectively the same amount in 2017 as they did in 2016 (about $208/month) after the subsidy/tax credit, despite large increases in the pre-subsidy price. This was consistent nationally. In other words, the subsidies increased along with the pre-subsidy price, fully offsetting the price increases.[222]
Cooperatives
The number of ACA nonprofit insurance cooperatives for 2017 fell from 23 originally to 7 for 2017. The remaining 7 posted annual losses in 2015. A General Accountability Report found that co-ops’ 2015 premiums were generally below average. At the end of 2014, money co-ops and other ACA insurers had counted on risk corridor payments that didn’t materialize. Maryland’s Evergreen Health claims that ACA’s risk-adjustment system does not adequately measure risk.[citation needed]
Medicaid
Newly elected Louisiana Governor John Bel Edwards issued an executive order to accept the expansion, becoming the 32nd state to do so. The program was expected to enroll an additional 300,000 Louisianans.[443]
2017
More than 9.2 million people signed up for care on the national exchange (healthcare.gov) for 2017, down some 400,000 from 2016. This decline was due primarily to the election of President Trump, who pulled advertising encouraging people to signup for coverage, issued an executive order that attempts to eliminate the mandate, and has created significant uncertainty about the future of the ACA. Enrollments had been running ahead of 2016 prior to President Obama leaving office, with 9.8 million expected to sign-up, so President Trump’s actions potentially cost about 600,000 national enrollments (i.e., 9.8 million expected – 9.2 million actual = 0.6 million impact).[444]Of the 9.2 million, 3.0 million were new customers and 6.2 million were returning. The 9.2 million excludes the 11 states that run their own exchanges, which have signed up around 3 million additional people.[444] These figures also exclude the additional coverage due to the Medicaid expansion, which covers another approximately 10 million persons, as described in the impact section above.
In February, Humana announced that it would withdraw from the individual insurance market in 2018, citing “further signs of an unbalanced risk pool.”[445] That month the IRS announced that it would not require that tax returns indicate that a person has health insurance, reducing the effectiveness of the individual mandate, in response to an executive order from President Donald Trump.[446]
Aetna CEO Mark Bertolini stated that ACA was in a “death spiral” of escalating premiums and shrinking, skewed enrollment.[447] However, a U.S. judge found that the Aetna CEO misrepresented why his company was leaving the exchanges; an important part of the reason was the Justice Department’s opposition to the intended merger between Aetna and Humana. Aetna actually pulled out of states where it was making money on the exchanges, while remaining in some states where it was not.[448] Further, the CBO reported in March 2017 that the healthcare exchanges were expected to be stable; i.e., they were not in a “death spiral.”[449]
Molina Healthcare, a major Medicaid provider, said that it was considering exiting some markets in 2018, citing “too many unknowns with the marketplace program.” Molina lost $110 million in 2016 due to having to contribute $325 million more than expected to the ACA “risk transfer” fund that compensated insurers with unprofitable risk pools. These pools were establish to help prevent insurers from artificially selecting lower-risk pools.[450]
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The Pronk Pops Show 780, October 20, 2016, Part 1 of 2 — Story 1: Who Won The Third 2016 Presidential Debate? Trump — Who Will Be Elected President of The United States? — Who Do You Trust The Most? — Trump — Verdict On Hillary Clinton’s Criminal Activities Given By American People on Election Day, November 8 — Story 2: Hillary Clinton Is Nurse Ratched! — Would Turn America Into An Insane Asylum — Videos
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Pronk Pops Show 780: October 20, 2016
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Story 1: Who Won The Third 2016 Presidential Debate? Trump — Who Will Be Elected President of The United States? — Who Do You Trust The Most? — Trump — Verdict On Hillary Clinton’s Criminal Activities Given By American People on Election Day, November 8 — Videos
Electoral College Projections as of October 19th
October 19, 2016
As we head into the final presidential debate, and with just under three weeks to go until the 2016 presidential election, here’s the state of the race from the viewpoint of 14 forecasters. You can find all the associated maps, as well as a few others, on our2016 Presidential Election Forecasts page.
Since our last update on October 13th, both Hillary Clinton and Donald Trump’s average total electoral votes are little changed. Clinton is at 300, Trump 187. Within Trump’s average, however, we are beginning to see an erosion in states where the Republican nominee is favored vs. those that are leaning in his direction. For example, a couple forecasters have moved Texas from favored to leaning.
Note that the statistical projections (shaded in gray) in the table may change several times a day as new input data (e.g., polls released that day) are processed by the models. This will lead to more variability vs. the other forecasters.
http://www.270towin.com/news/2016/10/19/electoral-college-projections-october-19th_398.html#.WAgvH-iAOko
Latest Polls
Presidential Debate – October 19, 2016
Full. Third Presidential Debate. Donald Trump vs Hillary Clinton. October 19, 2016
LIVE: Third Presidential Debate (C-SPAN)
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FOX NEWS ALERT 10/18/16 Trump On Clinton Email Scandal This Is Big Stuff. This Is Watergate.
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3 Reasons Not To Sweat The “Citizens United” SCOTUS Ruling
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Justice Scalia on Citizens United (C-SPAN)
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Dem Operative Who Oversaw Trump Rally Agitators Visited White House 342 Times
PETER HASSON
Reporter, Associate Editor
A key operative in a Democratic scheme to send agitators to cause unrest at Donald Trump’s rallies has visited the White House 342 times since 2009, White House records show.
Robert Creamer, who acted as a middle man between the Clinton campaign, the Democratic National Committee and “protesters” who tried — and succeeded — to provoke violence at Trump rallies met with President Obama during 47 of those 342 visits, according to White House records. Creamer’s last visit was in June 2016.
Creamer, whose White House visits were first pointed out by conservative blog Weasel Zippers, is stepping back from his role within the Clinton campaign. (RELATED: Second O’Keefe Video Shows Dem Operative Boasting About Voter Fraud)
Hidden camera video from activist James O’Keefe showed Creamer bragging that his role within the Clinton campaign was to oversee the work of Americans United for Change, a non-profit organization that sent activists to Trump rallies. (RELATED: Activist Who Took Credit For Violent Chicago Protests Was On Hillary’s Payroll)
Scott Foval, the national field director for Americans United for Change, explained how the scheme works.
“The [Clinton] campaign pays DNC, DNC pays Democracy Partners, Democracy Partners pays the Foval Group, The Foval Group goes and executes the shit,” Foval told an undercover journalist.
One example of the “shit” Foval executes was an instance in which a 69-year-old woman garnered headlines after claiming to be assaulted at a Trump rally.
“She was one of our activists,” Foval said.
Creamer’s job was to “manage” the work carried out by Foval.
“And the Democratic Party apparatus and the people from the campaign, the Clinton campaign and my role with the campaign, is to manage all that,” Creamer told an undercover journalist.
“Wherever Trump and Pence are gonna be we have events,” he said.
http://dailycaller.com/2016/10/18/exposed-dem-operative-who-oversaw-trump-rally-agitators-visited-white-house-342-times/#ixzz4Naebnlzy
Citizens United v. FEC
Reargued September 9, 2009
Decided January 21, 2010
John G. Roberts
John P. Stevens·Antonin Scalia
Anthony Kennedy·Clarence Thomas
Ruth Bader Ginsburg·Stephen Breyer
Samuel Alito·Sonia Sotomayor
Citizens United v. Federal Election Commission, No. 08-205, 558U.S.310 (2010), is a U.S. constitutional law and corporate law case dealing with the regulation of campaign spending by organizations. The United States Supreme Court held (5–4) that freedom of speech prohibited the government from restricting independent political expenditures by a nonprofit corporation. The principles articulated by the Supreme Court in the case have also been extended to for-profit corporations, labor unions and other associations.[2][3]
In the case, the conservativenon-profit organizationCitizens United wanted to air a film critical of Hillary Clinton and to advertise the film during television broadcasts, which was a violation of the 2002 Bipartisan Campaign Reform Act, commonly known as the McCain–Feingold Act or “BCRA”.[4] Section 203 of BCRA defined an “electioneering communication” as a broadcast, cable, or satellite communication that mentioned a candidate within 60 days of a general election or 30 days of a primary, and prohibited such expenditures by corporations and unions. The United States District Court for the District of Columbia held that §203 of BCRA applied and prohibited Citizens United from advertising the film Hillary: The Movie in broadcasts or paying to have it shown on television within 30 days of the 2008 Democratic primaries.[1][5] The Supreme Court reversed this decision, striking down those provisions of BCRA that prohibited corporations (including nonprofit corporations) and unions from making independent expenditures and “electioneering communications”.[4] The majority decision overruled Austin v. Michigan Chamber of Commerce (1990) and partially overruled McConnell v. Federal Election Commission (2003).[6] The Court, however, upheld requirements for public disclosure by sponsors of advertisements (BCRA §201 and §311). The case did not involve the federal ban on direct contributions from corporations or unions to candidate campaigns or political parties, which remain illegal in races for federal office.[7]
Background
The Bipartisan Campaign Reform Act of 2002 (known as BCRA or McCain–Feingold Act) – specifically §203, which modified the Federal Election Campaign Act of 1971, 2 U.S.C.§ 441b – prohibited corporations and unions from using their general treasury to fund “electioneering communications” (broadcast advertisements mentioning a candidate) within 30 days before a primary or 60 days before a general election. During the 2004 presidential campaign, a conservative nonprofit 501(c)(4) organization named Citizens United filed a complaint before the Federal Election Commission (FEC) charging that advertisements for Michael Moore’s film Fahrenheit 9/11, a docudrama critical of the Bush administration’s response to the terrorist attacks on September 11, 2001, constituted political advertising and thus could not be aired within the 30 days before a primary election or 60 days before a general election. The FEC dismissed the complaint after finding no evidence that broadcast advertisements for the film and featuring a candidate within the proscribed time limits had actually been made.[8] The FEC later dismissed a second complaint which argued that the movie itself constituted illegal corporate spending advocating the election or defeat of a candidate, which was illegal under the Taft-Hartley Act of 1947 and the Federal Election Campaign Act Amendments of 1974. In dismissing that complaint, the FEC found that:
In the wake of these decisions, Citizens United sought to establish itself as a bona fide commercial film maker, producing several documentary films between 2005 and 2007. By early 2008, it sought to run television commercials to promote its political documentary Hillary: The Movie and to air the movie on DirecTV.[10]
In the District Court
In December 2007 Citizens United filed a complaint in the U.S. District Court for the District of Columbia challenging the constitutionality of several statutory provisions governing “electioneering communications”.[11] It asked the court to declare that the corporate and union funding restrictions were unconstitutional both on its face and as applied to Hillary: The Movie, and to enjoin the Federal Election Commission from enforcing its regulations. Citizens United also argued that the Commission’s disclosure and disclaimer requirements were unconstitutional as applied to the movie pursuant to the Supreme Court decision in Federal Election Commission v. Wisconsin Right to Life, Inc.. It also sought to enjoin the funding, disclosure, and disclaimer requirements as applied to Citizens United’s intended ads for the movie.
In accordance with special rules in section 403 of the BCRA, a three-judge court was convened to hear the case. On January 15, 2008, the court denied Citizens United’s motion for a preliminary injunction, finding that the suit had little chance of success because the movie had no reasonable interpretation other than as an appeal to vote against Senator Clinton, that it was therefore express advocacy, not entitled to exemption from the ban on corporate funding of electioneering communications, and that television advertisements for the movie within 30 days of a primary violated the BCRA restrictions on “electioneering communications”.[12] The court held that the Supreme Court in McConnell v. FEC (2003) had found the disclosure requirements constitutional as to all electioneering communications, and Wisconsin RTL did not disturb this holding because the only issue of that case was whether speech that did not constitute the functional equivalent of express advocacy could be banned during the relevant pre-election period.
