In Defense of the Senate Filibuster

On Monday, former Senate majority leader Harry Reid (D-NV) wrote an op-ed in The New York Times calling for the full abolition of the Senate filibuster. Reid claimed that the Senate’s current rules—which require 60-vote majorities to pass legislation—have prevented the enactment of climate change and gun control legislation, turning the Senate into an “unworkable legislative graveyard.”

The facts, however, suggest otherwise. For both philosophical and practical reasons, conservatives should support retaining the Senate filibuster.

It’s Good to Make Legislating Difficult

In all seriousness, the filibuster requires the type of deliberation the Constitution’s Framers originally intended. Remember, the Constitution guarantees citizens a republican form of government—not a direct democracy, where public opinion directly determines laws. The filibuster helps to ensure that lawmakers will not fall into the temptation to “do something” every time a policy problem arises, enacting knee-jerk legislation that could lead to unintended consequences.

Ronald Reagan famously opined about the nine most terrifying words in the English language: “I’m from the government and I’m here to help.” By making it more difficult to pass major new expansions of the welfare state when we cannot afford our current entitlement commitments, the filibuster prevents more ill-considered legislation from intruding the federal government even further into our lives.

Harry Reid Helped Create the Problem

On one level, Reid’s criticism of the Senate as an “unworkable legislative graveyard” has merit. After all, the Senate has held votes on a grand total of 18 amendments all year, falling far short of senators’ self-important claims that they serve in the “world’s greatest deliberative body.”

But why has the Senate voted on only 18 amendments all year? Because Mitch McConnell (R-KY), Reid’s replacement as majority leader, has chosen to focus nearly all the Senate’s floor time on confirming nominees—Cabinet appointments, sub-Cabinet officials, and federal judges.

And why has McConnell focused almost exclusively on confirming nominations? Because in 2013, Reid and Senate Democrats abolished the filibuster for all nominations except Supreme Court appointments. (Senate Republicans abolished the filibuster for Supreme Court appointments in 2017, to confirm Neil Gorsuch as an associate justice.)

Nominations thus require a simple, 51-vote majority for passage, as opposed to the 60 votes required for legislation. Since President Trump took office, McConnell has focused on the former to the near exclusion of the latter.

If Reid hadn’t pulled the trigger on the so-called “nuclear option” back in 2013, the Senate might have spent more time this year legislating, instead of simply approving nominees. Since he exacerbated the Senate’s status as a legislative graveyard, few should trust Reid’s prescription for fixing a self-inflicted problem.

Leaders Want to Rig the Process

Most members rarely take the first approach. Republican senators have said the lack of votes on amendments “sucks.” But unless and until a group of senators offer an effective threat to grind the Senate to a halt—for instance, Republican senators voting down President Trump’s nominees—to demand an open process for legislation, the status quo will never change. As the old saying goes, if you’re not part of the solution, you’re part of the problem.

Worth noting: The Senate did vote on a Rand Paul amendment to the budget deal earlier this month—because conservatives demanded that vote in exchange for allowing the process to move forward.

With the second, members of Congress say they want an open process, but the instant such an open process would result in legislative outcomes they disagree with, they immediately seek to ditch transparency, and to manipulate outcomes through backroom deals. Either they do not realize that such efforts neuter their own power as backbenchers—by empowering a select group of leaders to negotiate bills behind closed doors—or, more likely, they secretly support this move, because it absolves them of responsibility for legislating.

This post was originally published at The Federalist.

Did Obamacare Increase the National Death Rate?

Researchers have raised legitimate questions about whether a policy change included in Obamacare actually increased death levels nationwide.

Some may recall that two years ago, liberals engaged in no small amount of hyperbolic rhetoric insisting that repealing Obamacare would kill Americans. They viewed that fact as a virtual certainty, and spent more time arguing over precisely how many individuals would die under the law’s repeal.

About the Readmissions Program

The Obamacare change sparking the policy debate involves the law’s hospital readmissions program. Section 3025(a) of the law required the Department of Health and Human Services to reduce Medicare payments to hospitals with higher-than-average readmission rates. The program began in October 2012, and since October 2014 has reduced payments by 3 percent to hospitals with high readmission rates for three conditions: heart failure, heart attacks, and pneumonia.

The program intended to make hospitals more efficient, and encourage them to treat patients correctly the first time, rather than profiting on poor care by receiving additional payments for “repeat” visitors. However, several data points have called into question the effectiveness of the policy.

First, a recent article in the journal Health Affairs concluded that data proving the readmissions program’s effectiveness “appear to be illusory or overstated.” The study noted that, right before the readmissions program took effect, hospitals could increase the number of diagnoses in claims submitted to Medicare. After controlling for this difference, the Harvard researchers concluded that at least half of the “reduction” in readmissions came due to this change.

