An Ethical Dilemma on Health Care

For the next few days, a genuinely painful issue of health care ethics.

I have this friend who lives in Los Angeles, in a deep Blue district.  He doesn’t need to call his Congressmember about health care reform, because the Congressmember is already committed to voting yes.

So now he has a searing ethical dilemma: should he call the offices of fence-sitting Congressmembers, say that he is from their districts, give them a fake zip code, and tell them to vote yes?

What would Kant say?  And what would LBJ do to him once he said it?

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

18 thoughts on “An Ethical Dilemma on Health Care”

  1. I would tell him that congressional offices use caller ID, so there's a good chance they won't believe him after they look at the zip code.

  2. Since it's been 25 years since I cracked open Kant and since I suspect LBJ will continue to moulder in his grave no matter what happens, I would suggest that your friend not attempt to deceive a member of Congress about whether they are a constituent, but rather find a more valid means of influence. Perhaps decide to back an endangered freshman who votes the right way and make a donation to their campaign or help work the phones or something for the election. Betsy Markey just announced she would vote yes on health care reform (a switch from an earlier no vote). She's going to need help. So will a whole bunch of 'em.

  3. Good points both! Michael, I think that there are always ways to confound Caller ID. I will post about Markey.

  4. I think Kant would advise against throwing the right red meat by posting nefarious hypotheticals on left of center blogs.

  5. Your friend's dilemma is comparable to that of the lawyer, who, after stealing from his client, wonders whether he should tell his partner. By now, one would hope that Kant would have concluded that the end sought by your friend was as immoral as the means contemplated, in which case he would counsel your friend not lie. LBJ, disgusted by your friends moral equivocation, would either (1) slap your friend to his senses (picture Don Corleone slapping Johnny Fontane while telling him "you can act like a man,")and instruct him on which buttons to push on which congressmember to get the job done; or (2)knock your friend down and stomp on him as he raced to the phone to get back in the game.

  6. While ethics always matter personally, the reality is that those with an agenda and fewer ethics will always try to play with the system. So regardless of your decision, it is but one decision out of hundreds or thousands that will already include many that are ethically challenged.

  7. I find the idea that members of Congress would actually decide their vote on a crucial bill like this based on something as random as the number of phone calls they are getting from supporters versus opponents (especially in these days of astroturf) very disturbing.

  8. I'm only a mile or two away from Steve Driehaus's district — my representative is Jean Schmidt, so there's no use in calling her. I called the Driehaus office yesterday and told them I was as loyal a Democrat as you were ever going to find — I vote the straight ticket, have only voted for one Republican in my entire life (a city councilman twenty years ago who was an old-fashioned sort of Republican); I walk door-to-door, I make phone calls, I go to my local club meetings, I give money.

    I said that his threatening not to vote yes on health care was helping to make me rethink it all. And that's true. I'm one inch away from staying home in November. I may not ever vote a straight ticket again. He is, I told his office-worker, harming the Democratic brand in deep and irrevocable ways.

    I don't know if it did any good, but I feel like at least I did something.

  9. Ron E. – This is a problem I have in general with representation. What should a representative make of calls or letters to his office? There just seems to be so much that could be inaccurate about the information. For instance, has some interest group mobilized supporters, in which case the number of calls/letters is a skewed representation.

    Or does the issue have a certain appeal to a certain type of voter that might be interested more than others – for instance, a priority for a small number of voters might be 3rd or 4th on the list for the majority, and so a lack of call volume on one side doesn't represent lack of opinion, but a reflection of how much any one citizen can be involved in every issue.

    Then there is just the inherent bias in that there is a certain percent of the population that is more inclined to contact their representative. Does this make their stance any more significant, or indicative of larger sentiment?

    And lastly, to what extent does rhetorical competence play a role? Does the fact that I can make a great case for issue X necessarily mean anything more than my fellow citizen who can't? I mean, what kind of debate is taking place between the message and the congressional staffer? Especially on issues where there is a large volume of messaging, what can really be gleaned from any one constituent? I can't imagine an aide saying, "Senator, look at this great argument here. They're really on to something!" I've actually had a response from my state Senator, and I couldn't believe it was really him who penned it. If he didn't, what point did it serve when we weren't really going to have a serious discussion. And if he did, doesn't he have better things to do with his time?!!!

    I'd really like to hear from someone with authority on this issue. How much does the average representative allow constituent messages to sway his vote, and how much should he? From a straight polling standpoint, the data seems entirely unreliable. A representative would seem to do much better to simply conduct polling in their district. But then, wasn't that what elections were for? And shouldn't they be basing their opinions on what they think is right, period?