On July 18, 2008, the District Court granted summary judgement to the Federal Election Commission. In accordance with the special rules in the BCRA, Citizens United appealed to the Supreme Court which docketed the case on August 18, 2008 and granted certiorari on November 14, 2008.[13]
The Supreme Court heard oral argument on March 24, 2009[10][14][15] and then asked for further briefs on June 29; the re-argument was heard on September 9, 2009.[13]
Before the Supreme Court
During the original oral argument, Deputy Solicitor General Malcolm L. Stewart (representing the FEC) argued that under Austin v. Michigan Chamber of Commerce, the government would have the power to ban books if those books contained even one sentence expressly advocating the election or defeat of a candidate and were published or distributed by a corporation or labor union.[16] In response to this line of questioning, Stewart further argued that under Austin the government could ban the digital distribution of political books over the Amazon Kindle or prevent a union from hiring a writer to author a political book.[17]
According to a 2012 article in The New Yorker by Jeffrey Toobin, the Court expected after oral argument to rule on the narrow question that had originally been presented: could Citizens United show the film? At the subsequent conference among the justices after oral argument, the vote was 5–4 in favor of Citizens United being allowed to show the film. The justices voted the same as they had in Federal Election Commission v. Wisconsin Right to Life, Inc., a similar 2007 case, with Chief Justice Roberts and Justices Scalia, Kennedy, Thomas and Alito in the majority.[18]
Chief Justice John Roberts wrote the initial opinion of the Court, holding that the BCRA allowed the showing of the film. A draft concurring opinion by Justice Kennedy argued that the court could and should have gone much further. The other justices in the majority began agreeing with Kennedy, and convinced Roberts to reassign the writing and allow Kennedy’s concurrence to become the majority opinion.[18]
On the other side, John Paul Stevens, the most senior justice in the minority, assigned the dissent to David Souter, who announced his retirement from the Court while he was working on it. The final draft went beyond critiquing the majority. Toobin described it as “air[ing] some of the Court’s dirty laundry,” writing that Souter’s dissent accused Roberts of having manipulated Court procedures to reach his desired result – an expansive decision that, Souter claimed, changed decades of election law and ruled on issues neither party to the litigation had presented.[18]
According to Toobin, Roberts was concerned that Souter’s dissent, likely to be his last opinion for the Court, could “damage the Court’s credibility.” He agreed with the minority to withdraw the opinion and schedule the case for reargument. However, when he did, the “Questions Presented” to the parties were more expansive, touching on the issues Kennedy had identified. According to Toobin, the eventual result was therefore a foregone conclusion from that point on.[18] Toobin’s account has been criticized for drawing conclusions unsupported by the evidence in his article.[19]
On June 29, 2009, the last day of the term, the Court issued an order directing the parties to re-argue the case on September 9 after briefing whether it might be necessary to overrule Austin and/or McConnell v. Federal Election Commission to decide the case.[20] Justice Stevens noted in his dissent that in its prior motion for summary judgment Citizens United had abandoned its facial challenge of BCRA §203, with the parties agreeing to the dismissal of the claim.[21]
Justice Sotomayor sat on the bench for the first time during the second round of oral arguments. This was the first case argued by then-Solicitor General and future Supreme Court Justice Elena Kagan. Former Bush Solicitor General Ted Olson and First Amendment lawyer Floyd Abrams argued for Citizens United, and former Clinton Solicitor General Seth Waxman defended the statute on behalf of various supporters.[22] Legal scholar Erwin Chemerinsky called it “one of the most important First Amendment cases in years”.[23]
Opinions of the Court
Majority opinion
Justice Kennedy’s majority opinion[24] found that the BCRA §203 prohibition of all independent expenditures by corporations and unions violated the First Amendment’s protection of free speech. The majority wrote, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”[25]
Justice Kennedy’s opinion also noted that because the First Amendment does not distinguish between media and other corporations, the BCRA restrictions improperly allowed Congress to suppress political speech in newspapers, books, television, and blogs.[4] The Court overruled Austin, which had held that a state law that prohibited corporations from using treasury money to support or oppose candidates in elections did not violate the First and Fourteenth Amendments. The Court also overruled that portion of McConnell that upheld BCRA’s restriction of corporate spending on “electioneering communications”. The Court’s ruling effectively freed corporations and unions to spend money both on “electioneering communications” and to directly advocate for the election or defeat of candidates (although not to contribute directly to candidates or political parties).
The majority ruled that the Freedom of the Press clause of the First Amendment protects associations of individuals in addition to individual speakers, and further that the First Amendment does not allow prohibitions of speech based on the identity of the speaker. Corporations, as associations of individuals therefore, have free speech rights under the First Amendment. Because spending money is essential to disseminating speech, as established in Buckley v. Valeo, limiting a corporation’s ability to spend money is unconstitutional because it limits the ability of its members to associate effectively and to speak on political issues.
The decision overruled Austin because that decision allowed different restrictions on speech-related spending based on corporate identity. Additionally, the decision said that Austinwas based on an “equality” rationale – trying to equalize speech between different speakers – that the Court had previously rejected as illegitimate under the First Amendment in Buckley. The Michigan statute at issue in Austin had distinguished between corporate and union spending, prohibiting the former while allowing the latter. The Austin Court, over the dissent by Justices Scalia, Kennedy, and O’Connor, had held that such distinctions were within the legislature’s prerogative. In Citizens United v. Federal Election Commission, however, the majority argued that the First Amendment purposefully keeps the government from interfering in the “marketplace of ideas” and “rationing” speech, and it is not up to the legislatures or the courts to create a sense of “fairness” by restricting speech.[24]
The majority also criticized Austin’s reasoning that the “distorting effect” of large corporate expenditures constituted a risk of corruption or the appearance of corruption. Rather, the majority argued that the government had no place in determining whether large expenditures distorted an audience’s perceptions, and that the type of “corruption” that might justify government controls on spending for speech had to relate to some form of “quid pro quo” transaction: “There is no such thing as too much speech.”[24] The public has a right to have access to all information and to determine the reliability and importance of the information. Additionally, the majority did not believe that reliable evidence substantiated the risk of corruption or the appearance of corruption, and so this rationale did not satisfy strict scrutiny.
The Court’s opinion relied heavily on the reasoning and principles of the landmark campaign finance case of Buckley and First National Bank of Boston v. Bellotti, in which the Court struck down a broad prohibition against independent expenditures by corporations in ballot initiatives and referenda.[24] Specifically, the Court echoed Bellotti’s rejection of categories based on a corporation’s purpose. The majority argued that to grant Freedom of the Press protections to media corporations, but not others, presented a host of problems; and so all corporations should be equally protected from expenditure restrictions.
The Court found that BCRA §§201 and 311, provisions requiring disclosure of the funder, were valid as applied to the movie advertisements and to the movie itself.[24] The majority ruled for the disclosure of the sources of campaign contributions, saying that
Concurrences
Chief Justice Roberts, with whom Justice Alito joined, wrote separately “to address the important principles of judicial restraint and stare decisis implicated in this case”.[28]
Roberts wrote to further explain and defend the Court’s statement that “there is a difference between judicial restraint and judicial abdication.” Roberts explained why the Court must sometimes overrule prior decisions. Had prior Courts never gone against stare decisis, for example, “segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants”. Roberts’ concurrence recited a plethora of case law in which the court had ruled against precedent. Ultimately, Roberts argued that “stare decisis…counsels deference to past mistakes, but provides no justification for making new ones”.[28]
Justice Scalia joined the opinion of the Court, and wrote a concurring opinion joined by Justice Alito in full and by Justice Thomas in part. Scalia addressed Justice Stevens‘ dissent, specifically with regard to theoriginal understanding of the First Amendment. Scalia said Stevens’ dissent was “in splendid isolation from the text of the First Amendment…It never shows why ‘the freedom of speech’ that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form.” He further considered the dissent’s exploration of the Framers’ views about the “role of corporations in society” to be misleading, and even if valid, irrelevant to the text. Scalia principally argued that the First Amendment was written in “terms of speech, not speakers” and that “Its text offers no foothold for excluding any category of speaker.”[29] Scalia argued that the Free Press clause was originally intended to protect the distribution of written materials and did not only apply to the media specifically. This understanding supported the majority’s contention that the Constitution does not allow the Court to separate corporations into media and non-media categories.[24]
Justice Thomas wrote a separate opinion concurring in all but the upholding of the disclosure provisions. In order to protect the anonymity of contributors to organizations exercising free speech, Thomas would have struck down the reporting requirements of BCRA §201 and §311 as well, rather than allowing them to be challenged only on a case-specific basis. Thomas’s primary argument was that anonymous free speech is protected and that making contributor lists public makes the contributors vulnerable to retaliation, citing instances of retaliation against contributors to both sides of a then recent California voter initiative. Thomas also expressed concern that such retaliation could extend to retaliation by elected officials. Thomas did not consider “as-applied challenges” to be sufficient to protect against the threat of retaliation.[30]
Dissent
A dissenting opinion by Justice Stevens[31] was joined by Justice Ginsburg, Justice Breyer, and Justice Sotomayor. To emphasize his unhappiness with the majority, Stevens read part of his 90-page dissent from the bench.[32] Stevens concurred in the Court’s decision to sustain BCRA’s disclosure provisions, but dissented from the principal holding of the Court. He argued that the Court’s ruling “threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.” He added: “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.”[33]
Stevens also argued that the Court addressed a question not raised by the litigants when it found BCRA §203 to be facially unconstitutional, and that the majority “changed the case to give themselves an opportunity to change the law”.[24] He argued that the majority had expanded the scope beyond the questions presented by the appellant and that therefore a sufficient record for judging the case did not exist. Stevens argued that at a minimum the Court should have remanded the case for a fact-finding hearing, and that the majority did not consider other compilations of data, such as the Congressional record for justifying BCRA §203.
Stevens referenced a number of major cases to argue that the Court had long recognized that to deny Congress the power to safeguard against “the improper use of money to influence the result [of an election] is to deny to the nation in a vital particular the power of self protection”.[34] After recognizing that in Buckley v. Valeo the Court had struck down portions of a broad prohibition of independent expenditures from any sources, Stevens argued that nevertheless Buckley recognized the legitimacy of “prophylactic” measures for limiting campaign spending and found the prevention of “corruption” to be a reasonable goal for legislation. Consequently, Stevens argued that Buckley left the door open for carefully tailored future regulation.[24] Although the majority echoed many of the arguments in First National Bank of Boston v. Bellotti, Stevens argued that the majority opinion contradicted the reasoning of other campaign finance cases – in particular, Austin v. Michigan State Chamber of Commerce and McConnell v. Federal Election Commission – and found it telling that the majority, when citing such cases, referenced mainly dissenting opinions.
Stevens’ dissent specifically sought to address a number of the majority’s central arguments:
First, Stevens argued that the majority failed to recognize the possibility for corruption outside strict quid pro quo exchanges. He referenced facts from a previous BCRA challenge to argue that, even if the exchange of votes for expenditures could not be shown, contributors gain favorable political access from such expenditures.[24] The majority considered access to be insufficient justification for limiting speech rights.
Stevens, however, argued that in the past, even when striking down a ban on corporate independent expenditures, the Court “never suggested that such quid pro quo debts must take the form of outright vote buying or bribes” (Bellotti). Buckley, he said, also acknowledged that large independent expenditures present the same dangers as quid pro quo arrangements, although Buckley struck down limits on such independent expenditures. Using the record from a previous BCRA §203 challenge, he argued that independent expenditures were sometimes a factor in gaining political access and concluded that large independent expenditures generate more influence than direct campaign contributions.[24] Furthermore, Stevens argued that corporations could threaten Representatives and Senators with negative advertising to gain unprecedented leverage. Stevens supported his argument by citing Caperton v. A.T. Massey Coal Co.,[35] where the Court held that $3 million in independent expenditures in a judicial race raised sufficient questions about a judge’s impartiality to require the judge to recuse himself in a future case involving the spender. Stevens argued that it was contradictory for the majority to ignore the same risks in legislative and executive elections, and argued that the majority opinion would exacerbate the problem presented in Caperton because of the number of states with judicial elections and increased spending in judicial races.
Second, Stevens argued that the majority did not place enough emphasis on the need to prevent the “appearance of corruption” in elections. Earlier cases, including Buckley and Bellotti, recognized the importance of public confidence in democracy. Stevens cited recent data indicating that 80% of the public view corporate independent expenditures as a method used to gain unfair legislative access.[24] Stevens predicted that if the public believes that corporations dominate elections, disaffected voters will stop participating.
Third, Stevens argued that the majority’s decision failed to recognize the dangers of the corporate form. Austin held that the prevention of corruption, including the distorting influence of a dominant funding source, was a sufficient reason for regulating corporate independent expenditures. In defending Austin, Stevens argued that the unique qualities of corporations and other artificial legal entities made them dangerous to democratic elections. These legal entities, he argued, have perpetual life, the ability to amass large sums of money, limited liability, no ability to vote, no morality, no purpose outside profit-making, and no loyalty. Therefore, he argued, the courts should permit legislatures to regulate corporate participation in the political process.