By contrast, a December study in the Journal of the American Medical Association found an even darker outcome. The JAMA study, which examined a total of 8.3 million hospitalizations both before and after the readmissions penalties took effect, found that the program “was significantly associated with an increase in 30-day postdischarge mortality after hospitalization for [heart failure] and pneumonia, but not for” heart attacks. This study suggests that, rather than incurring penalties for “excess” readmissions, hospitals instead chose to stop readmitting patients at all—and more patients died as a result.

Is This ‘Alarmist’ Rhetoric?

In a blog post analyzing the debate at the New England Journal of Medicine, former Obama administration budget director Peter Orszag pointed out the two studies arrive at conclusions that are likely mutually contradictory. After all, if the readmissions policy didn’t affect patient outcomes, as the Health Affairs analysis suggests, then it’s hard simultaneously to argue that it also increased patient mortality, as the JAMA paper concludes.

But Orszag also criticizes The New York Times for an “unduly alarmist” op-ed summarizing the JAMA researchers’ results. That article, titled “Did This Health Care Policy Do Harm?” included a subheading noting that “a well-intentioned program created by the Affordable Care Act may have led to patient deaths.”

  • Washington Post: “Repealing the Affordable Care Act Will Kill More than 43,000 People Annually”
  • Chicago Tribune: “Repealing Obamacare Will Kill More than 43,000 People a Year”
  • Vox: “Repealing Obamacare Could Kill More People Each Year than Gun Homicides”

These headlines don’t even take into consideration the comments from people like former Sen. Harry Reid (D-NV), who said, “If you get rid of Obamacare, people are going to die.” Then there were the “analyses” by organizations like the Center for American Progress, helpfully parroted by Sen. Bernie Sanders (I-VT), that said “getting rid of Obamacare is a death sentence.”

Alongside this rhetoric, the supposedly “alarmist” Times article seems tame by comparison. It didn’t use the word “Obamacare” at all, and it couched its conclusions as part of a “complex” and ongoing “debate.” But of course, the contrast between the mild rhetoric regarding hospital readmissions and the sky-is-falling tone surrounding Obamacare repeal has absolutely nothing to do with liberal media bias or anything. Right?

Democrats, the Science Deniers

The Times article concludes by “highlight[ing] a bigger issue: Why are policies that profoundly influence patient care not rigorously studied before widespread rollout?” It’s a good question that Democrats have few answers for.

Liberals like to caricature conservatives as “science deniers,” uninformed troglodytes who can barely stand upright, let alone form coherent policies. But the recent studies regarding Obamacare’s hospital readmissions policy shows that the Obama administration officials who created these policies didn’t have any clue what they were doing—or certainly didn’t know enough to implement a nationwide plan that they knew would work.

Given this implementation failure, and the staggering level of willful ignorance by the technocrats who would micro-manage our health care system, why on earth should we give them even more power, whether through a single-payer system or something very close to it? The very question answers itself.

This post was originally published at The Federalist.

How the Obama Administration Hid Facts to Pass Obamacare

Over the weekend, Politico ran a report about how a “Trump policy shop filters facts to fit his message.” The article cited several unnamed sources complaining about the office of the Assistant Secretary for Planning and Evaluation (ASPE) within the Department of Health and Human Services (HHS), and its allegedly politicized role within the current administration.

One of the article’s anonymous sources called ASPE’s conduct over the past 18 months “another example of how we’re moving to a post-fact era.” Richard Frank, a former Obama appointee and one of the few sources to speak on the record, said that he found the current administration’s “attack on the integrity and the culture of the office…disturbing.”

As a congressional staffer conducting oversight of the CLASS Act in 2011-12, I reviewed thousands of pages of e-mails and documents from the months leading up to Obamacare’s passage. Those records strongly suggest that ASPE officials, including Frank, withheld material facts from Congress and the public about CLASS’s unsustainability, because full and prompt disclosure could have jeopardized Obamacare’s chances of passage.

About the CLASS Act ‘Ponzi scheme’

The Community Living Assistance Services and Supports program, or CLASS for short, intended to provide a voluntary insurance benefit for long-term care. Included as part of Obamacare, the program never got off the ground. In October 2011, HHS concluded it could not implement the program in an actuarially sound manner; Congress repealed the program entirely as part of the “fiscal cliff” deal enacted into law in the early days of 2013.

CLASS’s prime structural problem closely resembled that of the Obamacare exchanges—too many sick people, and not enough healthy ones. Disability lobbyists strongly supported the CLASS Act, hoping that it would provide financial support to individuals with disabilities. However, its voluntary nature meant that the more people already with disabilities enrolled and qualified for benefits, the higher premiums would rise, thereby discouraging healthy people from signing up.

