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Thursday, November 10, 2011


Randy Barnett does not allow comments on his posts, so I'll have to use this space to express my befuddlement at his latest, titled "Unpopular?"  in an apparent reference to another (fairly reasonable) post on VC by David Bernstein.  Randy reprints a celebratory item from the Weekly Standard about the victory in Ohio of a ballot measure stating that "In Ohio, no law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system."  The item admits that the initiative will have no legal effect (I know some have argued it will actually have negative effects with respect to the operation of other health laws, but I'll put that to one side here), but champions it as a "message" measure.  (I had thought many current politicians and citizen activists had said they were tired of "messages" and wanted actual results, but I'll leave that to one side as well.)  The item notes that high margin of success of the measure.  Randy then adds:

This in the same election that unions spent millions in a successful bid to repeal the Republican restrictions on the collective bargaining rights of public sector unions.

A lot of this confuses me, especially the "This."  

Does he mean "in a liberal state?"  Ohio is a swing state, not a liberal one, with a Republican governor.  If he just means "this, in a state that repealed the governor's restrictions on public sector collective bargaining rights," what does the relative unpopularity of one law have to do with the relative unpopularity of another?  If Ohioans love tangerines with breakfast but hate it when people cut in line at movies, does that tell us something useful?  

And what's with the one-sided reference to money?  Is he suggesting that the voters were cozened by the manipulative efforts and heavy spending of the unions?  If so, I have a story to tell him about gooses and ganders; as his blogmate Ilya could tell him, voters who can be cozened by one group on one question can certainly be cozened by another group on another question.  Is there a reason that he mentions spending in one measure, and lays it at the feet of "unions," without mentioning anything about spending or sources of funding in the other measure?  If so, why?  One reason might be that he believes the claims of the supporters of the healthcare nullification measure that they are a simple grassroots effort.  That could be true, for all I know (the pro-nullifcation group didn't seem to have spent much yet in the last campaign finance filing I could find), or it could be false (especially if there was substantial "independent" spending on ads and other materials by other groups).  That leads to the other possible reason: that he simply doesn't know.  I did my best to hunt for information about the sources of funding of the pro-nullification advocates, and came up a blank; the web page for one group is no longer operative and the web page for the other is vague at best about where its money comes from, so we'll have to wait for the next campaign finance filing to know more.

It seems to me that a post written in a reasonably scholarly, or even journalistic, way would have discussed all of this, at least to some degree, and would have avoided making claims of some connection between the two measures unless more information were available.  It would have acknowledged a lack of equal knowledge about the sources of funding of both groups.  It would have been more nuanced than suggestive.  It might even have noted that some argued that the nullification measure was worded vaguely in order to garner voter support (the title of the ballot provision says it is designed to "preserve the freedom of Ohioans to choose their health care and health care coverage"), might have confused some voters, and might not be a very good gauge of actual public sentiment in Ohio on the federal healthcare law, let alone its particulars.

Of course, there are arguments about whether a scholar is obliged to meet scholarly standards in all situations.  It's Randy's blog and Randy's choice.  But I suspect I was not the only one who came away from his post confused about its purpose and fairness, and convinced it was more of a press release or set of talking points than a thoughtful blog post by an academic with substantial knowledge of the issue under discussion.  Too bad.  

Posted by Paul Horwitz on November 10, 2011 at 08:40 AM in Paul Horwitz | Permalink


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Brian Ray said what I wanted to say better than I said it. Co-sign.

Posted by: Joseph Slater | Nov 11, 2011 9:58:27 AM

As a fellow Ohioan, Joseph Slater's comments are on the mark. Issue 3 received no play at all and, as a commentator on the local NPR station noted, it's phrased like "motherhood and apple pie" with no direct connection to the Affordable Care Act, making it's reliability as an indicator of voter sentiment on that issue highly suspect.

