There's also a separate question about whether "instruct[ing]" a private company to stop certain speech, before any adjudication that the speech is unprotected, is a prior restraint. Presumably threats to prosecute or sue based on assertedly unprotected speech are generally permissible, if the speech is indeed unprotected, but an overt order -- which is how the letter is framed -- is generally not.

How exactly does this letter say anything that a standard "Cease and Desist" letter does not?

By the way, the link is to Huffpo, not Inpu.

How exactly does this letter say anything that a standard "Cease and Desist" letter does not?

Nothing. Isn't this basically a "Cease and Desist" letter, from the government, ordering someone to "cease and desist" constitutionally protected speech?

Even knowingly false statements of fact about the government are generally constitutionally protected; it's possible that knowingly false statements of fact about particular legal proposals are not protected, but I've never seen any cases that extend such a false-statements-of-fact First Amendment exception to statements that are merely "misleading and confusing."

You obviously know more than I do about commercial speech doctrine (and the Supreme Court has vacillated on the matter, making your job even more interesting) but doesn't the fact that party directly intends to sell a product by the speech at least enter into the calculus?

Ohralik v. Ohio State Bar Ass'n

We have not discarded the "common-sense" distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.

At any rate, it's a fascinating case at the intersection of commercial speech (where 'truthful but misleading' can be proscribed) and political speech (where even willful falsehood is protected).

For the latest expose's by Andrew Breitbart - today, the NEA being instructed and controlled by the White House to advance their agenda, using government funds.

So where was this website post-Patriot Act? Hmm?

If you goto archive.org, you'll see this current version didn't come active until after 2006.

So not only does does a corporation have personhood, it also gets to send out these letters that the government doesn't? Do you see anything in the letter in which CMS threatens any action not available to a corporation?

Yeah, and a private citizen (even acting on behalf of a corporation) can tell random people on the street, "Can you step over here please, put you hands on the wall and spread your feet apart. OK, now please get the the back seat of my car, I'm going to take you downtown" for no reason. But uniformed police officers can't! I wonder what the world's coming to?

We'd all be better off if Congress's next budget bill includes a line that all persons receiving federal funding for a specific purpose are barred from saying, or required to say, certain things that relate directly to the funding.

For example, if Congress can bar persons receiving money for family planning from mentioning abortion (Rust v. Sullivan), why can't Congress bar insurers from expressing a position contrary to the limits set by Congress.

If Congress controls the food supply, and insurers get fat at the congressional feeding trough, then the insurers should man-up and keep quiet . . . if that's what Congress wants.

It worked in Rust.

Ruuffles - if you had had an actual point to make, what do you imagine it might have been ?

I said http://biggovernment.com/ is a new website - and it is ( In terms of suddenly becoming widely known and read ).

You asked "So where was this website post-Patriot Act? Hmm?"

Well, seeing as the timeframe you specify includes today, it is exactly at the URL above, as I stated.

The key things about it, IMO are A ) he has name recognition / insider contacts, and B ) the money to keep the site alive ( against inevitable attempts to take it down ).

That, and he's breaking NEW news, like the Acorn tapes that have brought down ACORN.

Personally I think we'd all be better off if the courts would respect the First Amendment and stop coming up with nonsense like Rust that exalts the power of the government. But that's me. YMMV.

Personally I think we'd all be better off if corporations weren't treated as people, and concentrated on manufacturing goods and services in exchange for payment, rather than getting involved in politics. But that's me.

At any rate, it's a fascinating case at the intersection of commercial speech (where 'truthful but misleading' can be proscribed) and political speech (where even willful falsehood is protected).

They dug the Nike shoe case, didn't they? I sure hope we don't expand the "commercial speech" doctrine beyond speech proposing a comercial transaction, to any speech that the speaker hopes to gain commercially from. We can pretty much kiss the 1A goodbye if that happens.

Personally I think we'd all be better off if corporations weren't treated as people, and concentrated on manufacturing goods and services in exchange for payment, rather than getting involved in politics.

There will be rent-seeking by rent-seekers as long as there is rent to seek. Solution: stop dishing out rent.

Personally I think we'd all be better off if corporations weren't treated as people, and concentrated on manufacturing goods and services in exchange for payment, rather than getting involved in politics. But that's me.

Of course, many folks find it convienient to form corporations for the purpose of getting involved in politics, like the ACLU, NAACP, etc.