Legal entities, Stevens wrote, are not “We the People” for whom our Constitution was established.[24] Therefore, he argued, they should not be given speech protections under the First Amendment. The First Amendment, he argued, protects individual self-expression, self-realization and the communication of ideas. Corporate spending is the “furthest from the core of political expression” protected by the Constitution, he argued, citing Federal Election Commission v. Beaumont,[36] and corporate spending on politics should be viewed as a business transaction designed by the officers or the boards of directors for no purpose other than profit-making. Stevens called corporate spending “more transactional than ideological”. Stevens also pointed out that any member of a corporation may spend personal money on promoting a campaign because BCRA only prohibited the use of general treasury money.
Fourth, Stevens attacked the majority’s central argument: that the prohibition of spending guards free speech and allows the general public to receive all available information. Relying on Austin, Stevens argued that corporations “unfairly influence” the electoral process with vast sums of money that few individuals can match, which distorts the public debate. Because a typical voter can only absorb so much information during a relevant election period, Stevens described “unfair corporate influence” as the potential to outspend others, to push others out of prime broadcasting spots and to dominate the “marketplace of ideas”.[24] This process, he argued, puts disproportionate focus on this speech and gives the impression of widespread support regardless of actual support. Thus, this process marginalizes the speech of other individuals and groups.
Stevens referred to the majority’s argument that “there is no such thing as too much speech” as “facile” and a “straw man” argument. He called it an incorrect statement of First Amendment law because the Court recognizes numerous exceptions to free speech, such as fighting words, obscenity restrictions, time, place and manner restrictions, etc. Throughout his dissent, Stevens said that the majority’s “slogan” ignored the possibility that too much speech from one source could “drown out” other points of view.
Fifth, Stevens criticized the majority’s fear that the government could use BCRA §203 to censor the media. The focus placed on this hypothetical fear made no sense to him because it did not relate to the facts of this case – if the government actually attempted to apply BCRA §203 to the media (and assuming that Citizens United could not constitute “media”), the Court could deal with the problem at that time. Stevens described the majority’s supposed protection of the media as nothing more than posturing. According to him, it was the majority’s new rule, announced in this case, that prohibited a law from distinguishing between “speakers” or funding sources. This new rule would be the only reason why media corporations could not be exempted from BCRA §203. In this, Stevens and the majority conceptualize the First Amendment’s protection of “the press” quite differently. Stevens argues that the “Press” is an entity, which can be distinguished from other persons and entities which are not “press”. The majority opinion viewed “freedom of the press” as an activity, applicable to all citizens or groups of citizens seeking to publish views.
Sixth, Stevens claimed that the majority failed to give proper deference to the legislature. Stevens predicted that this ruling would restrict the ability of the states to experiment with different methods for decreasing corruption in elections. According to Stevens, this ruling virtually ended those efforts, “declaring by fiat” that people will not “lose faith in our democracy”.[24] Stevens argued that the majority’s view of a self-serving legislature, passing campaign-spending laws to gain an advantage in retaining a seat, coupled with “strict scrutiny” of laws, would make it difficult for any campaign finance regulation to be upheld in future cases.
Seventh, Stevens argued that the majority opinion ignored the rights of shareholders. A series of cases protects individuals from legally compelled payment of union dues to support political speech.[37] Because shareholders invest money in corporations, Stevens argued that the law should likewise help to protect shareholders from funding speech that they oppose. The majority, however, argued that ownership of corporate stock was voluntary, and that unhappy shareholders could simply sell off their shares if they did not agree with the corporation’s speech. Stevens also argued that Political Action Committees (PACs), which allow individual members of a corporation to invest money in a separate fund, are an adequate substitute for general corporate speech and better protect shareholder rights. The majority, by contrast, had argued that most corporations are too small and lack the resources and raw number of shareholders and management staff necessary to cover the compliance, accounting, and administrative costs of maintaining a PAC. In this dispute, the opposing views essentially discussed differing types of entities: Stevens focused his argument on large, publicly held corporations, while the justices in the majority, and particularly Justice Scalia’s concurring opinion, placed an emphasis on small, closely held corporations and non-profits.
Stevens called the majority’s faith in “corporate democracy” an unrealistic method for a shareholder to oppose political funding. A derivative suit is slow, inefficient, risky and potentially expensive. Likewise, shareholder meetings only happen a few times a year, not prior to every decision or transaction. Rather, the officers and boards control the day-to-day spending, including political spending. According to Stevens, the shareholders have few options, giving them “virtually nonexistent” recourse for opposing a corporation’s political spending.[24] Furthermore, most shareholders use investment intermediaries, such as mutual funds or pensions, and by the time a shareholder may find out about a corporation’s political spending and try to object, the damage is done and the shareholder has funded disfavored speech.
Stevens concluded his dissent:
Subsequent developments
There was a wide range of reactions to the case from politicians, academics, attorneys, advocacy groups and journalists.
Support
Politicians
Senate Minority Leader Mitch McConnell, a plaintiff in the earlier related decision McConnell v. FEC, said:[38][39]
Republican campaign consultant Ed Rollins opined that the decision adds transparency to the election process and will make it more competitive.[40]
Advocacy groups
Citizens United, the group filing the lawsuit, said, “Today’s U.S. Supreme Court decision allowing Citizens United to air its documentary films and advertisements is a tremendous victory, not only for Citizens United but for every American who desires to participate in the political process.”[41] During litigation, Citizens United had support from the United States Chamber of Commerce and the National Rifle Association.[42]
Campaign finance attorney Cleta Mitchell, who had filed an amicus curiae brief on behalf of two advocacy organizations opposing the ban, wrote that “The Supreme Court has correctly eliminated a constitutionally flawed system that allowed media corporations (e.g., The Washington Post Co.) to freely disseminate their opinions about candidates using corporate treasury funds, while denying that constitutional privilege to Susie’s Flower Shop Inc. … The real victims of the corporate expenditure ban have been nonprofit advocacy organizations across the political spectrum.”[43]
Heritage Foundation fellow Hans A. von Spakovsky, a former Republican member of the Federal Election Commission, said “The Supreme Court has restored a part of the First Amendment that had been unfortunately stolen by Congress and a previously wrongly-decided ruling of the court.”[44]
Libertarian Cato Institute analysts John Samples and Ilya Shapiro wrote that restrictions on advertising were based on the idea “that corporations had so much money that their spending would create vast inequalities in speech that would undermine democracy”. However, “to make campaign spending equal or nearly so, the government would have to force some people or groups to spend less than they wished. And equality of speech is inherently contrary to protecting speech from government restraint, which is ultimately the heart of American conceptions of free speech.”[45]
The American Civil Liberties Union filed an amicus brief that supported the decision,[46] saying that “section 203 should now be struck down as facially unconstitutional”, though membership was split over the implications of the ruling and its board sent the issue to its special committee on campaign finance for further consideration.[47] On March 27, 2012, the ACLU reaffirmed its stance in support of the Supreme Court’sCitizens United ruling.[48]
Academics and attorneys
Bradley A. Smith, professor of law at Capital University Law School, former chairman of the FEC, founder of the Center for Competitive Politics and a leading proponent of deregulation of campaign finance, wrote that the major opponents of political free speech are “incumbent politicians” who “are keen to maintain a chokehold on such speech”. Empowering “small and midsize corporations – and every incorporated mom-and-pop falafel joint, local firefighters’ union, and environmental group – to make its voice heard” frightens them.[49] In response to statements by President Obama and others that the ruling would allow foreign entities to gain political influence through U.S. subsidiaries, Smith pointed out that the decision did not overturn the ban on political donations by foreign corporations and the prohibition on any involvement by foreign nationals in decisions regarding political spending by U.S. subsidiaries, which are covered by other parts of the law.[50][51][52]
Campaign finance expert Jan Baran, a member of the Commission on Federal Ethics Law Reform, agreed with the decision, writing that “The history of campaign finance reform is the history of incumbent politicians seeking to muzzle speakers, any speakers, particularly those who might publicly criticize them and their legislation. It is a lot easier to legislate against unions, gun owners, ‘fat cat’ bankers, health insurance companies and any other industry or ‘special interest’ group when they can’t talk back.” Baran further noted that in general conservatives and libertarians praised the ruling’s preservation of the First Amendment and freedom of speech, but that liberals and campaign finance reformers criticized it as greatly expanding the role of corporate money in politics.[53]
Attorney Kenneth Gross, former associate general counsel of the FEC, wrote that corporations relied more on the development of long-term relationships, political action committees and personal contributions, which were not affected by the decision. He held that while trade associations might seek to raise funds and support candidates, corporations which have “signed on to transparency agreements regarding political spending” may not be eager to give.[43]
The New York Times asked seven academics to opine on how corporate money would reshape politics as a result of the court’s decision.[54] Three of the seven wrote that the effects would be minimal or positive: Christopher Cotton, a University of Miami School of Business assistant professor of economics, wrote that “There may be very little difference between seeing eight ads or seeing nine ads (compared to seeing one ad or two). And, voters recognize that richer candidates are not necessarily the better candidates, and in some cases, the benefit of running more ads is offset by the negative signal that spending a lot of money creates.[54]Eugene Volokh, a professor of law at UCLA, stated that the “most influential actors in most political campaigns” are media corporations which “overtly editorialize for and against candidates, and also influence elections by choosing what to cover and how to cover it”. Holding that corporations like Exxon would fear alienating voters by supporting candidates, the decision really meant that voters would hear “more messages from more sources”.[54] Joel Gora, a professor at Brooklyn Law School who had previously argued the case of Buckley v. Valeo on behalf of the American Civil Liberties Union, said that the decision represented “a great day for the First Amendment” writing that the Court had “dismantled the First Amendment ‘caste system’ in election speech”.[54]
Journalists
The Editorial Board of the San Antonio Express-News criticized McCain–Feingold’s exception for media corporations from the ban on corporate electioneering, writing that it “makes no sense” that the paper could make endorsements up until the day of the election but advocacy groups could not. “While the influence of money on the political process is troubling and sometimes corrupting, abridging political speech is the wrong way to counterbalance that influence.”[55]
Anthony Dick in National Review countered a number of arguments against the decision, asking rhetorically, “is there something uniquely harmful and/or unworthy of protection about political messages that come from corporations and unions, as opposed to, say, rich individuals, persuasive writers, or charismatic demagogues?” He noted that “a recent Gallup poll shows that a majority of the public actually agrees with the Court that corporations and unions should be treated just like individuals in terms of their political-expenditure rights”.[56] A Gallup poll taken in October 2009 and released soon after the decision showed 57 percent of those surveyed agreed that contributions to political candidates are a form of free speech and 55 percent agreed that the same rules should apply to individuals, corporations and unions. Sixty-four percent of Democrats and Republicans believed campaign donations are a form of free speech.[57]
Chicago Tribune editorial board member Steve Chapman wrote “If corporate advocacy may be forbidden as it was under the law in question, it’s not just Exxon Mobil and Citigroup that are rendered mute. Nonprofit corporations set up merely to advance goals shared by citizens, such as the American Civil Liberties Union and the National Rifle Association, also have to put a sock in it. So much for the First Amendment goal of fostering debate about public policy.”[58]
Opposition
Politicians
President Barack Obama stated that the decision “gives the special interests and their lobbyists even more power in Washington – while undermining the influence of average Americans who make small contributions to support their preferred candidates”.[59] Obama later elaborated in his weekly radio address saying, “this ruling strikes at our democracy itself” and “I can’t think of anything more devastating to the public interest”.[60]On January 27, 2010, Obama further condemned the decision during the 2010 State of the Union Address, stating that, “Last week, the Supreme Court reversed a century of law[61] to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.” On television, the camera shifted to a shot of the SCOTUS judges in the front row directly in front of the President while he was making this statement, and Justice Samuel Alito was frowning, shaking his head side to side while mouthing the words “Not true”.[62][63][64][65][66][67]
Democratic Senator Russ Feingold, a lead sponsor of the 2002 Bipartisan Campaign Reform Act, stated “This decision was a terrible mistake. Presented with a relatively narrow legal issue, the Supreme Court chose to roll back laws that have limited the role of corporate money in federal elections since Teddy Roosevelt was president.”[68]RepresentativeAlan Grayson, a Democrat, stated that it was “the worst Supreme Court decision since the Dred Scott case, and that the court had opened the door to political bribery and corruption in elections to come.[69] Democratic congresswoman Donna Edwards, along with constitutional law professor and Maryland Democratic State Senator Jamie Raskin, have advocated petitions to reverse the decision by means of constitutional amendment.[70] Rep. Leonard Boswell introduced legislation to amend the constitution.[71] Senator John Kerry also called for an Amendment to overrule the decision.[72] On December 8, 2011, Senator Bernie Sanders proposed the Saving American Democracy Amendment, which would reverse the court’s ruling.[73][74]
Republican Senator John McCain, co-crafter of the 2002 Bipartisan Campaign Reform Act and the party’s 2008 presidential nominee, said “there’s going to be, over time, a backlash … when you see the amounts of union and corporate money that’s going to go into political campaigns”.[75] McCain was “disappointed by the decision of the Supreme Court and the lifting of the limits on corporate and union contributions” but not surprised by the decision, saying that “It was clear that Justice Roberts, Alito and Scalia, by their very skeptical and even sarcastic comments, were very much opposed to BCRA.”[68] Republican Senator Olympia Snowe opined that “Today’s decision was a serious disservice to our country.”[76]
Although federal law after Citizens United v. Federal Election Commission still prohibited corporate contributions to all political parties, Sanda Everette, co-chair of the Green Party, stated that “The ruling especially hurts the ability of parties that don’t accept corporate contributions, like the Green Party, to compete.” Another Green Party officer, Rich Whitney, stated “In a transparently political decision, a majority of the US Supreme Court overturned its own recent precedent and paid tribute to the giant corporate interests that already wield tremendous power over our political process and political speech.”