Moreover, although actuarially questionable in the long-term, CLASS’s structure provided short-term fiscal benefits that aided Obamacare’s passage. Because CLASS required a five-year waiting period to collect benefits, the program would generate revenue early in its lifespan—and thus in the ten-year window budget analysts would use to score Obamacare—even if it could not maintain balance over a longer, 75-year timeframe.

This dynamic led the Senate Budget Committee Chairman Kent Conrad (D-ND), to dub CLASS “a Ponzi scheme of the first order, the kind of thing Bernie Madoff would have been proud of.”

Internal Concerns Minimized in Public

A report I helped draft, which several congressional offices released in September 2011—weeks before HHS concluded that program implementation would not go forward—highlighted concerns raised within the department during the debate on Obamacare about CLASS’ unsustainable nature. For instance, in September 2009, one set of talking points prepared by ASPE indicated that, even after changes made by Congress, CLASS “is still likely to create severe adverse selection problems”—i.e., too many sick people would enroll to make the program sustainable.

Frank told me that, during one public speech in October 2009, “I spent about half my time setting out the problems with CLASS that needed to be fixed.” He did indeed highlight some of the actuarial challenges the CLASS program faced. But Frank’s remarks, at a Kaiser Family Foundation event, closed thusly:

We’ve, in the department, have modeled this extensively, perhaps more extensively than anybody would want to hear about [laughter] and we’re entirely persuaded that reasonable premiums, solid participation rates, and financial solvency over the 75-year period can be maintained. So it is, on this basis, that the Administration supports it that the bill continues to sort of meet the standards of being able to stand on its own financial feet. Thanks.

Frank told me over the weekend that his comments “came at the end of my explaining that we were in the process of addressing those issues” (emphasis mine). But Frank actually said that the Obama administration was “entirely persuaded” of CLASS’ solvency, which gives the impression not that the department had begun a process of addressing those issues, but had already resolved them.

Frank’s public comments notwithstanding, ASPE had far from resolved the actuarial problems plaguing CLASS. Two days after his speech, one of Frank’s employees sent around an internal e-mail suggesting that the CLASS Act “seems like a recipe for disaster.”

But the ‘Fixes’ Fall Short

In response to these new analyses, HHS and ASPE came up with a package of technical fixes designed to make the CLASS program actuarially sound. One section of those fixes noted that “it is possible the authority in the bill to modify premiums will not be sufficient to ensure the program is sustainable.”

However, the proposed changes came too late:

  • No changes to the CLASS Act made it into the final version of Obamacare, which then-Majority Leader Harry Reid (D-NV) filed in the Senate on December 19, 2009.
  • The election of Scott Brown (R-MA) to replace the late Kennedy in January 2010 prevented Democrats from fixing the CLASS Act through a House-Senate conference committee, as Brown had pledged to be the “41st Republican” in the Senate who would prevent a conference report from receiving a final vote.
  • While the House and Senate could (and did) pass some changes to Obamacare on a party-line vote through the budget reconciliation process, the Senate’s “Byrd rule” on inclusion of incidental matters in a budget reconciliation bill prevented them from addressing CLASS.

The White House’s own health care proposal, released in February 2010, discussed “a series of changes to the Senate bill to improve the CLASS program’s financial stability and ensure its long-run solvency.” But as HHS Secretary Kathleen Sebelius later testified before the Senate Finance Committee, the “Byrd rule” procedures for budget reconciliation meant that those changes never saw the light of day—and could not make it into law.

Kinda Looks Like a Conspiracy of Silence

By the early months of 2010, officials at ASPE knew they had a program that they could not fix legislatively, and could fail as a result. Yet at no point between January 2010, when ASPE proposed its package of technical changes, through Obamacare’s enactment, did anyone within the administration admit that the program could prove impossible to implement.

Over the weekend, I asked Frank about this silence. He responded that “when the reconciliation package was shelved”—which I take to mean that the CLASS changes did not make it into the reconciliation bill, which did pass—“we began working on regulatory remedies that might address the flaws in CLASS.” However, from the outset some of Frank’s own employees believed those changes might prove insufficient to make the program actuarially sound, as it later proved.

To put it another way: In February 2011, Sebelius testified before the Senate Finance Committee that “the snapshot [of CLASS] in the bill, I would absolutely agree, is totally unsustainable.” She, Frank, and others within the administration had known this fact one year previously: They just hoped they could arrive at a package of regulatory changes that would overcome the law’s structural flaws.

But did anyone within the administration disclose that CLASS was “totally unsustainable” as written back in February 2010? No, because doing so could have jeopardized Obamacare’s chances of passage. The law passed the House on a narrow 219-212 margin.

