a citizen’s journal by Thomas Nephew

Nailing down the new normal: Walmart, Obamacare, and part-time, low wage America

Posted by Thomas Nephew on 7th December 2012

Last week the Huffington Post’s Alice Hines reported,

Walmart, the nation’s largest private employer, plans to begin denying health insurance to newly hired employees who work fewer than 30 hours a week, according to a copy of the company’s policy obtained by The Huffington Post.

Under the policy, slated to take effect in January, Walmart also reserves the right to eliminate health care coverage for certain workers if their average workweek dips below 30 hours — something that happens with regularity and at the direction of company managers.

As several experts contacted for the story noted, the story is of a piece with other corporate actions responding to the Affordable Care Act (ACA) with labor cutbacks, such as the Papa John’s, Applebee’s and Olive Garden/Red Lobster announcements (discussed a couple of weeks ago on this blog) that the companies intended to move workers from full-time to part-time status to take advantage of provisions in the ACA.

“Walmart likely thought it didn’t need to offer this part-time coverage anymore with Obamacare,” said Nelson Lichtenstein, director of the Center for the Study of Work, Labor and Democracy at the University of California, Santa Barbara. “This is another example of a tremendous government subsidy to Walmart via its workers.”  […] 

For Walmart employees, the new system raises the risk that they could lose their health coverage in large part because they have little control over their schedules. Walmart uses an advanced scheduling system to constantly alter workers’ shifts according to store traffic and sales figures.

[…] in recent interviews with The Huffington Post, several workers described their oft-changing schedules as a source of fear that they might earn too little to pay their bills. Many said they have begged managers to assign them additional hours only to see their shifts cut further as new workers were hired.

The new plan detailed in the 2013 “Associate’s Benefits Book” adds another element to that fear: the risk of losing health coverage. According to the plan, part-time workers hired in or after 2011 are now subject to an “Annual Benefits Eligibility Check” each August, during which managers will review the average number of hours per week that workers have logged over the past year.

As Marcy Wheeler (“emptywheel”) pointed out, she had already seen in late 2009 that “incenting s#!t plans” was an advertised feature of the developing health care “reform”, not a bug.  Writing that the proposal was “a Plan to Use Our Taxes to Reward Wal-Mart for Keeping Its Workers in Poverty,” she explained in 2009,

…if Wal-Mart wanted to avoid paying anything for its employees under MaxTax, it could simply make sure that none of them made more than $14,403 a year (they’d have to do this by ensuring their employees worked fewer than 40 hours a week, since this works out to be slightly less than minimum wage). Or, a single mom with two kids could make $24,352–a whopping $11.71 an hour, working full time. That’s more than the average Wal-Mart employee made last year. So long as Wal-Mart made sure its employees applied for Medicaid (something it already does in states where its employees are eligible), it would pay nothing. Nada, zip. Nothing.

The upshot?  Congratulations, America: you’re “subsidizing the gutting of our local economy so that the descendants of Sam [Walton] could continue to get disgustingly rich.”  Read the rest of this entry »

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Wal-Mart Strikers Food Fund, Worker Organizer Fund

Posted by Thomas Nephew on 25th November 2012


(photo slideshow via, OURWalMart: JOIN US)

Wal-Mart Strikers Food Fund

Occupy Wall Street is committed to supporting the Walmart worker strikes that will commence on Black Friday (11/23/2012). We are raising money to provide food and sundries to Walmart workers who will lose needed wages as they strike so that they can achieve better work conditions. We ask you to participate by donating, at the very least, what you make in one hour, to provide food and basic items to striking workers.

We are working with the Organization United for Respect at Walmart (OUR Walmart) and the Walmart workers to distribute this money to striking workers who are who speaking out for good jobs and stronger communities.

Wal-Mart Worker Organizer Fund

Walmart workers decided in October 2012 to strike on Black Friday after they were targeted for retaliation for speaking out against substandard work conditions and treatment in the first ever walk out in the history of the company. Now we are looking at a world in which the bravest workers of Walmart are being fired so they may be silenced.

We will support the workers participating in organizing efforts and nonviolent demonstrations in support of the fight for economic civil rights of the Walmart worker effort. Money raised will go towards paying stipends and living expenses for workers fired for organizing and participating in acts of peaceful civil disobedience.

