Republicans’ SCHIP Surrender

In spring 2015, Senate Republican leaders pressured their members to accept a clean, two-year reauthorization of the State Children’s Health Insurance Program (SCHIP) added as part of a larger health spending measure.

The SCHIP reauthorization added to a larger Medicare bill included none of the reforms Republicans had proposed that year, many of which attempted to turn the program’s focus back toward covering low-income families first, as the George W. Bush administration had done. But Republican leaders said that the two-year extension, rather than the four-year extension Democrats supported, would allow conservatives to fight harder for reforms in 2017.

The press has focused on the disputes over paying for the SCHIP program, which have held up final enactment of a long-term reauthorization. (The House passed its version of the bill in November; the Senate, failing to find agreement on pay-fors, has not considered the bill on the floor.) But the focus on pay-fors has ignored Republicans’ abject surrender on the policy behind the program, because the media defines “bipartisanship” as conservatives agreeing to do liberal things. That occurred in abundance on this particular bill.

So Much for Our Promises, Voters

On the underlying policy, all the groups who pledged to fight for conservative reforms vacated the field. Senate Finance Committee Chairman Orrin Hatch (R-UT), who brags about how he created the program as part of the Balanced Budget Act in 1997, cut a deal with Ranking Member Ron Wyden (D-OR) that, as detailed below, includes virtually no conservative reforms to the program—raising questions about whether Hatch was so desperate for a deal to preserve his legacy that he failed to fight for conservative reforms.

House Speaker Paul Ryan (R-WI) did not repudiate the agreement Hatch and Wyden struck, even though that agreement maintained virtually the provisions of the 2009 SCHIP reauthorization that Ryan himself, then the ranking member of the House Budget Committee, called “an entitlement train wreck.”

Republicans have thus suffered the worst of both worlds: getting blamed for inaction on a program’s reauthorization, while already having conceded virtually every element of that program, save for its funding.

Details About the SCHIP Proposals

A detailed examination of the Hatch-Wyden agreement (original version here, and slightly revised version in Sections 301-304 of the House-passed bill here) demonstrates how it extends provisions of the 2009 reauthorization passed by a Democratic Congress and signed by President Obama—which Republicans in large part opposed. Moreover, the Hatch-Wyden agreement and House-passed bill includes none of the reforms the House Energy and Commerce Committee proposed, but were not enacted into law, in 2015.

The only “reform” in the pending reauthorization consists of phasing out an enhanced match for states included in Section 2101(a) of Obamacare—one already scheduled to expire. Even though the enhanced match will end on its own in October 2019, the Hatch-Wyden agreement and the House-passed bill would extend that enhanced match by one year further, albeit at a reduced level, before phasing it out entirely.

Child Enrollment Contingency Fund: Created in Section 103 of the 2009 reauthorization. As I noted then, “Some Members may be concerned that the fund—which does not include provisions making additional payments contingent on enrolling the low-income children­ for which the program was designed—will therefore help to subsidize wealthier children in states which have expanded their programs to higher-income populations, diverting SCHIP funds from the program’s original purpose” (emphasis original). Section 301(c) of the House-passed bill would extend this fund, without any reforms.

Express Lane Eligibility: Created in Section 203 of the 2009 reauthorization, as a way of using eligibility determinations from other agencies and programs to facilitate enrollment in SCHIP. As I noted then, “Some Members may be concerned first that the streamlined verification processes outlined above will facilitate individuals who would not otherwise qualify for Medicaid or SCHIP, due either to their income or citizenship, to obtain federally-paid health benefits.” Section 301(e) of the House-passed bill would extend this option, without any reforms.

Citizenship Verification: Section 211 of the 2009 reauthorization created a new process for verifying citizenship, but not identity, to circumvent strict verification requirements included in the 2005 Deficit Reduction Act. As I wrote in 2009:

Some Members may echo the concerns of Social Security Commissioner Michael Astrue, who in a September 2007 letter stated that the verification process proposed in the bill would not keep ineligible individuals from receiving federal benefits—since many applicants would instead submit another person’s name and Social Security number to qualify. Some Members may believe the bill, by laying out a policy of ‘enroll and chase,’ will permit ineligible individuals, including illegal aliens, to obtain federally-paid health coverage for at least four months during the course of the verification process. Finally, some Members may be concerned that the bill, by not taking remedial action against states for enrolling illegal aliens—which can be waived entirely at the Secretary’s discretion—until states’ error rate exceeds 3%, effectively allows states to provide benefits to illegal aliens.

Legal Aliens: Section 214 of the 2009 reauthorization allowed states to cover legal aliens in their SCHIP programs without subjecting them to the five-year waiting period required for means-tested benefits under the 1996 welfare reform law.

