02 December 2015

Arbitration, Corporate Interests, the ACA and Pilgrim Ethics


This discussion on the Arbitration system was for the most part a rehash of information and arguments that are well known. The corporations hate and detest Class Action lawsuits. As with most issues, it's complicated. There are good arguments against Class Action suits and yet there's no doubt that many of them are essentially frivolous endeavours that accomplish little more than enriching lawyers.

Nevertheless, when one understands the nature of taking on large corporations and their virtually endless resources and their ability to win by attrition and to overwhelm plaintiffs (and juries) with financially backed 'experts', then it's easy to see why the Class Action serves a purpose.

John Grisham's works are helpful in this. He takes a lot of these issues and in the process of fictionalising them, makes the learning both interesting and entertaining. If anything it spurs you on to look into these issues. For those who are overwhelmed by these issues, his novels are a great place to gain some familiarity with basic concepts and procedures.

One point in this discussion really made me perk up and that was the bit about the Wall Street group getting together and pushing for further codification and vindication of the parallel justice system that is Third-Party Arbitration. The fact that John Roberts as a corporate lawyer represented these people and pushed the case to the Supreme Court was quite noteworthy. The fact that later after the court became The Roberts Court, that this issue was heard again and given the court's approval... well, that was something reminiscent of a Grisham plot.

In 'The Appeal', Grisham imagines a powerful corporate force working to have a judge put on the Supreme Court that will tip a case that's on appeal. Of course Grisham weaves in multiple threads of plotlines and characters and the case is about industrial pollution and cancer clusters, a totally different issue. Yet, it was interesting to consider the possibilities. I remember some thought it was far-fetched, just as his storyline in 'The Pelican Brief' wherein two SCOTUS justices are assassinated due to a corporation that wants to utilize its White House ally to tilt the court with two new appointments. Are these stories far-fetched? There's no doubt authors like Grisham utilize hyperbole to make their points but in other instances, if you're paying attention, you realize some of these ideas aren't all that implausible. If you can get past the dressing-up that's used to make for an exciting story, you'll see there are plenty of real-world analogies.

Reality is a little more subtle and no doubt a little more nebulous and sloppy, but the fact that Roberts ended up on the court was I'm sure in the end the fruit of a very deliberate agenda. This is true of any of these appointments. The presidents don't usually know these people. They rely on the recommendations of counselors, many of whom have connections, interests and certainly backers-- in the sense that they're always thinking ahead to what awaits them after their time in the administration. Lobbying for this or that appointee, for certain issues and the representation of powerful interests, insures lucrative positions and portfolios in the private sector.

Arbitration is a corrupt and parallel 'justice' system, that seeks to cut costs for the corporations, avoid the entanglements of juries, legal procedures and precedent. The arbiters, largely former judges and lawyers are necessarily corrupt. If they don't acquiesce to company wishes they won't get selected. The money is nice, easy and certainly very tempting.

The guest expressed it well. People are signing away their constitutional rights. The whole arbitration system should be dispensed with but that can never happen until the legal and judicial system (as a whole) is reformed, and that's not too likely. Arbitration takes on an even more sinister character when it comes to multi-national companies and in particular some of the overseas 'contractors' that utilize this system to circumvent US criminal law. They can argue it doesn't apply in foreign jurisdictions (like the Guantanamo argument) and in some cases arbiters are clearly ruling on issues that belong in a criminal court.

This also illustrates once again the societal trend that is often misunderstood, especially by conservatives. There's no doubt that in terms of the social morality, the Left is winning. In that sense, personal libertarianism is making great advances. Its ethics are rooted in personal liberty and ultimately mean that absent a social consensus, our society will move in a more permissive direction. There are positives and negatives to this and like all social paradigms, it's ultimately self-destructive. That's equally true of the Christian Conservative social model. We're seeing it right now. It reached its limits and has imploded. We are currently living the backlash.