Dear HHS and CMS,

Your letter may contain an impermissible prior restraint. Furthermore, it is potentially confusing and misleading to the public as to there First Amendment rights. As we continue our research into this issue, we are instructing you to end immediately all such mailings to insurance companies and to remove any related materials from your website.

Please be advised that we take this matter very seriously and, based upon the findings of our investigation, will pursue compliance and enforcement actions.

-The Voters

Freakin' awesome. So not only does does a corporation have personhood, it also gets to send out these letters that the government doesn't? Do you see anything in the letter in which CMS threatens any action not available to a corporation?

Uh, yes? There's a reason the Constitution says "Congress shall make no law" and not "No one can restrict the right..." Government has a legal monopoly on force and is, therefore, in need of unique restrictions.

Ebenezer:

But I still think there needs to be of a clear separation between organizations created with the stated purpose of political action and advocacy and those created with a profit motive.

Why? What's wrong for organizing for a profit motive? And certainly folks have a right to request political action so they can earn more money, right? Hell, women demanding equal pay have a profit motive.

Personally I think we'd all be better off if corporations weren't treated as people, and concentrated on manufacturing goods and services in exchange for payment, rather than getting involved in politics.

Ebenezer,

Yeah, that did Microsoft a lot of good under Clinton. I think it is safe to say they learned their lesson about not contributing to political parties.

While I appreciate the effort shown by MedicareCode to track down the relevant portions, I lack the stamina at this date to read them.

However, I still wonder about EV's primary analysis. Let's use a simple example:

Government contracts with company to print ballot envelopes for election. Government specifies what can and cannot be put on to those envelopes (in very specific terms). Printing company decides to also put on the ballot envelopes a lengthy screed in support of certain cnadidates and/or propositions. Government tells them to stop. Analyze.

So I think this is a little more complicated. If Humana had sent out *separate* mailings to these customers and were speaking in their own voice, that would be a clear violation of the 1st Am.. If Humana called them up, again, they could be advocating (and annyoing). But this might be more complicated because of the nature of the speech (perhaps it is mixed goernment speech, a la Beef Council case- as I said, too tired to really think this through right now).

But I still think there needs to be of a clear separation between organizations created with the stated purpose of political action and advocacy and those created with a profit motive.

Ha. It's a good thing most newspapers and other print media don't turn a profit, right? Nothing worse than a profitable media corporation publishing political opinions. Especially in a free nation.

Why? What's wrong for organizing for a profit motive? And certainly folks have a right to request political action so they can earn more money, right? Hell, women demanding equal pay have a profit motive.

Yes, but I see a difference between people (individuals) speaking, which I believe they should be able to do for just any purpose or reason, and corporations speaking. (I'm not saying that you have to see it as well)

The added layer of anonymity and unaccountability that corporations grant probably isn't something that the founding fathers envisioned when they thought about the First Amendment. But now I'm sounding like an originalist, which I'm also not... I'm all over the place today...

Honestly though, I'd trade free political speech for Corporations--if they could be tried and put in prison (or executed), for their wrongs, like normal people.

Ha. It's a good thing most newspapers and other print media don't turn a profit, right? Nothing worse than a profitable media corporation publishing political opinions. Especially in a free nation.

Because journalism/newspapers didn't exist before the invention of the corporate personhood?

Yes, but I see a difference between people (individuals) speaking, which I believe they should be able to do for just any purpose or reason, and corporations speaking. (I'm not saying that you have to see it as well)

The added layer of anonymity and unaccountability that corporations grant probably isn't something that the founding fathers envisioned when they thought about the First Amendment. But now I'm sounding like an originalist, which I'm also not... I'm all over the place today...

Well, corporations don't really speak, do they? That letter was written by a group of individuals acting as an ogranization, seeking to advance their interests. The fact that the govt ficticiously treates the organization as a person doesn't change the fact that what they're doing is threatening to harm the financial interests of individuals in order to cause individuals to stop engaging in constitutionally protected speech, correct?

Eugene, I think you mean to write "HHS" when you say "DHS."

[Whoops, thanks! -EV]

I have a long and intimate relationship with Medicare Advantage due to elderly parents, now deceased. Also, having at one time of my life been a registered and licensed Medicare insurance agent who sold Humana Medicare policies, both Advantage and regular supplement.