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“Black Friday” Wal-Mart action in Oak Ridge, Tennessee

Posted by Thomas Nephew on 23rd November 2012

I’m in my hometown, Oak Ridge, Tennessee for the Thanksgiving weekend, and today I had the privilege of joining a  Wal-Mart Black Friday event there.  Unlike others you may have read or seen video about, this one wasn’t a big demonstration outside a Wal-Mart, or a “mic check” inside one.  Instead, it was “just” two of us — but with a large, local interfaith community behind us.

My new friend Lance McCold and myself were put in touch by Rev. Jim Sessions of the Interfaith Worker Justice of East Tennessee, a “network of religious leaders and  allies”  united in concern for economic justice.  We met outside Oak Ridge Wal-Mart Supercenter #1194 in blustery late fall weather, then went inside to look for management to whom to hand a letter signed by over 40 local ministers and persons of faith.

Not being sure where to go, we asked a cashier, who called over someone I imagine was floor supervisor.  I had brought my video camera, hoping to film what I could.  The floor supervisor called a manager — and on hanging up, said “no cameras.”

Lance McCold, Knoxville participant in the
Wal-Mart Black Friday
events as a supporter of
Interfaith Worker Justice of East Tennessee

A few minutes later, we were met by a nice enough, if harried young woman, N., who heard Lance and then me explain that we were there to deliver a letter from the local interfaith community, in solidarity with Wal-Mart workers and actions across the United States seeking better treatment and better pay.

N. scanned the letter quickly, tracing every word with her finger to be sure of missing nothing.  She then disappeared for several minutes behind an unmarked door near Customer Service — leaving us to joke nervously that if a SWAT team appeared, we’d each blame the other guy.  But when she reappeared, her main concern was just whether there was anyone else outside, she’d heard something about cameras.  We said there were just the two of us; I said I had a camera along but had put it away on request.

The excellent letter, drafted by Rev. Jim Sessions, is addressed to Mike Duke of the Wal-Mart home office in Bentonville, Arkansas.  It begins,

Dear Mr. Duke,

We are writing you today to let you know that on this Black Friday, we join thousands of people of faith who are gathered at different Walmart stores across the country in support of Walmart associates and Walmart-contracted warehouse workers demanding respect, better wages and safer working conditions.

As we stand outside of East Tennessee area stores on the biggest shopping day of the year, we see an endless stream of customers and thousands of items flying off the shelves. By the end of the day, Walmart will make millions in sales and profits. The hardworking associates and warehouse workers, however, will go home with barely enough to make ends meet. Read the rest of this entry »

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Stand with Wal-Mart workers on Black Friday

Posted by Thomas Nephew on 21st November 2012

Not sure what will be happening in Tennessee, but I’ll see.

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Off to Maine for a week

Posted by Thomas Nephew on 2nd August 2008

Blogging will be sparse at best. Meanwhile some items worth paying attention to:

Vital unresolved anthrax questions and ABC News (Glenn Greenwald) — Greenwald makes a pretty good case that the government’s case against Bruce Ivins (the Fort Detrick germ lab scientist who committed suicide), the m.o. of the anthrax terrorist, and ABC News’s false insistence at the time that lab results pointed to Iraq all add up to a case that urgently requires Congressional investigation. Whoever gave ABC the false “bentonite additive” story has a lot to answer for — very arguably the Iraq war.

Wal-Mart mobilizing against EFCA, pressuring “associates” on how to vote — That’s illegal, and that’s arguably what they’re doing by raising Obama’s support for the Employee Free Choice Act in in-store meetings. The charge is based on a Wall Street Journal article “Wal-Mart Warns of Democratic Win“:

The Wal-Mart human-resources managers who run the meetings don’t specifically tell attendees how to vote in November’s election, but make it clear that voting for Democratic presidential hopeful Sen. Barack Obama would be tantamount to inviting unions in, according to Wal-Mart employees who attended gatherings in Maryland, Missouri and other states.

The main link leads to “Americans Rights At Work,” where you can add your name to a petition urging the FEC to investigate Wal-Mart for potential election law violations.