As I wrote in 2009, “Some Members may be concerned that permitting states to cover legal aliens without imposing waiting periods will override the language of bipartisan welfare reform legislation passed by a Republican Congress and signed by a Democrat President, conflict with decades-long practices in other federally-sponsored entitlement health programs (i.e., Medicare), and encourage migrants to travel to the United States for the sole or primary purpose of receiving health benefits paid for by federal taxpayers.” The House-passed bill includes no provisions modifying or repealing this option.

Premium Assistance: Section 301 of the 2009 reauthorization created new options regarding premium assistance—allowing states to subsidize employer-sponsored coverage, rather than enrolling individuals in government-run plans. While that reauthorization contained some language designed to make premium assistance programs more flexible for states, it also expressly prohibited states from subsidizing health savings account (HSA) coverage through premium assistance. The House-passed bill includes no provisions modifying or repealing this prohibition on states subsidizing HSA coverage.

Health Opportunity Accounts: Section 613 of the 2009 reauthorization prohibited the Department of Health and Human Services from approving any new demonstration programs regarding Health Opportunity Accounts, a new consumer-oriented option for low-income beneficiaries created in the 2005 Deficit Reduction Act. The House-passed bill includes no provisions modifying or repealing this prohibition on states offering more consumer-oriented options.

Covering Poor Kids First: The 2015 proposed reauthorization looked to restore SCHIP’s focus on covering low-income children first, by 1) eliminating the enhanced federal match rate for states choosing to cover children in families between 250-300 percent of the federal poverty level ($61,500-$73,800 for a family of four in 2017) and 2) eliminating the federal match entirely for states choosing to cover children in families above 300 percent of poverty. These provisions were consistent with the policy of the George W. Bush administration, which in 2007 issued guidance seeking to ensure that states covered low-income families first before expanding their SCHIP programs further up the income ladder. The House-passed bill includes no such provision.

Maintenance of Effort: Section 2001(b) of Obamacare included a requirement that states could not alter eligibility standards for children enrolled in SCHIP through October 1, 2019, limiting their ability to manage their state programs. Whereas the 2015 proposed reauthorization would have repealed this requirement, effective October 1, 2015, Section 301(f) of the House-passed bill would extend this requirement, through October 1, 2022. (However, under the House-passed bill, states could alter eligibility for children in families with incomes over 300 percent of poverty, beginning in October 2019.)

Crowd-Out: The 2015 proposed reauthorization allowed states to impose a waiting period of up to 12 months for individuals who declined an offer of, or disenrolled from, employer-based coverage—a provision designed to keep families from dropping private insurance to enroll in a government program. The House-passed bill contains no such provision.

Program Name: The 2009 reauthorization sought to remove the “state” element of the “State Children’s Health Insurance Program,” renaming the program as the “Children’s Health Insurance Program.” While the 2015 proposed reauthorization looked to restore the “state” element to “SCHIP,” the House-passed bill includes no such provision.

Cave, Not a Compromise

For all the focus on paying for SCHIP, the underlying policy represents a near-total cave by Republicans, who failed to obtain any meaningful reforms to the program. Granted, Democrats likely would not agree to all the changes detailed above. But the idea that a “bipartisan” bill should include exactly none of them also seems absurd—unless Republicans threw in the towel and failed to fight for any changes.

The press spent much of 2017 focused on Republican efforts to unwind Obamacare. But the SCHIP bill represents just as consequential a story. The cave on SCHIP demonstrates how many Republicans, after spending the last eight years objecting to the Obama agenda, suddenly have little interest in rolling it back.

This post was originally published at The Federalist.

Are Senate Republicans Planning an Abortion Flip-Flop in Obamacare “Stability” Bill?

As Yogi Berra would say, “It’s déjà vu all over again.” Once again, Senate Republicans are preparing to flip-flop on taxpayer funding of plans that cover abortion. In June, I discussed how unnamed Senate Republican sources claimed that their “repeal-and-replace” legislation would preserve Obamacare’s “restrictions on abortion funding,” even though Republicans have spent the past seven years arguing that the law provides taxpayer funding of plans that cover abortion.

Those same unnamed sources are now trying to claim that the Obamacare “stability” bill does not need additional restrictions on abortion funding. As Politico reports:

[Senate Republicans are] stressing that Obamacare already has prohibitions on using federal funds for abortions that are not because of rape or incest or to save the mother’s life. Anti-abortion groups didn’t trust the Obama Administration to enforce those prohibitions. That prohibition could carry more weight now. ‘We have a pro-life Administration that has agreed to more stringently enforce the life protections,’ a Senate Republican source said.