  10. Eli: At the end of your comment you say:

    "A representative would seem to do much better to simply conduct polling in their district. But then, wasn’t that what elections were for?"

    I am not certain why you think there is a nexus between the election of a representative and how the electorate feels about a particular piece of legislation occurring after the election. Even if you assume that the bill concerns an issue that was part of the representative's campaign, one can easily imagine a set of circumstances in which either the substance of the bill, or the process by which it was passed, differ significantly from what the supporters of the representative expected. And of course there is the distinct possibility that representative X's position on the issue covered by the proposed legislation was not the issue on which he or she won the election. Representative X could have been totally out of sync with the electorate that voted him into office on that issue but more in line than his or her opponent on all the other issues.

  11. Kant would say "Huh what do you mean call ? What is a zip code ? What is congress ?" Tell your friend not to answer Kant's hypothetical theoretical conditional on being alive questions (Kant accepted refusing to answer). As a result, were Kant to come back to life and meet your friend in a bar, Kant would have no considered opinion on the moral non-dilemma, and your friend would feel free to do the totally obviously right thing.

    This is a family blog, so I won't type what LBJ would do to Kant anyway just on general principles (as if he had any).

  12. But Joel, that's what I'm saying. Wouldn't polling be a much more scientific way of determining this sentiment? And yet, there is a tradition in politics of representatives specifically saying they don't listen to polls (yet we all know they do right?). Are you saying they should? I'm not necessarily disagreeing. But this would strike me as an odd development.

    For instance, what role then for lobbyists, who no doubt have a much more nuanced understanding of policy? What amount of credence should a representative place in popular support, vs. expert, yet obviously biased interest group support? Not to mention their own view, or that of their spouse!

    The only situation this might make sense seems to be where polling isn't reasonably doable. In which case the representative would rely on individual constituent contact. But then we return to the question of how good this type of data really is.

    My main point is that the idea of contacting representatives just seems like one of those ideas that everyone goes along with because it sounds right, but has no real practical purpose. Yet we hold on to it because the idea of it not being true is too terrible.

    The casinos make billions off this human truth.

  13. Two points:

    1. I completely agree with alkali. No need to lower ourselves to the so called standards of those whom we strive to defeat politically (e.g. Fox News). Its one thing to be action oriented and steadfast, even confrontational at times (see, in our attempts to achieve reform. But the utilization of ethically dubious methods in that endeavor would only serve to undermine our cause.

    2. At this point, the Healthcare debate is mostly an inside game. Obama is currently engaging the public strictly in a one way fashion for the purpose of energizing the public, he's not looking for input anymore as he was during the town hall disasters. This is all about Team Obama and the truly dedicated members of Congress squeezing the right pressure points internally to get the votes needed to pass the damn bill. Sad to say perhaps, but the time when your feedback would've truly resonated with Congress regarding this issue has likely passed.

  14. "But the utilization of ethically dubious methods in the pursuit of that endeavor…"

    Oops 🙂

  15. Just to answer Eli's question, my impression is that Members of Congress care very much about what actual voters think and it becomes one factor in their assessment of a vote. What you are really asking is how does a member of Congress decide ona vote and of course the answer is, it depends. It's not entirely rational. How they vote can depend variously on how much expertise they have on a particular issue, how ideologically they are committed to the issue or to a party position, what the last person to talk to them on a topic told them, what funders think, how much an individual story caught their attention, what they ate for dinner last night. The best way to influence your member of Congress is 1) be a constituent, 2) be an influential constituent who has the potential to sway other votes in the District, 3) be a constituent willing to devote time or energy to a specific cause – e.g. stay repeatedly engaged with the member of his staffer about something so that you become a source of information/credibility, 4) be a constituent willing to devote time/energy to the Member's campaign. A person who is all 4 is incredibly important to a Member of Congress and unless there is some truly major coutervailing force, is likely to win a lot if not all of the requests made to that Member of Congress. There are not a lot of people who are all 4 because there are not a lot of people with the money, time or energy to devote to influencing Congress.

  16. Cap, I think I see your point. So regardless of how representative a random constituent's phone call or email really is, depending on the politician, they'll give more or less credence to it. That seems obvious in a practical sense. I suppose I was just trying to determine what credence they SHOULD give it. But that doesn't tell us what credence we should. Because depending on the member, even if our message shouldn't be given much weight, it may in fact be given a lot.

    Which then presents a dillema: should we take advantage of a politician's lack of cognitive capacity, like a good propagandist?

    God, being human sucks sometimes.

Comments are closed.