Christmas Eve Vote on Obamacare Showed Washington Still Has Shame

A decade ago this morning, 60 Senate Democrats cast their final votes approving the legislation that became Obamacare. The bill took a circuitous route to enactment after Scott Brown’s surprise victory in the Massachusetts Senate contest, which occurred a few weeks after the Senate vote, in January 2010.

Brown’s election meant Republicans gained a 41st Senate seat, giving them the necessary votes to filibuster a House-Senate conference report on Obamacare. Because Democrats lacked the 60 votes to overcome a filibuster, they eventually agreed to a process amending certain budgetary and fiscal elements of the Senate bill through the reconciliation process on a 51-vote threshold.

The grubby process leading up to Obamacare’s enactment, full of parochial politics and special interest pork, cost Democrats politically. But many Americans do not realize that such machinations occur all the time in Washington—indeed, occurred just last week. When one party participates in a corrupt process, it becomes a scandal; when both parties partake, few outside the Beltway bother to notice.

Backroom Deals

The process among Democrats leading up to the final health vote resembled an open market, with each Senator making “asks” of Majority Leader Harry Reid (D-NV). Reid needed all 60 Democrats to vote for Obamacare to break a Republican filibuster, and the parochial provisions included in the legislation showed the lengths he would go to enact it:

Cornhusker Kickback:” The most notorious of the backroom deals came after Sen. Ben Nelson (D-NE) requested a 100 percent Medicaid match rate for his home state of Nebraska. The final manager’s amendment introduced by Reid included this earmark—Nebraska would have its entire costs of Medicaid expansion paid for by the federal government forever. But the blowback from constituents and the press became so great that Nelson asked to have the provision removed; the reconciliation measure enacted in March 2010 gave Nebraska the same treatment as all other states.

Gator Aid:” This provision, inserted at the behest of Sen. Bill Nelson (D-FL), and later removed in the reconciliation bill, sought to exempt Florida seniors from much of the effects of the law’s Medicare Advantage cuts.

Louisiana Purchase:” This provision, included due to a request from Sen. Mary Landrieu (D-LA), adjusted the state’s Medicaid matching formula. Landrieu publicly defended the provision—which she said reflected the state’s circumstances after Hurricane Katrina—and it remained in law for several years, but was eventually phased out in legislation enacted February 2012.

While these three provisions captivated the public’s attention, other earmarks and pork provisions abounded inside Obamacare too—a Medicaid funding provision that helped Massachusetts; exemptions from the insurer tax for two Blue Cross carriers; a $100 million earmark for a Connecticut hospital, and health benefits for miners in Libby, Montana, courtesy of then-Senate Finance Committee Chairman Max Baucus (D-MT).

Not only did senators try to keep these corrupt deals in the legislation—notwithstanding the public outrage they engendered—but Reid defended both the earmarks and the horse-trading process that led to their inclusion:

I don’t know if there’s a senator who doesn’t have something in this bill that’s important to them. And if they don’t have something in it that’s important to them, then it doesn’t speak well for them.

It was a far cry from Barack Obama’s 2008 (broken) campaign promise to have all his health care negotiations televised on C-SPAN, “so we will know who is making arguments on behalf of their constituents, and who are making arguments on behalf of the drug companies or the insurance companies.” And it looked like Democrats didn’t really believe in the merits of the underlying legislation, but instead voted to restructure nearly one-fifth of the American economy because they got some comparatively minor pork project for their district back home.

Déjà Vu All Over Again

Democrats lost control of the House in the 2010 elections, and political scientists have attributed much of the loss to the impact of the Obamacare vote. One study found that Obamacare cost Democrats 6 percentage points of support in the 2010 midterm elections, and at least 13 seats in Congress.

But did the rebuke Democrats received for their behavior prompt them to change their ways? Only to the extent that, when they want to ram through a massive piece of legislation no one has bothered to read, they include Republicans in the taxpayer-funded largesse.

Consider last week’s $1.4 trillion spending package: Two bills totaling more than 2,300 pages, which lawmakers introduced on Monday and voted on in the House 24 hours later. Democrats wanted to repeal one set of Obamacare taxes—and in exchange, they agreed to repeal another set of taxes that Republicans (and their K Street lobbying friends) wanted gone. The Obamacare taxes went away, but the Obamacare spending remained, thus increasing the deficit by nearly $400 billion.