Let’s Go Down Memory Lane

In June, I cited several floor speeches during the Obamacare debate where congressional leaders argued that Obamacare includes taxpayer funding of abortions. For instance, here’s Senate Majority Leader Mitch McConnell (R-KY), as the House prepared to vote on Obamacare: “Democrats over in the House want to approve the Senate bill without actually voting on it. These Democrats want to approve a bill that rewrites one-sixth of the economy, forces taxpayers to pay for abortions, raises taxes in the middle of a recession, and slashes Medicare for seniors, without leaving their fingerprints on it” (emphasis mine).

Astute observers might notice the wording of McConnell’s remarks. The Senate majority leader did not say that “Obamacare might force taxpayers to fund abortion coverage, depending upon how the administration implements the law.” He did not say that “We need to elect a pro-life administration to prevent Obamacare from providing taxpayer funding of abortion coverage.” He flatly stated that Obamacare “forces taxpayers to pay for abortions”—period, end of story.

Mr. Speaker, the bill before us tonight doesn’t fix anything. It doesn’t fix the fact that this is a government takeover of health care that’s going to mandate that every American buy health insurance whether they want it or need it or not. It doesn’t fix the fact that it includes about $600 billion in job-killing tax increases in the worst economy in 30 years. It doesn’t fix the fact this bill provides public funding for elective abortion for the first time in American history (emphasis added).

Law Trumps Executive Action

McConnell, Pence, and many others had good reason for their statements. As Sen. Orrin Hatch (R-UT) noted in December 2009, Obamacare’s abortion funding restrictions are “significantly weaker” than the Hyde Amendment—a provision designed to prevent taxpayer funding of abortion since 1976—making them “completely unacceptable” in Hatch’s view, and in the view of most pro-lifers.

As to Republican staffers’ claims that the Trump administration can “fix” the flawed statutory language through executive orders or more robust enforcement, here’s what pro-life Rep. Jim Sensenbrenner (R-WI) had to say about that in March 2010:

This bill expands abortion funding to the greatest extent in history. I have heard that the President is contemplating an executive order to try to limit this. Members should not be fooled. Executive orders cannot override the clear intent of a statute….If an executive order moves the abortion funding in this bill away from where it is now, it will be struck down as unconstitutional because executive orders cannot constitutionally do that.

Other House members made the same argument in March 2010, including Dan Lungren (R-CA) and Joe Pitts (R-PA). Their argument applies just as equally to Republican presidents and administrations as it does to Democratic ones.

Moreover, conservatives who believe in limited government should not ask President Trump to exceed his executive authority, and a blanket funding on Obamacare’s abortion coverage would do just that. As I wrote in January, “a Republican Administration should not be tempted to ‘use unilateral actions to achieve conservative ends.’ Such behavior represents a contradiction in terms.” Not only can the Trump administration not stop funding of abortion coverage unilaterally, it should not attempt to try, if doing so would exceed its legal authority.

Don’t Insult Voters’ Intelligence

Just as the Trump administration should not try to exceed its authority in shutting down federal funding of abortion coverage, Senate Republicans should not attempt to insult voters by pretending that those efforts will succeed legally, or that the “completely unacceptable” abortion “protections” Hatch described in 2009 are now sufficient.

Senate Republicans have already attempted to claim that the insurer “stability” bill will bring benefits to taxpayers, even though the non-partisan Congressional Budget Office believes the bill will give a windfall directly to insurance companies. They should not worsen the spectacle of rationalizing bad policy by attempting to render seven years of arguments they made to the pro-life community meaningless—for they only beclown themselves in the process.

This post was originally published at The Federalist.

The House’s Unwise Proposed Settlement in the Obamacare Payments Court Case

After filing a lawsuit to defend its constitutional “power of the purse” more than three years ago, the House of Representatives late Friday proposed a settlement in the case over Obamacare’s cost-sharing reduction payments to insurers. In their fight to preserve the House’s constitutional authority, and stop propping up Obamacare, the proposed settlement would give conservatives precious little.

The House originally filed suit to accomplish three objectives: 1) halt the cost-sharing reduction payments; 2) keep a future administration from restarting the payments; and 3) set the precedent that the legislative branch can file suit against the executive when the executive exceeds its constitutional authority.

The Issue and the Lawsuit

The dispute involves Obamacare’s cost-sharing reduction (CSR) payments, designed to lower deductibles and co-payments through taxpayer subsidies for individuals purchasing exchange coverage. The law instructed insurers to lower cost-sharing for certain low-income individuals, and instructed the Department of Health and Human Services to reimburse insurers for providing these discounts, but included no explicit appropriation for the reimbursements.

Despite the lack of an express appropriation, the Obama administration started making CSR payments to insurers when the exchanges launched in 2014. The House of Representatives, viewing those actions as violating its constitutional authority, sued to stop the payments that fall.

