South Park: From Indiana Jones to Wal-Mart - to "Pay or Play" Preemption

South Park: From Indiana Jones . . .

So I'm reading in the Daily News the other day that people are upset with South Park for lampooning Lucas and Spielberg for "raping" the Indiana Jones franchise. The episodes is in line with the years of product for the keenest observers anywhere of Pop Culture and the American Condition.

Are people really going to be upset with this episode . . . on anti-Semitic grounds?! Are they kidding? The episode is somehow anti-Jewish or otherwise disrespectful to Jews for satirizing Steven Spielberg? Satirizing someone who happens to be Jewish does not make the one anti-Jewish or insensitive (even if the show happens to have been aired on Yom Kippur).

And one isn't allowed to use a "rape" analogy to critique a moviemaker? The rape imagery was nothing more than a vehicle for communicating a humorous perspective on what the fourth Indy movie did to the franchise. The DA at one point says to Kyle with somewhat false incredulity, "You want to bring Steven Spielberg and George Lucas to trial for raping Indiana Jones[?/.]" Sorry, but that's just funny. Indeed, the line works on two levels, as absurdity and as a straight statement of what Parker/Stone would like to do (although Butters, it turns out, did sorta like the movie (!)).

To the supposedly offended, who probably didn't even see the show in question: Give it a rest people, and think of something . . . anything . . . more productive to do (like blogging?) with your time. (Of course, the more potentially offensive portion of the show related to the anti-Chinese thread - but frankly that was pretty funny, and clever, too, and ultimately a vehicle for commenting on American foreign policy.)

We can now add Lucas- and Spielberg-lovers to those, including Scientologists, Mormons, Christians, Jews, Hilton-ites, gays, pedophiles, people who like Barbra Streisand and Sally Struthers, etc., etc., etc., who might be offended by Parker & Stone. Please, people, at least watch the show; sometimes maybe you should be offended, and sometimes maybe they're even on your side. Regardless, take off the PC hat and move on.

. . . to Wal-Mart - and "Pay or Play" Preemption

There are just so many great South Parks, and the Indy episode almost reminds me of the rant against Michael Bay's Pearl Harbor (he's now remaking Friday the 13th!) in Team America. My own personal SP favorite might well be the Scientology episode where Tom Cruise "won't come out of the closet."

Presently, though, my mind wanders to "Something Wall-Mart This Way Comes," which chronicles attempts to strike at a Wall-Mart store by getting to its (literal) heart. All of this of course quite naturally (ahem) brings us back to state and local efforts - in at least one case driven by a legislative attempt to strike at Wal-Mart's policies on health benefits - to regulate the provision of welfare benefits with so-called "pay or play" initiatives.

Many of these pay-or-play efforts are laudable in their good intentions, but, notwithstanding the 9th Circuit's recent decision in Golden Gate Restaurant Association v. City and County of San Francisco (September 30, 2008), one really has to wonder whether all of these efforts are preempted, and maybe even plainly so. While the courts understandably don't want to stand in the way of efforts by legislators to address problems with medical coverage for employees, the fact of the matter is that we are heading towards just the "patchwork quilt" that Congress was trying to prevent with ERISA.

I guess all of these local efforts are great so long as they're (i) carefully constructed, (ii) appropriate, by who knows what standard, (iii) relatively consistent with each other, (iv) not overly onerous, (v) and otherwise workable. But, gee, what happens when they're (i) sloppy, (ii) wrong-headed, (iii) wildly inconsistent, (iv) oppressive, and (v) flat-out unworkable?

If preemption loses out here, the centralized referee will be gone. If local laws are upheld, the courts won't easily be able to take an I-happen-to-like-this-one slant, leaving a host of different approaches intact. (While certain xtreme factors could here and there lead to a preemption determination even for a court inclined to allow local regulation, there would ultimately be no way generally to unstitch the quilt.) And don't forget, we're not talking about 50 or so potential iterations; we're talking about as many as you can imagine, as municipalities and other localities (Suffolk County, San Francisco, etc.) can all get into the act. Be careful what you wish for - these initiatives could wind up causing trouble just by being klunky in their own right, or could wind up requiring such a multiplicity of administrative practices for a multistate employer that the employer might think twice before doing business in some jurisdictions.

The reality is that Congress was really sorta right in concluding that benefits regulation needs to be within its exclusive purview. Congress may not always get the substantive ERISA rules right, but, in this critical area so directly affecting interstate commerce, the decisions shouldn't be left to the local laboratory. We can argue long and hard about whether the federal government should be the final arbiter of certain things; however, it is hard to imagine how multistate companies could reasonably proceed in this complex world without a level playing field regarding employee benefits.

The prediction here is that the judicial system will ultimately realize this, and hold in favor of preemption. Then, it will be up to Congress to fill whatever perceived coverage voids need to be filled - or to leave the voids open, if the political process can't get its act together. In any event, though, it is submitted here that the dreaded patchwork quilt is not the answer.