And both sides agreed to increase spending in defense and non-defense categories alike. Therein lies the true definition of bipartisanship in Washington: An agreement in which both sides get what they want—courtesy of taxpayers in the next generation, who get stuck with the bill.

It remains a sad commentary on the state of affairs in the nation’s capital that the Obamacare debacle remains an anomaly—the one time when the glare of the spotlight so seared Members seeking pork projects that they dared consider forsaking their ill-gotten gains. To paraphrase the axiom about casinos, in Washington, The Swamp (almost) always wins.

“Cadillac Tax” Repeal “Deal” Is What’s Wrong with Washington

News articles over the weekend reported that Congress later this week may repeal would Obamacare taxes—the “Cadillac tax” on high-cost health plans, and the medical device tax—as part of a larger spending bill. In reality, however, Democrats eventually agreed to repeal not one but two Obamacare industry taxes—the health insurer tax, which costs approximately $150 billion over a decade, along with the medical device tax—in exchange for repeal of the Cadillac tax, which labor unions want because of their cushy health insurance offerings.

According to The Hill:

On a separate front on ObamaCare, the spending deal repeals three major taxes that had helped fund the law’s coverage expansion. The deal will repeal a 40 percent tax on generous “Cadillac” health plans, the 2.3 percent medical device tax and the health insurance tax.

Those are major wins for the health insurance and medical device industries, which had long lobbied to lift those taxes. The Cadillac tax, in addition to providing about $200 billion in funding over 10 years, had been intended to help lower health care spending by incentivizing employers to lower costs to avoid hitting the tax.

On its face, the news sounds like a win for conservatives. Far from it. The way Congress has addressed these issues illustrates all the problems with politics, both procedural and substantive, in the nation’s capital.

Problem 1: Awful Process

Obvious considerations first: Congressional leaders in both parties want to enact the annual spending bills—which run thousands of pages, and spend trillions of dollars—before breaking for the Christmas holidays at week’s end. But congressional leaders only released text of the two bills publicly on Monday night, so there’s no way American citizens, let alone rank-and-file lawmakers, can digest it before Congress decides. As one lawmaker famously said:

The spending bills are 1,773 pages and 540 pages, respectively. (The health care provisions are in the larger of the two bills.) According to the Joint Committee on Taxation, the repeal of the three health care taxes will cost the federal government $387 billion over ten years.

Nearly ten years after a Democratic-controlled Senate passed the massive Obamacare statute on Christmas Eve—laden with pork-barrel provisions like the “Cornhusker Kickback,” the “Louisiana Purchase,” and the “Gator Aid”—a Senate run by Republicans wants to pass a similarly pork-laden spending bill. It brings to mind the old adage attributed to former House Speaker Sam Rayburn: “There is no education in the second kick of a mule.”

President Trump has likewise confronted the problem of Congress passing huge spending bills on short notice before. When presented with a similarly massive—and pork-laden—omnibus bill in March 2018, he famously proclaimed “I will never sign another bill like this again.” Time will tell if he follows through on his promise, but Congress sure isn’t acting like they think he will.

Problem 2: Raising Health Care Costs

The “Cadillac tax” in particular represents one way to address the problem of ever-increasing health costs. Current law allows employers to offer tax-free health benefits to their workers without limit. This dynamic encourages firms to provide overly generous benefits to their employees, leading to the over-consumption of health care.

By encouraging employers and employees to consume health insurance, and thus health care, more wisely, the “Cadillac tax,” despite its flaws, should work to moderate the growth in health care costs. That is, if Congress ever allows it to take effect as scheduled.

As I noted earlier this year, the left has an easy “solution” to the problem of rising health care costs: Regulations and price controls designed to bring down costs through government fiat. These price controls will lead to consequences for our health system, of course—rationing of care most notably—but they do “work,” insofar as they will arbitrarily reduce health spending.

Conservatives who oppose government price controls should embrace solutions like the “Cadillac tax” (or something like it) as one way to slow the growth in health care spending—not least because Democrats enacted the tax as part of Obamacare. Instead, many conservative lawmakers appear poised to endorse its repeal, without an alternative strategy to control health costs instead, because they find it easier to pursue the path of least resistance.

Problem 3: Lack of Discipline

The Congressional Budget Office previously estimated that repealing the “Cadillac tax” would cost the government nearly $200 billion in revenue over a decade, and larger sums in the decades after that. How does Congress propose to replace that revenue? By repealing the medical device and health insurer taxes, of course!