If HHS had publicly conceded that CLASS could become a “zombie” program—one that they could not fix, but could not remove—it would have caused a political firestorm, and raised broader questions about the bill’s fiscal integrity that could have prevented its enactment.

Was Obamacare Sold on a Lie?

Conservatives have pilloried Obamacare for the many false statements used to sell the law, from the infamous “Lie of the Year” that “If you like your plan, you can keep it” to the repeated promises about premium reductions, Barack Obama’s “firm pledge” to avoid middle-class tax increases, and on and on.

But there are sins of both commission and omission, and the CLASS Act falls into the latter category. Regardless of whether one uses the loaded term “lie” to characterize the sequence of events described above, the public statements by HHS officials surrounding the program prior to Obamacare’s enactment fell short of the full and unvarnished truth, both as they knew it at the time, and as events later proved.

Politico can write all it wants about ASPE under Trump “filter[ing] facts to fit his message.” But ASPE’s prior failure to disclose the full scope of problems the CLASS Act faced represents a textbook example of a bureaucracy hiding inconvenient truths to enact its agenda. If anonymous HHS bureaucrats now wish to attack a “post-fact era” under Trump, they should start by taking a hard look in the mirror at what they did under President Obama to enact Obamacare.

This post was originally published at The Federalist.

Why Members of Congress Secretly Like Unpopular Omnibus Bills

On this website last week, conservative leaders Sen. Mike Lee (R-UT) and Rep. Jim Jordan (R-OH) wrote a joint op-ed echoing my column from a few weeks previously, saying Congress remains on course for yet another omnibus spending bill debacle unless and until it reforms its procedures, and specifically starts considering, and passing, spending bills one-by-one, rather than in a catch-all bill enacted in a lame-duck session after the November elections.

All that sounds logical enough, at least to most individuals outside the Beltway. Why shouldn’t Congress do its job, and consider bills in a deliberative fashion, rather than jamming an entire year’s work into one must-pass vehicle totaling thousands of pages—a literal and figurative “Christmas tree” that usually passes in the waning days of December?

Reason 1: Members of Congress Are Lazy

I don’t mean “lazy” in the sense of goofing around. Most members work long hours, including difficult commutes back and forth to their districts every week. I mean “lazy” in the sense of not wanting to vote on difficult or politically controversial issues. In 2015, the House halted its consideration of appropriations bills because Republican leaders “worried that Democrats could try to offer more amendments related to the display of the Confederate flag that could again tie the GOP into knots.”

In Congress, appropriations bills generally operate under free-wheeling procedures, in which members can offer germane (i.e., relevant) amendments. Because the appropriations bills collectively cover all federal operations, and because members have few opportunities to offer amendments to other bills in both the House and the Senate, the spending bills become magnets for every conceivable controversy.

Consider some amendments that might get offered this year were Congress to consider spending bills individually:

  • Conservatives, particularly in the House, could seek to reduce or even eliminate funding for Special Counsel Robert Mueller’s investigation—amendments that moderate Republicans, or even Republican leaders, might oppose.
  • A bipartisan coalition would again offer amendments regarding medical marijuana—amendments that the chairman of the House Rules Committee, Pete Sessions (R-TX), has largely prevented from being considered on the House floor.
  • Democrats could offer political messaging amendments on issues ranging from President Trump’s tax returns to cabinet officers’ travel-related controversies to the emoluments clause—all issues that moderate Republicans, or Republicans with tough re-election campaigns, would not want to vote on prior to the midterm elections.

Members of Congress have become so accustomed to avoiding votes on tough issues that many recoil at the thought of reinstituting an open process. They may not say so outright, but many would prefer that leadership make the tough decisions for them behind closed doors, rather than forcing them into votes that could undermine their re-election prospects.

Reason 2: Members Want to Rig Outcomes

The Confederate flag flap also illustrated this dilemma for congressional leaders: “Some Republicans, primarily representing Southern states, found out about the amendment [banning display of the Confederate flag] after the fact and threatened to vote against the entire bill if it remained intact.” In other words, because some members did not achieve an outcome they wanted on the specific amendment, they were willing to take down the entire measure.

As I noted last fall, the House Freedom Caucus, which Jordan helped to found, has engaged in these kinds of tactics. Last summer, after moderate Republicans and Democrats combined to defeat an amendment prohibiting the use of taxpayer funds for soldiers’ gender-reassignment surgery, conservatives went to congressional leaders and told them to insert the amendment in a spending bill, the prior vote notwithstanding.

As the old saying goes, the true test of a principle comes not when that principle proves convenient, but when it proves inconvenient. Only when members find themselves willing to take tough votes, and to abide by the outcome of those votes, even if it results in policy outcomes they disfavor, will the process become more open and transparent.

