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By Edward Zelinsky

Among the bitter but unnecessary controversies of this election year was the dispute about the federal government’s mandate that employers provide contraception as part of their health care coverage for their employees. Employers religiously opposed to contraception believe this mandate infringes their right of Free Exercise of religion under the First Amendment. Advocates of the contraception mandate characterize it as vital to women’s health and choice.

This acerbic controversy is totally unnecessary. This dispute can be diffused by health savings accounts (HSAs) or similar employer-funded medical accounts under the employee’s control. Such a solution should be appealing to political leaders committed to civil discourse and mutual respect for opposing views. Unfortunately, such leaders appear to be in short supply.

Substantively, the most recent event in this controversy is the decision of US District Judge Reggie B. Walton. Judge Walton recently held that the contraception mandate violated the rights of Tyndale House Publishers, Inc., a Christian publishing company opposed on religious grounds to certain of the mandated forms of contraception. Judge Walton held that the contraception mandate violates the Religious Freedom Restoration Act.

Earlier in the year, Missouri’s legislature, overriding the veto of Governor Jay Nixon, declared that Missouri employers religiously opposed to contraception need not provide contraception as part of their employees’ medical coverage. This Missouri law directly defies the contrary federal mandate adopted as part of President Obama’s health reform package.

On this issue, serious and sincere people come to different conclusions. These differences can be accommodated by requiring employers with ethical or religious qualms about any particular type of medical care to fund HSAs or similar accounts under employees’ control. Such accounts enable the employees to make their own decisions about the medical services such employees obtain with their employer-funded health care dollars.

HSA supporters tout such accounts to control medical costs and to increase consumer autonomy. But HSAs can also diffuse religious and ethical controversy by shifting contentious choices from employers to employees.

If employers have religious or ethical scruples about providing contraception or other medical services, they should instead pay into independently-administered HSAs for their employees. Employees who want these services could then purchase such services with the pre-tax funds in these accounts – just as such employees can today purchase these services with their post-tax salary dollars.

Like all compromises, this proposal is imperfect. A religious employer might object that it knows that its payments to independently-administered HSAs are underwriting services to which the employer objects. But the employee can use his or her salary dollars in ways to which the employer objects. At some point, the religiously sincere employer must acknowledge that control of compensation has shifted from the employer to the employer’s employees. And health care dollars are part of the employee’s compensation package.

The proponents of birth control and other similar medical services can object that employees purchasing such services through HSAs or similar accounts will pay more than employers who can purchase such services more cheaply because of economies of scale. That is an argument for improving the operation of the market for medical services through better information about the prices of such services and for the proponents of such services to themselves harness economies of scale by aggregating purchasers.

Many details must be decided before implementing this proposal. Most obviously, we must decide how much the religious employer must contribute to each employees’ HSA for the employer to be released from the mandate he considers religiously objectionable. This concern, like others, can be resolved by those committed to civil management of our differences.

While the public discussion has to date been stimulated by employers religiously opposed to providing contraception and abortion services, there may be other employers whose religious convictions preclude them from providing other kinds of health care services. Some employers who are Christian Scientists, for example, might object to some or all of the package of medical services being mandated by the federal government. If so, these employers should also be given the alternative of funding HSAs or other similar accounts which shift control of health care dollars to the employees.

A genuinely diverse society must be tolerant of genuine diversity. In this spirit, employers with religious objections to particular medical practices and services should be given the alternative of funding employees’ HSAs instead.

Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. His monthly column appears on the OUPblog.

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By Elvin Lim

The Republican party has traditionally been the more conservative party not only in terms of values but also in terms of organization reform. Leaders tend to be slower than their Democratic counterparts in reforming the nomination process, and voters tend to be more deferential to the last cycle’s runner-up to the winner.

What changed in the last few years was an concerted effort to democratize the Republican Party, fueled in part by the success of the Democratic nomination contest between Obama and Clinton in generating an enthusiasm gap in 2008. This included expanding proportional representation in nomination contests, and an unprecedented number of debates to the calendar. The result thus far has been chaos, restrained only in part by the overriding imperative to find a candidate who can unseat Obama. Republicans are relearning their earlier intuition that more voices don’t always lead to a coalescing chorus.

The White House understands this. One wonders if the Obama administration’s blunder about a birth-control insurance mandate on religious institutions was so poorly executed that it may actually have been perfectly timed. On the heels of the Catholic candidate Rick Santorum’s trifecta win, the administration decided to announce a controversial mandate requiring that women in religious institutions be entitled to contraception coverage in their health insurance, only to reverse this decision almost immediately. Either this was spectacularly amateur politics, or a high-risk attempt to put social issues back on the Republican primary agenda on the eve of the CPAC conference to aid Romney’s Catholic rivals. Romney ended up winning the CPAC straw poll and thereby entrenching his conservative credentials, but Santorum ended up a close second.

With barely any media attention devoted to the recent victories for gay marriage in California and Washington, the Obama campaign recognizes that the only reliable issue left for social conservatives to fight on is abortion (immigration being a sensitive topic for both parties), and this is possibly why they took the risk of taking it on. Social conservatives, for their part, were very wise to quickly connect the contraception mandate to the anti-Obamacare animus shared by other conservatives, so that God may remain relevant in an election year that will be mostly dedicated to the economy and debates about big government. This ideological fusion is Santorum’s ticket to unseating Romney — at least this is what the White House hopes — because as long as values matter, the conservative alternative to Romney will.

With no closure in sight, the Republican candidates must trudge on to Michigan and Arizona. It will not be until Super Tuesday, when the big delegates counts are at stake, before Romney’s coronation can be confirmed.

Elvin Lim is Associate Professor of Government at Wesleyan University and author of The Anti-Intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decl

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Irish bookseller Eason is to hold talks at the Labour Relations Commission (LRC) next week with staff facing a reported 10% pay cut and 90 jobs at risk.