Therein lies the problem in Congress: The current definition of a bipartisan “deal” occurs when both sides get what they want—at the expense of taxpayers, or more specifically future generations. One article notes that “in general medical device tax repeal is more of a priority of Republicans and ‘Cadillac tax’ repeal for Democrats.” That makes this agreement combining repeal of both taxes like an episode of “Oprah’s Favorite Things,” where everyone wins a car.

Except for one minor detail: Our country already faces $23 trillion in debt, and trillion-dollar deficits as far as the eye can see. The “deal” on these two taxes alone will increase that debt by another quarter-trillion dollars (give or take). That number doesn’t include the increased spending arising from Congress’ agreement to bust its spending caps, or all the other ancillary provisions (like a bailout for coal miners) hitching a ride on the “Christmas tree” omnibus.

At some point soon, Congress’ lack of discipline—its inability to say no to spending pledges our country cannot afford—will harm our economic growth and fiscal stability. At that point, the American people will realize that, by constantly trying to play Santa Claus, lawmakers have left a multi-trillion-dollar lump of coal to the next generation, in the form of our rapidly skyrocketing debt.

UPDATE: This post was edited after publication to reflect late-breaking developments concerning the omnibus spending bills.

This post was originally published at The Federalist.

Will Democrats Shut Down the Government to Force Taxpayer Funding of Abortions?

Last week, the Hyde Amendment, which prohibits taxpayer funding of most abortions, became the focus of presidential politics. First Joe Biden said he still supported the amendment, then changed his position one day later, after tremendous political pressure from farther-left Democrats.

But the press should focus less on whether Democrats support taxpayer-funded abortion-on-demand. Virtually all Democrats running for president now support that position, as did the party’s 2016 national platform.

Democrats Don’t Want to Vote on Hyde

For all the focus last week on the Hyde Amendment, named after its prime advocate, the late Rep. Henry Hyde (R-IL), reporters have not focused on the Labor-Health and Human Services spending bill that the House of Representatives will consider this week. The committee-approved bill includes the following language:

SEC. 506. (a) None of the funds appropriated in this Act, and none of the funds in any trust fund to which funds are appropriated in this Act, shall be expended for any abortion.

In other words, an appropriations bill approved by the Democratic-run House Appropriations Committee still includes the Hyde Amendment language. (Subsequent sections exempt cases of rape, incest, or to save the life of the mother—the Hyde Amendment exceptions—from the funding ban.)

Yet the chairwoman of that Committee, Rep. Nita Lowey (D-NY), co-sponsored stand-alone legislation (H.R. 1692) repealing the Hyde Amendment protections that she included in her spending bill.

How Far Will They Go?

Even if Republicans did not control the Senate, 41 pro-life senators could filibuster any measure lacking Hyde Amendment protections, thus preventing the legislation from passing. And of course, President Trump can, and likely would, veto any appropriations bills that omitted pro-life protections on taxpayer funding of abortion.

The likelihood during this Congress of legislation passing that excludes the Hyde Amendment seems infinitesimal. Moreover, such legislation passing during the next Congress could well require 1) a Democrat to win the presidency, 2) Democrats to retake the Senate, and 3) Democrats to agree to end the legislative filibuster, which dozens of them claim they oppose.

This Is All Just Failure Theater

Events in the House this week show that liberal members of Congress are essentially “going through the motions” about repealing the Hyde Amendment. Several of them, led by Rep. Ayanna Pressley (D-MA), offered an amendment to strike Hyde from the spending bill. However, on Monday the House Rules Committee reported a rule for consideration of the underlying bill that did not make the amendment in order.

Likewise, Pressley could have omitted that authorizing language, and submitted a shorter amendment just striking the Hyde provisions. She did not—and that she did not strongly suggests that she and her colleagues wanted to give the House Rules Committee, and therefore Democratic leadership, an “out” to block consideration of her amendment.

Pressley’s office claimed “the Congresswoman believes that she and her colleagues must use every tool and tactic available to fight for reproductive justice.” But if she wanted to use “every tool and tactic,” she would have drafted an amendment without an obvious procedural flaw giving the leadership political cover to reject it. She and her liberal colleagues would also demand a vote on her amendment, and vote against the rule to consider the bill unless and until Democrats give them one.

