a citizen’s journal by Thomas Nephew

Department of followups

Posted by Thomas Nephew on 25th January 2007

An occasional review of further developments in stuff I’ve written about.

Babel, 12/4/06 — I really liked the movie, so I’m pleased the Academy Awards people nominated it for Best Picture, Best Director, and two Best Supporting Actresses including Rinko Kikuchi, who I misidentified as Yuko Marata though crediting her with a “really memorable performance.” It also got well deserved Oscar nominations for best original screenplay, film editing, and music score.

Appeal for Redress from the War in Iraq, 12/18/06 — The appeal reads: “As a patriotic American proud to serve the nation in uniform, I respectfully urge my political leaders in Congress to support the prompt withdrawal of all American military forces and bases from Iraq. Staying in Iraq will not work and is not worth the price. It is time for U.S. troops to come home.” Last week that petition, signed by over a thousand military personnel, was delivered to Capitol Hill. From the LA Times account by Noam Levey:

When the campaign began three months ago, White House Press Secretary Tony Snow dismissed the first signatories as “65 people who are going to be able to get more press than the hundreds of thousands who have come back and said they’re proud of their service.” The 1,000 signatories still represent a tiny fraction of the military personnel who have served in and around Iraq since the 2003 invasion. But according to the group, those who have signed the appeal include about 100 officers. Approximately 70% of the signatories are active-duty military, while the rest are reservists or members of the National Guard, said Madden, who added that the group would not reveal the names of the signatories to protect them.

Employee Free Choice Act, 6/13/05 — This perennial progressive wish list item may have the best prospects in years. The measure allows for union locals to be formed once enough signatures are gathered — rather than via up or down votes notoriously susceptible to management pressure and bullying tactics. You can learn more about “card check” systems via American Rights at Work, and you can send your congressman a message you support this sensible measure via a AFL-CIO Working Families petition: “Some 58 million workers would join a union if they could. But, as Human Rights Watch has documented, employers routinely harass, coerce, intimidate and stall to block workers’ freedom to choose union representation. In fact, every 23 minutes a worker is fired or penalized for supporting a union.” The Senate bill is S. 842, and the House version is H.R. 1696; I’m happy to learn my congressman, Chris Van Hollen (D-MD-8), is a co-sponsor.

Security Council votes 12-0-3 for UN troops in Darfur, 8/31/06 — One of the three abstentions was China. Now that nation is signaling a slightly different stance — but still no real pressure. The New York Times is running the headline China’s Leader to Visit Sudan and Seek End to Darfur Conflict, with Howard French reporting that Chinese officials announced President Hu Jintao will visit Sudan in early February and “press for a diplomatic solution to the conflict in that country’s western Darfur region.” However, a Chinese foreign ministry spokesman said that, “while China intended to use its diplomatic influence to encourage a settlement of the Darfur crisis, it would not press Sudan publicly or threaten it with sanctions.”

Fair Share Health Care: canary in the ERISA coal mine, 12/15/06 — Last Thursday The U.S. Court of Appeals for the 4th Circuit upheld last year’s ruling overturning Maryland’s “Fair Share Health Care” law on the grounds that it conflicted with federal law, specifically the Employee Retirement Income Security Act (ERISA). The Baltimore Sun’s Matthew Dolan et al report:

…A divided three-judge panel ruled that the state’s Fair Share Health Care Act was incompatible with federal rules that promote uniform treatment of employees.

“In short, the Fair Share Act leaves employers no reasonable choices except to change how they structure their employee benefit plans,” Judge Paul V. Niemeyer wrote for the majority, adding that such a constricted choice also violates the federal Employee Retirement Income Security Act, or ERISA.

One of the three judges disagreed; Judge M. Blane Michael held that the law was “‘a permissible response to the problem’ of escalating Medicaid costs.” While the article reports that most Maryland legislators don’t want to revisit the legislation, Senate Leader Mike Miller is an important exception:

“We’re going to try to work around what the [court’s] majority said and comply with the law,” Miller said. “But at the same time, we can’t allow 60 percent of Wal-Mart employees’ kids to go without health insurance and use the emergency rooms for care. There has got to be some relief for Maryland and the other states.

Emphasis added. And even though he counsels against appealing the verdict, I also agree with Sen. Thomas M. Middleton, a Charles County Democrat and chairman of the Senate Finance Committee: “First of all, Congress needs to loosen up the ERISA laws.” More on the 4th Circuit’s ruling another time, I hope. For now, I’ll just reprint dissenting Judge Michael’s final words:

Because a covered employer has the option to comply with the Act by paying an assessment — a means that is not connected to an ERISA plan — I would hold that the Act is not preempted.

Yes! Jiminy Christmas, that ought to be the ballgame — at least one judge gets it.

NOTES: Fair Share court ruling via Steve Fine (“fineline”)
EDIT, 1/25: Judge Michael’s final words and my comment added.

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Fair Share Health Care: canary in the ERISA coal mine

Posted by Thomas Nephew on 15th December 2006

On November 30, the 4th U.S. Circuit Court of Appeals took up an appeal of a July district court RILA v. Fielder ruling that Maryland’s “Fair Share Health Care” act infringed on federal law.

Earlier in the month, the National Academy for State Health Policy published an extremely valuable and informative issues brief, “ERISA Implications for State Heath Care Access Initiatives: Impact of the Maryland “Fair Share Act” Court Decision,” by Dr. Patricia Butler. That brief suggests to me that what’s at stake in RILA v. Fielder may be the ability of states to innovate in health care reform — and not “just” incremental reform like the Fair Share bill, but broader initiatives reformers hope to legislate in Maryland and elsewhere.

