Federal gag on insurers intended to choke debate

The rationale for the free speech clause in the First Amendment has often been couched in the terms and definitions of a marketplace, where ideas compete and government is prohibited from interfering through laws, regulations or investigations.

Justice Oliver Wendell Holmes was particularly fond of using the marketplace metaphor. In one of his famous dissents he offered, "(T)he best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution."

(Holmes was a bit inconsistent in this philosophy, since he was also the justice who said arguing that the draft was unconstitutional because it violated the 13th Amendment prohibition against involuntary servitude was tantamount to "falsely shouting fire in a theater." But I digress.)

In the debate over federal health care reform proposals, the Obama administration and some in Congress have been putting their thumbs on the market scale.

A week ago, Review-Journal reporter Jennifer Robison penned a detailed report on what one insurance company study said would happen to insurance rates in Nevada under some of the proposals being considered by Congress. The study -- conducted by WellPoint, the parent company for Nevada's Anthem Blue Cross Blue Shield -- found that while the unhealthy and the elderly might see a modest decline in insurance rates, the young and healthy would see their premiums more than double -- assuming they could find an private insurance company still standing.

This past week our editorial board followed up with company executives during a 90-minute, far-ranging discussion of the implications of health care reform in general and the ramifications for insurance companies, doctors, hospitals and patients. During the meeting I learned that a number of insurance companies are refusing to talk to our reporters about the issue lest they run afoul of clients who favor reform.

That's self-interest.

But that was not the case earlier this year when the Obama administration ordered an investigation of Humana, a Kentucky-based insurance firm that had mailed letters to its customers truthfully warning that the president's health plan might eliminate some of their Medicare benefits.

Sen. Max Baucus, D-Mont., called the Humana letter a scare tactic. The Centers for Medicare & Medicaid Services, which oversee Medicare programs, issued a "cease and desist" order against Humana until an investigation could be completed. Senate Minority Leader Mitch McConnell, R-Ky., correctly called the probe a federal gag order meant to silence one side of the debate.

"This is so clearly an outrage," McConnell said on the Senate floor. "For explaining to seniors how legislation might affect them, the federal government has now issued a gag order on that company, and any other company that communicates with clients on the issue, telling them to shut up -- or else."

The administration later backed off, but the threat was made clear: Speak out and suffer the wrath of the federal regulatory machine.

At the end of our editorial board meeting, I asked Mike Murphy, president and general manager of Anthem Blue Cross Blue Shield of Nevada, what he thought of having his salary scrutinized by Congress. He quickly corrected me by pointing out that a letter from Democratic Reps. Henry Waxman and Bart Stupak demanded far, far more than that, and that failure to comply with the demands might result in a congressional subpoena. That would subject him and his company to contempt of Congress -- which, come to think of it, is a fairly common attitude these days.

The letter demands for the years 2003 through 2008 information on every executive compensated more than $500,000 a year -- salary, bonus, stocks, incentives and "all other compensation, including perquisites." It demands names of all board members and their pay. It demands an accounting of all conferences, retreats or events and documentation of location, number of participants and expenses, including transportation, lodging, food, entertainment or gifts. (Don't you dare hold a meeting in Las Vegas.)

The demands go on for three pages, and were sent to dozens of insurance companies. I can only imagine what the responses must weigh.

This is at the very least chilling, if not intimidating. It does not just deny the companies free speech. It denies your right to hear all sides of the debate in the marketplace of ideas.

Thomas Mitchell is editor of the Review-Journal and writes on the role of a free press, free speech and access to public information. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com. Read his blog at lvrj.com/blogs/mitchell.