Pressley didn’t do the former, and when the vote on the rule came on Tuesday, she and her colleagues didn’t do the latter either. Instead, she cut a deal with the leadership whereby everyone could “save face”—as evidenced by the fact that House Rules Committee Chairman Jim McGovern, on the same day he denied her amendment a vote, co-sponsored the stand-alone bill requiring taxpayer funding of abortions.

Flip-Flops Ahead

In the coming months, however, Moulton will face a flip-flop decision of his own, as will the many other Democratic presidential candidates currently serving in Congress. Will they vote for spending bills that include the Hyde Amendment—as any final appropriations package almost certainly must include its provisions to get enacted into law—even though they claim to support repealing the amendment?

On Sunday, Democratic presidential candidate Bernie Sanders (I-VT) laid the groundwork for just such a reversal. In an interview with CNN, he admitted that “sometimes in a large bill you have to vote for things you don’t like.” (That makes a good argument for Congress to stop passing massive spending bills that they don’t bother to read.)

Of course, if Democrats don’t want to flip-flop on taxpayer funding of abortion, they have another alternative: Refuse to pass any spending bills that include the Hyde Amendment provisions. If House Speaker Nancy Pelosi (D-CA) wants to shut the federal government down until Republican lawmakers approve taxpayer-funded abortion-on-demand, well, good luck with that. But if she and her Democratic colleagues don’t want to follow that strategy, then they should get ready to explain to their constituents why they voted for legislation that retained the Hyde Amendment after promising to abolish it.

In crass political terms, Biden didn’t help his candidacy by wavering over the Hyde Amendment last week. But even though they may not yet realize it, most of his fellow presidential candidates may soon have their own flip-flop moments on taxpayer funding for abortion.

This post was originally published at The Federalist.

Congress Prepares to Pass Another Huge Bill No One Has Read. Again.

Stop me if you’ve heard this one before: Congress rams through a massive piece of legislation costing hundreds of billions of dollars without bothering to read it. Meet Congress under a Democratic majority—same as under the old majority.

Late Wednesday evening, congressional leaders still had not publicly released their omnibus appropriations legislation, and were not planning to do so until near midnight—hardly an auspicious time to embark on reading a bill exceeding 1,000 pages.

Those predictions ended up largely on the mark. The bill as introduced amounted to “only” 1,169 pages. But House leaders didn’t post the final version online until 1:20 a.m. on Thursday—the same day as the intended vote.

As Yogi Berra might say, when it comes to Congress’s bipartisan willingness to ram through massive bills, “It’s déjà vu all over again.”

Pelosi Breaks Her Promise

Of all things, Politico reported that one of the major holdups preventing an earlier public release included provisions having nothing to do with government spending—or, for that matter, border security:

“Congressional leaders are still haggling over an extension of the landmark Violence Against Women Act—one of the final hold-ups in a funding deal to avert a shutdown on Friday….One dispute centers on a Democratic push to add protections for transgender people, which the GOP is resisting; meanwhile, Republicans want more time to negotiate a broader deal, according to lawmakers and aides.”

Democrats in the House of Representatives promised that this time would be different. In a summary of their rules package for the 116th Congress—one which they released fewer than six weeks ago, remember—they pledged the following:

“ALLOW TIME TO READ THE BILL Require major bill text to be available for 72 hours before the bill can proceed to the House Floor for a vote. The current House rule only requires slightly more than 24 hours of availability.”

(Emphasis in the original.)

Their rules package did change the prior House rule, which had previously called for a three-calendar-day “reading period”—meaning that a bill promulgated at 11:59 p.m. on Monday could be voted on at 12:01 a.m. Wednesday, barely 24 hours after its release—to allow a full 72 hours for review.

And particularly in this case, Democrats find giving people time to read the bill inconvenient. Even though government funds won’t expire until Friday at midnight—and Congress could always extend that funding temporarily, to allow for more time to review the bill—both chambers want to vote on Thursday. Because heaven forbid Congress 1) do actual work on a Friday and 2) delay their “recess” (read: vacation) and their overseas trips during same. (Democratic leaders claimed their members have been “sufficiently briefed”—because it’s very easy to “brief” someone on most, let alone all, of the contents of a 1,200 page bill.)

In other words, the new House Democratic majority has spent barely one month in office, and we’re already back to Speaker Nancy Pelosi (D-CA), circa 2010: “We have to pass the bill so that you can find out what is in it.”