Last and definitely not least, the ACLU is sounding the alarm about a jaw-dropping legislative initiative by Bush and Attorney General Mukasey:

After years of litigation, the Supreme Court recently ruled in Boumediene v. Bush that detainees held at Guantánamo have a right to challenge their detention through habeas corpus — the ancient freedom that protects people from being thrown in prison illegally, with no help, no end in sight and no due process. Habeas proceedings could allow detainees to bring up the fact that the evidence that the government has against them came from hearsay, or even torture and abuse. Courts could also release people who are detained indefinitely without charge. Attorney General Michael Mukasey wants to make sure neither of these things happen. That’s why he’s calling on Congress to authorize indefinite detention through a new declaration of armed conflict. He is also proposing that Congress subvert the right of habeas corpus with a new scheme to hide the Bush administration’s past wrongdoing — an action that would undermine the constitutional guarantee of due process and conceal systemic torture and abuse of detainees.

More here. Join the ACLU petition to your Representative and Senators here urging them to oppose this misbegotten idea. Thanks to Mick Arran and the Talking Dog for sounding the alarm as well. As Mick says: “Please let’s not give them this one.”

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Department of followups: terraforming, Wal-Mart, Bosnia, coffee, Gilliard

Posted by Thomas Nephew on 14th May 2007

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

# Terraforming Today, October 19, 2002 — As I wrote in 2002, it’s been established for some time that phytoplankton “blooms” — surges of growth of marine single celled plants– can be caused simply by adding relatively small amounts of iron to areas of open ocean. (Iron is a trace element the organisms need to grow and multiply.) Much of the biomass that isn’t converted into plankton-eaters eventually settles to the bottom of the ocean. The questions have been whether this could result in significant net removal of carbon from the atmosphere — and even if it did, would it be a good idea? Now we can add another one: is it commercially viable as a “carbon credit” scheme? In early May, the New York Times’ Matt Richtel reported in “Recruiting Plankton to Fight Global Warming“:

In an effort to ameliorate the effects of global warming, several groups are working on ventures to grow vast floating fields of plankton intended to absorb carbon dioxide from the atmosphere and carry it to the depths of the ocean. It is an idea, debated by experts for years, that still sounds like science fiction — and some scholars think that is where it belongs. […]

In Europe, where there is a market for carbon credits, it is now worth only $2 to offset a ton of carbon emissions. But not long ago, that figure was $35, and it is expected to rise again as the limits imposed under the Kyoto Protocol on global warming start to bite. Planktos believes that it can make a healthy profit if it receives $5 a ton for capturing carbon dioxide. […]

….[but] one unresolved question is whether regulatory bodies will even endorse iron fertilization as a valid means of carbon sequestration that would be allowed under any so-called cap-and-trade system to limit global warming gases.

One objection to the “Geritol tablet” global cooling theory are that at least some of the biomass settling to the bottom of the ocean may wind returning to the atmosphere later on as methane or nitrous oxide, both of which are worse greenhouse gases than carbon dioxide. Another problem is that large scale carbon and biomass dumps to the deep sea might well change the chemistry of the deep sea environment, disrupting ecosystems there.

Meanwhile, though, at least two companies — Planktos and Climos — are looking at the idea. Planktos is sending a ship, Weatherbird II, to the Pacific Ocean area near the Galapagos Islands to measure carbon uptake after iron releases.

# Wal-Mart wins another one, February 25, 2005;, July 17, 2005; Employee Free Choice Act, June 13, 2005 — Human Rights Watch (HRW) has published a study of Wal-Mart labor practices this month — Discounting Rights: Wal-Mart’s Violation of US Workers’ Right to Freedom of Association. From the introduction:

Wal-Mart is a case study in what is wrong with US labor laws. It is not alone among US companies in its efforts to combat union formation, following the incentives set out in unbalanced US labor laws that tilt the playing field decidedly in favor of anti-union agitation. It is also not alone in violating weak US labor laws and taking advantage of ineffective labor law enforcement. But Wal-Mart stands out for the sheer magnitude and aggressiveness of its anti-union apparatus and actions.