And yet for all the victories of the Left, true liberals will point out that conservatives in terms of business and economics are making great strides. The Neo-liberal Capitalist agenda, the agenda of the Establishment and the official platform of the Republican Party continues to advance regardless of what party holds office. There are many who don't believe this is the case due to the massive increase in regulatory activity. But this also demonstrates their misunderstanding of investment. While risk is an element, the real necessity is security and stability. The regulations are in some cases a result of government bureaucrats and activists pushing their agendas and securing power. But in many, if not most cases, the regulatory apparatus is a tool of corporate monopolies. Certain corporate sectors are exercising control of society and setting the parameters of the market. By controlling the playing field they manipulate the market that is society, its economics and perceptions as well as all but eradicate competition. And most important of all, the regulatory regime in addition to forcing out small-scale competitors it also all but eliminates risk.

As these entities become monopolistic enterprises the state takes interest in their security and perpetuity. The corporate sector whether we are speaking of banking, medicine, resources, industry or utilities become strategic. The Corporatocracy is the victory of Capitalism, it is Meta-Capitalism, the offspring of the monopolistic system. Globalisation is merely the next phase in which Capitalism's necessarily imperial tendencies are vindicated and mandated by the Corporate-State system which seeks resources and labour in the multinational realm.

Libertarians of the capitalist stripe, so-called Right Libertarians wish to see the state all but eradicated and there's doubt they're making great strides in the political and social realm. Yet, they do not represent Capitalism on the street or Realkapitalism if we can coin an expression. The Right Libertarians are essentially an Ivory Tower academic movement that doesn't represent Capitalism functioning in a real world system. In another sense it could be argued their models were at one time implemented and practiced during the 19th and early 20th century, during the late Industrial but pre-Technological era. Many academics and scholars believe their policies led to a worldwide depression and in the Developing World where their policies still carry weight, they have led to the eradication of the Middle Class and dangerous social instability. These same people criticise the Corporatocracy or Crony-Capitalism but fail to understand it is a necessary and inevitable outcome of the profit-system they champion. They are divorced from both doctrinal and historical reality. And interestingly in the lands where these unrestrained Neoliberal policies still hold sway, the ruling class or overlords whether it be in South America or Africa ultimately become the agents of the Multinational powers. Their survival and flourishing are still dependent on the Globalist system. They become the middle-men providing markets, labour and resources for the bigger players. If they were to reject to the Globalist paradigm they would quickly succumb to economic forces, but long before that they would be subjected to violence.

And yet it must also be pointed out that in these lands of weak regulation, the regimes must utilize extreme versions of the security state. The police and army are given tremendous powers to quash protests and control information.

The truth is that corporations and the Capitalist profit system are necessarily wedded to the nation state. They both want and need the judiciary to craft and secure contract law. They require police to enforce these laws and they certainly need a diplomatic corps and a military to secure their interests, help in the procurement of resources and to guarantee access to foreign markets. Corporations don't necessarily want less government. They simply want the government to secure their interests and do their bidding.

This is very much the reality in the modern West. It takes different forms in the United States and Europe but both realms are all but wholly subjugated to this model.

A final note on Roberts. He has been labeled a 'liberal' by some for his critical vote in upholding the Affordable Care Act and yet his support for that legislation further demonstrates the point I've been making above. The key planks of the ACA were proposed by the Heritage Foundation as a corporate response to the push for genuine socialised medicine... the so-called single payer system. At one time the trend was viewed as inevitable so corporate interests employed their Think-Tank whores and cronies to craft the plan. The Republican Party has continued to shift far to the Right and back in the 1980's and 1990's a plan like the ACA was viewed as a conservative alternative to a socialist model.

By the 2000's, the ACA was decried as too socialistic and liberal and yet many seem to forget the plan was supported by the insurance sector and most of the medical industry. Obama, rather than champion the leftist cause and take on the Corporate Establishment, threw them a bone and yet was able to score a political victory with a large segment of the public.

Thus far, the only real winners are the people who had been previously excluded due to pre-existing conditions and those who have benefitted from Medicaid expansion. Others who have been forced from employer-based coverage and pushed onto the private market have in some cases benefitted from tremendous subsidies. But that hasn't lowered prices. And it must be said that most of the plans are something of a scam. You're covered if you end up with surgery or long term hospitalisation but in terms of regular health-care, it's all out-of-pocket due to the large deductibles. I know from years of experience that Self-Pay is not a viable option. You will quickly become mired in debt as you pay inflated prices that are not geared to a retail consumer but to an institutional bargaining process. The power to bargain is something the individual does not have. The poor would get stuck with a bill two and three times the price an insurance company would pay.

