Friday, June 29, 2012

The Supremes and Health Care: The Second “Switch in Time”


Copyright © 2012 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

Throughout his first term as President, Franklin Roosevelt faced strong hostility from the United States Supreme Court and in particular from a solid bloc of four Right-wing justices — James Clark McReynolds, Pierce Butler, George Sutherland and Willis Van Devanter. Believing that the United States Constitution forbade government interference with the so-called “freedom of contract,” they ruled unconstitutional much of the landmark New Deal legislation, including the National Industrial Recovery Act (NIRA) and the Agricultural Administration Act (AAA). They were particularly harsh on minimum-wage laws, which they regarded as unconstitutional attempts to undermine the “freedom of contract” workers had to agree to a lower wage from their employers. The fifth vote in most of these cases had come from Justice Owen Roberts, appointed to the court by Herbert Hoover in 1930, who in June 1936 had cast the deciding vote ruling a New York minimum-wage law unconstitutional.
After Roosevelt’s landslide re-election victory in 1936, he decided to use his political capital to remake the Supreme Court. He introduced a bill that would have expanded the Court from nine justices to as many as 15. Critics denounced the bill as “court-packing” and it went nowhere in Congress, but though Roosevelt lost the battle he won the war. Beginning with the West Coast Hotel v. Parrish decision, announced on March 29, 1937, which upheld a minimum-wage law in the state of Washington, Roberts abandoned the Right-wing “Four Horsemen” and instead began voting with the more liberal justices to rule New Deal legislation constitutional. Though Roberts had apparently cast his first vote in Parrish in December 1936 — after Roosevelt’s re-election but before the “court-packing” bill was introduced — enough people believed that Roberts’ change of heart was motivated by a desire to forestall the court-packing bill that it became known as the “switch in time that saved nine.”
On June 28, 2012 another Supreme Court justice named Roberts — current Chief Justice John Roberts — executed a second “switch in time that saved nine.” With the court once again split between four hard-line Right-wingers who wanted to throw out the entire Affordable Care Act, President Obama’s hard-fought health insurance reform bill derisively called “Obamacare” by its critics, and four moderate justices who wanted to uphold it, Roberts came up with an ingenious way to split the difference. He decided that the centerpiece of the law — the so-called “mandate” (not a word actually used in the bill) that all Americans either buy health insurance or pay a fine — exceeded Congress’s authority over the clause in Article I, section 8 (3) of the Constitution that allows it to regulate “commerce … among the several states.” But if the fine is actually regarded as a tax, then it’s constitutional under Article I, section 8 (1) that allows Congress “to lay and collect taxes.”
Why did Roberts do it? The talking-heads on the MSNBC cable TV network (where I watched the decision come in and therefore missed the initial error on CNN and Fox that the court had thrown out the Affordable Care Act) said it was likely because he didn’t want to throw out the one chance to reform a system of health insurance that has given the U.S. the most expensive health-care system in the world but one that ranks only 37th in terms of lifespan, infant mortality and other measurable outcomes. I suspect he had a different motive: a concern for the political reputation of the Supreme Court and a desire to short-circuit the Democrats’ increasingly partisan attacks on the Court in the 2012 campaign.
A little more history: by serving longer (over 12 years) than any other President in U.S. history, Franklin Roosevelt had managed by 1941 to do by sheer longevity what he hadn’t been able to do by Congressional action in 1937: pack the Court with his own appointees. The result was a revolution in which the Court generally switched from defending the 1 percent over the 99 percent, men over women and whites over people of color to using the Constitution — particularly the post-Civil War 14th Amendment — to expand civil rights, the individual right to vote, the rights of criminal defendants, women’s rights and environmental protections. But the long line of Republican presidents from 1968 to 2008 — Richard Nixon, Gerald Ford, Ronald Reagan and both Bushes — interrupted only by Jimmy Carter (who made no Supreme Court appointments) and Bill Clinton (who made two), changed all that and swung the Court back to its traditional role of defending wealth, privilege, private property and racial and gender prejudices.