Ralph Nader condemned the ruling,[77] saying that “With this decision, corporations can now directly pour vast amounts of corporate money, through independent expenditures, into the electoral swamp already flooded with corporate campaign PAC contribution dollars.” He called for shareholder resolutions asking company directors to pledge not to use company money to favor or oppose electoral candidates.[78]Pat Choate, former Reform Party candidate for Vice President, stated, “The court has, in effect, legalized foreign governments and foreign corporations to participate in our electoral politics.”[79]
Senator Bernie Sanders, a contender in the 2016 Democratic Primary, has filed a constitutional amendment to overturn the Supreme Court’s Decision.[80] Further, both Sanders and Hillary Clinton have said that, if elected, they will only appoint Supreme Court Justices who are committed to the repeal of Citizens United.[81] In September 2015, Sanders said that “the foundations of American Democracy are being undermined” and called for sweeping campaign finance reform.[82]
International
Ambassador Janez Lenarčič, speaking for the Organization for Security and Co-operation in Europe‘s Office for Democratic Institutions and Human Rights (which has overseen over 150 elections) said the ruling may adversely affect the organization’s two commitments of “giving voters a genuine choice and giving candidates a fair chance” in that “it threatens to further marginalize candidates without strong financial backing or extensive personal resources, thereby in effect narrowing the political arena”.[83]
Academics and attorneys
The constitutional law scholar Laurence H. Tribe wrote that the decision “marks a major upheaval in First Amendment law and signals the end of whatever legitimate claim could otherwise have been made by the Roberts Court to an incremental and minimalist approach to constitutional adjudication, to a modest view of the judicial role vis-à-vis the political branches, or to a genuine concern with adherence to precedent” and pointed out, “Talking about a business corporation as merely another way that individuals might choose to organize their association with one another to pursue their common expressive aims is worse than unrealistic; it obscures the very real injustice and distortion entailed in the phenomenon of some people using other people’s money to support candidates they have made no decision to support, or to oppose candidates they have made no decision to oppose.”[85]
Former Supreme Court Justice Sandra Day O’Connor, whose opinions had changed from dissenting in Austin v. Michigan State Chamber of Commerce to co-authoring (with Stevens) the majority opinion in McConnell v. Federal Election Commission twelve years later, criticized the decision only obliquely, but warned, “In invalidating some of the existing checks on campaign spending, the majority in Citizens United has signaled that the problem of campaign contributions in judicial elections might get considerably worse and quite soon.”[86]
Richard L. Hasen, professor of election law at Loyola Law School, argued that the ruling “is activist, it increases the dangers of corruption in our political system and it ignores the strong tradition of American political equality”. He also described Justice Kennedy’s “specter of blog censorship” as sounding more like “the rantings of a right-wing talk show host than the rational view of a justice with a sense of political realism”.[87]
Kathleen M. Sullivan, professor at Stanford Law School and Steven J. Andre, adjunct professor at Lincoln Law School, argued that two different visions of freedom of speech exist and clashed in the case. An egalitarian vision skeptical of the power of large agglomerations of wealth to skew the political process conflicted with a libertarian vision skeptical of government being placed in the role of determining what speech people should or should not hear.[88][89] Wayne Batchis, Professor at the University of Delaware, in contrast, argues that the Citizens United decision represents a misguided interpretation of the non-textual freedom of association.[90]
The four other scholars of the seven writing in the aforementionedNew York Times article were critical.[54]Richard L. Hasen, Distinguished Professor of election law at Loyola Law School argued differently from his Slate article above, concentrating on the “inherent risk of corruption that comes when someone spends independently to try to influence the outcome of judicial elections”, since judges are less publicly accountable than elected officials. Heather K. Gerken, Professor of Law at Yale Law School wrote that “The court has done real damage to the cause of reform, but that damage mostly came earlier, with decisions that made less of a splash.” Michael Waldman, director of the Brennan Center for Justice at N.Y.U. School of Law, opined that the decision “matches or exceeds Bush v. Gore in ideological or partisan overreaching by the court”, explaining how “Exxon or any other firm could spend Bloomberg-level sums in any congressional district in the country against, say, any congressman who supports climate change legislation, or health care, etc.” andFred Wertheimer, founder and president of Democracy 21 considered that “Chief Justice Roberts has abandoned the illusory public commitments he made to ‘judicial modesty’ and ‘respect for precedent’ to cast the deciding vote for a radical decision that profoundly undermines our democracy,” and that “Congress and presidents past have recognized this danger and signed numerous laws over the years to prevent this kind of corruption of our government.”[54]
Journalists
The New York Times stated in an editorial, “The Supreme Court has handed lobbyists a new weapon. A lobbyist can now tell any elected official: if you vote wrong, my company, labor union or interest group will spend unlimited sums explicitly advertising against your re-election.”[91]Jonathan Alter called it the “most serious threat to American democracy in a generation”.[92] The Christian Science Monitor wrote that the Court had declared “outright that corporate expenditures cannot corrupt elected officials, that influence over lawmakers is not corruption, and that appearance of influence will not undermine public faith in our democracy”.[93]
Business leaders
In 2012, Ben Cohen, the co-founder of Ben & Jerry’s ice cream, founded Stamp Stampede, a sustained protest to demonstrate widespread support for a proposed constitutional amendment to overturn Citizens United. The campaign encourages people to rubber stamp messages such as “Not To Be Used for Bribing Politicians” on paper currency. In 2014, Cohen told Salon, “As long as the Supreme Court rules money is speech, corporations and the wealthy are using it by giving piles of it to politicians to pass or not pass laws that they want. Now, the rest of the people, [those] who don’t have that money, can actually make their voice heard by using money to stamp a message out.”[94]
Media coverage
Political blogs
Most blogs avoided the theoretical aspects of the decision and focused on more personal and dramatic elements, including the Barack Obama–Samuel Alito face-off during the President’s State of the Union address.[95] There, President Obama argued that the decision “reversed a century of law” (the federal ban on corporate contributions dates back to the 1907 Tillman Act, and the ban on union and corporate expenditures dates from 1947) and that it would allow “foreign corporations to spend without limits in our elections”, during which Justice Alito, in the audience, perceptibly mouthed the words “not true”. This event received extensive comment from political bloggers, with a substantial amount of the coverage concentrated on whether or not foreign corporations would be able to make substantial political contributions in US elections. In the opinion, the Court had specifically indicated it was not overturning the ban on foreign contributions.
Opinion polls
An ABC–Washington Post poll conducted February 4–8, 2010, showed that 80% of those surveyed opposed (and 65% strongly opposed) the Citizens United ruling, which the poll described as saying “corporations and unions can spend as much money as they want to help political candidates win elections”. Additionally, 72% supported “an effort by Congress to reinstate limits on corporate and union spending on election campaigns”. The poll showed large majority support from Democrats, Republicans and independents.[96][97][98]
A Gallup Poll conducted in October 2009, after oral argument, but released after the Supreme Court released its opinion, found that 57 percent of those surveyed “agreed that money given to political candidates is a form of free speech” and 55 percent agreed that the “same rules should apply to individuals, corporations and unions”. However, in the same poll respondents by 52% to 41% prioritized limits on campaign contributions over protecting rights to support campaigns and 76% thought the government should be able to place limits on corporation or union donations.[99][100]
Separate polls by various conservative organizations, including the plaintiff Citizens United and the Center for Competitive Politics, found support for the decision.[101] In particular, the Center for Competitive Politics poll[102] found that 51% of respondents believed that Citizens United should have a right to air ads promoting Hillary: The Movie. The poll also found that only 22 percent had heard of the case.
Further court rulings
SpeechNow v. FEC
SpeechNow is a nonprofit, unincorporated association organized as a section 527 entity under the U.S. Internal Revenue Code. The organization was formed by individuals who seek to pool their resources to make independent expenditures expressly advocating the election or defeat of federal candidates. SpeechNow planned to accept contributions only from individuals, not corporations or other sources prohibited under the Federal Election Campaign Act. On February 14, 2008, SpeechNow and several individual plaintiffs filed a complaint in the U.S. District Court for the District of Columbia challenging the constitutionality of the Federal Election Campaign Act provisions governing political committee registration, contribution limits and disclosure. The plaintiffs contended that the Act unconstitutionally restricts their association guaranteed under the First Amendment. By requiring registration as a political committee and limiting the monetary amount that an individual may contribute to a political committee, SpeechNow and the other plaintiffs asserted that the Act unconstitutionally restricted the individuals’ freedom of speech by limiting the amount that an individual can contribute to SpeechNow and thus the amount the organization may spend. SpeechNow also argued that the reporting required of political committees is unconstitutionally burdensome.[103]
On March 26, 2010, the U.S. Court of Appeals for the District of Columbia Circuit ruled in SpeechNow.org. v. FEC that the contribution limits of 2 U.S.C. §441a were unconstitutional as applied to individuals’ contributions to SpeechNow. The court also ruled that the reporting requirements of 2 U.S.C. §§432, 433 and 434(a) and the organizational requirements of 2 U.S.C. §431(4) and §431(8) can be constitutionally applied to SpeechNow.[103] A unanimous nine-judge panel of the United States Court of Appeals[104] struck down the federal limits on contributions to federal political committees that make only independent expenditures and do not contribute to candidates or political parties. This type of “independent expenditure committee” is inherently non-corruptive, the Court reasoned, and therefore contributions to such a committee can not be limited based on the government’s interest in preventing political corruption.[105] In light of the Supreme Court’s decision in Citizens United v. FEC, in which the Supreme Court held that the government has no anti-corruption interest in limiting independent expenditures, the appeals court ruled that “contributions to groups that make only independent expenditures cannot corrupt or create the appearance of corruption.” As a result, the court of appeals held that the government has no anti-corruption interest in limiting contributions to an independent group such as SpeechNow. Contribution limits as applied to SpeechNow “violate the First Amendment by preventing [individuals] from donating to SpeechNow in excess of the limits and by prohibiting SpeechNow from accepting donations in excess of the limits.” The court noted that its holding does not affect direct contributions to candidates, but rather contributions to a group that makes only independent expenditures.[103] The appeals court held that, while disclosure and reporting requirements do impose a burden on First Amendment interests, they “‘impose no ceiling on campaign related activities'” and “‘do not prevent anyone from speaking.'” Furthermore, the court held that the additional reporting requirements that the Commission would impose on SpeechNow if it were organized as a political committee are minimal, “given the relative simplicity with which SpeechNow intends to operate.” Since SpeechNow already had a number of “planned contributions” from individuals, the court ruled that SpeechNow could not compare itself to “ad hoc groups that want to create themselves on the spur of the moment.” Since the public has an interest in knowing who is speaking about a candidate and who is funding that speech, the court held that requiring such disclosure and organization as a political committee are sufficiently important governmental interests to justify the additional reporting and registration burdens on SpeechNow.[103]
Public electoral financing
On June 27, 2011, ruling in the consolidated cases of Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (No. 10-238) and McComish v. Bennett (No. 10-239), the Supreme Court deemed unconstitutional an Arizona law that provided extra taxpayer-funded support for office seekers who have been outspent by privately funded opponents or by independent political groups. A conservative 5–4 majority of justices said the law violated free speech, concluding the state was impermissibly trying to “level the playing field” through a public finance system. Arizona lawmakers had argued there was a compelling state interest in equalizing resources among competing candidates and interest groups.[106] Opponents said the law violated free-speech rights of the privately financed candidates and their contributors, inhibiting fundraising and spending, discouraging participation in campaigns and limiting what voters hear about politics.[107] Chief Justice John Roberts said in the court’s majority opinion that the law substantially burdened political speech and was not sufficiently justified to survive First Amendment scrutiny.[107]
As a consequence of the decision, states and municipalities are blocked from using a method of public financing that is simultaneously likely to attract candidates fearful that they will be vastly outspent and sensitive to avoiding needless government expense. “The government can still use taxpayer funds to subsidize political campaigns, but it can only do that in a manner that provides an alternative to private financing” said William R. Maurer, a lawyer with the Institute for Justice, which represented several challengers of the law. “It cannot create disincentives.”[108] The ruling meant the end of similar matching-fund programs in Connecticut, Maine and a few other places according to David Primo, a political science professor at the University of Rochester who was an expert witness for the law’s challengers.[109]
State campaign-spending limits
Despite the Citizens United ruling, In December 2011, the Montana Supreme Court, in Western Tradition Partnership, Inc. v. Attorney General of Montana, upheld that state’s law limiting corporate contributions. Examining the history of corporate interference in Montana government that led to the Corrupt Practices Law, the majority decided that the state still had a compelling reason to maintain the restrictions. It ruled that these restrictions on speech were narrowly tailored and withstood strict scrutiny and thus did not contradict Citizens United v. Federal Election Commission.