In September 2015, Judge Rosemary Collyer ruled that the House had standing to challenge the constitutionality of the Obama administration’s actions in court. In May 2016, Collyer also agreed with the House on the merits, ruling that Obamacare lacked an appropriation for CSRs, that the Obama administration overstepped its authority, and that the payments must cease unless and until Congress provided an explicit appropriation.

Over the summer, a group of Democratic state attorneys general asked for, and received, permission from the Court of Appeals to intervene in the House’s lawsuit. The attorneys general argued that the change in administration meant neither party to the case would properly represent their interests in ensuring Obamacare’s implementation.

The Proposed Settlement

In Friday’s filing, all three parties—the Trump administration, the House, and the Democratic attorneys general—asked the Court of Appeals to remand the case to Collyer, and for Collyer to accept their settlement arrangement. The settlement would have Collyer vacate her order preventing the executive from making CSR payments.

Regarding other elements of the dispute and the status of CSR payments going forward, the proposed settlement includes this paragraph:

The Parties recognize that the Executive Branch of the United States Government (‘Executive Branch’) continues to disagree with the district court’s non-merits holdings, including its conclusion that the House had standing and a cause of action to bring this suit. The Parties agree that because subsequent developments have obviated the need to resolve those issues in an appeal in this case, the district court’s holdings on those issues should not in any way control the resolution of the same or similar issues should they arise in other litigation between the House and the Executive Branch. The Parties also recognize that the States continue to disagree with the district court’s merits holding. Accordingly, if the court of appeals grants the Joint Motion, the Parties agree that the district court’s holding on the merits should not in any way control the resolution of the same or similar issues should they arise in other litigation, and hereby waive any right to argue that the judgment of the district court or any of the district court’s orders or opinions in this case have any preclusive effect in any other litigation.

On the merits—i.e., whether a CSR appropriation exists, and whether the Obama administration acted constitutionally in making said payments—Collyer’s opinion will not control, and none of the parties can cite it in future litigation.

What the Settlement Means

The House “wins” things it already has. The House already won the action it most desired when President Trump agreed to stop the CSR payments in October. Beyond that, the settlement gives the House the right to cite Collyer’s ruling in future cases between Congress and the executive—which it would have done regardless.

The House gives up what it won. By vacating Collyer’s injunction, the settlement allows President Trump, or any future president, unilaterally to reinstitute the CSR payments at any time. Moreover, because the settlement prohibits all parties from using Collyer’s ruling that an appropriation does not exist “in any other litigation,” it will inhibit the House’s ability to protect its institutional prerogatives should any administration attempt to restart the unconstitutional CSR payments in the future.

The Susan Collins Effect? Sen. Susan Collins has insisted that Congress enact legislation appropriating CSR funds before voting to pass a tax bill that repeals the individual mandate. Last week, she repeated assertions from Senate Republican leaders and Vice President Mike Pence that insurers will receive the payments, even as conservatives in the House have objected to passing an appropriation for CSRs. Some may question the timing of this settlement—which, by ending the House’s lawsuit, would give the Trump administration clear sailing to resume the payments unilaterally—and ask whether the administration will now attempt to do so.

Will Other Parties Object?

Given the implications listed above, other parties could object to the settlement. Attorneys general in Republican states, who believe the law clearly lacks an appropriation for CSR payments, could object to the settlement vacating Collyer’s prohibition on the executive making such payments.

Moreover, because the settlement would not resolve the underlying legal issues, those attorneys general would have grounds to intervene—namely, the uncertain regulatory environment that the lack of a definitive ruling on CSRs would create, and the higher costs to state insurance offices due to that uncertainty. Insurers and insurance commissioners would have similar reasons to object to the settlement, although insurers may not wish to “risk” a definitive court ruling stating that a CSR appropriation does not exist.

Regardless, the proposed settlement provides little in the way of tangible results to conservatives who objected to the unconstitutional CSR payments. Conservative members of Congress may therefore wish to state their objections to House leadership, to convince it to change course.

This post was originally published at The Federalist.

Four Questions about the Alexander-Murray Bill

Upon its unveiling last week, the health insurance “stabilization” measure drafted by Senate Health, Education, Labor, and Pensions Committee Chairman Lamar Alexander (R-TN) and Ranking Member Patty Murray (D-WA) received praise from some lawmakers. For instance, Sen. John McCain (R-AZ) stated that “health care reform ought to be the product of regular order in the Senate, and the bill [the sponsors] introduced today is an important step towards that end.”

Unfortunately, the process to date has not resembled the “regular order” its sponsors have claimed. Drafted behind closed doors, by staff for a committee with only partial jurisdiction over health care, the bill’s provisions remained in flux as of last week. Moreover, the bill apparently will not undergo a mark-up or other committee action before the bill is either considered on the Senate floor—or, as some have speculated, “air-dropped” into a massive catch-all spending bill, where it will receive little to no legislative scrutiny.