As AP’s Zinie Chen Sampson wrote, the Fair Share act “would require nongovernment employers with 10,000 or more workers to spend at least 8 percent of their payroll on health care or cover the difference in taxes.” In his July ruling, Judge Motz held — incorrectly, I think — that Maryland was essentially imposing a mandate on targeted companies to improve their health plans, in defiance of federal law insisting such matters must be administered in a uniform way across the country.

The federal law that the Fair Share act is argued to conflict with is the Employee Retirement Income Security Act, or ERISA for short. That law governs employee benefit plans including health plans, and holds that its provisions “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described” (Title 29, Section 1144). The trouble is that the word “relate” is vague and subject to shifting interpretations. Butler:

Because ERISA’s preemption provisions are not particularly clear on their face, courts have been interpreting them in the 32 years since ERISA was enacted. For two decades, the U.S. Supreme Court took an expansive view of ERISA state law preemption. The Court noted, for example, that the preemption clause was “conspicuous in its breadth,” and overturned state laws with any impact on or reference to an ERISA plan’s benefits, structure, or administration. […]

The Court has held in Travelers and subsequent cases that it would not presume (without clear evidence to the contrary) that Congress intended ERISA to preempt laws in areas of traditional state authority. Despite greater flexibility granted to state laws, however, the Supreme Court’s two basic tests for preemption remain. A state law will be preempted if it:

  • Refers to an ERISA plan, either explicitly or by requiring reference to an ERISA plan in order to comply with the state law, or
  • Has a connection with an ERISA plan by substantially affecting its benefits, administration, or structure.

But echoing arguments like Professor Phyllis Borzi‘s during debate about the law, solicitor general Steven M. Sullivan argued beore the 4th Circuit Court — correctly, I think — that the law didn’t actually force targeted companies like Wal-Mart “to offer health care; it gives companies the choice of spending at least 8 percent on employee health benefits or covering the costs with increased taxes.”

While there’s little doubt that would be an unwelcome choice to the Scrooges of Bentonville, it would still be a choice that potentially leaves their so-called national “health plan” intact. Companies like Wal-Mart could calculate the pros and cons of setting up an adequate health care plan for their employees, and then either go ahead — or just cut a check to Maryland’s Medicaid system.

As Butler puts it, courts must decide whether “Supreme Court precedent [prohibits] state laws that merely raise plan costs—in other words, that a spending mandate is not a benefits mandate.” If a court decides — however wrongly — that a state law creates a health plan spending mandate, and that that is equivalent to a benefits mandate, the state law must be overturned under current ERISA law.

Butler’s brief leaves me with the feeling that just about any health care reform law can founder on the shoals of a vague federal ERISA preemption provision, shifting legal interpretations, and individual judicial temperaments. Butler is guardedly cheerful about the prospects for popular new health care reform notions such as a recently enacted Massachusetts law coupling a mandate for individual health insurance by those who can afford it with state-funded health care for those who can not. But in discussing a Vermont health care reform law, she notes that

This law also raises ERISA issues similar to those in the Massachusetts law, though it also may survive a preemption challenge. Because these laws are drafted differently and have different likely impacts than the Maryland act, the RILA decision may not be directly applicable. But, the laws will need to overcome potential challenges based on the Supreme Court’s preemption principles.

In adding the emphases above, I realize that Dr. Butler may feel more confident about the prospects for these and other state health care reform initiatives than she lets on. Yet in reading about the arcane legal issues involved, I’m often put in mind of those scholastic debates about how many angels can dance on the head of a pin. And I recall that a bevy of legal experts — including the state’s attorney general — guessed wrong about the prospects for “Fair Share Health Care” once it came down to at least one district judge. If a clear, fair choice to “pay or play” like Fair Share can be preempted by ERISA, so can any number of other laws.

Butler sets out some guidelines in her conclusion for how “pay or play” plans like “Fair Share” could avoid ERISA preemption. But once she goes beyond “offering real employer choice between paying and covering their workers” — which I, for one, insist “Fair Share” offered — it seems to me the Fair Share Act fits the bill:

  • It does not refer to ERISA plans.
  • Legislative sponsors are explicitly neutral regarding whether the employer pays the assessment or plays by offering coverage.
  • The credit applies to any health care spending on behalf of employees (not only to more traditional health insurance or formal health plan).
  • The credit is not conditioned on an employer’s plan meeting benefits or structural requirements such as employer premium sharing standards.
  • An employer’s payment of the assessment is not a prerequisite to its employees qualifying for coverage under the public program.

Some critics have rightly pointed out that the Fair Share Health Care law was not a solution for Maryland’s health care crisis. But the law had another important purpose as well. As its name implied, “Fair Share Health Care” was always about both health care and fair competition between decent businesses and robber barons. If a company like Giant Foods can’t compete with Wal-Mart because it’s “dumb” enough to have a decent health plan, we all lose in the long run — and probably in the short run, too. In the glory days a-coming, a national health care plan would moot this concern, but meanwhile, it’s deeply ironic that “Fair Share Health Care” would be tripped up by federal statutes purporting to safeguard employee income security.