As I noted a few weeks ago, members already have the power to bring about that open and transparent process—the only question is if they have the wherewithal to use it.

This post was originally published at The Federalist.

Who Really Caved on the “Shutdown Showdown?”

While conventional wisdom over the past 18 or so hours, both at The Federalist and elsewhere, holds that Democrats “lost” the shutdown showdown, this contrarian takes the position of noted college football analyst Lee Corso: “Not so fast, my friend!”

While not conceding on the substance of immigration legislation, Senate Majority Leader Mitch McConnell (R-KY) made an important concession on process—one he has not made to conservatives. According to press reports, McConnell pledged that, if lawmakers cannot agree on an immigration package addressing the Deferred Action for Childhood Arrivals (DACA) program by February 8, the expiration date of the continuing resolution that passed Monday, he would begin a freewheeling and open debate on a stand-alone immigration measure—provided the federal government remains open.

No Budget—No Problem!

Compare McConnell’s comments on an immigration bill with this Politico report not two weeks ago: “Republican leaders are considering skipping passage of a GOP budget this year—a blow to the party’s weakened fiscal hawks that would squash all 2018 efforts to revamp entitlements or repeal Obamacare….McConnell has argued that he cannot pass deficit-reduction legislation using powerful budget procedures with his new 51-vote majority—and wasn’t even sure he could find the votes for a fiscal blueprint in the first place.”

While liberals’ priority—immigration policy—will get prime floor time thanks to the commitment McConnell made in exchange for Democrats’ votes to reopen the government, conservative priorities like reforming entitlements and repealing Obamacare won’t see the light of day, because McConnell doesn’t even want to try to pass a budget.

All of this gives conservatives an obvious lesson: For the next appropriations bill, they should withhold their votes unless and until McConnell publicly commits to passing a budget through the Senate, with reconciliation instructions allowing for entitlement reform and Obamacare repeal efforts.

Could Have Been (and Might Get) Worse

Contrast that response to this article from just last month, about bailing out Obamacare through a “stabilization” bill:

U.S. Sen. Susan Collins said she is confident President Donald Trump and Senate Majority Leader Mitch McConnell will ensure passage of two bills aimed at shoring up the insurance markets.…

Collins remains confident that Trump and McConnell, fellow Republicans, will keep their word and make sure the health care bills get approved, said Annie Clark, a spokeswoman for the senator.…McConnell committed in writing to support passage of the bills either before adoption of a final tax bill or before the end of the year, Clark said.

If McConnell didn’t want to bind the House to an Obamacare bailout measure, he sure did a much less convincing job making that clear to Collins than he did to Democrats regarding immigration in the past week. Granted, the Obamacare bailout hasn’t happened—yet. But rest assured that McConnell and Collins, among others, are already looking to the next appropriations bill as a vehicle to pass the “stabilization” measure.

The disparate treatment between immigration and an Obamacare bailout gives conservatives the “consolation” that McConnell could have made far worse concessions to Democrats. But conversely, if McConnell wants to respect the House’s prerogatives, why does Collins believe he made a commitment to her to do the exact opposite?

Given that daunting landscape ahead, conservatives shouldn’t focus their energies celebrating how they “won” this weekend’s battle, as doing so would guarantee they end up losing the larger war.

This post was originally published at The Federalist.

Note to Harry Reid, Thanks to Obamacare, People Are Dying on Waiting Lists

He’s at it again—Harry Reid, that is. Thursday morning, the outgoing Senate minority leader claimed that if “you get rid of Obamacare, people are going to die.”

Apparently Reid forgot to heed Hillary Clinton’s warning about fake news, because the idea that thousands of people die from lack of health insurance has been rebutted by, of all people, a member of the Obama administration.

Richard Kronick, President Obama’s former director of the Agency for Healthcare Research and Quality, in 2009 published a paper that “found that uninsured participants had no different risk of dying than those [who] were covered by employer-sponsored group insurance.”

Harry Reid, Science Denier

As multiple articles by fact-checking organizations have explained, it’s very difficult to control for all the variables associated with health, mortality, and lack of insurance. It’s a tough question to analyze: Do the uninsured die because they lack health insurance, or do they die because they are more likely to be poor? As Kronick himself stated:

It seems likely that if we were able to control for additional factors, such as health-related behaviors (smoking, alcohol consumption, obesity, and risk-taking behaviors more generally), wealth, or value placed on health or health care, the estimated [mortality] effect of being uninsured would be reduced further. What is uncertain is whether the reduction would being the estimated hazard ratio all the way down to 1.0 or whether an independent effect of being uninsured would remain.