The meeting will take place next Tuesday (30th August) in Dublin between Eason and unions Siptu and Mandate. Eason m.d. Conor Whelan has previously announced the company was seeking to make €8m in savings.

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By Elvin Lim

Mandate claims in American politics are hogwash, and they are especially dubious in mid-term elections where an entire branch was not evaluated for re-election. Mandates imply that there is a clear date on which majorities are counted. There isn’t, because ours is a republic in which the staggered electoral calendar introduced the principle that republican “truth” would emerge from a conversation between different majorities at different cross sections in time. The president elected in 2008 is still around – so as far as the Constitution is concerned, the Democratic mandate from 2008 is no less relevant and carries over into 2011 as much as the Republican mandate from 2010.

The Constitution understands that what you and I believed in 2008 and what we believe in 2010 could be the same or it could be different – but what matters is that the Constitution predicted our fickleness and finds its average between the two. The change that Obama promised in 2008 was as much mandated as the change that the Republicans and the Tea Partiers resisted in 2010. This is an important lesson for both Republicans in Congress and the President. If mandates are fragile, even meaningless things, then at the very least, neither should make too much of their own.

But still, since we are committed to majoritarian rule, it would be worthwhile to try to divine exactly what the American people are looking for in the next two years. Just where is the median position between the electoral mandate of 2008 and 2010? Should Barack Obama try to do what Bill Clinton did, and find a “third way” compromise with Republicans, and John Boehner should try to, like Newt Gingerich, push a purist Republican agenda? On balance, I think Obama should resist the urge to over-react, and Boehner should resist the urge to over-reach.

Bill Clinton’s mandate from 1992 was not only much smaller (with 45 million Americans voting for him, he received a plurality but not a majority of the popular vote), it was also a mandate (“Putting People First”) that wasn’t based on a campaign that was categorically and emphatically about change. When his party lost 54 seats in the House in 1994, it was certainly humbling compared to the relatively paltry size of his own mandate.

Less so for Barack Obama. About 90 million voters turned out last week. Assuming that a vote for a Republican candidate for the House and the Senate and in any state can be meaningfully clumped together to articulate a generic Republican mandate for 2010, then about 47 million voters (52 percent of 90 million) signed on to the Republican Pledge for America in 2010.

That leaves an undiluted and quite unambiguous vote for one man, Barack Obama, in 2008 that was one and a half times the number of votes cast for 286 Republican women and men (239 in the House plus 47 in the Senate) in 2010, since 132 million Americans turned out in the 2008 elections, and about 70 million chose Barack Obama and his version of change. That’s a pretty hefty differential, and if so 2011 should not be replayed as if it were 1995.

If Obama should not over-react, neither should Republicans over-reach. Republicans should not be blamed for playing the hype game today. It sets the bargaining position in their favor when they take control of Congress in January. But, Republicans should be careful with too much of a good thing. The higher the expectations they set, the harder they can fall. (Obama found that out.)

Obama and the new Congress should understand that the system under which they operate was designed to facilitate a conversation between voting generations. And since the system, in effect, anticipated the fickleness of voters, it is incumbent on those we have selected to represent us in government to enact a careful titration of two mandates loudly articulated against

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Elvin Lim is Assistant Professor of Government at Wesleyan University and author of The Anti-intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. In the article below he looks at Howard Dean. See Lim’s previous OUPblogs here.

The year is 1964, the high watermark of Liberalism. Lyndon Johnson takes 61.1 percent of the popular vote in his election contest against Barry Goldwater, an electoral feat that was bigger than Franklin Roosevelt’s 60.8 percent in 1936 and one that has not been surpassed in the years since. The Democratic tsunami sweeps down Pennsylvania Avenue to the Capitol, where Democrats would out-number Republicans two to one in the 89th Congress, and in the Senate they take 68 seats – the biggest supermajority held by any party to this day. The era of Liberalism had entered its Golden Age.

Unified by the inspiring memory of John Kennedy, Democrats were able to enact health-care legislation that even Franklin Roosevelt, the father of modern Liberalism did not have the stomach to attempt as part of his New Deal. It would be Lyndon Johnson, not Harry Truman, not FDR, and not his counsin, Theodore Roosevelt (running as the Progressive Party candidate in 1912) who would enact the single biggest health-care legislation in US history, offering single-payer, comprehensive health-care benefits to seniors over the age of 65 (Medicare) and an option for states to finance the health-care of the indigent (Medicaid) in the Social Security Act of 1965.

We remember the New Deal, and perhaps the Fair Deal, but it is the Great Society that is the apotheosis of 20th century Liberalism. And if 1965 is Liberalism’s high water-mark, then those who would stymie health-care reform today because of the lack of a robust (or indeed, any) public option have gravely gotten their decades mixed up.

There was a time when Liberals did not have to call themselves “Progressives.” That was four decades ago, when Lyndon Johnson attacked Barry Goldwater for wanting to roll back social security and openly campaigned for a further expansion of the welfare state. Times have changed. Today’s Progressives must cagily wrap their Liberal agenda with talk of choice, competition, and bending cost curves. And if the era of Liberalism as FDR and Johnson knew it is over, The Age of Reagan lingers on in the Tea Party Movement. Despite his aspiration to build an even Greater Society than Johnson, Barack Obama’s electoral mandate is 18 percent short of what Johnson possessed in 1965; the Democratic majority is the House is much smaller; and, despite the new cloture rules post-1975 in the Senate which has reduced the fraction of votes needed to end debate from 2/3 to 3/5, Joe Lieberman et al remind us every day that the Senate is anything but filibuster-proof.

To Governor Dean and his compatriots, it is 2009, not 1965.

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