Why didn’t Alexander know his bill provided taxpayer funding of abortion coverage?

Following my article last week highlighting how the cost-sharing reduction payments appropriated in the legislation would represent taxpayer funding of plans that cover abortion, a reporter for the Catholic-run Eternal Word Television Network interviewed senators Alexander and Murray (along with myself) about the issue.

Alexander told reporter Jason Calvi that he “hadn’t discussed” the life issue with staff, indicating he had little inkling of the effects of the legislation he sponsored:

Alexander then claimed that “I’m sure the president will address” the abortion funding issue. But executive action—which a future president can always rescind—is no substitute for legislative language. The pro-life community derided President Obama’s executive order designed to segregate abortion payments and federal funding as an accounting sham.

As I wrote in June, Republican leaders—including Senate leader Mitch McConnell (R-KY), and Mike Pence, the current vice president—clearly noted during debates on Obamacare that the law would provide for taxpayer funding of abortion coverage. The Alexander-Murray bill would do likewise unless and until the legislation includes an explicit ban on abortion funding.

Who inserted the earmark for Minnesota into the legislation?

Call it the “Klobuchar Kickback,” call it the “Golden Gopher Giveaway,” but Section 2(b) of the bill contains provisions relevant only to Minnesota. Specifically, that provision would allow a state’s basic health program—which states can establish for individuals with incomes between 133 and 200 percent of the federally defined poverty level—to receive “pass-through” block grant funding under a waiver.

Currently, only New York and Minnesota have implemented basic health programs, and of those two states, only Minnesota has also sought a state innovation waiver under Obamacare. Last month, the federal Centers for Medicare and Medicaid Services (CMS), in approving Minnesota’s application for an innovation waiver, said it could not allow the state to receive “pass through” funds equal to spending on the basic health program, because the statute did not permit such an arrangement. The Alexander-Murray bill would explicitly permit basic health program spending to qualify for the “pass through” arrangement, allowing Minnesota—the only state with such an arrangement—to benefit.

Will a committee mark up the Alexander-Murray bill?

Alexander notably demurred on this topic when asked last week. One reason: As Politico has noted, it remains unclear whether or the extent to which Alexander’s committee has jurisdiction over the legislation he wrote. Revisions to the Obamacare state innovation waiver process comprise roughly half of the 26-page bill, yet the Senate HELP Committee shares jurisdiction over those matters with the Senate Finance Committee, whose chairman has derided legislation giving cost-sharing payments to insurers as a “bailout.”

Even as he praised the Alexander-Murray bill as a return to “regular order,” McCain—himself a committee chairman—doubtless would take issue with another committee “poaching” the Senate Armed Services panel’s jurisdiction, or failing to hold a mark-up entirely. Yet the process regarding the Alexander-Murray bill could include two noteworthy legislative “shortcuts”—which some may view as a deviation from “regular order.”

Are HELP Committee staff still re-writing the legislation?

A close review of the documents indicates that HELP Committee staff made changes to the bill even after Alexander and Murray announced their agreement last Tuesday. The version of the bill obtained by Axios and released last Tuesday evening—version TAM17J75, per the notation made in the top left corner of the bill text by the Office of Legislative Counsel—differs from the version (TAM17K02) publicly released by the HELP Committee on Thursday.

The revisions to the legislation, coupled with Alexander’s apparent lack of understanding regarding its implications, raise questions about what other “surprises” may lurk within its contents. For all the justifiable complaints regarding the lack of transparency over Republicans’ “repeal-and-replace” legislation earlier this year, the process surrounding Alexander-Murray seems little changed—and far from “regular order.”

This post was originally published at The Federalist.

September 30 Deadline for Obamacare Repeal Is Fake News

Over the past several days, congressional leaders in both the House and Senate have claimed that a bill by Sens. Lindsay Graham (R-SC) and Bill Cassidy (R-LA) is “our best, last chance to get repeal and replace done.” They have made such claims because the press keeps “reporting” that Republicans’ “power to pass health care legislation through a party-line vote in the Senate expires on September 30.”

Don’t you believe it. The Senate’s 52 Republicans have multiple options open to keep the Obamacare repeal process alive after September 30. The only question is whether they have the political will to do so.

Option 1: Set a Senate Precedent

That assertion carries one big flaw: The Senate parliamentarian does not “rule.” The Senate as a body does—and that distinction makes a big difference. The procedural question centers around when, and whether, budget reconciliation instructions expire.

Budget reconciliation provides an expedited process for the Senate to consider matters of a fiscal nature. Reconciliation’s limits on debate and amendments preclude filibusters, allowing the bill to pass with a simple (i.e., 51-vote) majority rather than the usual 60 votes needed to break a filibuster and halt debate. (For additional background, see my May primer on budget reconciliation here.)