The two Supreme Court cases that stuck most in the craw of progressives — and the ones that kept getting referred to in the coverage of the health reform decision — were Bush v. Gore (2000), in which the Court blocked the ballot recounts in Florida and thereby handed the presidency to Republican George W. Bush — and Citizens United (2010), which threw out century-old restrictions on the ability of corporations and wealthy individuals to finance political campaigns. Many progressives believe that Citizens United was a deliberate attempt by a closely divided and highly partisan court — five Republican appointees and four Democratic ones — to rig the political system permanently in favor of the Republican Party and the Right in general by allowing big corporate money and the expensive TV ads it finances to overwhelm all opposing voices.
The 2010 Congressional election, the first held since Citizens United, certainly turned out that way. So did Wisconsin Governor Scott Walker’s survival against a recall attempt launched by organized labor and progressives in general. And so did the race for this year’s Republican Presidential nomination, in which wealthy backers and supposedly “independent” super-PAC’s kept Newt Gingrich and Rick Santorum alive through much of the primary season — only to be swamped by the even richer and more numerous super-PAC backers of Mitt Romney. Indeed, 2012 is going to go down in history as the first Presidential election in which the incumbent, Barack Obama, is going to be outspent by his major-party opponent, Romney, both in direct campaign donations and in “independent” super-PAC campaigns.
With the Supreme Court’s prestige in tatters following Citizens United, polls in advance of the health-reform decision showed that up to 76 percent of Americans believed that whatever decision was made in the health care case, it would be determined by political considerations rather than the law and the Constitution. So John Roberts did his “switch in time” on two major cases. On June 25, he joined a 5-3 decision written by Justice Anthony Kennedy striking down three of the four major sections of Arizona’s infamous anti-immigrant law, SB 1070, but leaving in place the most potentially damaging provision, the direction to law-enforcement officials that they must demand proof of citizenship or legal residents from anyone they stop if they have “reasonable suspicion” that they’re in the country without documents — which many Latinos and civil-rights activists fear will lead to wholesale racial profiling of Hispanics.
The same Solomonic “split the baby” approach was clearly evident in Roberts’ decision on the Affordable Care Act. He joined the Court’s hardline Right-wingers — Antonin Scalia, Clarence Thomas and Samuel Alito — as well as Kennedy in rejecting the Affordable Care Act under the commerce clause, but he let the individual mandate take effect as an expression of Congress’s taxing authority. At the same time, Roberts’ opinion gutted the law’s principal mechanism for expanding health insurance coverage to those who currently don’t have it. The law had required states to expand their Medicaid programs (known as Medi-Cal in California) to cover more people at a higher income threshold than they do now, and had said that if they didn’t go along they would risk losing all their Medicaid funding. Roberts said the government can’t do that; instead, under his ruling, states will be able to turn down Medicaid funding under the Affordable Care Act while still getting the money they get now to provide health care to the absolutely poorest people in their states.
The result will be exactly the kind of patchwork the Affordable Care Act was designed to avoid. If you’re a member of what’s euphemistically called the “working poor” — you have a job but it doesn’t pay enough for you to afford individual health insurance, and your employer doesn’t or can’t afford to cover you either — your access to health care will depend largely on whether Republicans or Democrats run your state. The same Republican governors and legislatures who thought they were striking a blow for “freedom” and “individual responsibility” by turning down federal stimulus money will gladly turn down the Medicaid expansion, while at the federal level the Republicans have already committed to getting rid of the whole law if they keep the House, win the Senate and Mitt Romney is elected president.
The contrast between the two major parties couldn’t have been more obvious from the statements both Obama and Romney made just after the court announced its decision. Romney spoke outdoors from a crude platform with a sign stuck on the front of it saying, “Repeal and Replace Obamacare” (more political B.S. because the Republicans haven’t shown any interest in replacing it with anything) and he said little more than, “If you want to get rid of it, elect me.” Obama — who has seemed oddly cold and uncomfortable in impromptu speeches before — this time hit the ball out of the park, speaking from the heart and using Ronald Reagan’s approach of talking about a specific individual who’s already being helped by the Affordable Care Act. Romney spoke to abstract generalities; Obama touched the heart and reminded people that, even if they tell pollsters but over 2-to-1 margins that they hate “Obamacare,” they not only like but are counting on benefiting from a lot of what’s actually in the law.