At any rate, whether it lives or dies on appeal, “Fair Share Health Care” may have served at least one useful purpose: as a canary in the coal mine, showing that current federal ERISA law is a formidable obstacle to any progressive state legislator hoping to reform health care. Accordingly, Dr. Butler’s suggestion to reform ERISA is worth a look by federal legislators hoping to break the national health care reform logjam.

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Five years

Posted by Thomas Nephew on 26th September 2006

I started blogging on this site five years ago yesterday. It took me several tries fiddling with the FTP target address, if I recall correctly; at any rate, I still remember the pleased “hey! it worked!” feeling I got when I saw my first post.

It’s a memory tempered these days by what I feel when I re-read that post and others like it early on. There’s nothing all that wrong with that first one, but still if I were to go back in time and take over the keyboard again, I wouldn’t write it or many of the ones that follow that way now, and I might not have written some of them at all.

Still, there they all are. My blog, to me, is half an argument with myself, half a message in a bottle to the rest of the world. In its daily guise, like any journal, it seems declaratory and fairly certain in its statements. Over time, it becomes something else, a journey — and one I sometimes read between my fingers.

It’s actually been a fair amount of work and trouble: late nights reading things, writing things, re-writing them, re-writing them again and yet again; sometimes feeling (and sometimes being told) I’m spending too much time on it.

Has it been worth it? Has it been worth anything?

With regrets
Given my opinions these days, that’s questionable, if influence is the measure of value. For one thing, I’m not all that widely read; for another, that’s not surprising, given my tacks back and forth on Iraq in particular. Starting out leaning against an Iraq war for many of the right reasons, I changed my mind after a long hiatus; one of my most widely read posts was the February 2003 “With regrets — for war on Saddam.” Seemingly independent reports about Iraqi WMD from Germany and arguments like those in “The Threatening Storm” had helped convince me there was a real threat, and that the war was the best way to solve it. Regardless of my sincerity, I was wrong. A lot of people linked to that post, and a lot of people read it and commented* on it, both here and elsewhere.

I’ve since distanced myself from it and rebutted it, at least in part. But that’s been to the tune of perhaps dozens of readers, not hundreds upon hundreds. And I was more than just wrong; in particular, I hadn’t stuck by my own demands for convincing proof of WMD, and my “come what may” line was particularly callow in view of what indeed has come for that country and our soldiers fighting there.

Looking back, I see how furious and on edge I was after 9/11. In part, my trust in the institutions of this country betrayed me — I believed, even of Bush and Cheney, that they would recommend war only when it was truly the least worst option. Wrong. But I’m also afraid that although I would have denied it then, events like 9/11, the anthrax attacks, and the sniper attacks around DC the following year made me more and more jumpy, and more and more open to poorly conceived “solutions” like Iraq. I don’t think I was alone in that. A lot of people who started blogging after 9/11 — the so-called “warblogger” cohort — never really got over it; a better description for many of them may be “post traumatic stress bloggers.”

Writing like this can be, then, a bit of a dangerous hobby. A problem I’ve mentioned before is that it’s easy to become committed not just to the position, but to your public arguments and stand for it. It’s harder for me, at least, to consider unwinding from something I’ve argued for in writing than from something I say in a conversation. I wonder how many bloggers find themselves trapped in their own arguments, unwilling to alienate particular readers or an imagined readership, and therefore unwilling to reverse course.

At the time, I also aspired to bridge a European-American perceptions and risk assessment gap I saw; I would frequently write about German reactions in particular, since I speak the language. While some of that was to the good — I think that on the whole, my German bloggers series posts have been worthwhile — I also spent time and effort arguing with German bloggers and their readers at their sites about U.S. Iraq policy in particular. Given that I was basically wrong about it, that’s fairly painful to recall — public diplomacy in the service of a poor cause.

A reminder
So I’m reminded that humility on my part is in order, certainly more than I like to display. I was against torture, but at first ignored what news there was as “bad apples” at worst — including news e-mailed to me about “American Taliban” John Walker’s treatment, which was a pretty clear sign of trouble ahead. I was less of a stickler than I am now, taking issue with this or that, but reckoning that little things like hoods, or a little sleep interruption, or the ad hoc Guantanamo system were not so bad — details got slightly wrong in hot pursuit perhaps, but not the tip of some iceberg of malfeasance and coolly chosen wrongdoing. Of course, I could not have been more wrong in that, either.

It took Abu Ghraib to viscerally remind me of what I can and can not stand for; I intuited and then confirmed to my (dis)satisfaction that there was much more and worse than what I’d seen. That’s when I pretty much pulled out my red card, once and for all, on an administration I admittedly never had all that much use for. Beware of people who call for changes in the rule books when the game is going badly. Beware of yourself and be aware of yourself if you decide to consider those rule changes.

For all the regrets, shouldas, wouldas, and couldas, I think this blog has been a decent effort. Realizing that I can’t be and don’t want to be a “full service” comment-on-everything blog, I’ve tended to settle on issues and themes that I care about, (e.g., Abu Ghraib etc., Wal-Mart, the “TexasGate” redistricting saga, verified voting, Srebrenica, Katrina, global warming) and come back to them repeatedly. I’ve tried not to let other stories I’ve followed drop either, via the clunkily-named “Department of followups” posts. I’ve also tried to not be too much of a scold — how could I be, given my own inconsistencies — and to lighten things up with a little humor now and then.