In one of its first acts upon convening in January, Congress passed a budget resolution for Fiscal Year 2017, which included instructions for health-related committees in the House and Senate to produce reconciliation legislation—legislation intended to “repeal-and-replace” Obamacare. But Fiscal Year 2017 ends on September 30, and Congress (thus far at least) hasn’t completed work on the reconciliation bill yet. So what happens on September 30? Does a reconciliation measure fail? Or can Congress continue work on the legislation, because the budget resolution set fiscal parameters for ten fiscal years (through 2026), not just the one ending on September 30?

There is literally no precedent on this particular Senate procedural question of whether and when reconciliation instructions expire. If the chair—either Vice President Mike Pence, Senate President Pro Tempore Orrin Hatch (R-UT), or another Senate Republican presiding—wishes to disregard the parliamentarian’s opinion, he or she is free to do so.

Alternatively, if the chair decides to agree with the parliamentarian’s opinion, a 51-vote majority of Republicans could decide to overturn that ruling by appealing the chair’s decision. In either event, the action by the Senate—either the chair or the body itself—would set the precedent, not the opinion of a Senate official who currently has no precedent to guide her.

Option 2: Pass a New Budget

Because there is no precedent to the question of when reconciliation instructions expire, Republican senators can set a precedent on this question themselves—keeping in mind it will apply equally when Republicans are in the minority. But if senators believe that disregarding the parliamentarian’s opinion—even on a question where she has no precedent to guide her—might jeopardize the legislative filibuster, they can simply pass a new budget for Fiscal Year 2018, one that includes reconciliation instructions to allow for Obamacare “repeal-and-replace.”

While that requirement has since been changed, Congress could still pass multiple budget resolutions in a given year, along with a reconciliation measure for each. Congress could pass a Fiscal Year 2018 budget resolution with reconciliation instructions for Obamacare repeal this month, complete work on the Obamacare bill, then pass another budget resolution with reconciliation instructions for tax reform.

Political Will

Congressional leaders apparently want to portray the Graham-Cassidy bill as a binary choice—either support it, or support keeping Obamacare in place. The facts turn that binary choice into a false one. Republicans have every opportunity to work to enact the repeal of Obamacare they promised the American people, regardless of the opinion of an unelected Senate official. No legislator should use an arbitrary—and false—deadline of next week to rationalize voting for a bad bill, or abandoning his or her promises altogether.

This post was originally published at The Federalist.

Are Senate Republicans Going Soft on Obamacare’s Taxpayer Funding of Abortions?

Senate Republican leadership continue to draft their “repeal-and-replace” health care bill in secret, but it sure looks like staff are preparing for the bill to endorse Obamacare’s funding of plans that cover abortion, by re-characterizing—and mischaracterizing—how current law treats the procedure. While text is not yet publicly available and will not be until Thursday at the earliest, here’s how anonymous sources described the “new” insurance subsidies to the Wall Street Journal:

Tax credits are likely to be structured in ways similar to the [Obamacare] subsidies as a way to preserve restrictions on abortion funding, according to Senate GOP aides. Provisions restricting the use of the House bill’s tax credits to pay for abortion hit procedural hurdles in the Senate.

The [Obamacare] subsidies, which are advance tax credits paid to insurance companies to lower the cost of health-insurance premiums, currently can’t be used to cover the cost of abortions.

The problem is, though, that Obamacare does have “taxpayer-funded abortions.” And that’s not what I said—that’s what Senate Majority Leader Mitch McConnell has said. Here’s his speech on March 17, 2010, as the House was preparing to vote on Obamacare (all emphasis added):

Americans woke up yesterday thinking they had seen everything in this debate already. Then they heard the latest….They heard that Democrats over in the House want to approve the Senate bill without actually voting on it. These Democrats want to approve a bill that rewrites one-sixth of the economy, forces taxpayers to pay for abortions, raises taxes in the middle of a recession, and slashes Medicare for seniors, without leaving their fingerprints on it.

Don’t consider McConnell a reliable source? The current vice president, Mike Pence, speaking in March 2010 during debate on the reconciliation bill intended to “fix” parts of Obamacare, noted that no provision in the reconciliation bill would fix its funding of abortion:

Mr. Speaker, the bill before us tonight doesn’t fix anything. It doesn’t fix the fact that this is a government takeover of health care that’s going to mandate that every American buy health insurance whether they want it or need it or not. It doesn’t fix the fact that it includes about $600 billion in job-killing tax increases in the worst economy in 30 years. It doesn’t fix the fact this bill provides public funding for elective abortion for the first time in American history.