Between January 2000 and July 2005, even the NLRB (National Labor Relations Board) found 15 labor law violations by Wal-Mart. The next closest “competitor” was Kroger — with 2. The HRW report describes a variety of illegal Wal-Mart anti-labor tactics in detail, including Discriminatory Hiring, Firing, Disciplining, and Policy Application; Union Activity Surveillance; “Unit Packing” and Worker Transfers to Dilute Union Support; Addressing Worker Concerns to Undermine Union Activity; Threatening Benefit Loss if Workers Organize; Interrogating Workers about Union Activity; Illegal No-Talking Rules; Discriminatory Application of Solicitation Rules; Illegal No-Solicitation Rules; and Confiscating Union Literature. There’s also a chapter on the Loveland, Colorado case I wrote about a couple of times back in early 2005 (see “Wal-Mart wins another one”.)

# ICJ: Srebrenica was genocide. Serbian police were involved… (yet Serbia cleared of genocide), February 26, 2007 — In early April, the New York Times’ Marlise Simons reported “Genocide Court Ruled for Serbia Without Seeing Full War Archive“:

Lawyers interviewed in The Hague and Belgrade said that the outcome might well have been different had the International Court of Justice pressed for access to the full archives, and legal scholars and human rights groups said it was deeply troubling that the judges did not subpoena the documents directly from Serbia. At one point, the court rebuffed a Bosnian request that it demand the full documents, saying that ample evidence was available in tribunal records. […]

As part of its ruling, the court said that the 1995 massacre of nearly 8,000 Muslim men and boys at Srebrenica, a designated United Nations safe haven in eastern Bosnia, was an act of genocide committed by Bosnian Serb forces, but that it lacked proof in this case that the forces were acting under Serbia’s “direction” or “effective control.”

The ruling raised some eyebrows because details of Serbian military involvement were already known from records of earlier tribunal cases. For instance, evidence showed that in late 1993, more than 1,800 officers and noncommissioned men from the Yugoslav Army were serving in the Bosnian Serb army, and were deployed, paid, promoted or retired by Belgrade.

These and many other men, including top generals, were given dual identities, and to help handle that development, Belgrade created the so-called 30th personnel center of the general staff, a secret office for dealing with officers listed in both armies. The court took note of that, but said that Belgrade’s “substantial support” did not automatically make the Bosnian Serb army a Serbian agent.

However, lawyers who have seen the archives and further secret personnel files say they address Serbia’s control and direction even more directly, revealing in new and vivid detail how Belgrade financed and supplied the war in Bosnia, and how the Bosnian Serb army, though officially separate after 1992, remained virtually an extension of the Yugoslav Army. They said the archives showed in verbatim records and summaries of meetings that Serbian forces, including secret police, played a role in the takeover of Srebrenica and in the preparation of the massacre there.

I’ve meant to write about this in its own post, but couldn’t figure out what else to say beyond spluttering in disgust. So rather than lose sight of it altogether, I’m just putting down a marker here. It seems to me there’s a back story waiting to be reported on this. One involves the “controversy” of whether Serbia and Montenegro could be held to account under international law, since this “rump Yugoslavia” was not strictly the former republic of Yugoslavia (FRY) in and of itself. A second, deeper controversy involved some judges’ 1996 opposition to the whole idea of holding nations — rather than individuals — accountable for genocide:

In [Judges Shi Jiuyong’s and Vereshchetin’s] view, the Convention on Genocide was essentially and primarily designed as an instrument directed towards the punishment of persons committing genocide or genocidal acts and the prevention of the commission of such crimes by individuals, and retains that status. The determination of the international community to bring individual perpetrators of genocidal acts to justice, irrespective of their ethnicity or the position they occupy, points to the most appropriate course of action. Therefore, in their view, it might be argued that the International Court of Justice is not the proper venue for the adjudication of the complaints which the Applicant has raised in the current proceedings.

A remarkable view for a judge on the International Court of Justice! This view didn’t prevail in 1996, but it was co-authored by a judge (China’s Shi Jiuyong) who was among the majority finding against Bosnia this February. As before, it seems to me that justice for Bosnians and Srebrenicans has foundered on legal pedantry and shortsightedness.

# Starbucks Challenge, November 20, 2005 — Just got a comment to this post alerting me to the documentary “Black Gold,” by Nick and Mark Francis, about Ethiopian coffee farmers and their struggle to get a decent price for their crop:

Tadesse Meskela, the representative of the Oromia Coffee Farmers Cooperative Union in Southern Ethiopia, seeks to circumvent the global commodity exchanges by tirelessly traveling the world selling premium grade coffee directly to coffee roasters who will pay more for his high grade product and who support the idea of paying farmers a living wage. He returns the profits to the cooperative members who use the extra income to build the schools and infrastructure needed to develop their communities.

