Senate Republicans’ Attempt to Entrench Obamacare

Earlier this month, I wrote about how when Republicans talk about the “need to govern,” they normally mean the “need to govern like liberals.” Last week, a group of ten Senate Republicans perfectly illustrated that axiom.

The Republicans, led by Sen. Thom Tillis (R-NC), introduced “legislation to protect Americans with pre-existing conditions.” Their bill would codify as part of the Health Insurance Portability and Accountability Act (HIPAA) requirements that insurers accept all applicants, regardless of health, and do not vary premiums based upon health conditions.

Democrats have used the pending lawsuit to mount political attacks on pre-existing conditions. For instance, last week Sen. Joe Manchin (D-WV) attempted to offer an amendment directing the Senate’s legal counsel to intervene in the lawsuit to defend Obamacare, which some Republicans viewed as a politically difficult vote. Hence Tillis’ bill, which gave the ten Senate Republicans political cover to oppose Manchin’s amendment while still claiming to protect pre-existing conditions.

Although likely a messaging exercise, the Tillis bill sends at least four messages to voters about Republican views on health policy—none of them positive.

Senators Don’t Want to Repeal Obamacare

Last spring, I wrote that Republicans had a choice: They could either retain Obamacare’s pre-existing condition provisions, or they could fulfill their promise to repeal the law. They keep trying to do both, but as a policy matter, they cannot.

The premium increases caused by those regulations necessitated requirements to purchase coverage, and for businesses to offer coverage, to try and keep healthy people purchasing (more costly) insurance. They necessitated Obamacare’s insurance subsidies—to make coverage “affordable.” And the premium increases caused by the regulations required Obamacare’s taxes and Medicare reductions to finance those federal subsidies.

The pre-existing condition provisions stand as the foundation stone of Obamacare. Conservatives who want a true alternative to the law have other policy options for people with pre-existing conditions than merely retaining Obamacare’s federal regulations. But if Republican senators want to codify that provision elsewhere, then, as a practical matter, they want to retain the law.

Republicans Once Again Oppose Federalism

Among others, Sen. Lindsey Graham (R-SC) sponsored Tillis’ legislation. Last year, of course, Graham stood as one of the prime co-sponsors of the Graham-Cassidy bill, which sought to devolve most of Obamacare’s health spending to the states via a block grant. Graham’s website retains press releases talking about how he supports a “state-centric” system that would “return power” outside of Washington.

The sharp contrast between Graham’s rhetoric on state-centered solutions, and his actions supporting a Washington-centered health-care system, show that he and his colleagues either do not understand the principles of federalism, or they discard those principles when they find them politically inconvenient.

Effectively Taxes the American People

Multiple analyses have discussed how Obamacare’s high deductibles make coverage feel meaningless to exchange enrollees. As an example, this year I will pay nearly $3,500 for a Bronze Obamacare policy with a $6,200 deductible—a deductible I have little chance of meeting unless I get run over by the proverbial bus, or suffer some other catastrophic incident.

I do have some pre-existing conditions, including mild asthma and a foot condition that required reconstructive surgery some years ago. Between these and the general randomness of life, the risk of a major medical condition that causing me to exceed my deductible remains greater than zero. But I doubt it warrants a $3,500 premium either.

Lawmakers don’t like talking about this “tax.” Wouldn’t you know it, few liberal organizations have attempted to quantify how much of a “tax” the average healthy person pays in state exchanges, although they’re quick to quantify the individuals with pre-existing conditions “at risk.” But this forcible redistribution of wealth exists nonetheless, and the Republican lawmakers just endorsed it.

Liberals Always Find Republican Concessions Insufficient

Hours after Tillis introduced his bill, liberal analysts already had outlined reasons to call it insufficient. According to them, the Tillis legislation would prohibit insurers from rejecting applications from people with pre-existing conditions outright, but they could still impose exclusions on specific conditions.

Therein lies Republicans’ problem: The more they concede, the more the Left demands. When the next wave of greater government control of health care comes along, don’t say I didn’t warn you—and don’t say that Republicans acted to protect you, either.

This post was originally published at The Federalist.

What You Need to Know about “Vote-A-Rama”

It’s not a carnival ride—although it might prove even more adventurous. The Senate’s consideration of health-care legislation will soon result in a grueling series of votes dubbed “vote-a-rama.”