There is a long list of what Medicare Advantage and Medicare Supplement policies may say, all coming under strict Federal regulation.

In this case, the law regulating what companies may say they offer in the way of Medicare health related benefits has nothing to do with what the insurance company may say regarding politics. I do believe that the current bills will eliminate Medicare Advantage. It seems that those who have Medicare Advantage have a right to know this and that Humana has not only a right, but a duty to inform their policy holders of this even, and perhaps especially, if the Government action will eliminate this option. I do believe our founding Fathers would have been in favor of full disclosure.

The Government essentially transfers the risk from themselves to Humana. They take the average cost of treating Medicare patients in a given area and pay that money to Humana. If Humana makes money, good. If they lose money, too bad for them. I think Humana Medicare Advantage is very, very good and can be very, very bad. Medicare recipients make the decision if the good outweighs the bad. I understand that most Medicare Advantage patients are very happy with it. I would not choose it, based on past experience with it due to parents after the 1996 balanced budget act. It is not Humana's fault that the government cut reimbursement to the point that Humana had to dramatically cut back in certain areas, Medicare Rehab in nursing homes is the specific issues I have with them. Most major problems can be traced back to Government action, I think. The failing of Medicare Advantage, most certainly, can be traced to the cuts in Medicare reimbursement in 1996 and the much vaunted Balanced Budget Act. Two thirds to three fourths of the nursing homes in this country went into bankruptcy following this act. There is no free ride or benign legislation. Humana Medicare Advantage has to make a profit to stay in business. It prevented them from doing so. Something had to give. It was, as it always is, patient care.

However, Humana Medicare Advantage is very, very good at preventive medicine and prescription drug coverage. You pick your poison as it is not a perfect world and never will be.

But, the regulations are all about what is covered. They are absolutely not about what the corporation may say about the Government.

Govol: What am I missing?

You've established, at most, that CMS has the authority to enact a speech-restricting rule.

But did they actually do so? Where in the CFR or the Marketing Manual is it?

Well, as Steve says, the envelope is a seperate issue. Even if the envelope said, "Direct message from President Obama and the Almighty", the letter is clearly an instruction to stop sending mailings "alleging that current health care reform legislation affecting Medicare could hurt “millions of seniors and disabled individuals [who] could lose many of the important benefits and services [emphasis in original document] that make Medicare advantage health plans so valuable.”

A question someone alluded to above is whether there are restrictions on Humana's right to use this mailing list. I don't know enough about how the Medicare Advantage program works to understand this, but it seems plausible to me that the government could say "here's a mailing list for you, provide you only use it for approved communications."

The analogy upthread to a private company with the contract to print ballot envelopes actually seems rather apt. Just because you have the list of people receiving absentee ballots, that doesn't mean you get to send them whatever the heck you want about the upcoming election - even if it's completely truthful information.

Steve,

That's not unreasonable, but I don't think the analogy holds in this case. As I understand it, Humana is contacting its own customers, not simply a list of names that it received as being a government contractor.

To take a different analogy, the do not call list exempts companies with whom you have an existing relationship (it also exempts politicians...). Humana would seem to have a reasonable interest in keeping its customers informed about potential changes to their benefits - it's likely that at least some of their customers would be upset to find their benefits changed, even if the change was the result of new legislation.

Medicare Advantage is a failed attempt by the Bush administration to privatize some portion of Medicare. To get it started, the Gov't subsidized it (i.e. it cost the Gov't more per enrollee than regular Medicare). Without the subsidy, it's not workable. These plans are quite different from Medicare, and lots of seniors have trouble understanding why their coverage is different from their friends'.

Given that the Healthcare bills in Congress may make Medicare Advantage go away completely, I think Humana is within bounds communicating with their enrollees, but I'm not sure that urging them to write Congress supporting Humana's point of view is legit.

Now there, I dunno; part of contracting w/ CMS might be the nondisparagement of CMS. As noted above, nobody forced Humana into the Medicare Advantage business.

Don't matter. The govt can't pay people to give up their 1A rights. Even govt employees have the right to critize the govt.