Many people, especially Rs in this state, are arguing that the combination of the rejection of Issue 2 (which overturned the anti-union bill SB5) and the passage of Issue 2 demonstrate a split electorate, but the comparison is inapt. Nobody paid any attention to Issue 3 on either side b/c nothing was really at stake. Both sides of Issue worked very hard and spent a lot of money, and the result was a resounding rejection.

Posted by: Brian Ray | Nov 10, 2011 11:05:22 PM

Paul: Yeah, I know that was the context of Barnett's post, and yeah, I know I strayed from that a bit in my comments about the 2012 election. But I still think the thrust of my post was responsive. I think it's overreading at least a bit to say that the Ohio vote on Issue 3 was a real demonstration of the unpopularity of the Affordable Care Act. The issue really did get very little attention (in contrast to Issue 2 on union rights), it was vaguely worded, etc.

Posted by: Joseph Slater | Nov 10, 2011 6:21:58 PM

I agree with TM that the meaning of "this" is or should be clear in context to the average reader. It is a common rhetorical device - a way to identify an anomaly -- and other commentators left and right have identified the anomalous character of the two results - for what it's worth. A lengthy and tendentious post complaining about the lack of thoughtfulness in an amuse bouche seems like looking for an argument.

Posted by: jt | Nov 10, 2011 5:40:09 PM

Joe, it sure was; scroll down or look through last week's archives for a photo. I love it.

Joseph, I know you're a regular VC reader, but for those who aren't let me put Randy's use of the title in context. I believe he was referring to David's post in which he argued that if the healthcare law is unpopular, it will be easier for the Justices to overturn it. For the reasons I gave in the comments there, I think this isn't quite right; the Justices won't necessarily find it easier to overturn a major substantive law that's unpopular but highly contested. I think that's what Randy was referring to, not general electoral politics. Of course, I could be wrong; the title was not very clear.

Posted by: Paul Horwitz | Nov 10, 2011 3:51:32 PM

A t-shirt? Was it Lochner related?

Posted by: Joe | Nov 10, 2011 3:45:22 PM

Speaking as someone who lives in Ohio, let me say that while I understand what Barnett was trying to say, his point was somewhere in the naive - disingenuous range. Sure, the unions were formally against Issue 3 (on the ACA). But that wasn't what anybody really cared about. In the months and weeks leading up to the campaign, while there were many, many TV and radio spots, debates on campuses and in the media, editorials and op-eds, etc., etc. on Issue 2 (the bill to repeal the anti-union measure), Ohio residents heard almost nothing about Issue 3. So the unions spent "millions" -- oh, and for the record, so did anti-union types -- to convince folks about Issue 2, not Issue 3. Plus, as noted above, the wording of Issue 3 was confusing. Plus, most people who really understood Issue 3 knew it was almost certainly pre-empted by the ACA (assuming the ACA's constitutionality is upheld).

But let's assume, for the sake of argument, that the vote on Issue 3 does indeed tell us that the mandate is "unpopular." Will that really hurt Obama running against almost-certain Republican nominee and individual-mandate imposer Mitt Romney? Will it hurt Obama as much as Romeny's being "110 in favor" of SB5 (the anti-union law in Ohio) in Ohio?

Posted by: Joseph Slater | Nov 10, 2011 1:16:46 PM

Does this law mean that I can now work in Ohio, refuse the health-insurance benefit offered by the employer, and get a salary increase in compensation?

If I didn't get the salary increase in lieu of health-insurance, I would be "indirectly" forced to participate in a health plan by subsidizing it.

Posted by: Jimbino | Nov 10, 2011 12:39:20 PM

I share Randy's surprise, as one would think SEIU folks, at the least, would have pushed hard on both measures. I think you're being a little hard on him; after all, this post comes in the same week as Judge Silberman's Seven-Sky opinion.

Posted by: Matt Bodie | Nov 10, 2011 11:02:49 AM

Bernstein, like anyone, can at times be very unreasonable. But I agree that when the inevitable happens (for any of us) being at least apparently open to criticism helps a lot.