Tuesday, June 19, 2012

“Harmony, Kansas”: Diversionary’s Engaging Original Musical


Copyright © 2012 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

Say what you will about Diversionary Theatre, you never quite know what to expect from them. Their latest production, Harmony, Kansas, is an original musical — that’s something of a surprise right there — set in the Kansas flatlands and the town of Shiloh, described on the Web site as “a township in Neosho County … [whose] population, at the time of the 2000 census, was 297.” For those Queers whose association with Kansas is as the place Dorothy Gale was magically whisked out of by a cyclone that took her to Oz, Harmony, Kansas will be a jolting confirmation that we are, indeed, everywhere — even in the middle of the Kansas wheat country where virtually everyone is a farmer and there are virtually no opportunities to meet each other.
Written (book and lyrics) by Bill Nelson with music by Anna K. Jacobs, Harmony, Kansas centers around Heath (Jacob Caltrider), a Wisconsin native whose sex-fueled wanderlust cost his family their farm and who’s trying to make it right by building a spread in Kansas equal in size to the one he lost in Wisconsin. Either one or two and one-half years earlier — Nelson’s book is a bit unclear on the timeline — Heath met a man named Julian (Tom Zohar) in Kansas City (there are actually two Kansas Cities, but Julian is presumably from the larger and much more cosmopolitan one in Missouri rather than the one across the state line in Kansas), started a relationship with him and ultimately got him to move back with him to his farm.
There’s just one problem: Julian remains a city boy at heart, painfully yearning for the company of other people in general and other Gay men in particular. He’s found at least some of what he’s looking for in an informal singing group that meets every Monday night in Shiloh. The organizer is Wylie (John Whitley) and the other members include middle-aged bear type Fuzz (Bill Nolte); rather prissy homebody Darrell (Tony Houck) — whose partner Pete (whom we never see as an on-stage character) is out of town selling horses — Ken (Anthony Methvin), with whom Darrell has drifted into an affair; and 16-year-old D. J. (Dylan Hoffinger), who’s taking out his dual frustrations over being Queer and under the age of consent out on animals he puts in freezers or blows up with homemade bombs.
The plot of Harmony, Kansas deals with Julian’s desperate attempts to get Heath to join him in the singing group — whose members have informally nicknamed it “The Poker Night” because that’s what they tell anybody else who asks what they’re doing on those Monday nights — and the struggles of the various members to maintain their integrity as people against the relentless pressure on them to remain closeted. The first half is generally campy and a bit silly — though at least Nelson resists the temptation to turn the relationship of Heath and Julian into Green Acres, the Gay version.
Indeed, their cultural conflicts and the peculiar combination of love and guilt in the relationship between Darrell and Ken are presented dramatically and with genuine pathos, even though sometimes it seems as if Nelson has inverted the formula of “comic relief” by creating those moments as “serious relief” from the campy humor. At one point Darrell even gets miffed that Julian has brought snacks for the group and sings a song called “I Bring the Snacks.”
The second half gets a good deal more serious as the conflicts between Heath and Julian get more pointed, the triangle between Darrell, Ken and the unseen Pete becomes harder to maintain, and Wylie gradually wants to raise the profile of the singing group and have it perform in public. Though all the onstage characters are Gay men, Nelson does a superb job of dramatizing the closet and its corrosive effects on these men’s self-esteem, as well as their abject fear of “outing” themselves by appearing on a local stage with all their neighbors watching. “Don’t ask, don’t tell” may be history as far as the U.S. military is concerned, but at least as depicted here it’s still very much a part of life on the Kansas plains.