Even liberals like the Brookings Institution’s Henry Aaron have conceded that much of the evidence—including a study from the Oregon Health Insurance Experiment, which showed that access to health insurance had no measurable effect on physical health outcomes for patients—shows an unclear effect between insurance and mortality: “I am a strong advocate of measures to achieve universal insurance coverage and would rather that Kronick’s study and the Oregon project provided evidence in support of my policy preference. But, as far as mortality is concerned, they just don’t.”

Apparently things like evidence in support of one’s policy preferences present a novel concept to the outgoing leader. So much for the liberal allegation that conservatives are science deniers.

Obamacare Made Vulnerable People Die on Wait Lists

Except for those who die before they can access care. Last month, reports from Illinois noted that no fewer than 752 individuals with disabilities have died—yes, died—while on waiting lists to receive Medicaid services since that state expanded coverage under Obamacare. Ironically enough, on the very same day that Illinois’ legislature expanded Medicaid to the able-bodied under Obamacare, it cut medication funding to special-needs children.

This is “compassion” in the Obama administration’s eyes: Expanding services to the able-bodied while cutting services for special-needs kids.

As I have previously noted, this dynamic hasn’t just happened in Illinois. It has occurred all over the country. In Arkansas, Gov. Asa Hutchinson pledged to cut waiting lists for individuals with disabilities in half. Instead, they have grown by 25 percent, even as the state expanded coverage to the able-bodied. In Ohio, Gov. John Kasich cut Medicaid eligibility for individuals with disabilities by 34,000, even as he unilaterally expanded the program to other Ohioans.

Making irresponsible claims about the effect of repealing Obamacare is bad enough. Making those claims in a vain attempt to justify a law that encourages discrimination against the most vulnerable really takes the cake. The American people deserve better than Reid’s false comments—and they deserve better than Obamacare.

This post was originally published at The Federalist.

Has Mitch McConnell Gone Wobbly on Obamacare?

In the weeks after Saddam Hussein’s August 1990 invasion of Kuwait, British Prime Minister Margaret Thatcher famously remarked to President George H.W. Bush that “this was no time to go wobbly.” The Iron Lady’s maxim could well have applied to the Senate majority leader last week, when he made comments suggesting Republicans should have a hand in “fixing” Obamacare—the law collapsing in front of our very eyes—in 2017.

In comments at a Chamber of Commerce event in Louisville last Monday, Sen. Mitch McConnell (R-Kentucky) said the law “is crashing”—an obvious statement to all but the law’s most grizzled supporters. But McConnell also “said the next president will have to work with Congress to keep the situation from worsening, though he did not specifically say the health care law would be repealed.”

Those last comments in particular—about the imperative to “fix” Obamacare—should cause conservatives to remember three key points.

1. It’s Not Conservatives’ Job to Fix Liberals’ Bad Law

A crass political point, perhaps, but also an accurate one. Barack Obama, Nancy Pelosi, and Harry Reid rammed Obamacare through on a straight party-line vote, despite Republicans’ warnings, because, in President Obama’s words, “I’m feeling lucky.” These days, it’s the American people who might not be feeling so lucky, with insurers leaving the insurance exchanges in droves and premiums ready to spike.

Some might ask the reasonable question whether Republicans, as the governing party in Congress, should come together for the good of the country to make President Obama’s disastrous law work. But ask yourself what Democrats would do if the circumstances were reversed: Do you think that, if Republicans had enacted premium support for Medicare or personal accounts for Social Security on a straight-party line vote, and those new programs suffered from technical and logistical problems, Pelosi and Reid would put partisanship aside and try to fix the reformed programs? If you do, I’ve got some land to sell you.

We know Reid and Pelosi wouldn’t come together in the national interest, because they didn’t do so ten years ago to support the surge in Iraq. Instead, they passed legislation undermining the surge and calling for a troop withdrawal. The surge succeeded despite Reid and Pelosi, not because of them. So if Democrats abandoned the national interest to score political points a decade ago, why should Republicans bail them out of their Obamacare woes now?

2. Hillary Clinton’s Proposed ‘Solutions’ Range from Bad to Worse

But McConnell’s statement that “exactly how it [Obamacare] is changed will depend on the election” implies that a Clinton victory will allow her to set the tone and agenda for negotiations on “fixing” Obamacare. It also implies that Republicans should begin negotiating against themselves, and start rationalizing ways to accept proposals coming from a President Hillary: “Well, we could live with a government-run health plan, provided it were state-based…” or “We might be able to justify billions more in spending on new subsidies if…”

In addition to representing the antithesis of good negotiation, such a strategy brings with it both policy and political risk. Negotiating changes to Obamacare on a bipartisan basis puts Republicans on the hook if those changes don’t work. Clinton’s ideas for more taxes, regulations, and spending won’t make the exchanges solvent; if anything, they will only postpone the inevitable for a while longer.

