Shortly before the stock markets closed yesterday afternoon, the US Supreme Court announced a ruling on the so-called “Affordable Care Act” (also known as ACA.) Health care stocks generally rose on the news of the ruling, in some cases sharply, while shares in health insurers showed a mixed reaction. Today, the trend has been slightly downward across the board.
A majority of the US Supreme Court held that the US government does have the power to compel citizens and other residents of the USA to buy health insurance. While the court rejected the Obama administration’s argument that this power, the core of the law, was within the scope of the authority the Constitution grants the federal government to regulate interstate commerce, it concluded that, because the law is to be enforced by the Internal Revenue Service in the process of collecting taxes, it is supported by the government’s authority to levy taxes.
In effect, the law establishes a tax that will be paid directly to health insurance companies. US residents who refuse to pay this tax will be assessed an alternative tax, one paid to the treasury. As written, the statute did not include the word “tax,” speaking instead of “premiums” and “penalties.” These words are euphemisms. This is clear not only from the Supreme Court’s legal reasoning, but also from the most basic economic logic. A law which directs people to dispose of their wealth in a particular way to advance a particular set of policy objectives is a tax, whatever label marketing-minded politicians may choose to give it.
Many opponents of the ACA have spoken out against the idea of a tax directly payable to private citizens. For example, today on the Counterpunch website Dr Clark Newhall complains that the bipartisan Supreme majority represents “Corporatists United.” Dr Newhall denounces the statute and the ruling in strong terms. I would like to make three quotes from Dr Newhall’s piece abd add my own comments to them:
In an eagerly anticipated opinion on the Patient Protection and Affordable Care Act, colloquially known as “Obamacare’, an unusual alignment of justices upheld the Act nearly entirely. The crucial part of the decision found the ‘odd bedfellows’ combination of Chief Justice Roberts joining the four ‘liberal’ justices to uphold the ‘individual mandate’, the section of the law requiring all Americans to buy health insurance from private health insurance companies…
Many supporters of the ACA object to the term “Obamacare.” The law was crafted on the model of a regime of health insurance regulations and subsidies enacted in Massachusetts in 2006. That regime is widely known as “Romneycare,” in honor of Willard M. Romney (alias “Mitt,”) who, as Massachusetts’ governor at the time, had been its chief advocate. So calling the federal version “Obamacare” is simply a matter of continuing to follow the Massachusetts model. Now, of course, Mr Romney is the Republican Party’s choice to oppose Mr Obama in this year’s presidential election. Therefore Mr Romney and his surrogates are creating much merriment for political observers by trying to attack the president’s most widely-known legislative achievement, which as it so happens is identical to Mr Romney’s most widely-known legislative achievement.
Dr Newhall goes on:
Those who make, interpret and enforce the laws no longer lie on the ‘left-right’ political continuum. Instead, they are in effect at ‘right angles’ to that continuum. The ideology that drives the Supreme Court, the political administration and the Congress is not Conservative or Liberal but can best be described as “Corporatist.” This is the ideology that affirms that “corporations are citizens, my friends.” it is the ideology that drove the Roberts Court to the odious Citizens United decision. it is the ideology behind a bailout for banks that are ‘too big to fail.’ And it is the ideology that allows Congress to pass a law like the ACA that is essentially written by a favored industry…
It seems to me very clear what Dr Newhall means to evoke in these sentences is the spectre of fascism. During the 1930’s, fascists in Italy, Britain, Belgium, and several other countries used the words “fascism” and “corporatism” interchangeably, and economic historians still cite Mussolini’s Italy, and to a lesser extent Hitler’s Germany, as examples of corporatist economics in practice. The American diplomat-turned-economist-turned-journalist-turned-pariah Lawrence Dennis argued in a series of books in the 1930’s that laissez-faire capitalism was doomed, that state ownership of industry was a dead end, and that the economic future of the developed world belonged to a system in which the state coordinated and subsidized the operations of privately-owned corporations. The most famous of the books in which Dennis endorsed this system was titled The Coming American Fascism.
Not only the word “corporatism,” but also the image of a ruling elite “at right angles” to the old left/right politics might well remind readers of fascism. The fascists continually claimed to represent a new politics that was neither left nor right; while such anticapitalist fascist tendencies as il fascismo della sinistra or Germany’s Strasserites were not markedly successful in the intra-party politics of fascist movements,* all fascist parties used anticapitalist rhetoric from time to time (think of the “National Socialist German Workers’ Party,” and of Joseph Goebbels’ definition of revolution as a process by which the right adopts the language and tactics of the left.) Moreover, the image of “left” and “right” suggests that political opinions form a continuum that stretches from one extreme to another, with any number of points in between. That in turn suggests that people who disagree may have enough in common with each other that their conflicts may be productive. Fascism, on the other hand, demands a one-party state in which a single ideology is imposed on everyone. Fascism finds nothing of value in political conflict, and strives to annihilate disagreement. I think that’s what the late Seymour Martin Lipset was driving at in his book Political Man when he placed most fascist movements, including the Italian fascists and German Nazis, not on the far right, but in the “Radical Center.”