When Julian protests that their fellow farmers will have noticed that they are two men living together and therefore have intuited that they’re a Gay couple, Heath protests that he needs to maintain their respect (especially since he’s depending on them for the bank loan he needs to expand his farm) and therefore they can’t do anything that might be read as “flaunting.” Darrell is in an even worse pickle because the farm he lives on is owned by Pete’s family, and they have the power to throw him out and render him homeless any time they choose.
Harmony, Kansas gets darker and more emotionally intense as it goes on, and though it reaches an affirmative climax it gets there through a deus ex machina device of such bone-crushing obviousness one gets the impression that Nelson missed the class session of Playwriting 101 that would have taught him not to do that. Despite that miscalculation, though, it remains emotionally intense (this viewer cried!) and is superlatively staged by director James Vasquez and Diversionary’s technical crew, and impeccably acted by the cast.
Though Jacob Caltrider stands out — he’s the hottest man in the cast (when one of the other characters makes a joke about how well he fills out his Wranglers, virtually every Gay man in the audience — and most of the straight women as well — will no doubt agree!), he’s the most charismatic actor and he’s also got the strongest singing voice — Harmony, Kansas is really an ensemble piece. Tom Zohar gets a bit whiny sometimes as Julian, and John Whitley and Tony Houck don’t always maintain the right balance between their characters’ queeny exteriors and their emotion-ridden interiors, but Anthony Methvin is a powerful stage presence as the tortured Ken and Dylan Hoffinger is dynamic as the frustrated D.J.
The best part of Harmony, Kansas is the formidable vocal blend its actors have achieved. Adam Wachter, who conducts the show, plays the piano accompaniment (supported by Peggy Johnston on bass) and is responsible for the arrangements, deserves credit for rehearsing the actors and training them to become a first-rate singing group. The few times they’re less than perfect — like on the pathetic (in the negative sense) “Welcome Song” Wylie writes to welcome Heath to the group — are clearly intentional. Indeed, it might be nice to see these actors stay together and keep singing after the run of Harmony, Kansas ends on July 22; they’re good enough to sing the great standard songs their 1950’s harmonies were made for. (There’s one point during the musical in which Nelson’s dialogue seems to be setting up a song cue for “Over the Rainbow” — and it seems likely the only reason he and Jacobs didn’t go there was the nightmarish trouble and expense of securing the rights.)
Harmony, Kansas is produced with Diversionary’s usual technical aplomb. Sean Fanning’s unit set is reasonably credible as both farm country and living room, and only when we’re asked to believe that a crude stack of three chairs is a mechanical bull does it tax credibility. Shirley Pierson’s costumes are appropriate enough — especially D. J.’s overalls and Fuzz’s belt buckle, which tell us more than we need to know about them — and Michelle Carron’s lighting design is a bit on the autumnal side but still lets us see what’s going on. Overall, it’s a nice, uplifting evening at the theatre, a piece that fulfills the musical conventions (and is helped by being about people who sing!) despite some glitches in the dramatic construction which Nelson may well fix for subsequent productions.