3. Ridiculous Straw Men Can’t Justify Bailouts

Insurance industry spokesmen have been flooding Republican offices on Capitol Hill making this argument: Congress has to grant insurers massive new bailouts, or the American people will end up with a government-run health plan, or worse, single-payer health care.

That argument relies on several levels of specious reasoning. Unless Republicans lose both houses of Congress in November—a possible outcome, but an unlikely one—insurers’ argument pre-supposes that a Republican Congress will vote to enact a government-run health plan, or single-payer health care. As liberals themselves have pointed out, only one Democrat running for Senate this year even mentioned the so-called “public option” on his website. So why is this government-run health plan even a concern, when Reid couldn’t enact it in 2009 with a 60-vote Senate majority?

The honest answer is it probably isn’t—insurers are just trying to scare Republicans into bailing them out. It’s the oldest straw-man argument in the book: We must do something; this is something; therefore, we must do this.

If you don’t believe me, just read the following: “Everyone in this room knows what will happen if we do nothing. Our deficit will grow. More families will go bankrupt. More businesses will close. More Americans will lose their coverage when they are sick and need it the most. And more will die as a result. We know these things to be true.”

Those words come from none other than Barack Obama, as he tried to sell Obamacare in his address to Congress in September 2009. We know where that speech led us, and we should know better than to follow such illogical reasoning again.

Phineas Taylor Barnum once famously remarked that “There’s a sucker born every minute.” Here’s hoping that Republicans will disprove that adage next year, and decline to accept the sucker’s bet associated with trying to fix an inherently unfixable law.

This post was originally published at The Federalist.

When CMS Director’s Post Opens–Again–Will Obama Step Up?

When Marilyn Tavenner steps down as head of the Centers for Medicare and Medicaid Services this month, one of the federal government’s most powerful positions will once again come open. History and President Barack Obama’s actions toward the post suggest that finding a replacement might prove difficult.

Before Ms. Tavenner was confirmed in May 2013, CMS had gone without a permanent, Senate-confirmed administrator for nearly seven years—since Mark McClellan left the agency in the fall of 2006. The Bush administration nominated Kerry Weems, a career civil servant, to replace Mr. McClellan; Mr. Weems received a polite hearing from the Senate Finance Committee in July 2007, but a CMS policy memo issued shortly afterward regarding the Children’s Health Insurance Program angered Senate Democrats. The committee’s chairman, Max Baucus (D., Mont.), refused to bring the nomination to a vote, and Mr. Weems served as acting administrator for the rest of the Bush administration.

Upon taking office, President Obama waited nearly 15 months—until his health-care legislation was passed—to nominate Don Berwick to run the agency that would oversee much of the law’s implementation. Mr. Berwick’s history of writings proved so inflammatory that Democrats, despite having an overwhelming Senate majority, refused to advance his nomination. Mr. Berwick received a controversial recess appointment from President Obama in July 2010 but was forced to leave CMS in December 2011 when his temporary appointment expired because the Senate had not voted on his confirmation.

While serving in the Senate in 2007-08, Mr. Obama stood by as Sen. Baucus and Majority Leader Harry Reid (D., Nev.) put Mr. Weems’s confirmation on ice. And as president, Mr. Obama failed to demand a vote from his fellow Democrats when they decided not to advance Mr. Berwick’s nomination, likely seeking to spare vulnerable incumbents from taking a position on a nominee with a controversial record. Given the president’s history of remaining quiet about a Democratic Senate not confirming CMS nominees, he has little standing to complain should the Republican-controlled Senate choose not to advance his choice to succeed Ms. Tavenner.

Even before Obamacare, the Centers for Medicare and Medicaid Services had a budget larger than that of the Pentagon; since the law passed, its subsidies, regulations, or both affect the insurance of basically every American with health coverage. The CMS administrator’s job is critical. But President Obama’s actions have contributed to a lack of permanent leadership in CMS for most of the past eight years. We’ll see whether that pattern persists after Ms. Tavenner departs.

This post was originally published at the Wall Street Journal Think Tank blog.

The Obamacare Shutdown

In the debate surrounding the partial US government shutdown, rhetoric and scare-mongering often seem to be overwhelming the facts. Lest they be lost, here are some highly pertinent facts about the shutdown fight, and about Obamacare.

First, fiscal conservatives in Congress want to fund the government – all of it – except for Obamacare. The House of Representatives, which takes the lead on budget and tax bills, has passed – several times now – legislation that would defund or eliminate portions of the widely unpopular health-care law, while fully funding all other federal operations.

The Senate, controlled by Majority Leader Harry Reid (D) of Nevada and the Democrats, has so far rejected the lower chamber’s attempts to keep money flowing to government operations. In case the Senate continues to rebuff these attempts, the House has taken the precaution of passing legislation (which the Senate approved and President Obama signed into law last night) that would ensure that our military personnel around the world will continue to receive their hard-earned pay during the shutdown.