At the Cancun conference, one African delegate explains, “Trade is more important than aid.” Seven million Ethiopians are dependent on aid and Africa exports a smaller percentage of world trade today than 20 years ago – only 1%. If that figure only doubled it would represent 70 billion dollars, five times the amount of aid the continent receives.

# Send some good thoughts Steve Gilliard’s way, March 9, 2007 — Mr. Gilliard is not getting better; a post-operative “system-wide infection” has him back in the ICU at his hospital. In addition to good thoughts, consider visiting his web site and clicking through on some ads, donating some money, or buying some of his handsome “Fighting Liberals” or “We Fight Back” t-shirts, coffee mugs or other items.

NOTES: “Recruiting Plankton” item via Enrique Gili (“commonground”), who also linked my 2002 post (thanks); Human Rights Watch Wal-Mart report via Jonathan Tasini. Gilliard via digby and Avedon Carol.

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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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Drum strikes out Mallaby to retire the side

Posted by Thomas Nephew on 31st August 2006

After mudslinger Herman Cain and the L.A. Times editorial board fouled out last week, cleanup hitter Sebastian Mallaby stepped to the plate for the Wal-Mart Shills on Monday with “Shopping for Support Down the Wrong Aisle.” Observing that opposition to Wal-Mart has infected even the inner sanctum of the DLC — Biden! Bayh! Clinton! even (gasp) Lieberman! — Mallaby adopts the old “more in sorrow than in anger” tone,* fretting:

How can supposedly centrist Democrats defend this betrayal of their principles?

… and disingenuously locating the supposed objection to Wal-Mart in Chinese imports, rather than American union-bashing, communities racing to the bottom, workforce exploitation, and rule by fiat over much of the rest of what passes for the American economy these days.

Now of course the cynical answer to Mallaby’s question would be “What principles?” But believe it or not, I don’t like cynical straight up, so I recommend Kevin Drum’s answer as well:

Well, here’s the thing. When every single moderate Dem starts attacking Wal-Mart, maybe nobody’s betraying any principles at all. Instead, maybe they’ve figured out something that Mallaby hasn’t: it’s not the 80s anymore and things have changed. And one of the things that’s changed is that Wal-Mart has gotten a lot bigger, unions have continued shrinking, working class wages have stagnated, and corporate power has grown tremendously. It’s perfectly rational for even moderate, pro-business Dems to look at the record of the past couple of decades and conclude that things have gotten pretty far out of whack and that Wal-Mart is a good symbol of this imbalance.

Drum even stuck a Wake Up Wal Mart button to his post for good measure. And the whole Washington Post editorial board might do well to study where Drum takes the argument next:

In other words, reality matters, not just politics. At one of my panel sessions this weekend, a member of the audience asked if reading blogs for the past four years had made me less willing than before to give George Bush the benefit of the doubt. I answered that it would be silly to pretend that reading people like Digby and Atrios hadn’t affected my political views, but that something much more important had happened during my time reading blogs: George Bush had mismanaged the country for four years. Anyone sentient who has simply watched Bush govern during that time would be less inclined to give him the benefit of the doubt. Hell, even conservatives feel that way.

The same is true more broadly. There’s a reason that so many former moderates are so irate these days, and it’s not because they aren’t moderates anymore. It’s because moderates should be irate over the events of the past decade. People like Mallaby seem unable to figure that out, and therefore assume that any change of heart is motivated not by events, but by a “betrayal” of principles.There are Democrats I’m willing to believe this about, and there are others I’m less sure of. No matter: they’re all showing up at Wake Up Wal-Mart rallies now. And that speaks volumes about where the political center of gravity is shifting on the issues of Wal-Mart, the “dwindling anti-trade labor movement,” and freeloading as business model. Mallaby may splutter, and Lieberman may have his fingers crossed behind his back, but Wal-Mart’s unscrupulous, unwise, and unAmerican domination of this country’s economy may be nearly over.

* I imagine a Shirley Temple voice asking “What’s happening to my very favoritest party ever?”

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