While granting permission to file a Certiorari petition, the US Supreme Court agreed to stay the Montana ruling, although Justices Ginsburg and Breyer wrote a short statement urging the Court “to consider whether, in light of the huge sums of money currently deployed to buy candidate’s allegiance, Citizens United should continue to hold sway”.[110] In June 2012, over the dissent of the same four judges who dissented in Citizens United, the Court simultaneously granted certiorari and summarily reversed the decision in American Tradition Partnership, Inc. v. Bullock, 567, U.S. __ (2012).[111] The Supreme Court majority rejected the Montana Supreme Court arguments in a two paragraph, twenty line per curiam opinion, stating that these arguments “either were already rejected in Citizens United, or fail to meaningfully distinguish that case.”[112] The ruling makes clear that states cannot bar corporate and union political expenditures in state elections.[113]
McCutcheon v. FEC
In addition to limiting the size of donations to individual candidates and parties, the Federal Election Campaign Act also includes aggregate caps on the total amount that an individual may give to all candidates and parties. In 2012, Shaun McCutcheon, a Republican Party activist,[114][115] sought to donate more than was allowed by the federal aggregate limit on federal candidates.[116] McCutcheon et al filed suit against theFederal Election Commission (FEC).[117] In 2014, the US Supreme Court reversed a ruling of the DC District Court‘s dismissal of McCutcheon v. FEC and struck down the aggregate limits. The plurality opinion invalidated only the aggregate contribution limits, not limits on giving to any one candidate or party. The decisive fifth vote for McCutcheon came from Justice Thomas, who concurred in the judgment on the grounds that all contribution limits are unconstitutional.[118]
Legislative responses
Legislative impact
The New York Times reported that 24 states with laws prohibiting or limiting independent expenditures by unions and corporations would have to change their campaign finance laws because of the ruling.[119]
After Citizens United and SpeechNow.org numerous state legislatures raised their limits on contributions to candidates and parties.[120] At the federal level, lawmakers substantially increased contribution limits to political parties as part of the 2014 budget bill.[121] Such changes are widely perceived as efforts to place candidates and parties on something closer to equal footing with organizations making independent expenditures.[121]
While many states and the federal government have raised contribution limits in response to Citizens United, proposals aimed at discouraging political spending, or providing for public financing of campaigns, have been less successful.
Senator Dick Durbin (D-IL) proposed that candidates who sign up small donors receive $900,000 in public money, but the proposal has not been acted on by Congress. Others proposed that laws on corporate governance be amended to assure that shareholders vote on political expenditures.[92]
In February 2010, Senator Charles E. Schumer of New York, immediate past Chairman of the Democratic Senatorial Campaign Committee, and Representative Chris Van Hollen of Maryland, Chairman of the Democratic Congressional Campaign Committee, outlined legislation aimed at undoing the decision.[122] In April 2010, they introduced such legislation in the Senate and House, respectively.[123] On June 24, 2010, H.R.5175 (The DISCLOSE Act) passed in the House of Representatives but failed in the Senate. It would have required additional disclosure by corporations of their campaign expenditures. The law, if passed, would also have prohibited political spending by U.S. companies with twenty percent or more foreign ownership, and by most government contractors.[124] The DISCLOSE Act included exemptions to its rules given to certainspecial interests such as the National Rifle Association and the American Association of Retired Persons. These gaps within the proposal attracted criticism from lawmakers on both political parties. “They are auctioning off pieces of the First Amendment in this bill… The bigger you are, the stronger you are, the less disclosure you have,” said Republican Congressman Dan Lungren of California. Democratic Congressman Adam Schiff of California commented, “I wish there had been no carve-outs”.[125] The bill was criticized as prohibiting much activity that was legal before Citizens United.[126]
The DISCLOSE Act twice failed to pass the U.S. Senate in the 111th Congress, in both instances reaching only 59 of the 60 votes required to overcome a unified Republican filibuster.[127][128] A scaled down version of the DISCLOSE Act was reintroduced in both the House and Senate in 2012 but did not pass.[citation needed]
Some have argued for a constitutional amendment to overturn the decision. Although the decision does not address “corporate personhood,” a long-established judicial and constitutional concept,[129] much attention has focused on that issue. Move to Amend, a coalition formed in response to the ruling,[130] seeks to amend the Constitution to abolish corporate personhood, thus stripping corporations of all rights under the Constitution.[131][132] In an online chat with web community Reddit, President Obama endorsed further consideration of a constitutional amendment and stated “Over the longer term, I think we need to seriously consider mobilizing a constitutional amendment process to overturn Citizens United (assuming the Supreme Court Doesn’t revisit it)”.[133] He further elaborated that “Even if the amendment process falls short, it can shine a spotlight on the super-PAC phenomenon and help apply pressure for change.”[133]
Legislative reactions by state and local lawmakers
Members of 16 state legislatures have called for a constitutional amendment to reverse the court’s decision: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Montana, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and West Virginia.[134][135]
Most of these are non-binding resolutions. However, three states – Vermont, California, and Illinois – called for an Article V Convention to draft and propose a federal constitutional amendment to overturn Citizens United.[136] In Minnesota, the Minnesota Senate passed a similar resolution, “Senate File No. 17,” on May 2, 2013, but the House of Representatives returned the measure to the General Calendar (meaning the measure did not pass) on May 15, 2013.[137] Thirty-four states are needed to call an Article V convention.
On a local level, Washington D.C. and 400 other municipalities passed resolutions requesting a federal constitutional amendment.[138]
Since Citizens United, however, 13 states have actually raised their contribution limits.[120]
Political impact
The Citizens United ruling “opened the door” for unlimited election spending by corporations, but most of this spending has “ended up being funneled through the groups that have become known as super PACs”.[139]While critics predicted that the ruling would “bring about a new era of corporate influence in politics” allowing companies and businesspeople to “buy elections” to promote their financial interests, as of 2016, in fact large corporations still play a “negligible role” in presidential election spending. Instead large expenditures, usually through “Super PACS,” have come from “a small group of billionaires”, based largely on ideology. This has shifted power “away from the political parties and toward the … donors themselves. In part, this explains the large number and variety of candidates fielded by the Republicans in 2016.”[139] The ability of individuals to spend unlimited sums was first affirmed by the Supreme Court, however, not in Citizens United, but in Buckley v. Valeo, decided in 1976.
Super PACs
Citizens United v. Federal Election Commission has often been credited for the creation of “super PACs“, political action committees which make no financial contributions to candidates or parties, and so can accept unlimited contributions from individuals, corporations and unions. Certainly, the holding in Citizens United helped affirm the legal basis for super PACs by deciding that, for purposes of establishing a “compelling government interest” of corruption sufficient to justify government limitations on political speech, “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption”.[140]
However, it took another decision, by the U.S. Court of Appeals for the District of Columbia Circuit, Speechnow.org v. Federal Election Commission, to actually authorize the creation of super PACs. While Citizens United held that corporations and unions could make independent expenditures, a separate provision of the Federal Election Campaign Act, at least as long interpreted by the Federal Election Commission, held that individuals could not contribute to a common fund without it becoming a PAC. PACs, in turn, were not allowed to accept corporate or union contributions of any size or to accept individual contributions in excess of $5,000. In Speechnow.org, the D.C. Circuit, sitting en banc, held 9–0 that in light of Citizens United, such restrictions on the sources and size of contributions could not apply to an organization that made only independent expenditures in support of or opposition to a candidate, but not contributions to a candidate’s campaign.
Citizens United and SpeechNOW left their imprint on the 2012 United States presidential election, in which single individuals contributed large sums to “super PACs” supporting particular candidates. Sheldon Adelson, the gambling entrepreneur, gave approximately fifteen million dollars to support Newt Gingrich. Foster Friess, a Wyoming financier, donated almost two million dollars to Rick Santorum’s super PAC. Karl Rove organized super PACs that spent over $300 million in support of Republicans during the 2012 elections.[141]
In addition to indirectly providing support for the creation of super PACs, Citizens United allowed incorporated 501(c)(4) public advocacy groups (such as the National Rifle Association, the Sierra Club, and the group Citizens United itself) and trade associations to make expenditures in political races. Such groups may not, under the tax code, have a primary purpose of engaging in electoral advocacy. These organizations must disclose their expenditures, but unlike super PACs they do not have to include the names of their donors in their FEC filings. A number of partisan organizations such as Karl Rove‘s influential conservative Crossroads Grassroots Policy Strategies and the liberal 21st Century Colorado have since registered as tax-exempt 501(c)(4) groups (defined as groups promoting “social welfare”) and engaged in substantial political spending.[142][143] This has led to claims[144][145][146] of large secret donations, and questions about whether such groups should be required to disclose their donors. Historically, such non-profits have not been required to disclose their donors or names of members. See National Association for the Advancement of Colored People v. Alabama.
In an August 2015 essay in Der Spiegel, Markus Feldkirchen wrote that the Citizens United decision was “now becoming visible for the first time” in federal elections as the super-rich have “radically” increased donations to support their candidates and positions via super PACs. Feldkirchen also said in the first six months of 2015 the candidates and their super PACs received close to $400 million: “far more than in the entire previous campaign.” He opined that super-rich donating more than ever before to individual campaigns plus the “enormous” chasm in wealth has given the super-rich the power to steer the economic and political direction of the United States and undermine its democracy.[147] In October 2015, the New York Times observed that just 158 super-rich families each contributed $250,000 or more, while an additional 200 families gave more than $100,000 for the 2016 presidential election. Both groups contributed almost half of the “early money” for candidates in the 2016 presidential election as of June 30, 2015 through channels like super PACs legalized by the Supreme Court’s Citizens United decision.[148][149]
See also
https://en.wikipedia.org/wiki/Citizens_United_v._FEC
District of Columbia v. Heller
Supreme Court of the United States
Decided June 26, 2008
John G. Roberts
John P. Stevens·Antonin Scalia
Anthony Kennedy·David Souter
Clarence Thomas·Ruth Bader Ginsburg
Stephen Breyer·Samuel Alito
District of Columbia v. Heller, 554 U.S. 570 (2008), was a landmarkcase in which the Supreme Court of the United States held in a 5-4 decision that the Second Amendment to the United States Constitution applies to federal enclaves and protects an individual’s right to possess a firearm for traditionally lawful purposes, such as self-defense within the home. The decision did not address the question of whether the Second Amendment extends beyond federal enclaves to the states,[1] which was addressed later by McDonald v. Chicago (2010). It was the first Supreme Court case to decide whether the Second Amendment protects an individual right to keep and bear arms for self-defense.[2]
On June 26, 2008, the Supreme Court affirmed the Court of Appeals for the D.C. Circuit in Heller v. District of Columbia.[3][4] The Supreme Court struck down provisions of the Firearms Control Regulations Act of 1975 as unconstitutional, determined that handguns are “arms” for the purposes of the Second Amendment, found that the Regulations Act was an unconstitutional ban, and struck down the portion of the Regulations Act that requires all firearms including rifles and shotguns be kept “unloaded and disassembled or bound by a trigger lock“. Prior to this decision the Firearms Control Regulation Act of 1975 also restricted residents from owning handguns except for those registered prior to 1975.