In conclusion, thanks for reading, for bearing with my long-winded posts, and for commenting when the spirit moves you. Thanks in particular to Paul, eRobin, Gary, Nell, anonymousgf, Karen, and Brett, who are frequent visitors and valued commenters these days, and who I think of as friends whether I’ve met them or not; likewise for Jens, Sven, Scott, and Peter, who drop by occasionally from overseas; and likewise for those like Tom T. who dropped out over the years, possibly as I became too shrill for their taste.

Others drop by regularly as well, I think, but choose not to comment — although they’re welcome to regardless of whether they disagree with me. Other than my own mental grades for posts, comments are how I tell whether I’m writing anything worth the trouble of reading; although I’ve sometimes failed badly, I do welcome opposing views.

But mainly, thanks for dropping in and reading. While this blog has been mainly for my own benefit — I think the practice has improved my writing a little — I hope it’s also occasionally been worth it to you.

* Although the comments are missing because of a glitch in the prior system, I still have them, and hope to get them reconnected with Haloscan’s help.

Selected Iraq posts:


Selected detainee treatment posts:


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"Politics Potluck" – neighbors for democracy and fun

Posted by Thomas Nephew on 5th September 2006

The Maryland September 12 primary is a particularly overwhelming election in my town, with eighteen(!) Democratic Senate candidates, seven state assembly district candidates, thirteen Democratic county council at large candidates, and scores of other races as well.

Some of my neighbors (Suzanna, Peter, Jim, and Jane) and my wife and I decided we’d weren’t going to risk wondering “who’s that?” in the ballot booth, and would get our neighbors’ help in figuring out the upcoming election. So we flyered our immediate neighborhood with an announcement for a “Politics Potluck”, to be held Labor Day afternoon on a cul-de-sac near our house. Neighbors were invited to bring dishes and their political knowledge — takes on issues, candidates, and controversies — to share with everyone else.

Unfortunately, it drizzled. Fortunately, that didn’t stop us. We just strung a bunch of tarps from trees, bushes, and a basketball goal, and proceeded as planned.

I think it was a big success. A couple of us spoke about races and/or issues, but the main thing was that there was a lot of discussion, both in small groups and then as a whole, with people clarifying points about candidates, recounting telling anecdotes, and generally participating in a pretty good discussion. I’ve come away feeling like I have a much better handle on the Senate race and county council races in particular, and I think other people learned a lot as well. I also met quite a few neighbors I hadn’t really met before — I can be a terrible stay-at-home.

Names emerging from the fog of county politics for me were Duchy Trachtenberg (quoted to the effect “you can’t build your way out of traffic problems”) and Mark Elrich; in the delegate race, Lucinda Lessley got mentions by several people besides me, and one issue about Heather Mizeur got cleared up, at least to my satisfaction: her move to a new house was not done expecting to lose a council seat as a result.* Mfume and Cardin both had defenders and detractors. I’d gladly vote for either one over Steele.

While it’s not comprehensive by any means, here are some good resources to consult in getting to know Democratic District 20 and Montgomery County candidates:

Good news and op-ed articles:

This resource list may be updated periodically over the next week.


* Here’s a Gazette article about it. UPDATE, 9/6 (thanks Chris!): Commenter “Jeff” tells Mizeur’s side at MoCoPolitics. Scroll down to the 5:48pm comment, or find “Heather desperately wanted to finish her term“:

…Nor was there anyone—including other members of the Council—who thought it would bar her from finishing her term.  It was the city attorney who reviewed the charter and found that Heather had to relenquish her seat.  So she gave up the title, but not the work. Those of us who were there watched Heather bend over backwards to finish every shred of Council business on her plate. She trained her replacement, continued to work on a number of issues with the County, and never once missed a meeting…even after she had been stripped of her title.

** The Gazette assured readers that while “the biographical information was edited for Gazette style, The Gazette did not edit or alter the candidate’s responses to our questions for anything other than obscenity or libel.” 🙂
UPDATE, EDIT, 9/5: Reorganized resource list news items by theme, added links (thanks Suzanna, Jim); added brief descriptions of my own posts.
UPDATE, 9/5: Welcome, PEN list! Your comments and resource suggestions are very welcome, use the [#] comment[s] link below.
UPDATE, 9/6: Links to additional Senate candidates and debate controversy added.
UPDATE, 9/8: ICC scorecard added, although it’s old. Thanks to PEN list commenter Greg Smith for pointing out that the ACT survey ignores the ICC issue — a weakness, since the ICC may well drain away funds needed for the Purple Line.

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RILA v. Fielder, ERISA, and Fair Share Health Care

Posted by Thomas Nephew on 1st August 2006

On July 22, the Brennan Center for Justice released a memorandum explaining that RILA v. Fielder — the ruling overturning Maryland’s famous 2005-2006 “Fair Share Health Care” law — did not pose any obstacles for “big box living wage” legislation such as adopted by the Chicago City Council.*

This is very welcome news and analysis. The Chicago ordinance is a great example of a feasible, incremental approach to mitigating the burden on state health care systems posed by stingy employers like Wal-Mart, and it’s one that I hope Maryland legislators will study closely. Still, I found this introductory sentence irksome:

The trial court found that the Maryland law was preempted by ERISA because it effectively forced covered employers to modify their health benefits offerings in order to comply with the law.

No, Fair Share Health Care did not force or even “effectively” force employers to do any such thing. It may well have encouraged that, but it did not require it. Under Fair Share Health Care, large Maryland employers had (or will have, if the RILA v. Fielder ruling is overturned), the perfect and attractive right to pay the shortfall between their actual health benefits and 8% of payroll into a state Medicaid fund, instead of increasing health benefits.