Harmony, Kansas runs through Sunday, July 22 at Diversionary Theatre, 4545 Park Boulevard in University Heights. Previews run through June 22 and the official opening is on Saturday, June 23. Performances are 8 p.m. Thurs.-Sat. and 2 p.m. Sun. Special performances occur Wed., June 20 and Mon., July 9. For tickets and other information, call (619) 220-0097 or visit

Thursday, June 07, 2012

Queer Democrats Won’t Support Candidates Who Aren’t 100 Percent With Them on Marriage, Choice


Copyright © 2012 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

Allan Acevedo

Craig Roberts

San Diego Democrats for Equality members who were elected delegates to the 2012 Democratic National Convention

The predominantly Queer San Diego Democrats for Equality approved a sweeping set of changes in their endorsement rules May 24 that candidates for office agree with the club 100 percent on marriage equality and women’s reproductive choice before they can be endorsed or rated acceptable. The club’s decision came after two hours of intense debate in which supporters of the rules changes insisted that only by being that strict with candidates can the club truly stand for its principles, including Queer and women’s rights. Opponents argued that the proposed rules were too strict and would penalize candidates whose positions – like President Obama’s until May 9 – were still “evolving.”

The push for the rules changes came as a result of a controversial meeting in February at which the club gave both Denise Moreno Ducheny and Juan Vargas acceptable ratings in the primary for the 51st Congressional District. After Ducheny missed being endorsed by one vote, club members unanimously rated her acceptable and then passed another motion rating Vargas acceptable as well, despite his unwillingness to support marriage equality. Later Vargas cast a deciding committee vote in the California Senate against a Planned Parenthood-sponsored bill by Senator Christine Kehoe to allow nurse practitioners and physician assistants to train to perform abortions. So the club voted at the April meeting to rescind Vargas’s acceptable rating and endorse Ducheny.

After the Vargas fiasco, a number of club members felt the need to rewrite the endorsement rules to make sure something like this didn’t happen again. “I’m really proud of making this motion,” said club mobilization chair Allan Acevedo. “We stand for equality, and we need to reiterate that time and time again. The issues of marriage equality and choice are fundamental to the club. … We are Democrats, but these two things stand out for our community. There are concerns that we will be limited in the candidates we can endorse. I think we will be leading candidates to reflect the changes in the political climate.”

Former club president Craig Roberts, arguing against the rules change, said, “This is about the equality of all the issues we care about as Democrats. Voting against this change is not saying we’re opposed to marriage equality or choice. … I do not advocate that we support candidates who are against marriage equality or are not 100 percent pro-choice. We should make these decisions on a case-by-case basis. … If we change this we might get candidates who lie to us, and then they get elected and we are surprised.”

The club had previously tried a strict endorsement threshold in the 1990’s, when it created a rule that candidates had to be “100 percent pro-choice” in order to qualify for an endorsement, but not an acceptable rating. Back then “100 percent pro-choice” meant supporting a woman’s right to abortion as protected by the U.S. Supreme Court’s Roe v. Wade decision and opposing laws requiring women to notify their husbands, or minor girls to notify their parents, before they could have an abortion. At the time, the sponsors of the “100 percent pro-choice” threshold for an an endorsement responded to a question why they weren’t seeking one on Queer issues as well because “it goes without saying” that the club would never endorse a candidate who didn’t support Queer equality.

One veteran club member pointed out that during both of Bill Clinton’s Presidential campaigns, the club had to suspend this rule to endorse him because he favored parental notification laws. This person also noted that under the proposed rule “we couldn’t have endorsed Barack Obama until 15 days ago.” Another club member said that under the new rule the club still would have to suspend the rule to endorse Obama because, while he’s expressed his personal support for marriage equality, the policy position of his administration remains that marriage ought to be left to the individual states to define.

The current San Diego Democrats for Equality issues questionnaire contains 54 items, eight questions about a candidate’s background and 46 about specific issues. The section called “Equal Rights for Lesbian, Gay, Bisexual and Transgender (LGBT) People” includes three questions about anti-discrimination laws and policies, six about recognizing same-sex relationships, one each about parental rights and military service, and three about whether the candidate would participate in Queer events, hire a Queer person for their staff and publicize the club’s endorsement in their campaign literature.

Ironically, only one of the relationship recognition questions flat-out asks, “Do you support giving same-sex couples the right to legally marry?” The others are about equal access to employment benefits for same-sex and opposite-sex couples; legal recognition of one state’s same-sex marriages, domestic partnerships or civil unions by other states; adoption rights for same-sex couples; and immigration rights for partners of U.S. citizens.

The “Reproductive Choice” section contains eight questions — more than any other single issue — and includes not only “Do you support a woman’s right to reproductive choice?” but government funding for abortions for poor women, access to abortion in military hospitals, parental and spousal notification laws, “laws that require women to [undergo] waiting periods or irrelevant/inaccurate medical information (e.g., ultrasounds, ‘fetal pain’ lectures) in order to obtain an abortion” and two convoluted questions addressing the so-called “gag rules” preventing women both here and abroad from getting information about all their reproductive options, including abortion.