Lower court background
In 2002, Robert A. Levy, a Senior Fellow at the Cato Institute, began vetting plaintiffs with Clark M. Neily III for a planned Second Amendment lawsuit that he would personally finance. Although he himself had never owned a gun, as a Constitutional scholar he had an academic interest in the subject and wanted to model his campaign after the legal strategies of Thurgood Marshall, who had successfully led the challenges that overturned school segregation.[5] They aimed for a group that would be diverse in terms of gender, race, economic background, and age, and selected six plaintiffs from their mid-20s to early 60s, three men and three women, four white and two black:[6]
Previous federal case law pertaining to the question of an individual’s right to bear arms included United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), which supported the right and Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), which opposed the right. The Supreme Court ruling in United States v. Miller, 307 U.S. 174 (1939) was interpreted to support both sides of the issue.
District Court
In February 2003, the six residents of Washington, D.C. filed a lawsuit in the District Court for the District of Columbia, challenging the constitutionality of provisions of the Firearms Control Regulations Act of 1975, a local law (part of the District of Columbia Code) enacted pursuant to District of Columbia home rule. This law restricted residents from owning handguns, excluding those grandfathered in by registration prior to 1975 and those possessed by active and retired law enforcement officers. The law also required that all firearms including rifles and shotguns be kept “unloaded and disassembled or bound by a trigger lock.”[16] They filed for an injunction pursuant to 28 U.S.C.§ 2201, 2202, and 42 U.S.C.§ 1983. District Court Judge Ricardo M. Urbina dismissed the lawsuit.
Court of Appeals
On appeal, the U.S. Court of Appeals for the D.C. Circuit reversed the dismissal in a 2–1 decision. The Court of Appeals struck down provisions of the Firearms Control Regulations Act as unconstitutional. JudgesKaren L. Henderson, Thomas B. Griffith and Laurence H. Silberman formed the Court of Appeals panel, with Senior Circuit Judge Silberman writing the court’s opinion and Circuit Judge Henderson dissenting.
The court’s opinion first addressed whether appellants have standing to sue for declaratory and injunctive relief in section II (slip op. at 5–12). The court concluded that of the six plaintiffs, only Heller – who applied for a handgun permit but was denied – had standing.
The court then held that the Second Amendment “protects an individual right to keep and bear arms”, saying that the right was “premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad).” They also noted that though the right to bear arms also helped preserve the citizen militia, “the activities [the Amendment] protects are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.” The court determined that handguns are “Arms” and concluded that thus they may not be banned by the District of Columbia.
The court also struck down the portion of the law that requires all firearms including rifles and shotguns be kept “unloaded and disassembled or bound by a trigger lock.” The District argued that there is an implicit self-defense exception to these provisions, but the D.C. Circuit rejected this view, saying that the requirement amounted to a complete ban on functional firearms and prohibition on use for self-defense:[17]
Henderson’s dissent
In her dissent, Circuit Judge Henderson stated that Second Amendment rights did not extend to residents of Washington D.C., writing:
Petition for rehearing
In April 2007, the District and Mayor Adrian Fenty petitioned for rehearing en banc, arguing that the ruling creates inter- and intra-jurisdictional conflict.[19] On May 8, the Court of Appeals for the D.C. Circuit denied the request to rehear the case, by a 6–4 vote.
Supreme Court
The defendants petitioned the United States Supreme Court to hear the case. The plaintiffs did not oppose but, in fact, welcomed the petition. The Supreme Court agreed to hear the case on November 20, 2007.[20]The court rephrased the question to be decided as follows:
This represented the first time since the 1939 case United States v. Miller that the Supreme Court had directly addressed the scope of the Second Amendment.[16]
Amicus curiae briefs
Because of the controversial nature of the case, it garnered much attention from many groups on both sides of the gun rights issue. Many of those groups filed amicus curiae (friend of the court) briefs, about 47 urging the court to affirm the case and about 20 to remand it.[21]
A majority of the members of Congress[22] signed the brief authored by Stephen Halbrook advising that the case be affirmed overturning the ban on handguns not otherwise restricted by Congress.[23]Vice PresidentDick Cheney joined in this brief, acting in his role as President of the United States Senate, and breaking with the George W. Bush administration’s official position.[22] Arizona Senator John McCain, Republican, also signed the brief. Then Illinois Senator Barack Obama, did not.[24]
A majority of the states signed the brief of Texas Attorney General Greg Abbott, authored by Abbott’s solicitor general, Ted Cruz,[25] advising that the case be affirmed, while at the same time emphasizing that the states have a strong interest in maintaining each of the states’ laws prohibiting and regulating firearms.[26][27][28] Law enforcement organizations, including the Fraternal Order of Police and the Southern States Police Benevolent Association, also filed a brief urging that the case be affirmed.[29]
A number of organizations signed friend of the court briefs advising that the case be remanded, including the United States Department of Justice[30] and Attorneys General of New York, Hawaii, Maryland,Massachusetts, New Jersey, and Puerto Rico.[31] Additionally, friend of the court briefs to remand were filed by a spectrum of religious and anti-violence groups,[32] a number of cities and mayors,[33] and many police chiefs and law enforcement organizations.[34]
A collection of organizations and prominent scholars, represented by Attorney Jeffrey Teichert, submitted an “errors brief” arguing that many of the common historical and factual “myths and misrepresentations” generally offered in favor of banning handguns were in error. Teichert’s errors brief argued from a historical perspective that the Second Amendment protected an individual right to keep and bear arms.[dead link][35]
Oral arguments
Robert A. Levy (left) and Alan Gura, counsel for Heller
The Supreme Court heard oral arguments in the case on March 18, 2008. Both the transcript[36] and the audio[37] of the argument have been released. Each side was initially allotted 30 minutes to argue its case, with U.S. Solicitor GeneralPaul D. Clement allotted 15 minutes to present the federal government’s views.[38] During the argument, however, extra time was extended to the parties, and the argument ran 23 minutes over the allotted time.[39]
Walter E. Dellinger of the law firm O’Melveny & Myers, also a professor at Duke University Law School and former Acting Solicitor General, argued the District’s side before the Supreme Court. Dellinger was assisted by Thomas Goldstein of Akin Gump Strauss Hauer & Feld, Robert Long of Covington & Burling and D.C. Solicitor General Todd Kim. The law firms assisting the District worked pro bono.[40]
Alan Gura, of the D.C.-based law firm Gura & Possessky, was lead counsel for Heller, and argued on his behalf before the Supreme Court.[41] Robert Levy, a senior fellow at theCato Institute, and Clark Neily, a senior attorney at the Institute for Justice, were his co-counsel.[42][43]
Decision
The Supreme Court held:[44]
The Opinion of the Court, delivered by Justice Scalia, was joined by Chief Justice John G. Roberts, Jr. and by Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.[45]
Second Amendment findings and reasoning for the decision
The Illinois Supreme Court in People v. Aguilar (2013), summed up the Heller‘s findings and reasoning:
Issues addressed by the majority
The core holding in D.C. v. Heller is that the Second Amendment is an individual right intimately tied to the natural right of self-defense.
The Scalia majority invokes much historical material to support its finding that the right to keep and bear arms belongs to individuals; more precisely, Scalia asserts in the Court’s opinion that the “people” to whom the Second Amendment right is accorded are the same “people” who enjoy First and Fourth Amendment protection: “‘The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.’ United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings….”
With that finding as anchor, the Court ruled a total ban on operative handguns in the home is unconstitutional, as the ban runs afoul of both the self-defense purpose of the Second Amendment – a purpose not previously articulated by the Court – and the “in common use at the time” prong of the Miller decision: since handguns are in common use, their ownership is protected.
The Court applies as remedy that “[a]ssuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.” The Court, additionally, hinted that other remedy might be available in the form of eliminating the license requirement for carry in the home, but that no such relief had been requested: “Respondent conceded at oral argument that he does not ‘have a problem with … licensing’ and that the District’s law is permissible so long as it is ‘not enforced in an arbitrary and capricious manner.’ Tr. of Oral Arg. 74–75. We therefore assume that petitioners’ issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement.”
In regard to the scope of the right, the Court wrote, in an obiter dictum, “Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”[47]
The Court also added dicta regarding the private ownership of machine guns. In doing so, it suggested the elevation of the “in common use at the time” prong of the Miller decision, which by itself protects handguns, over the first prong (protecting arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”), which may not by itself protect machine guns: “It may be objected that if weapons that are most useful in military service – M16 rifles and the like – may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home.”[48]
The Court did not address which level of judicial review should be used by lower courts in deciding future cases claiming infringement of the right to keep and bear arms: “[S]ince this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field.” The Court states, “If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.”[49] Also, regarding Justice Breyer’s proposal of a “judge-empowering ‘interest-balancing inquiry,'” the Court states, “We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach.”[50]
Dissenting opinions
In a dissenting opinion, Justice John Paul Stevens stated that the court’s judgment was “a strained and unpersuasive reading” which overturned longstanding precedent, and that the court had “bestowed a dramatic upheaval in the law”.[51] Stevens also stated that the amendment was notable for the “omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense” which was present in the Declarations of Rights of Pennsylvania and Vermont.[51]
The Stevens dissent seems to rest on four main points of disagreement: that the Founders would have made the individual right aspect of the Second Amendment express if that was what was intended; that the “militia” preamble and exact phrase “to keep and bear arms” demands the conclusion that the Second Amendment touches on state militia service only; that many lower courts’ later “collective-right” reading of the Miller decision constitutes stare decisis, which may only be overturned at great peril; and that the Court has not considered gun-control laws (e.g., the National Firearms Act) unconstitutional. The dissent concludes, “The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons…. I could not possibly conclude that the Framers made such a choice.”
Justice Stevens’ dissent was joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer.
Justice Breyer filed a separate dissenting opinion, joined by the same dissenting Justices, which sought to demonstrate that, starting from the premise of an individual-rights view, the District of Columbia’s handgun ban and trigger lock requirement would nevertheless be permissible limitations on the right.
The Breyer dissent looks to early municipal fire-safety laws that forbade the storage of gunpowder (and in Boston the carrying of loaded arms into certain buildings), and on nuisance laws providing fines or loss of firearm for imprudent usage, as demonstrating the Second Amendment has been understood to have no impact on the regulation of civilian firearms. The dissent argues the public safety necessity of gun-control laws, quoting that “guns were responsible for 69 deaths in this country each day.'”
With these two supports, the Breyer dissent goes on to conclude, “there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.” It proposes that firearms laws be reviewed by balancing the interests (i.e., “‘interest-balancing’ approach”) of Second Amendment protections against the government’s compelling interest of preventing crime.