Second, the Obama administration’s stated position for months amounts to agreeing to the shutdown of the government. The president’s advisers have publicly threatened to veto multiple House-passed spending bills. Those threats came because the president and his allies want to replace spending cuts already agreed to under the Budget Control Act with more tax increases. In other words, if Mr. Obama and Sen. Reid didn’t shut down the government to insist on funding Obamacare, they likely would have shut down the government to essentially insist on spending more.

Third, while a “government shutdown” is an inconvenience to many Americans, the federal government never fully shuts down. The majority of the nation’s 2 million federal workers will likely not be furloughed. The military will continue to protect our shores, Social Security and Medicare checks will be processed as usual – and the Postal Service will remain open for business to deliver them. In many respects, the term “shutdown” is a misnomer; the current situation is more like a slowdown of government services than a complete shutdown.

If that conflicts with the dire predictions you’ve heard about the “disastrous” consequences of a shutdown, consider this. Since 1976, the federal government has “shut down” 17 times. And still the republic survives!

As for Obamacare itself, many of its effects will be more harmful, and more long-lasting, than a temporary government slowdown. First, premiums continue to go up. Even a recent report released by the Obama administration admitted that. When the report says that premiums have come in “lower than projected,” that doesn’t mean “lower.” That means “slightly less high.” As for the $2,500 per family premium reduction that candidate Obama promised his plan would deliver when campaigning in 2008, forget about it.

Second, Obamacare is undermining America’s health-care system. Many individuals have already found out they’re losing the health insurance they have and like. Others have learned that they may not be able to maintain access to their current doctor. One “dirty little secret” about Obamacare is that the law is built around an expansion of Medicaid – and Medicaid-like insurance plans offered in exchanges – even though Medicaid patients often have worse health outcomes than the uninsured.

Third, Obamacare is harming our economy. Firms are dropping health coverage, or cutting back hours, in response to the law’s new mandates and penalties. Bureaucrats have already turned out more than 20,000 pages of regulations implementing Obamacare. All of these regulations will have costs, many of which will be borne by the small businesses that traditionally serve as the nation’s job generator and the backbone of the economy.

Defunding the law represents the best way for Congress to combat the looming threat Obamacare poses. Defunding Obamacare would prevent the law’s costly new entitlements from taking effect, and would prevent the enforcement of its 18 new tax increases. Just as important, defunding Obamacare would ensure that bureaucrats in Washington would not be able to add to the 20,000 page “Red Tape Tower” any more regulations strangling the economy.

Obamacare was, has been, and remains unpopular; support even among Democrats has dwindled in recent months. The law is unfair: Witness the waivers and exemptions granted to unions, to big businesses, and most recently to members of Congress and their staff. As it stands now, the law has proven to be inherently unwieldy: More than a dozen elements of the law have been delayed, modified, or repealed.

Morning Bell: Will Unions Want to Repeal Obamacare?

In a typical Friday afternoon “news dump,” the Treasury Department announced it could not grant unions’ request for another special Obamacare break.

This time, unions had lobbied the Administration to let union-run, multi-employer plans receive taxpayer-funded insurance subsidies on the new exchanges. These subsidies would be in addition to the tax break that multi-employer plans, like health plans offered by all employers, already receive.

Union leaders wrote to Senate Majority Leader Harry Reid (D-NV) and House Minority Leader Nancy Pelosi (D-CA) in July asking for the Obamacare “fix,” stating that their progressive “vision has come back to haunt us”:

When you and the President sought our support for the Affordable Care Act (ACA), you pledged that if we liked the health plans we have now, we could keep them. Sadly, that promise is under threat. Right now, unless you and the Obama Administration enact an equitable fix, the ACA will shatter not only our hard-earned health benefits, but destroy the foundation of the 40 hour work week that is the backbone of the American middle class.

However, despite comments by Reid that unions would get another special break, the Administration actually found one part of the law it wants to uphold—after all the waivers, delays, and illegal modifications made to other parts of Obamacare.

The question for unions is, what will they do now? Terry O’Sullivan, President of the Laborers International Union of North America, said on Wednesday that his union wants Obamacare “fixed, fixed, fixed….But if the [law] isn’t fixed…then I believe it needs to be repealed.”

O’Sullivan got his answer two days later—the Administration claims the law can’t be fixed. So will his union now call for Obamacare’s repeal?

As the old saying goes, “Better late than never.” Here’s hoping the Laborers Union, and other unions—having finally discovered that Obamacare could cost them both their jobs and their health insurance—ask Congress to stop the law now.

This post was originally published at The Daily Signal.