After 20 hours of debate on the budget reconciliation measure, equally divided between the majority and minority parties, the Senate will complete consideration of all pending amendments, with the process’ conclusion typically determined when senators exhaust all the amendments they wish to offer—not to mention themselves.

1. It’s Physically Demanding

The “vote-a-rama” process during consideration of the 2010 reconciliation bill that “fixed” Obamacare provides an example. On Wednesday, March 24, senators began voting on amendments at 5:32 PM. Nearly nine hours later, at 2:17 on the morning of Thursday, March 25, senators had completed votes on 29 amendments. The Senate then took a brief break, re-convened at 9:45 the same morning, and disposed of a further 12 amendments over an additional four-plus hours, with a vote on final passage at 2 PM on March 25.

For 20-something or 30-something staffers—let alone senators several times their age—this lengthy process can prove grueling, with long hours, late nights, lack of sleep, and little food (or bad food) the norm.

2. It’s Mentally Confusing

Between votes on amendments, senators usually allow for brief one-minute speeches by the amendment’s proponent and an opponent (generally the majority or minority floor manager of the bill). However, as Senate procedural expert James Wallner notes, that habit has derived from custom and unanimous consent, not any formal rule. If any senator objects to the brief “well speeches” as part of “vote-a-rama,” then the Senate will vote on amendments without any debate or a summary of what the amendment does.

3. It’s Hard to Pass Amendments with a Simple Majority…

As Wallner noted in an article earlier this week, the Senate’s rules essentially give preferential treatment to the underlying reconciliation bill, making it difficult to craft amendments that can pass with a simple (i.e., 50-vote) majority. The amendment must be germane (i.e., relevant) to the underlying bill, and cannot increase the deficit.

Moreover, to pass with a simple majority, an amendment must also comply with the six-part “Byrd rule” test. For instance, an amendment may not have only an incidental fiscal impact, make programmatic changes to Title II of the Social Security Act, or exceed the jurisdiction of the committees who received the reconciliation instructions (in this case, the Senate Finance and Health, Education, Labor, and Pensions committees). Other than simple motions striking particular provisions, amendments will face a difficult time running the procedural gauntlet necessary to pass on a 50-vote threshold.

4. …But It’s Easy to Get Amendment Votes

Even if an amendment does not comply with the budget reconciliation rules, senators can still offer a motion to waive those rules. The motion to waive requires the approval of three-fifths of senators sworn (i.e., 60 votes), which often does not materialize, but the motion to waive provides a way to get senators on the record on a specific issue. Many votes in a “vote-a-rama” series consist of a “motion to waive all applicable budgetary discipline”—i.e., the “Byrd rule” and other restrictions that make passing an amendment with a simple majority difficult.

5. It Will Result in Messaging Amendments

(b) Prohibiting Coverage of Certain Prescription Drugs—

(1) In general.–Health programs administered by the Federal Government and American Health Benefit Exchanges (as described in section 1311 of the Patient Protection and Affordable Care Act) shall not provide coverage or reimbursement for—

(A) prescription drugs to treat erectile dysfunction for individuals convicted of child molestation, rape, or other forms of sexual assault;

The “No Viagra for Sex Offenders” amendment drew no small amount of attention at the time, and led to political ads being run against the Democrats who voted against it (as some predicted prior to the amendment vote).

Democrats will almost certainly offer similar messaging amendments this year, including amendments unrelated to the bill, or even health care. They may offer amendments regarding the Russia investigation—those would likely be subject to a 60-vote threshold, as foreign policy is not germane to a budget reconciliation bill, but if Democrats wish to get Republicans on record, any vote will do.

Doubtless Democrats will offer amendments related to Donald Trump’s taxes—the reconciliation bill is in the jurisdiction of the Finance Committee, so these amendments could theoretically prove germane, but amendments specifically targeting the president (i.e., making policy, with only an incidental fiscal impact) could violate the “Byrd rule,” making them subject to a 60-vote threshold. For Democratic political consultants, the possibilities are virtually endless.

6. It May Lead to Chicanery—and ‘Strategery’

While opposing reimportation on the merits, some Republicans supported these particular amendments because they wanted to break up the “rock-solid deal” between Democrats and Big Pharma—whereby pharma agreed to support Obamacare in exchange for a promise from Democrats not to support reimportation of prescription drugs.

As it happened, Democrats spent an entire week—from December 8 through December 15, 2009—without floor votes on amendments to Obamacare. The delay—effectively, Democrats filibustering their own bill—came in part because party leaders could not persuade fellow Democrats to vote against the reimportation amendment—and could not afford to allow the amendment to pass.