That’s what’s called a choice, not a requirement; Wal-Mart could have kept its (pathetic) national health benefits package untouched, and spent 20 seconds cutting a check to the state Medicaid fund — advantage: simplicity, and whatever pleasure there is to be had in having a “significant percentage of associates and their children on public assistance,” to quote Susan Chambers, Wal-Mart’s Executive Vice President for Benefits.** Or it could have increased health benefits, either nationally or within Maryland — advantage: attracting/keeping workers.

Now I’m trying to plow through ERISA to see if I can figure out that legislation. So far, at least, I see nothing in it preventing states from providing incentives to companies to improve their health plans. If it does, it’s a stupid law. If it doesn’t, Judge Motz is a stupid judge.
=====< * Via eRobin.
** As State Senator Ida Ruben quite rightly points out. In particular, Ms. Chambers revealed that fully 27% of Wal-Mart associate children were on Medicaid. By arithmetic, another 19% were altogether uninsured.

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Democratic District 20 candidates on Fair Share Health Care

Posted by Thomas Nephew on 29th July 2006

As I mentioned on Tuesday, I asked Democratic District 20 candidates to comment on the recent RILA v. Fielder ruling overturning Maryland’s Fair Share Health Care law. The substantive part of my Monday e-mail was as follows:

Dear Democratic District 20 candidates,

As you probably know, a federal judge overturned Maryland’s Fair Share Health Care (FSHC) Act last week. (I posted an item about this decision as “RILA v. Fielder strikes down Fair Share Health Care.”) Colloquially if inaccurately referred to as the “Wal-Mart bill,” FSHC required companies with over 10,000 employees to pay an amount equal to at least 8% of payroll to health benefits, or pay the balance into a state Medicaid fund. As I understand the ruling, the judge found this to be incompatible with the federal Employment Retirement Income Security Act (ERISA), but not a violation of the principle of equal protection for Wal-Mart vs. other companies. The decision will be appealed, but the prospects for success are uncertain.

My question to all of you is:

Assuming the RILA v. Fielder decision stands, what specific legislative steps do you support — if any — to pass a FSHC or similar measure that would withstand judicial scrutiny? By “similar”, I mean measures that address the needs of low-income wage earners with inadequate health care benefits, and/or the “free rider” problem of companies like Wal-Mart which — despite being highly profitable — essentially rely on state Medicaid systems to provide health care for their employees.

I then discussed suggested word limits and formatting,* and asked for responses by this evening. Here are the Assembly and Senate candidate responses I received by this evening, in the order I received them.

Maryland District 20
— Assembly candidates —

Delegate Gareth Murray

As you are aware, I was a strong advocate and voted for the Fair Share Health Care bill and view it as another step toward providing the Maryland workforce the rights and benefits they so richly deserve. I wish this were a problem for which I could give you a quick answer. Unfortunately this is a very complex issue which I do intend on addressing upon my return to Annapolis. The task is to craft legislation that will promote certain behaviors in reference to provision of healthcare by prohibiting or at a minimum removing economic incentive to do otherwise. Given the time required to adequately research and draft such a proposal, I do not have the time during this campaign for re-election.

Lucinda Lessley

It is my understanding that the Wal Mart bill was struck down because it was found to be in violation of the Employee Retirement Income Security Act (ERISA), which essentially creates a federal statute to occupy the regulation of health and benefit plans in order to ensure that firms that employ people in multiple states can maintain a standard, nationwide package of benefits.

I supported the aim of the Wal Mart bill which was to require that Wal Mart either provide health insurance to its employees or pay the State to provide the benefits that many employees obtained through State programs. If it would be possible to craft a bill that meets these objectives without violating the provisions of ERISA, I would support it.

The better way to avoid the problems faced by the Wal Mart bill, however, and to ensure that all Marylanders have access to health care, is to create a system in our State that provides universal care or coverage. While such a system may be a single payer system or it may be a system such as was adopted in Massachusetts that requires all citizens to carry health insurance (and subsidizes coverage for those who cannot afford it), I believe it is shameful that some 700,000 Marylanders lack health insurance. A state with the resources that are available to Maryland can provide universal coverage if such coverage is made a top Statewide priority; if elected, I will work to make universal care this kind of priority.

Diane Nixon

I supported the Wal-Mart bill, and I am sorry that it was struck down. But I thought of it as a stepping stone, not a solution to the health care crisis in Maryland. Since it only applied to employers who have over 10,000 employees, few residents in Maryland would have been affected. I want legislation which will provide universal coverage to all residents, modeled after the bill which passed in Massachusetts this year. Uninsured residents who can afford to buy insurance must buy it or face tax penalties. Businesses with more than ten workers must provide insurance or they will be fined. People below the federal poverty level will be provided with health insurance, without paying premiums or deductibles. Lower income people will be able to buy subsidized policies. The Massachusetts plan reduces the cost of health insurance for people who are already insured. Having fewer people without insurance will lower costs for employers. Adding healthy people, who use less health care, will keep deductibles and premiums down. The cost of health care is too expensive and it getting worse. Massachusetts legislators have shown that providing health insurance to the uninsured is possible. Since this is a new plan, it will probably undergo several changes before it works for everyone. But it does what the Wal-Mart bill failed to do. It comes close to providing universal health care, it makes most businesses responsible for covering their employees, and it offers hope that the broken health care system can be fixed.