Posted by: Andrew MacKie-Mason | Nov 10, 2011 10:51:01 AM

I should say that the reason I put "fairly reasonable" re David's post is because, as I said in the comments to the post, I disagreed with some of the particulars of his analysis. But he always welcomes comments and frequently responds to commenters. I don't think this norm is mandatory, but I do think it's helpful as a general rule, and I find that although my disagreements with David sometimes get a little sharp, we are at least able to have them in a productive and mostly very civil way. And he sent me a free T-shirt!

Posted by: Paul Horwitz | Nov 10, 2011 10:32:15 AM

The no-comment policy is, FWIW, also fairly consistent with how Barnett is in class. I know a lot of my classmates who were normally pretty active in class were afraid to challenge him on a lot of his points - he's got a lot of rhetorical tricks that work to shut down dissent.

Posted by: Doctor Chim Richalds | Nov 10, 2011 10:24:43 AM

Stuff like this is nonsense. Just look at the description of the measure:

"Protect your health care freedom, preserve your right to choose your doctor and health insurance, and keep government out of your personal medical decisions."

Who would be against that? Barnett always trumps polls (and in this case, a measure) that inaccurately describes Obama's health plan as if relevant to Obama's health plan. Here's the rest of the silly description of what this measure is trying to do: http://ballotpedia.org/wiki/index.php/Official_arguments_for_and_against_Ohio_Health_Care_Amendment,_Issue_3_%282011%29#Official_argument_for_Issue_3.

Posted by: Anon | Nov 10, 2011 10:23:00 AM

BTW, let me say that the wording is pretty confusing especially with the qualifying (so to speak) language at the end. This does make it a useful "message" platform, since you can read any number of things into it. I find the whole thing a tad cynical.

Posted by: Joe | Nov 10, 2011 10:21:11 AM

"(fairly reasonable) post on VC by David Bernstein"

Not to be mean, but I think the first part is revealing. I find his posts over at VC not always "reasonable," but I respect at least he allows comments. This allows people like myself to respond and in turn he does as well, if not always in ways I think are too perspective. So be it.

The no comment policy of Randy Barnett is troublesome, particularly given his off the beaten path views, which is fine as far as it goes. But, no comments only invites talking to yourself and such.

As to the first comment, Issue 3 passed.


Posted by: Joe | Nov 10, 2011 10:15:53 AM

It's a good, well-founded critique, if a bit overly optimistic.

Posted by: Andrew MacKie-Mason | Nov 10, 2011 10:13:13 AM

M Strasser, could you explain? I certainly want to be accurate. I know two measures were up at one time and only one ended up coming up; is that the reason for my error, if error it is? What did the other provision say?

TM: I certainly also believe the spending on the healthcare measure was much less than that on the union measure, and I tried to say as much in my post, although as I also said, we would still have to consider independent spending, and we still don't know much about the actual spending on the healthcare measure. Of course, my broader point is that all of these things, and the point of the connection between them as well, could have been, and should have been, spelled out in a forthright and careful manner, and I stand by that criticism.

Posted by: Paul Horwitz | Nov 10, 2011 9:04:55 AM

I think the point Mr. Barnett was making is "this" (that is, the passage of the OH Issue 2 on health care by a margin of 65%-35%) occurred in the same election in which the collective bargaining measure won heavily (60%-40%). It is interesting because unions (whose members typically vote for more liberal policies) spent $25 million to defeat Issue 3, which aimed to curtail collective bargaining rights. One would think that if there was so much turnout by union supporters, the health care measure should have been defeated as well. I can't confirm what the spending was for the Issue 2 campaign, but I don't think it was anywhere near that level.

Posted by: TM | Nov 10, 2011 8:55:02 AM

Barnett is about 80% ideologue and 20% law professor. And, as a former student of his, his con law classes are basically the same thing.

Posted by: Doctor Chim Richalds | Nov 10, 2011 8:54:18 AM

FWIW, Ohio did not pass the healthcare nullification measure discussed.

Posted by: m strasser | Nov 10, 2011 8:52:38 AM

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