One can expect similar gamesmanship by the Democratic minority this time around, as evidenced by their tactical decision to abstain from voting on Tuesday’s motion to proceed to the bill until Republican senators mustered a majority solely from within their own ranks. If only three Republicans defect on an amendment, Democrats could have the power to play a decisive role in that amendment’s outcome. It’s an open question how they will do so.

For instance, will some or all of the 12 Democrats who voted against reimportation earlier this year—during January’s “vote-a-rama,” when the Senate passed the budget enabling the current reconciliation process—switch their votes so the amendment will pass, causing Republicans heartburn with the pharmaceutical lobby? When and how will Democrats use other tactical voting to gum up the process for Republicans? The answers range from possible to likely, but it remains to be seen exactly how the process will play out.

7. It Will Inflict Political Pain

Consider for instance a flashpoint in the reconciliation bill: Whether to defund Planned Parenthood. Two Republican senators, Susan Collins and Lisa Murkowski, have already stated they oppose defunding the organization. If one more Republican defects, Democrats would likely have the votes to strip the defunding provision. (While Democratic Sen. Joe Manchin previously supported defunding Planned Parenthood two years ago, in the immediate aftermath of sting videos featuring organization leaders, he has since reversed his position, and will presumably vote with all Democrats to strip the provision.)

To put it another way: Sen. Dean Heller (R-NV) may not just have to be the 50th vote supporting the underlying bill, he may also have to provide the 50th vote to keep the Planned Parenthood defunding provision in the legislation. Will Heller vote to defund the nation’s largest abortion provider—and what will happen to the bill if he, and the Senate as a whole, votes to strip the provision out? Senate leaders will face several of these white-knuckle amendment dramas during “vote-a-rama,” any one of which could jeopardize the entire legislation.

8. It Could Unravel the Entire Bill

Ultimately, with no agreement among Republicans to preserve the underlying bill text, and no clear roadmap on how to proceed, “vote-a-rama” could resemble pulling on the proverbial thread—one good tug and the whole thing unravels. What if Heller ends up helping to strip out Planned Parenthood defunding—and conservatives respond by blocking more funding for Medicaid expansion states? What if moderates vote to strip the “consumer freedom” amendment offered by Sen. Ted Cruz (T-TX), and conservatives retaliate by taking out the “side deals” included to assuage moderates’ concerns?

At the end of “vote-a-rama,” senators could be left with an incoherent policy mess, legislation that no one would readily support. It’s the big potential downside of the freewheeling amendment strategy—but a chance that McConnell apparently feels he has no other choice but to take.

9. It’s Why Senate Leadership Is Talking about a Conference with the House

In recent days, Senate Majority Whip John Cornyn (R-TX) and others have floated the idea that, rather than having the House pass the Senate’s bill whole, sending it straight to the White House, members may instead want to have a House-Senate conference to resolve differences between the two chambers. Some have gone so far as to propose the Senate passing a “skinny” bill—repeal of the individual and employer mandates, along with the medical device tax—as a placeholder to get the reconciliation measure to a conference committee.

This strategy would have one beneficial outcome for the Senate’s Republican leadership: By allowing congressional leaders to re-write the bill in conference, it would save them from having to abide by the results of “vote-a-rama.” If, for instance, senators vote to strip out Planned Parenthood defunding, or to add in reimportation language, congressional leaders could re-write the bill in conference to negate the effects of those votes—presenting a new measure to both chambers with a binary choice to approve the bill or not. (In other words, rather than a “wrap-around bait-and-switch” on the Senate floor, senators could instead face a bait-and-switch in conference.)

That leadership has mooted a conference committee speaks to the nature of the “vote-a-rama” ahead. Despite the complaints on both ends of Pennsylvania Avenue about the lengthy nature of the health-care process, Senate leaders are now looking to extend the process further via a House-Senate conference—because they may need to regain control of the legislation after a wild and unpredictable debate on the Senate floor.

This post was originally published at The Federalist.