And then there’s former House Speaker John Boehner. During his infamous “Hell no, you can’t!” speech on the House floor as that chamber was preparing to pass Obamacare, here’s what he said about the bill (soon to become law) and abortion:

Can you go home and tell your constituents with confidence that this bill respects the sanctity of all human life and that it won’t allow for taxpayer funding of abortions for the first time in 30 years? No, you cannot.

The current majority leader, current vice president, and former House speaker are all correct, of course—or at least they were seven years ago. Obamacare provides subsidies to plans that cover abortion, a significant break from the precedent used by the federal employee health plan, and one that will see more than $700 billion in taxpayer funds in the coming decade go toward plans that could cover abortion.

This post was originally published at The Federalist.

Hillarycare Redux? A Review of “The System”

A young president promising hope and change takes over the White House. Immediately embarking upon a major health-care initiative, he becomes trapped amidst warring factions in his party in Congress, bickering interest groups, and an angry public, all laying the groundwork for a resounding electoral defeat.

Barack Obama, circa 2009-10? Most definitely. But the same story also applies to Bill Clinton’s first two years in office, a period marked by a health-care debate in 1993-94 that paved the way for the Republican takeover of both houses of Congress.

In their seminal work “The System,” Haynes Johnson and David Broder recount the events of 1993-94 in detail—explaining not just how the Clinton health initiative failed, but also why. Anyone following the debate on Obamacare repeal should take time over the holidays to read “The System” to better understand what may await Congress and Washington next year. After all, why spend time arguing with your in-laws at the holiday table when you can read about people arguing in Congress two decades ago?

Echoes of History

For those following events of the past few years, the Clinton health debate as profiled in “The System” provides interesting echoes between past and present. Here is Karen Ignani of the AFL-CIO, viewed as a single-payer supporter and complaining that insurance companies could still “game the system” under some proposed reforms. Ironic sentiments indeed, as Ignani went on to chair the health insurance industry’s trade association during the Obamacare debate.

There are references to health care becoming a president’s Waterloo—Johnson and Broder attribute that quote to Grover Norquist, years before Sen. Jim DeMint uttered it in 2009. Max Baucus makes an appearance—he opposed in 1994 the employer mandate he included in Obamacare in 2009—as do raucous rallies in the summer of 1994, presaging the Obamacare town halls 15 years later.

Then there are the bigger lessons and themes that helped define the larger debate:

“Events, Dear Boy, Events:” The axiom attributed to Harold Macmillan about leaders being cast adrift by crises out of their control applied to the Clintons’ health-care debate. Foreign crises in Somalia (see “Black Hawk Down”) and Haiti sapped time on the presidential calendar and press attention, and distracted messaging. During the second half of 2009, Obama spent most of his time and energy focused on health care, leading some to conclude he had turned away from solving the economic crisis.

Old Bulls and Power Centers: “The System” spends much more time profiling the chairs of the respective congressional committees—including Dan Rostenkowski at House Ways and Means, John Dingell at House Energy and Commerce, and Patrick Moynihan at Senate Finance—than would have been warranted in 2009-10. While committee chairs held great power in the early 1990s, 15 years later House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid called most of the legislative shots from their leadership offices.

Whereas the House marked up three very different versions of health-care legislation in 1993-94, all three committees started from the same chairman’s mark in 2009. With Speaker Paul Ryan, like John Boehner before him, running a much more diffuse leadership operation than Pelosi’s tightly controlled ship, it remains to be seen whether congressional leaders can drive consensus on both policy strategy and legislative tactics.

The Filibuster: At the beginning of the legislative debate in 1993, Robert Byrd—a guardian of Senate rules and procedures—pleaded for Democrats not to try and enact their health agenda using budget reconciliation procedures to avoid a filibuster. Democrats (begrudgingly) followed his advice in 1993, only to ignore his pleadings 16 years later, using reconciliation to ram through changes to Obamacare. Likewise, what and how Republicans use reconciliation, and Democrats use the filibuster, on health care will doubtless define next year’s Senate debate.

Many Obama White House operatives such as Rahm Emanuel, having lived through the Clinton debate, followed the exact opposite playbook to pass Obamacare.

They used the time between 1993 and 2009 to narrow their policy differences as a party. Rather than debating between a single-payer system and managed competition, most of the political wrangling focused on the narrower issue of a government-run “public option.” Rather than writing a massive, 1,300-page bill and dropping it on Capitol Hill’s lap, they deferred to congressional leaders early on. Rather than bashing special interest groups publicly, they cut “rock-solid deals” behind closed doors to win industry support. While their strategy ultimately led to legislative success, the electoral consequences proved eerily similar.