Medicare Advantage is a failed attempt by the Bush administration to privatize some portion of Medicare.

no.


a) medicare advantage dates from the Clinton administration (and I'm not willing to credit/blame Clinton for it) under the name Medicare+Choice, Medicare Advantage is merely the Medicare+Choice program renamed with minor changes mostly concerned with how the government calculated payments

b) alternatively you can credit/blame Reagan for it, prior to Medicare+Choice the Tax Equity And Fiscal Responsibility Act allowed the privatization of some portion of Medicare, although Medicare+Choice completely rewrote how this was done, the beginning of privatization took place under Reagan

The CMS message would have been much clearer if it had simply added something like, "Teams of Black Panthers, the authorized domestic government enforcement agency, are prepared to visit your homes and offices should you fail to comply." Mentioning Holder's name might be a little over the top.

Thank you for explaining the Medicare Advantage history.

My mistake. I blamed it on the Bush administration based on inexpert anecdotes. I notice that "one of many" confirmed that it was a conservative attempt at privatization, and did not dispute that it hasn't been a success, at least in the narrow sense that it hasn't saved the government a lot of money. Medicare Advantage does offer a choice of a very different plan which ought to be a good thing, at least in the abstract. There could be a very lengthy discussion about whether it worked well in practice.

Interesting article here from the WSJ about this issue.

One estimate from House Democrats shows Medicare premiums are $90 a year higher because of Medicare Advantage.

But health industry studies show Medicare Advantage is popular, and in some cases may be providing better care.

A study released last week by America’s Health Insurance Plans, the leading industry lobby, which represents 1,300 insurance companies, said Medicare Advantage patients in Nevada had 23 percent fewer hospital stays and 33 percent lower readmission rates than those under traditional Medicare.

A 2008 report by the insurance industry pointed to the Medicare Advantage plans’ success in managing chronic health care problems, often using nurse coaches who dial up patients and remind them to take medications and keep doctors’ appointments and watch out for depression. The study noted one strategy at Health Plan of Nevada/Sierra Health &Life, where nurses made 370 calls in languages other than English to make sure patients understood their care.

SeaDrive,

The above is from the article you referred to. I agree about the dangers of relying on newspaper articles. It is always fraught with danger.
That said, I note that it quotes "One estimate from House Democrats is that premiums are $90.00 higher per year because of Medicare Advantage." I don't think I am being partisan to say that I believe in financial estimates from House Dem's as much as I believe in Santa Claus. I would not accept estimates from Rep.'s either if it is on something they want. That is why we have the CBO and a so-called free press.

I note the article does not seem to factor in a reduction in costs from fewer hospital visits and readmissions and keeping people healthy i.e. preventive medicine.

It is odd that on the one hand Democrats are trashing this and at the same time, saying their "reforms" will save money by reducing hospital visits through preventive care and reduce costs by reducing readmissions. And, I note as well the author did not mention that Medicare Advantage completely eliminates waste, fraud and abuse which is another method Obama and the Democrats say they will use to reduce costs and pay for insuring 47 million, oops, it is now down to 30 million uninsured (having suddenly eliminated illegals from the ranks of the uninsured). Also, pay for the 500 billion in aledged "savings" from reforms to the program. I can't understand how you can reduce or eliminate a program that has been shown to be effective, provide preventive care, has no fraud, waste or abuse and then say that reducing it and putting more people into traditional Medicare will save money.

Overall, it makes no sense to say that what you want to do will accomplish all that the Dem's say it will and trash a plan that does exactly that. I am truly confused.

Also, the author claims this happened in the mid-90's with a Republican Congress. Maybe so, but I know for a fact that the 1996 Balanced Budget Act severely hurt Humana and, as I said above, nursing homes as well as many in Allied Health Care who had previously provided services to Medicare recipients as well as just about everyone else providing Medicare services.

I think we got a very partisan and not terribly well informed version of Medicare Advantage in this article. I don't think I even buy the mid-90's thing. That does not square with my memory (however, relying on that is as dangerous as relying on newspaper articles) and I was pretty actively involved in Medicare at that point both from the aged parent standpoint who had Humana from the very early 90's and as an insurance agent for Humana. I doubt a whole lot of what the author presented.

However, the article pretty well supports Humana's contention (getting back on topic) that Congress is trying to reduce or eliminate Medicare Advantage so I am at a loss as to how Baucus gets off accusing Humana of lying to Seniors. I do dread the day when members of Congress get to unilaterally decide what is truth and what is a lie. I think the First Amendment is in pretty serious trouble.