Q&A on Contraception and Freedom of Conscience

What is at issue?
The dispute involves new mandates prescribed by Section 1001 of the Patient Protection and Affordable Care Act (PPACA, P.L. 111-148), which require insurance to cover approved preventive services free of charge.  In August 2011, the Administration revised an existing interim final rule to require coverage of “all Food and Drug Administration approved contraceptive methods, [including] sterilization procedures.”  The August 2011 revised rule also included a narrowly tailored religious exemption – one that exempted churches themselves from the contraceptive requirements.  It did NOT exempt institutions that hire and/or serve individuals of other faiths, such as most religious-affiliated schools, hospitals, and charities.
Following conversations between the Administration and various religious officials, on January 20 HHS Secretary Sebelius issued a release saying her department would provide religious-affiliated organizations one additional year to comply with the law.  However, she did not expand the scope of the conscience exemption to include religious-affiliated organizations, as the United States Conference of Catholic Bishops and others requested.
What are the practical implications of the new federal contraception mandate on religious-affiliated organizations?
Washington Archbishop Donald Cardinal Wuerl expressed the dilemma many institutions face in a letter to the faithful last week: “The mandate will allow a Catholic school one of three options: 1) violate its beliefs by providing coverage for medications and procedures we believe are immoral, 2) cease providing insurance coverage for all of its employees and face ongoing and ultimately ruinous fines, or 3) attempt to qualify for the exemption by hiring and serving only Catholics.”  Many would consider all of these options untenable, as they impose significant burdens on organizations attempting to carry out the tenets of their faiths.
How is the new federal mandate different from existing state mandates on contraception?
First, most of the existing state-based mandates provide broader exemptions, which include both churches and religious-affiliated organizations; the new federal guidelines exclude the latter group from the faith exemption.  Second, many religious-affiliated organizations can – and do – circumvent the existing state mandates by offering a self-insured health plan.  Under the Employee Retirement Income Security Act (ERISA, P.L. 93-406), self-insured plans are regulated largely at the federal level, meaning state benefit mandates – on contraception and other services – are pre-empted.  Therefore, the new federal mandate eliminates any opportunity for religious-affiliated organizations to decline providing contraception to their insured workers.
Sen. Harry Reid said Democrats “fully support” the Administration’s decision; is he correct?
No.  Individuals from across the political spectrum have criticized the Administration’s decision.  Sen. Joe Manchin (D-WV) called the mandate “un-American,” and Sen. Bob Casey (D-PA) objected to “forc[ing] Catholic institutions to violate their religious beliefs.”  Former Rep. Kathy Dahlkemper (D-PA) said she “would have never voted for the final version of [PPACA] if I expected the Obama Administration to force Catholic hospitals and Catholic colleges and universities to pay for contraception.”  And liberal commentators from E.J. Dionne to Mark Shields have likewise criticized the Administration for being unwilling to offer a broader conscience exemption to religious-affiliated institutions.
Has the process leading to the contraception mandate been open and transparent?
No.  As early as February 2011, Administration officials told the New York Times they expected to offer contraceptive coverage as a federally required benefit, but hired an outside group to conduct a study on the issue “so the public would see them [i.e., the requirements] as based on science, not politics” – implying Administration officials decided on a contraceptive mandate even before the “independent” study began.  The rulemaking process itself has been similarly opaque.  The Administration reported receiving more than 200,000 comments on the contraceptive issue, but has yet to publish a final rule incorporating those comments.  Despite repeated requests from Congressional staff, Administration officials have refused to release those public comments, or provide any indication whether and when they will be published.
Who should be concerned by this new federal mandate?
Many believe that the underlying issue is not contraception per se; the broader issue is whether or not religious-affiliated institutions will be able to practice their faith without government intrusion.  If this mandate is upheld in its current form, many may be concerned that other incursions on religious liberty may not be far behind.
Has the Administration taken other actions that may be construed as constricting First Amendment freedoms?
Yes.  When the Catholic Archbishop for the Military wrote a pastoral letter regarding the contraceptive issue, the U.S. Army initially prohibited military chaplains from reading the letter at Masses for service-members.  Because of Catholic teachings on abortion and contraception, HHS political officials recently forced career staff to reject a human trafficking grant application from the Conference of Catholic Bishops – even though the bishops’ application was scored highest by an independent review board.  And the Supreme Court recently overturned a policy the Administration attempted to defend whereby government officials could determine who classifies as a religious official.  The cumulative effect of these actions led Michael Gerson to opine that “the war on religion is now formally declared,” in a piece denouncing “Obama’s power grab” as an example of “radical secularism” attempting to impose its will on individuals of faith.
Would a broader conscience exemption hinder access to contraception?
No.  Contraception would still be widely available; however, religious-affiliated employers would not be forced to fund this coverage, which violates the tenets of their faith.