The Breyer dissent also objected to the “common use” distinction used by the majority to distinguish handguns from machineguns: “But what sense does this approach make? According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machine-gun…There is no basis for believing that the Framers intended such circular reasoning.”[52]
Non-party involvement
National Rifle Association
Attorney Alan Gura, in a 2003 filing, used the term “sham litigation” to describe the NRA’s attempts to have Parker (aka Heller) consolidated with its own case challenging the D.C. law. Gura also stated that “the NRA was adamant about not wanting the Supreme Court to hear the case”.[53] These concerns were based on NRA lawyers’ assessment that the justices at the time the case was filed might reach an unfavorable decision.[54]Cato Institute senior fellow Robert Levy, co-counsel to the Parker plaintiffs, has stated that the Parker plaintiffs “faced repeated attempts by the NRA to derail the litigation.”[55] He also stated that “The N.R.A.’s interference in this process set us back and almost killed the case. It was a very acrimonious relationship.”[5]
Wayne LaPierre, the NRA’s chief executive officer, confirmed the NRA’s misgivings. “There was a real dispute on our side among the constitutional scholars about whether there was a majority of justices on the Supreme Court who would support the Constitution as written,” Mr. LaPierre said.[5] Both Levy and LaPierre said the NRA and Mr. Levy’s team were now on good terms.[5]
Elaine McArdle wrote in the Harvard Law Bulletin: “If Parker is the long-awaited “clean” case, one reason may be that proponents of the individual-rights view of the Second Amendment – including the National Rifle Association, which filed an amicus brief in the case – have learned from earlier defeats, and crafted strategies to maximize the chances of Supreme Court review.” The NRA did eventually support the litigation by filing an amicus brief with the Court arguing that the plaintiffs in Parker had standing to sue and that the D.C. ban was unconstitutional under the Second Amendment.[56]
Chris Cox, executive director of the NRA’s Institute for Legislative Action, had indicated support of federal legislation which would repeal the D.C. gun ban. Opponents of the legislation argued that this would have rendered the Parker case moot, and would have effectively eliminated the possibility that the case would be heard by the Supreme Court.[57]
Immediately after the Supreme Court’s ruling, the NRA filed a lawsuit against the city of Chicago over its handgun ban, followed the next day by a lawsuit against the city of San Francisco over its ban of handguns in public housing.[58]
Brady Campaign to Prevent Gun Violence
The Brady Campaign to Prevent Gun Violence opposed the arguments made by the plaintiffs in Parker, and filed amicus curiae against those arguments in both the District and Circuit courts.
Paul Helmke, the president of the Brady Campaign, suggested to D.C. before the Court granted certiorari that it modify its gun laws rather than appeal to the Supreme Court.[59] Helmke has written that if the Supreme Court upholds the Circuit court ruling, it “could lead to all current and proposed firearms laws being called into question.”[60]
After the ruling, Paul Helmke stated that, “the classic ‘slippery slope’ argument”, “that even modest gun control would lead down the path to a complete ban on gun ownership”, “is now gone.” Helmke added that, “The Court also rejected the absolutist misreading of the Second Amendment that some use to argue ‘any gun, any time for anyone,’ which many politicians have used as an excuse to do nothing about the scourge of gun violence in our country and to block passage of common sense gun laws.”[61]
Reactions
To the lower court rulings
Various experts expressed opinions on the D.C. Circuit’s decision.
Harvard Law School professor Laurence Tribe contended that the Second Amendment protects an individual right, and predicted that if Parker is reviewed by the Supreme Court “there’s a really quite decent chance that it will be affirmed.”[56] However, Professor Tribe has also argued that the District’s ban on one class of weapons does not violate the Second Amendment even under an individual rights view.[62]
Erwin Chemerinsky, then of Duke Law School and now dean of the University of California, Irvine School of Law, argued that the District of Columbia’s handgun laws, even assuming an “individual rights” interpretation of the Second Amendment, could be justified as reasonable regulations and thus upheld as constitutional. Professor Chemerinsky believes that the regulation of guns should be analyzed in the same way “as other regulation of property under modern constitutional law” and “be allowed so long as it is rationally related to achieving a legitimate government purpose.”[63] However, the dicta in Heller suggests that applying a mere rational basis analysis is an incorrect reading of the Constitution and would, in fact, defeat the entire purpose of the Second Amendment.[49]
To the Supreme Court rulings
Cato Institute senior fellow Robert Levy, co-counsel to the Parker plaintiffs, agreed with the court’s ruling but describes that his interpretation of the Second Amendment would not preclude all governmental regulation of private ownership of weapons:
Clark Neily, an attorney for Dick Heller in this case, has said regarding Heller:
Richard Posner, judge for the United States Court of Appeals for the Seventh Circuit, compares Heller to Roe v. Wade, stating that it created a federal constitutional right that did not previously exist, and he asserts that the originalist method – to which Justice Antonin Scalia claimed to adhere – would have yielded the opposite result of the majority opinion.
J. Harvie Wilkinson III, chief judge of United States Court of Appeals for the Fourth Circuit, consents to Posner’s analysis, stating that Heller “encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts.”[67]
Alan Gura, Lead Counsel for Respondent in Heller rejects Wilkinson’s criticism, stating that “Rather, the Court affirmed the Second Amendment’s original public meaning, as confirmed by its plain text. Having determined the Amendment’s meaning, the Court showed the proper level of deference to the D.C. City Council’s outright repudiation of the constitutional text: none.”[68]
Post ruling impacts
Since the June 2008 ruling, over 80 different cases have been heard in lower federal courts on the constitutionality of a wide variety of gun control laws.[69][70] These courts have heard lawsuits in regard to bans of firearm possession by felons, drug addicts, illegal aliens, and individuals convicted of domestic violence misdemeanors.[69][70] Also, cases have been heard on the constitutionality of laws prohibiting certain types of weapons, such as machine guns, sawed-off shotguns and/or specific types of weapons attachments. In addition, courts have heard challenges to laws barring guns in post offices and near schools and laws outlawing “straw” purchases, carrying of concealed weapons, types of ammunition and possession of unregistered firearms.[69][70]
The courts have upheld most of these laws as being constitutional.[70] The basis for the lower court rulings is the paragraph near the end of the Heller ruling that states:
Consistently since the Heller ruling, the lower federal courts have ruled that almost all gun control measures as presently legislated are lawful and that according to UCLA professor of constitutional law Adam Winkler: “What gun rights advocates are discovering is that the vast majority of gun control laws fit within these categories.”[69]
Robert Levy, the executive director of the Cato Institute who funded the Heller litigation has commented on this passage describing constitutionally acceptable forms of prohibitions of firearms: “I would have preferred that that not have been there,” and that this paragraph in Scalia’s opinion “created more confusion than light.”[69]
Similar to the lifting of gun bans mentioned previously in the settlements of lawsuits filed post-Heller, in US v. Arzberger, also decided post-Heller, it was noted:
District of Columbia
The D.C. government indicated it would continue to use zoning ordinances to prevent firearms dealers from operating and selling to citizens residing in the District, meaning it would continue to be difficult for residents to legally purchase guns in the District.[73] Additionally, the District enacted new firearms restrictions in an effort to cure the constitutional defects in the ordinance that the Supreme Court had identified in Heller. The new provisions were: (1) the firearms registration procedures; (2) the prohibition on assault weapons; and (3) the prohibition on large capacity ammunition feeding devices. In response, Dick Heller challenged these new restrictions filing a civil suit named Heller v. District of Columbia (Civil Action No. 08-1289 (RMU), No. 23., 25) where he requested a summary judgment to vacate the new prohibitions. On March 26, 2010, the D.C. District Judge Ricardo M. Urbina denied Dick Heller’s request and granted the cross motion, stating that the court “concludes that the regulatory provisions that the plaintiffs challenge permissibly regulate the exercise of the core Second Amendment right to use arms for the purpose of self-defense in the home. “[74]
Dick Heller’s application to register his semi-automatic pistol was rejected because the gun was a bottom-loading weapon, and according to the District’s interpretation, all bottom-loading guns, including magazine-fed non-assault-style rifles, are outlawed because they are grouped with machine guns.[75]Revolvers will likely not fall under such a ban.[76]
On December 16, 2008 the D.C. Council unanimously passed the Firearms Registration Emergency Amendment Act of 2008[77] which addresses the issues raised in the Heller Supreme Court decision, and also puts in place a number of registration requirements to update and strengthen the District’s gun laws.[78]
Justice Antonin Scalia’s opinion for the majority provided Second Amendment protection for commonly used and popular handguns but not for atypical arms or arms used for unlawful purposes, such as short-barreled shotguns. Scalia stated: “Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.” “We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179.” “We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” “It may be objected that if weapons that are most useful in military service – M-16 rifles and the like – may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.”[79]
On July 24, 2014, the U.S. District Court for the District of Columbia ruled, in Palmer v. District of Columbia, that the District’s total ban on the public carrying of ready-to-use handguns is unconstitutional.[80][81] In its decision, the Court stated: “[ . . . ] the Court finds that the District of Columbia’s complete ban on the carrying of handguns in public is unconstitutional. Accordingly, the Court grants Plaintiffs’ motion for summary judgment and enjoins Defendants from enforcing the home limitations of D.C. Code § 7-2502.02(a)(4) and enforcing D.C. Code § 22-4504(a) unless and until such time as the District of Columbia adopts a licensing mechanism consistent with constitutional standards enabling people to exercise their Second Amendment right to bear arms. Furthermore, this injunction prohibits the District from completely banning the carrying of handguns in public for self-defense by otherwise qualified non-residents based solely on the fact that they are not residents of the District.”[82]
New York
Mayor of New York CityMichael Bloomberg said that “all of the laws on the books in New York State and New York City” would be allowed by the ruling as “reasonable regulation.”[83] Robert Levy has stated that the current New York City gun laws are “not much different” from the D.C. ban that has been overturned.[84] The National Rifle Association and other gun-rights advocates have not ruled out suing New York City, especially over the definition of “reasonable regulation”.[85]
Southern District of New York Magistrate Judge James Francis has said that, prior to Heller, it would not have been considered unreasonable to require a defendant to surrender a firearm as a condition of pretrial release. Specifically, according to Judge Francis:[86]
Maloney v. Rice (a.k.a. Maloney v. Cuomo and Maloney v. Spitzer), 554 F.3d 56 (2d. Cir. 2009) originally held that the 2nd Amendment does not apply to the states in the Second Circuit. The case involved a state ban on Nunchaku sticks (a martial arts weapon) in New York. In a memorandum opinion dated June 29, 2010, the Supreme Court vacated the Second Circuit decision in Maloney and remanded for further consideration in light of the holding in McDonald v. Chicago that the Second Amendment does apply to the states. The Second Circuit has remanded the case to the trial court.
Illinois
The NRA has filed five related lawsuits since the Heller decision.[87] In four Illinois lawsuits, the NRA sought to have the Second Amendment incorporated by the Fourteenth Amendment, causing the Second Amendment to apply to state and local jurisdictions and not just to the federal government.[88] Three Illinois lawsuits have been negotiated and settled out of court involving agreements that repeal gun ban ordinances and did not result in incorporation of the Second Amendment to state and local jurisdictions. The fourth NRA lawsuit against Chicago was rejected.[89] The NRA appealed the case to the 7th Circuit Court of Appeals. On June 2, 2009, the Court of Appeals affirmed the district court’s decision, based on the theory that Heller applied only to the Federal Government (including the District of Columbia), and not to states or their subordinate jurisdictions.[citation needed] This opinion directly conflicts with the 9th Circuit Court of Appeals’s earlier decision, holding that Heller applies to states as well.[citation needed]
On June 28, 2010, the Supreme Court reversed the Court of Appeals for the Seventh Circuit‘s decision in McDonald v. Chicago and remanded it back to Seventh Circuit to resolve conflicts between certain Chicagogun restrictions and the Second Amendment. Chicago’s handgun law was likened to the D.C. handgun ban by Justice Breyer.[90]
Similarly, three Illinois municipalities with gun control measures on the books that previously had banned all handguns have rescinded their handgun bans.[91][92][93][94] These cities were Morton Grove, Illinois,[95]Wilmette, another Illinois village,[96] and Evanston, Illinois which enacted a partial repeal of its handgun ban.
In Ezell v. Chicago, decided July 6, 2011, the Seventh Circuit reversed a district court decision that the post-McDonald measures adopted by the City of Chicago were constitutional. The Chicago law required firearms training in a shooting range in order to obtain a gun permit, but also banned shooting ranges within the City of Chicago. The City had argued that applicants could obtain their training at gun ranges in the suburbs. The opinion noted that Chicago could not infringe Second Amendment rights on the grounds that they could be exercised elsewhere, any more than it could infringe the right to freedom of speech on the grounds that citizens could speak elsewhere.