The insurance industry is continuing to raise the prices, in part because so many states have failed to expand Medicaid thus eliminating the ACA's guarantee of universality. The Roberts Court by removing the state mandate afforded governors tremendous power and the ability to politicise the budgetary aspects of the issue. I'm sure the corporate backers were less than pleased on this particular aspect of the ACA ruling. So as usual the truth and the interpretation of it are never cut and dry. Roberts ruling was neither wholly liberal nor entirely pleasing to the conservatives either.

The danger of pushing so many onto the private market is that the prices can continue to rise and if the subsidies are removed, then suddenly the ACA will represent a form of slavery for many... not to the government, but to the insurance industry, with the IRS as its enforcer. Many will opt to pay fines instead of procuring coverage and they will still be left high and dry in terms of health care. Contrary to the uninformed arguments of some, health 'insurance' is no longer about managed risk, it's simply a question of 'access' to care and the pricing that is only slightly less criminal than what a Self-Pay patient encounters.

This is why the Left continues to insist the ACA was something of a scam and that the only solution is a single payer system and the elimination of the medical insurance industry.

The Libertarian wing is for the most part unwilling to argue for the complete deregulation of the medical industry. There are a few voices who advocate this, but most people who are informed beyond the purely monetary issues realize just how implausible and perhaps dangerous this suggestion is. In addition it must be pointed out that there's no guarantee this will in fact make prices go down. Apart from massive tort reform it wouldn't work anyway. So for a Libertarian model to work, you would have to deregulate the industry and reform the entire judicial system at the same time. That's revolutionary and would represent something of a political coup. It will never be implemented by a legislative body.

Prices might drop, but in the end we'd have something a Wal-Mart effect. But we're not talking about cheap plastic junk that breaks an hour after you bring it home. The ramifications are quite different, and only by eliminating the dangers of malpractice lawsuits is this model even plausible. And yet as egregious and morally dubious as many malpractice suits are... such a deregulated system would all but guarantee dangerously substandard healthcare for the Middle Class and virtually none for the poor. Only the wealthy would have access to viable quality health care and coverage. The wealthy would have options and thus something of a market. The Middle and Lower classes would end up with no options and no recourse.

Some are content with such a model. It's what one should expect from the Social Darwinist thinking inherent in Neoliberal and Libertarian ethics. It's a pagan and inhuman way to view and relate to your fellow man. And yet aside from all ethical considerations the public will not accept such a model. We've been operating under something close to that and over the past several decades we've been slowly moving in that direction. There was a significant outcry, and thus the creation of the ACA.

What's the solution? As always the issues are complicated but one continues to be baffled if not offended at the position most Christians have taken, siding with economic theory, natural law and Social Darwinist type arguments rather than genuinely viewing the issue from a Christian perspective. Even if you don't believe the state can or should implement Christian ethics, which indeed it cannot, it does not mean that for the sake of political expediency that we as Christians can adopt specifically anti-Christian ethical positions. If we are mandated to love neighbour as self and to seek the interests of others and if this is essentially incompatible with sociological and political models, which I would argue it is... then our duty is to withdraw from the system, remain ethically above the fray and retain our prophetic witness. As far as our own finances, it's Caesar's money and system. We're not to be overly concerned about it. We are to pay the taxes and operate within the system. That doesn't mean we are to sign on with it, work within it, work to undermine it or support it. We live 'with' it as strangers and pilgrims.

Yes, our money and all that we have belong to God, but we surrender these temporal things to the Providential means God has provided. We render the coin to Caesar because it's his. We pay taxes to evil states. We use their idolatrous coinage but we don't invest in their system. We can use their health-care and take their tax credits. And when they take them away, then we won't have them. Either way our status as pilgrims and our witness to God's glory and the Coming of Christ stay the same.

We are to be concerned about truth telling and we are to proclaim it even if (like Isaiah) we know that for the most part very few will listen. That's our calling, not to seek dominion in This Age. The ACA is in the end a wicked system but no more (and perhaps less) wicked than the status quo before its passage. Some solutions might prove better, or worse. We watch, listen and tell the truth, but in the end regardless of the system we live under we eschew the temptations of power and mammon and adhere tenaciously to our calling as martyr-witnesses.