Counterpunch is edited by Alexander Cockburn, who recently declared that the United States of America has completed its transition to fascism. So it would not be surprising if by these remarks Dr Newhall were insinuating that the ACA is fascist in its substance. I would demur from such an assessment. Before I can explain why, permit me to quote one more paragraph from Dr Newhall’s piece:
Why does Corporatism favor Obamacare? Because Obamacare is nothing more than a huge bailout for another failing industry — the health insurance industry. No health insurer could continue to raise premiums at the rate of two to three times inflation, as they have done for at least a decade. No health insurer could continue to pay 200 million dollar plus bonuses to top executives, as they have done repeatedly. No health insurer could continue to restrict Americans’ access to decent health care, in effect creating slow and silent ‘death panels.’ No health insurer could do those things and survive. But with the Obamacare act now firmly in place, health insurers will see a HUGE multibillion dollar windfall in the form of 40 million or more new health insurance customers whose premiums are paid largely by government subsidies. That is the explanation for the numerous expansions and mergers you have seen in the health care industry in the past couple of years. You will see more of the same, and if you are a stock bettor, you would do well to buy stock in smaller health insurers, because they will be snapped up in a wave of consolidation that dwarfs anything yet seen in this country.
Certainly the health insurance industry was in trouble in 2009, and the ACA is an attempt to enable that industry to continue business more or less as usual. In that sense, it is a bailout. Indeed, the health insurance companies are extremely influential in both the Democratic and Republican parties, and there can be little doubt that whichever of those parties won the 2008 elections would have enacted similar legislation. Had Mr Romney been successful in his 2008 presidential campaign, doubtless he would have signed the same bill that Mr Obama in fact signed. The loyal Democrats who today defend the ACA as a great boon to working-class Americans would then be denouncing it in terms like those Dr Newhall employs, while the loyal Republicans who today denounce the ACA as a threat to the “free-enterprise system” that they fondly imagine to characterize American economic life would then defend it on some equally fanciful basis.
In a deeper sense, however, I disagree with Dr Newhall’s assessment quite thoroughly. A moment ago, I defined taxation as any law that requires people to dispose of their wealth in particular ways to advance particular policy objectives. If we think about that definition for a moment, we can see that the United States’ entire health insurance industry exists to receive taxes. In the USA, wages paid to employees are subject to a rather heavy tax called FICA. Premiums that are paid for employees’ health insurance policies are not subject to FICA, and so employers have an incentive to put a significant fraction of their employees’ compensation packages into health insurance premiums. Since the health insurers have been collecting taxes all along, it is quite misleading to call the ACA a bailout. It is, rather, a tax increase.
Now, as to the question of fascism, certainly fascist regimes did blur the line between the public and private sectors. The most extreme case of this was of course the assignment of concentration camp inmates as slave labor for I. G. Farben and other cartels organized under the supervision of the Nazi state. So it would not have been much of a stretch for fascists to grant corporations the power to collect taxes. Even if they had done so, however, fascists could hardly claim to have made an innovation. Tax farming, the collection of taxes by private-sector groups in pursuit of profit, was the norm in Persia by the sixth century BC, and spread rapidly throughout the ancient world. In ancient Rome under the later Republic, tax farming proved itself to be a highly efficient means of organizing tax collection. So the fact that tax farming is one of the principal aspects of the US economy is not evidence that the USA is a fascist or a proto-fascist regime. Indeed, the fact that the Supreme Court seriously considered a case that would have challenged the legitimacy of tax farming is an encouraging sign, however unedifying the opinions that the court issued as a result of that consideration might be.
Of course, in the ancient world tax farmers bid competitively for the right to collect taxes, and the winners put their bids into the public treasury. In the USA, there is no such bidding, and no such payment. Instead, wealthy individuals and interest groups buy politicians by financing their campaigns and their retirements. Perhaps we would be better off to adopt the ancient system.
At any rate, “fascism” seems a misnomer for our economic system, almost as misleading as “free enterprise” or as anachronistic as “capitalism.” A more accurate term, at least as regards the components that are dominated by tax farming, would be neo-feudalist. The US political class is increasingly an hereditary class; Mr Obama defeated the wife of a former president to win his party’s nomination to succeed the son of a former president, and now faces the son of a former presidential candidate in his campaign for a second term. This hereditary nobility will now sit atop a system in which the non-rich are legally obligated to pay tribute or provide service to those in power in the land, who will in turn honor certain obligations to them.
*Fascism being what it was, “not markedly successful in intra-party politics” often meant “shot several times in the head and dismembered,” as happened to Gregor Strasser.