Aaron Klein

As a nation, the United States spends almost twice as much as every other industrialized country on health care and yet we have little to show for it – with higher infant mortality and lower life expectancy rates. Maryland’s teen pregnancy rate is greater than both Kentucky’s and Oklahoma’s. Our health care system is broken. We need comprehensive reform to address the fundamental problem—that more than 800,000 Marylanders lack health insurance. While I support interim efforts like the so-called “Walmart Bill,” which force companies to pay their fair share, the longer term solution lies in a fundamental shift away from the link between employment and health care and toward a universal system. The states of Massachusetts and Hawaii have made notable progress in that regard and Maryland ought to consider moving in that direction. Universal state-funded health care would also help our economy as rising health care costs have a devastating impact upon not only working families, but also small business owners. We need to focus our efforts on making health care affordable for everyone and on helping to promote small and local businesses, which means both providing health care to their employees and making sure that the large companies who try to avoid paying their fair share are held accountable.

Maryland District 20
— Senate candidates —

Jamie Raskin

Background: The federal district court in Maryland struck down the Fair Share Act (Wal-Mart bill) because the law was clearly preempted by the federal Employee Retirement Income Security Act of 1974 (ERISA), which was designed to preempt state regulation of benefit plans.

Here are two possible solutions for Maryland:
1. Support a union organizing drive at Wal-Mart and other big companies to give the workers leverage to negotiate for better health benefits.
2. Pass a comprehensive, statewide universal health insurance plan, which will, in any case, be far superior to the Wal-Mart bill. After all, the Wal-Mart bill did not get health coverage for any of the 800,000 uninsured people in the state and arbitrarily fixed an 8% health spending share (why not 9%, 12% or 7.8%?) for these big companies.

Judge Motz observed that the recently passed Massachusetts universal health plan, in contrast, did not conflict with ERISA because it “addresses health care issues comprehensively and in a manner that arguably has only incidental effects upon ERISA plans.” It is clear now that we need creative and legally-expert new leadership to make universal health care for Maryland a priority and a reality.

State Senator Ida Ruben

I am hopeful that the Attorney General’s appeal of Judge Motz’s decision on the Fair Share Health Care Act will be overturned. If however, the appeal is unsuccessful, then I will work closely with the Attorney General on constitutionally acceptable legislation and I will introduce such legislation in the next Session.

More than any other employer, Wal-Mart shifts its health care costs onto taxpayers. In fact, as reported in the New York Times (10/26/05), Susan Chambers, Wal-Mart Executive Vice President for Benefits, for the Wal-Mart Board of Directors, said: “[O]ur critics are correct in some of their observations. Specifically, our coverage is expensive for low-income families, and Wal-Mart has a significant percentage of associates and their children on public assistance.”

As a nation and as a state must do more to ensure that all of our citizens have access to affordable health care. It is critical that large corporations do their fair share for their employees.

This year I supported legislation that created the Joint Legislative Task Force on Universal Access to Quality and Affordable Health Care. This Task Force will examine what Maryland can and should be doing to reform health care. Recently Massachusetts voted to approve legislation that will extend health care coverage to thousands of residents.

As President Pro Tem of the Senate, ensuring that Maryland residents have the best possible healthcare is one of my top priorities. I will continue to work with my colleagues to find innovative solutions for our families.

I sincerely thank all these candidates for their responses, and for being willing to discuss this issue in this format. I’ll add any additional candidate responses through Wednesday evening in an “UPDATE” section below, and thank them in advance as well. All candidates, their supporters, and everyone else can also leave comments by clicking the “[#] comment[s]” link at the bottom of this post.

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RILA v. Fielder strikes down Fair Share Health Care

Posted by Thomas Nephew on 20th July 2006

The Washington Post’s Matthew Mosk and Yian Q. Mui report (‘Wal-Mart Law’ in Md. Rejected By Court) that federal district judge J. Frederick Motz has struck down the Fair Share Health Care bill passed earlier this year, ruling it conflicts with a federal law setting national guidelines for employee benefits. The Fair Share bill required Maryland companies with over 10,000 employees to pay a minimum of 8% of payroll to health care benefits, or make up the difference with payments to a state Medicaid fund.

In his RILA v. Fielder ruling, Judge Motz agreed with the Retail Industry Leaders Association that the Fair Share Health Care act was incompatible with ERISA (the Employment Retirement Income Security Act). Mosk and Mui report:

The Maryland law, Motz wrote, “violates ERISA’s fundamental purpose of permitting multi-state employers to maintain nationwide health and welfare plans, providing uniform nationwide benefits and permitting uniform national administration.”

Maryland lawmakers had been relying on an advisory opinion signed by Attorney General J. Joseph Curran Jr. (D) that listed a series of recent Supreme Court opinions, which, he argued, gave Maryland the latitude to impose the restrictions on Wal-Mart.

Motz, however, said his reading of the cases was different. “My finding that the Act is preempted is in accordance with long established Supreme Court law that state laws which impose employee health or welfare mandates on employers are invalid,” the judge wrote.

Prior to the bill’s veto override vote, at least one expert disagreed with this view of Supreme Court rulings on the matter. The Maryland Gazette reported that George Washington University law professor Phyllis Borzi believed that “since a 1995 decision, the Supreme Court has given states more control in regulating employee benefits.” The Baltimore Sun reported that Attorney General Joseph Curran agreed, “arguing that the Maryland law did not conflict with federal rules because it does not force employers to provide a specific level of health benefits. Rather, it gave companies the option of spending a certain amount on health care or paying a tax to the state.”