California
On January 14, 2009, in Guy Montag Doe v. San Francisco Housing Authority, the San Francisco Housing Authority reached a settlement out of court with the NRA, which allows residents to possess legal firearms within a SFHA apartment building. The San Francisco lawsuit resulted in the elimination of the gun ban from the SF Housing Authority residential lease terms. Tim Larsen speaking for the Housing Authority said that they never intended to enforce its 2005 housing lease gun ban against law-abiding gun owners and have never done so.[97]
On February 13, 2014, in Peruta v. San Diego, the United States Court of Appeals for the Ninth Circuit decided that the San Diego policy to disallow both concealed carry, and the State of California law that disallowsopen carry anywhere in the state, were not acceptable under Supreme Court precedent in Heller and McDonald. A “responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense.” More specifically, “the Second Amendment does require that the states permit some form of carry for self-defense outside the home.”(italics in original) … and “carrying weapons in public for the lawful purpose of self defense is a central component of the right to bear arms.”[98] The case was remanded to the district court because “San Diego County’s ‘good cause’ permitting requirement impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense.”[98]
Idaho
On January 10, 2014, in Morris v. U.S. Army Corps of Engineers, the District Court struck down a Corps of Engineers regulation barring possession of loaded guns in recreation areas surrounding Corps dams. The court held that tents are akin to homes, and under Heller, Second Amendment rights are protected.[99]
Legacy
Initial reaction has deemed the Heller ruling to be of great significance, though it remains too soon to tell what the long-term effects may be.[100]Sanford Levinson has written that he is inclined to believe that the Hellerdecision will be relatively insignificant to the practice of law in the long run but that it will have significance to other groups interested in cultural literacy and constitutional designers.[100]
In 2009, both Levinson and Mark Tushnet speculated that it is quite unlikely that the case would be studied as part of casebooks of future law schools.[100] As was predicted,[101] a large surge of court cases was seen in lower federal courts in the aftermath of the 2008 ruling. As of March 2009, over 80 cases had been filed seeking to overturn existing gun laws.[102][needs update]
The decision in McDonald v. Chicago, which was brought in response to Heller and decided in 2010, did invalidate much of Chicago’s gun purchase and registration laws, and has called into question many other state and local laws restricting purchase, possession and carry of firearms.
See also
https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller
Story 2: Hillary Clinton Is Nurse Ratched! — Videos
Jack Nicholson Wins Best Actor: 1976 Oscars
Hillary Clinton / Nurse Ratched ???
Hillary Clinton is Nurse Ratched
10/05 Hillary Clinton – Nurse for a Day
One flew over the cuckoo’s nest – Trailer – HQ
One Flew Over The Cuckoos Nest – Randle McMurphy’s Arrival – 1080p Full HD
One Flew Over the Cuckoo’s Nest – The First Confrontation
One flew over the cuckoos nest – ball game.mov
One Flew Over The Cuckoo’s Nest 1975 Best scene
One Flew Over the Cuckoo’s Nest – I bet a dime
May I have my Cigarettes please, Nurse Ratched ?
Billy Bibbit Scene
One Flew Over the Cookoo’s Nest – Basketball Game
‘Strangle Scene’.. ‘Nurse Ratched’ gets what she had ‘coming’ to her.. lol 😉
One Flew Over The Cuckoo’s Nest – Randal back in action scene
One Floor Over the Cuckoo’s Nest –Juicy Fruit Scene–
One Flew Over the Cuckoo’s Nest – Ending Scene – Full HD
Hillary Clinton is Evil! (REMIX)
One Flew Over the Cuckoo’s Nest (film)
Michael Douglas
Bo Goldman
by Ken Kesey
Louise Fletcher
William Redfield
Bill Butler[1]
Sheldon Kahn
Lynzee Klingman
company
One Flew Over the Cuckoo’s Nest is a 1975 American comedy-drama film directed by Miloš Forman, based on the 1962 novel One Flew Over the Cuckoo’s Nest by Ken Kesey. The film stars Jack Nicholson and features a supporting cast of Louise Fletcher, William Redfield, Will Sampson, and Brad Dourif.
Considered to be one of the greatest films ever made, One Flew Over the Cuckoo’s Nest is No. 33 on the American Film Institute‘s 100 Years… 100 Movies list. The film was the second to win all five major Academy Awards (Best Picture, Actor in Lead Role, Actress in Lead Role, Director, and Screenplay) following It Happened One Nightin 1934, an accomplishment not repeated until 1991 by The Silence of the Lambs. It also won numerous Golden Globe and BAFTA Awards.
In 1993, the film was deemed “culturally, historically, or aesthetically significant” by the United States Library of Congress and selected for preservation in the National Film Registry.
Plot
In 1963, Oregon, recidivist criminal Randle McMurphy is moved to a mental institution after serving a short sentence on a prison farm after raping a teenager. Though not actually mentally ill, McMurphy hopes to avoid hard labour and serve the rest of his sentence in a relaxed environment. Upon arriving at the hospital, he finds the ward run by the steely, strict Nurse Ratched, who subtly suppresses the actions of her patients through a passive-aggressive routine, intimidating the patients.
The other patients include anxious, stuttering Billy Bibbit; Charlie Cheswick, who is prone to childish tantrums; delusional Martini; the well-educated, paranoid Dale Harding; belligerent Max Taber; epileptic Jim Sefelt; and “Chief” Bromden, a tall Native American believed to be deaf and mute. Ratched soon sees McMurphy’s lively, rebellious presence to be a threat to her authority, confiscating the patients’ cigarettes and rationing them. During his time in the ward, McMurphy gets into a battle of wits with Ratched. He steals a hospital bus, escaping with several patients to go on a fishing trip, encouraging his friends to become more self-confident.
McMurphy learns his sentence may become indefinite, and he makes plans to escape, exhorting Chief to throw a hydrotherapy cart through a window. He, Chief, and Cheswick get into a fight with the orderlies after the latter becomes agitated over his stolen cigarettes. Ratched sends them to the “shock shop”, and McMurphy discovers Chief can actually speak, feigning illness to avoid engaging with anyone. After being subjected to electroconvulsive therapy, McMurphy returns to the ward pretending to have brain damage, but reveals the treatment has charged him up even more. McMurphy and Chief make plans to escape, but decide to throw a secret Christmas party for their friends after Ratched leaves for the night.
McMurphy sneaks two women, Candy and Rose, into the ward and bribes the night guard. After a night of partying, McMurphy and Chief prepare to escape, inviting Billy to come with them. He refuses, not ready to leave the hospital. McMurphy instead convinces him to have sex with Candy. Ratched arrives in the morning to find the ward in disarray and most of the patients unconscious. She discovers Billy and Candy together, the former now free of his stutter, until Ratched threatens to inform his mother about his escapade. Billy is overwhelmed with fear and locks himself in the doctor’s office and commits suicide. The enraged McMurphy strangles Ratched, before being knocked out by an orderly.
Ratched comes back with a neck brace and a scratchy voice. Rumours spread that McMurphy escaped rather than be taken “upstairs”. Later that night, Chief sees McMurphy being returned to his bed. He discovers McMurphy has lobotomy scars on his forehead, and smothers his friend with a pillow. Chief finally throws the hydrotherapy cart through the window and escapes into the night, cheered on by the men.
Cast
Production
Filming began in January 1975 and concluded approximately three months later,[4] and was shot on location in Salem, Oregon and the surrounding area, as well as on the Oregon coast.[5][6] It was also shot at Oregon State Hospital in Salem, Oregon, which was also the setting of the novel.[7]
Haskell Wexler was fired as cinematographer and replaced by Bill Butler. Wexler believed his dismissal was due to his concurrent work on the documentary Underground, in which the radical terrorist group The Weather Underground were being interviewed while hiding from the law. However, Miloš Forman said he had terminated Wexler over mere artistic differences. Both Wexler and Butler received Academy Awardnominations for Best Cinematography for One Flew Over the Cuckoo’s Nest, though Wexler said there was “only about a minute or two minutes in that film I didn’t shoot.”[8]
According to Butler, Jack Nicholson refused to speak to Forman: “…[Jack] never talked to Milos at all, he only talked to me.”[1]
Reception
The film was met with overwhelming critical acclaim; Roger Ebert said “Miloš Forman’s One Flew Over the Cuckoo’s Nest is a film so good in so many of its parts that there’s a temptation to forgive it when it goes wrong. But it does go wrong, insisting on making larger points than its story really should carry, so that at the end, the human qualities of the characters get lost in the significance of it all. And yet there are those moments of brilliance.”[9] Ebert would later put the film on his “Great Movies” list.[10] A.D. Murphy of Variety wrote a mixed review as well,[11] as did Vincent Canby: writing in The New York Times, Canby called the film “a comedy that can’t quite support its tragic conclusion, which is too schematic to be honestly moving, but it is acted with such a sense of life that one responds to its demonstration of humanity if not to its programmed metaphors.”[12]
The film opens with original music by composer Jack Nitzsche, featuring an eerie bowed saw (performed by Robert Armstrong) and wine glasses. Commenting on the score, reviewer Steven McDonald has said, “The edgy nature of the film extends into the score, giving it a profoundly disturbing feel at times — even when it appears to be relatively normal. The music has a tendency to always be a little off-kilter, and from time to time it tilts completely over into a strange little world of its own …”[13]
The film went on to win the “Big Five” Academy Awards at the 48th Oscar ceremony. These include the Best Actor for Jack Nicholson, Best Actress for Louise Fletcher, Best Direction for Forman, Best Picture, andBest Adapted Screenplay for Laurence Hauben and Bo Goldman. The film currently has a 95% “Certified Fresh” rating at Rotten Tomatoes with an average rating of 8.9/10.[14] Its consensus states “The onscreen battle between Jack Nicholson and Louise Fletcher serves as a personal microcosm of the culture wars of the 1970s — and testament to the director’s vision that the film retains its power more than three decades later.”
One Flew Over the Cuckoo’s Nest is considered to be one of the greatest American films. Ken Kesey participated in the early stages of script development, but withdrew after creative differences with the producers over casting and narrative point of view; ultimately he filed suit against the production and won a settlement.[15] Kesey himself claimed never to have seen the movie, but said he disliked what he knew of it,[16] a fact confirmed by Chuck Palahniuk who wrote, “The first time I heard this story, it was through the movie starring Jack Nicholson. A movie that Kesey once told me he disliked.”[17]
In 1993, this film was deemed “culturally, historically, or aesthetically significant” by the United States Library of Congress and selected for preservation in their National Film Registry.[18]
Awards and honors
Others
American Film Institute
See also
References
External links
https://en.wikipedia.org/wiki/One_Flew_Over_the_Cuckoo%27s_Nest_(film)
Could Hillary’s smile cost her the election? Twitter mocks Clinton’s ‘creepy grandma’ grin as she smirks her way through presidential debate
By JENNIFER SMITH FOR DAILYMAIL.COM
With her opponent dogged by accusations of sexual assault, Hillary Clinton had strong odds as she entered the third presidential debate on Wednesday.
Only one thing seemed to threaten her chances of victory: her smile.
The Democratic candidate faced a flood of insults as she took to the stage at the University of Las Vegas, with many viewers confessing they were ‘creeped out’ by her stubborn grin.
Hundreds took to Twitter to describe her smile as ‘scary’ and ‘creepy’.
Hillary Clinton’s unrelenting smile at Wednesday’s presidential debate made for uncomfortable viewing for some voters
Others questioned why, when being slammed with insults from her opponent, her expression did not drop.
‘Hillary Clinton’s smile is the scariest thing I’ve ever seen in my life,’ said one observer.
‘When Hillary smiles she looks like an evil snake,’ another commented.
‘What to do when you don’t have a response? Smile like a chipmunk,’ remarked another.
‘Whoever told Hillary Clinton to smile less since the first debate gave great advice,’ mused a different viewer.
Others, ever-so-slightly more charmed by her cheerful demeanor, likened her to a happy grandmother.
Her glee remained written all over her face as Trump continued to slate her, much to viewers’ confusion
Twitter users were quick to mock her expression as they watched the debate on Wednesday
Clinton’s happy expression became a talking point at earlier debates. It continued to peak viewers’ interests at her final showdown with Trump on Wednesday (above)
‘Hillary Clinton is so cute it’s something about her I just want her to tuck me in and give me a kiss with her coffee breath,’ one commented.
It was not the first time her facial expression sparked interest among voters.
After the first presidential debate on September 26, political commentators shared some free advice with the candidate online.
‘Who told Hillary Clinton to keep smiling like she’s at her granddaughter’s birthday party?’ said David Frum, senior editor of The Atlantic, at the time.
The discussion had the same hallmarks of bizarre criticisms made earlier this month about Donald Trump’s incessant sniffing.
Viewers were distracted throughout the second presidential debate by the Republican candidate’s runny nose, complaining in their droves about it online.
http://www.dailymail.co.uk/news/article-3854016/Could-Hillary-s-smile-cost-election-Twitter-mocks-Clinton-s-creepy-grandma-grin-smirks-way-presidential-debate.html#ixzz4Nf3WfCyu
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