Lack of Institutional Knowledge

The example of Team Obama aside, Washington and Washingtonians sometimes have short memories. Recently a reporter e-mailed asking me if I knew of someone who used to work on health care issues for Vice President-elect Mike Pence. (Um, have you read my bio…?) Likewise, reporters consider “longtime advisers” those who have worked the issue since the last presidential election. While there is no substitute for experience itself, a robust knowledge of history would come in a close second.

Those who underestimate the task facing congressional Republicans would do well to read “The System.” Having read it for the first time the week of President Obama’s 2009 inauguration, I was less surprised by how that year played out on Capitol Hill than I was surprised by the eerie similarities.

George Santayana’s saying that “Those who cannot remember the past are condemned to repeat it” bears more than a grain of truth. History may not repeat itself exactly, but it does run in cycles. Those who read “The System” now will better understand the cycle about to unfold before us in the year ahead.

This post was originally published at The Federalist.

Rep. Mike Pence Op-Ed: The Morality of Health Care

“What it’s supposed to do for people doesn’t get done in reality.”

The speaker criticizing this government program wasn’t talking about the federal response to Hurricane Katrina, or failing inner-city schools. Instead, the chief operating officer of a Bronx health clinic was criticizing Medicaid, a program that in theory provides health care coverage to more than 50 million Americans.

In his budget blueprint, President Obama promises $1 trillion in new health care spending to expand the Medicaid program — and create a new government health insurance program — with many of the flaws of the current one.

Even as the White House convenes a health “summit” designed to build support for yet more entitlement spending, it’s important to remember that our current entitlements often neglect the poorest and most vulnerable Americans.

Investigations by the New York Times in 2005 confirmed the often-cited problem that a Medicaid insurance card doesn’t guarantee quality care. In fact, it doesn’t guarantee care at all.

The report cited Medicaid as paying $24 to specialists in New York City for an office visit — not nearly enough to cover physicians’ true costs. Not surprisingly, few specialists decide to participate in Medicaid, so patients must wait — and wait and wait — to receive care.

Meanwhile, the New York Medicaid program’s spending ranks highest in the country, likely because 40% of Medicaid spending goes to questionable or fraudulent claims, according to a former state investigator.

The overall picture is one of a dysfunctional Medicaid program struggling to meet the health care needs of the poorest Americans. Yet these systemic problems are rarely mentioned when talking about health care reform.

While Democrats talk about the “moral imperative” of covering all Americans, few words have been spoken for those who have a public insurance card — but no access to care.

Consider the case of Deamonte Driver, a 12-year-old Maryland boy, who died in 2007 when a tooth infection spread to his brain. A simple extraction costing under $100 could have saved his life — if his mother had not had to wait five months for Deamonte and his brother to receive treatment under Medicaid.

Testifying before Congress about this tragedy, a case worker who helped Deamonte’s family criticized a culture “that clearly condones gross underperformance” at both the state and federal levels and has become “accepted and widespread.”

It is a culture that required Deamonte’s mother plus a lawyer, three call center workers and a call center supervisor to schedule a single dental appointment.

It is a culture that lets a dentist in Brooklyn bill Medicaid for many patient visits in the same day, yet turns away a poor teenager three times without even asking her to fill out a Medicaid application.

It is a culture that fails the poorest and most vulnerable in our society and a culture that money alone will not fix.

Democrats and the president have focused on increasing federal Medicaid spending as an economic “stimulus.”

Providing $90 billion in new federal Medicaid spending without reforming the program, as the recent “stimulus” bill did, will not ensure better coordination of beneficiary care, will not create an administrative bureaucracy more responsive to patients and providers, and will not crack down on fraudulent spending that squeezes state and federal budgets alike.

A better way exists, and that is fundamental reform. One building block of reform would focus on a major inequity in the tax code. That code says individuals whose employers can’t afford to provide coverage — like Deamonte Driver’s mother — must use after-tax dollars to purchase health insurance.

That means that many hardworking people least able to afford insurance premiums must pay 30% to 50% more for coverage. Fixing this inequity in our tax code would let more individuals purchase their own policies.

When combined with insurance reforms that provide access to chronically ill people, and reforms that let state Medicaid dollars supplement private insurance premiums, many more people will have quality insurance coverage.

Unfortunately, our Democratic colleagues have blocked states’ efforts to test innovative ideas that would provide the improvements Medicaid needs — reforms designed to ensure coverage people can use, not just an empty promise of care.

Republicans see a better way.

Our party recently formed a task force to craft a proposal that would ensure true reform of our health care system, including proposals to improve the health or lives of those many Americans who need it most.

Our Democrat friends may be well-intentioned. But their plans would expand a failed government culture that has neglected the poor Americans it is supposed to serve. Throwing more taxpayer money at a structurally flawed program is not an audacious hope. It is a false one.

This post was originally published in Investor’s Business Daily.