While that may seem like a distinction without a difference at first, I should think just paying a tax or fee to the state is operationally a very different (and simpler) choice than going to the trouble of arranging a competitive health care plan of one’s own. Be that as it may, it appears to me from inexpertly skimming the ruling that Motz’s key argument is

A short description of the statutes involved in Travelers, DeBuono, and Dillingham is sufficient to demonstrate that they lie at the periphery of ERISA analysis, not (as does the Fair Share Act) at its core.

… so that he believes these Travelers etc. rulings do not open the way for states to be health policy “laboratories of democracy” regarding health benefits policy. Some of Motz’s arguments appear odd to me; for example, he seems to argue at length that the bill is either a tax or a fee (I think he settles on regulatory fee) — but soon thereafter asserts that “the General Assembly neither intended nor contemplated that Act would raise any revenue for the State” (since it was assumed companies would prefer to raise their health care expenditures to the 8% threshold). I hope lawyers such as Nathan Newman or publius will illuminate these arguments better than I can.

The Washington Post article reports that the law is overwhelmingly popular in Maryland, with 77% of respondents to one survey favoring it. Maryland legislators and the current Attorney General Joseph Curran appear resolved to appeal the RILA v. Fielder ruling, and AG candidate Tom Perez has expressed his strong support for the bill as well:

It is quite clear to me that the intent of this legislation was to demand action by all large, private-sector employers in our State to develop or maintain health benefits’ programs for as many employees as possible. There are many chapters left in the legal battle; we will prevail because this legislation is both legally and morally sound.

Motz’s ruling did find against RILA in one respect: the Fair Share bill did not violate equal protection guarantees by “singling out” Wal-Mart. From the ruling:

The Supreme Court has made it clear that “equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” … A necessary corollary of this principle is that legislatures are permitted the “leeway to approach a perceived problem incrementally.” […]

…unless there is a reason to “infer antipathy” from the targeting of a particular group or person, “[t]he Constitution presumes that . . . even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” … It is only in cases involving politically vulnerable groups that the Supreme Court has appeared to rely, at least in part, on legislative antipathy when invalidating a law under the rational basis test.

But beyond that silver lining — such as it is — this is obviously a setback for the Fair Share idea, and one I hope is overturned as soon as possible.

UPDATE, 7/20: a Progressive States Network bulletin comments that the Fair Share defeat may well be reversed, and in any event has little to no bearing on other approaches to the Wal-Mart issue, e.g., prevailing wage or “big box” laws. The article makes the same point I do about “singling out” not being grounds for overturning the law. Thanks, eRobin!

UPDATE, 7/25: Labor law professor Paul Secunda (“Workplace Prof Blog”) identifies the same key passage re ERISA and comments, “…is the Maryland law really focused on ERISA plans? Some would argue that the law does not directly interfere with Wal-Mart’s health care plan, but only requires it to spend a given amount of money on health care regardless of whether it has such a plan or not. My sense is that this dispute lies at the heart of this controversy over Fair Share laws.”

EDIT, 7/29: New ERISA link directly to the statute’s language, rather than to a DOL overview.

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Retailers sue Maryland over Fair Share Health Care law

Posted by Thomas Nephew on 8th February 2006

A retail industry association is suing Maryland to overturn the Fair Share Health Care Act, which requires companies with over 10,000 employees to pay at least 8% of payroll in health benefits to workers and/or to a state Medicaid fund. Douglas Tallman of the Montgomery County Gazette reports:

In its U.S. District Court suit, the Retail Industry Leaders Association claims the law violates the Employee Retirement Income Security Act, or ERISA, a 1974 federal law that leaves all regulation of health benefits to Congress.

Tallman adds that RILA is also claiming that the Maryland law violates the equal protection clause of the U.S. Constitution because it allegedly singles out one company (Wal-Mart) for arbitrary treatment.

As noted here at the time, the ERISA argument was also made by the Maryland Chamber of Commerce the week of the January veto override that made the bill law. Legal experts including the Maryland State Attorney General considered the claim weak. In its coverage of the suit, the Baltimore Sun noted:

Attorney General J. Joseph Curran Jr. issued his own advice letter last month, arguing that the Maryland law did not conflict with federal rules because it does not force employers to provide a specific level of health benefits. Rather, it gave companies the option of spending a certain amount on health care or paying a tax to the state.

A 1995 Supreme Court ruling explicitly gave states more discretion in this policy area vis-a-vis ERISA, as long as specific benefits weren’t prescribed.

The “singling out” charge has also been popular, though not usually dressed up as an equal protection issue. The argument seems nonsensical to me; the Fair Share bill doesn’t target Wal-Mart by name, but by its size, just as different laws and regulations are made to apply to large vehicles than to smaller ones. Developing…

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Harrumph of the Will

Posted by Thomas Nephew on 21st January 2006

On Thursday, columnist George Will took note of the Fair Share Health Care bill becoming Maryland law last week, and as his article’s title — Shoplifting as Governance –suggests, he didn’t like it, not one little bit. After one of his standard opening gambits — beguiling the gullible with a far-fetched historical analogy from the 18th century — Will sniffs:

Maryland’s grasping for Wal-Mart’s revenue opens a new chapter in the degeneracy of state governments that are eager to spend more money than they have the nerve to collect straightforwardly in taxes. Fortunately, as labor unions and allied rent-seekers in 30 or so other states contemplate mimicking Maryland, Wal-Mart can contemplate an advantage of federalism.