The rest of the club questionnaire includes two questions about women’s rights other than abortion, one asking candidates whether they support affirmative action, three about workers’ right to organize and bargain collectively, three about public education (one about school vouchers and two about outreach to students to keep them from getting STD’s), four about Queer issues in schools, two on the separation of church and state, four about access to health care and five about AIDS.

Club secretary Lyn Gwidzak asked if the new rule would “change how we feel about all the other issues we care about” by essentially telling candidates that marriage equality and reproductive choice are the club’s most important concerns. Other opponents, including union activist Michelle Krug, were concerned that imposing a strict threshold based on questionnaire answers would give too much control over the endorsement process to the people writing the questionnaire.

“I’m not aware that we ever had an opportunity to give feedback on the questionnaire,” Krug said. “Two years ago I tried, because I thought it was hard to understand.” Krug also said that the Kehoe bill that led the club to rescind its acceptable rating for Juan Vargas was a controversial one that wasn’t supported by all pro-choice activists. She said the California Nurses’ Association had opposed it because they didn’t think it offered enough safeguards for patients, and argued that the club had been maneuvered into supporting one side in a turf war between two pro-choice organizations.

Supporters of the new rule generally described it in moral terms as an expression of the club’s commitment to its core values. “I came tonight specifically because there should be a threshold,” said California State Assemblymember Toni Atkins. “We are the Gay Democratic club, and in this day and time it’s popular — even for Republican mayors — to come out for Gay marriage. There’s a difference between policy issues like single-payer [replacing private health insurance with a government-funded insurance program] and a living wage, and marriage equality and reproductive choice. As a woman, I hope we would understand how these are linked.”

“I very strongly believe we should have a threshold,” said former San Diego County Democratic Party chair Maureen Steiner. “I can’t imagine someone coming here expecting an endorsement when they’re not for marriage equality or not pro-choice.” Steiner said that she didn’t think the threshold should apply to acceptable ratings — a lower level of support the club can give in races where no endorsable Democrat is running, the club generally likes a candidate but has significant issue differences with him or her, or more than one supportable candidate is running in a race. But backers of the full rule were able to use parliamentary maneuvers to prevent the club from voting on whether to amend the rule to apply it only to endorsements and not acceptable ratings.

Howard Menzer of Scouting for All, opposing the rule, said, “I’m all for reproductive choice and marriage equality, but the moment you put up a threshold, people will stop coming and you won’t have the opportunity to find out what they think about other things.”

Greg Bolian had a similar concern. “The bylaws state the club’s mission is to secure for all LGBT [Queer] people equal human rights and to foster the ideals of the Democratic Party,” he said. “Do we get there by saying we’re not going to talk to you if you don’t agree already? We got Obama to ‘evolve’ by talking to him.” Bolian also pointed to one problem with an endorsement threshold: that it may be a major handicap to candidates running in more conservative areas. “It’s difficult enough for a Democrat running for office in Santee,” he explained, “and if we have someone who could win against Duncan Hunter, who’s right on some of our issues, we’d want to be able to endorse them.”

“I’m glad that the club is taking a moral stand,” said Jonathan Goetz. “Too often, this club’s endorsement decisions are based on who has the most money or who is the most ‘electable.’” But as one of the candidates Bolian was talking about — he’s running for office in El Cajon — he questioned whether the original rule’s requirement of a 75 percent vote to endorse somebody who wasn’t totally in accord with the club’s positions on marriage equality or reproductive choice was too high.

In the one serious amendment to the proposal its supporters actually allowed to come to a vote, the 75 percent threshold for endorsing someone as an exception to the rule was lowered to two-thirds. If the club wishes to consider endorsing or giving an acceptable rating to a candidate who doesn’t answer all 14 relationship-rights or reproductive-choice questions in accord with the club’s position, it will first take a two-thirds vote to suspend the rule and then a two-thirds vote to approve the endorsement or the rating. The new rule will take effect immediately, though club officials said they weren’t aware of any candidate it had endorsed or rated acceptable for the June primary whose endorsement or rating would have to be reconsidered for the November election under the new rule.