Continuing, Will warns darkly:

States engage in “entrepreneurial federalism,” competing to be especially attractive to businesses. A Wal-Mart distribution center, creating at least 800 jobs, that has been planned for Maryland could be located instead in more hospitable Delaware.

That’s right — you don’t want to get into a rent-seeking contest with those guys!


Were it the case that the Wal-Mart workers showing up on Medicaid client lists were seeking, say, cosmetic surgery or crystal therapy, Will might have a bit of a point. Even though by strict free marketeer standards, even such frivolities cannot be gainsaid those who desire them, Wal-Mart might rightly protest that they shouldn’t have to foot the bill.

If, on the other hand, those workers or their family members were seeking medical care that will enable them to work productively again, then Wal-Mart has been getting quite a good deal compared to the rest of the working world. While again, by strict “greed is good” standards, we cannot begrudge the worthy folk of Bentonville a good cry as their free ride comes to an end, neither can we quite hold it to be “shoplifting” by the Maryland legislature when they essentially require some co-payment for services rendered. Think of the 10,000 employees requirement as a “means test,” and think of throwing a “welfare queen” off the dole, and perhaps we’ve reformulated things more to Mr. Will’s liking.

Speaking of rent-seeking — the “bending of public power for private advantage,” by Will’s definition a week earlier — here’s a great example noticed by Arkansas Times Blogs. As it happens, it’s right in Wal-Mart’s back yard of Bentonville, Arkansas:

Morning News reports that Bentonville is forging ahead with creation of a giant (2.8-square-mile) Tax Increment Finance District so that school taxes can be siphoned off to provide infrastructure to serve such areas as the Wal-Mart world headquarters, a world-class art museum being built with Walton money and land Wal-Mart has acquired for future development. Blight fighters at work, subsidized by taxpayers all over Arkansas.

The Morning News article explains, “A tax increment financing district temporarily freezes the amount of tax revenue that goes to schools, counties and other entities that are taxing undeveloped or blighted property within the district.” Via Facing South, where Chris Kromm adds:

Nationwide, local governments have shoveled Wal-Mart over $1 billion in public money, according to a 2004 report from Good Jobs First.

If poor, blighted Bentonville knows what it must do to stay in its master’s good graces, we must not second-guess that decision. But proud Maryland is not yet so far gone, nor may she ever be. And, as Will points out, there may be be more states like her in in the months ahead — lawmakers in 30 states are reportedly preparing legislation similar to Maryland’s. “Shoplifting as Governance”? Hardly. Rather, the days of “Freeloading as Business Model” may be drawing to a close.

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Fair Share Health Care becomes Maryland law

Posted by Thomas Nephew on 13th January 2006

The Washington Post’s headline tonight is still off by one — it’s not just the “Md. Senate Overrides Veto on ‘Wal-Mart Bill‘, but the House as well. By 30-17 and 88-50 votes, respectively, Governor Bob Ehrlich’s veto of the Fair Share Health Care bill was overridden by the Maryland legislature.

The law calls for Maryland companies with over 10,000 employees to either pay 8% of payroll to health benefits, or make up the difference with payments to a state Medicaid fund. This partly recompenses the state for the costs all too often shunted to state health care systems by low-wage, low health benefits companies like Wal-Mart.

The Post’s John Wagner captured the moment:

The bill prompted frantic lobbying in recent weeks, with unions and health care advocates airing radio and television ads and Wal-Mart running full-page ads in major newspapers. The company also bulked up its lobbying corps in Annapolis, hiring at least 12 lobbyists, whom [Senator] Pinsky derisively called the Dirty Dozen during yesterday’s debate.

The Annapolis press corps was swollen with members of the national media, and immediately after the House vote, [House speaker Michael] Busch was whisked outside the State House for a national television interview.

The whoops and cheers of advocates echoed in the vast hallway outside the House chamber. Union members and their lobbyists hugged lawmakers and posed for photos, giving a thumbs-up, some with tears in their eyes. “We prevailed. Yes!” said an exuberant Del. Veronica L. Turner (D-Prince George’s).

The party’s in full swing over at Wal-Mart Watch, Wake-Up Wal-Mart, Americans for Health Care, and elsewhere. And the victory in Maryland may be just the first of many. The New York Times’ Michael Barbaro wrote last week:

In a national campaign aimed squarely at Wal-Mart Stores, lawmakers in 30 states are preparing to introduce legislation that would require large corporations to increase spending on employee health insurance, according to the A.F.L.-C.I.O., which planned to announce the initiative this morning. […]

Seizing on momentum from the Maryland bill, lawmakers plan to introduce similar legislation in Connecticut, Kansas, Florida, Colorado and Tennessee, among other states, according to A.F.L.-C.I.O. leaders.

“We know that Congress is not going to take action any time soon,” said Naomi Walker, director of state legislative programs at the A.F.L.-C.I.O. “So states are finding their own way to get at this problem.”

(AFL-CIO link added). The bills elsewhere will propose broadly similar provisions to the legislation passed in Maryland.

Meanwhile, a big “Well done!” to the Maryland Democratic Party for seeing this fight through and winning it. They had a lot of support, but it was Maryland’s Democratic senators and delegates who had to go ahead and vote for this. Let them know you appreciate it.

EDIT, 1/13: Americans for Health Care and legislative history links added (click MD flag for MD Senate leg. history and link to MD House).

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