Garbage In, Garbage Out

After last year’s omnibus fiasco, I wrote that members of Congress only had themselves to blame for the awful process leading to that 2,232 page bill:

“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.”

This post was originally published at The Federalist.

Ocasio-Cortez Wants Congress to Stop Pretending to Pay for Its Spending

Get used to reading more storylines like this over the next two years: The left hand doesn’t know what the far-left hand is doing.

On Wednesday, incoming House Speaker Nancy Pelosi (D-CA) faced a potential revolt from within her own party. Rep.-elect Alexandria Ocasio-Cortez (D-NY) and several progressive allies threatened to vote against the rules package governing congressional procedures on the first day of the new Congress Thursday, because of proposed changes they believe would threaten their ability to pass single-payer health care.

What’s Going On?

Ocasio-Cortez and her allies object to Pelosi’s attempt to reinstate Pay-as-You-Go (PAYGO) rules for the new 116th Congress. Put simply, those rules would require that any legislation the House considers not increase the deficit over five- and ten-year periods. In short, this policy would mean that any bill proposing new mandatory spending or revenue reductions must pay for those changes via offsetting tax increases and/or spending cuts—hence the name.

Under Republican control, the House had a policy requiring spending increases—but not tax cuts—to be paid for. Pelosi would overturn that policy and apply PAYGO to both the spending and the revenue side of the ledger.

Progressives object to Pelosi’s attempt to constrain government spending, whether in the form of additional fiscal “stimulus” or a single-payer health system.

However, Pelosi’s spokesman countered with a statement indicating that the progressives’ move “is a vote to let Mick Mulvaney make across-the-board cuts.” Mulvaney heads the Office of Management and Budget, which would implement any sequester under statutory PAYGO.

Regardless of what the new House decides regarding its own procedures for considering bills, Pay-as-You-Go remains on the federal statute books. Democrats re-enacted it in 2010, just prior to Obamacare’s passage. If legislation Congress passed  violates those statutory PAYGO requirements (as opposed to any internal House rules), it will trigger mandatory spending reductions via the sequester—the “across-the-board cuts” to which Pelosi’s spokesman referred.

To Pay for Spending—Or Not?

Progressives think reinstituting PAYGO would impose fiscal constraints hindering their ability to pass massive new spending legislation. However, the reality does not match the rhetoric from Ocasio-Cortez and others. Consider, for instance, just some of the ways a Democratic Congress “paid for” the more than $1.8 trillion in new spending on Obamacare:

  • A CLASS Act that even some Democrats called “a Ponzi scheme of the first order, the kind of thing Bernie Madoff would have been proud of,” and which never went into effect because the Obama administration could not implement it in a fiscally sustainable manner;
  • Double counting the Medicare savings in the legislation as “both” improving the solvency of Medicare and paying for the new spending in Obamacare;
  • Payment reductions that the non-partisan Medicare actuary considers extremely unlikely to be sustainable, and which could cause more than half of hospitals and nursing homes to become unprofitable within a generation;
  • Tax increases that Congress has repeatedly delayed, and which could end up never going into effect.

A Bipartisan Spending Addiction

An external observer weighing the Part D and Obamacare examples would find it difficult to determine the less dishonest approach to fiscal policy. It reinforces that America’s representatives have a bipartisan addiction to more government spending, and a virtually complete unwillingness to make tough choices now, instead bequeathing massive (and growing) amounts of debt to the next generation.

In that sense, Ocasio-Cortez and her fellow progressives should feel right at home in the new Congress. Republicans may criticize her for proposing new spending, but the difference between her and most GOP members represents one of degree rather than of kind. Therein lies the problem: In continuing to spend with reckless abandon, Congress is merely debating how quickly to sink our country’s fiscal ship.

This post was originally published at The Federalist.

What Mitch McConnell and Congressional Democrats Get Wrong about Entitlements

Sometimes, as parents often remind children in their youth, two wrongs don’t make a right. This held true on Tuesday, when Democrats erupted over comments by Senate Majority Leader Mitch McConnell (R-KY) on entitlement reform.

In returning to “Mediscare” tactics, Democrats made several false claims about entitlements. But so did McConnell, who blithely omitted what a Republican majority did earlier this year to worsen the country’s entitlement shortfall.

What McConnell Got Wrong

McConnell spoke accurately when he said in an interview that Medicare, Social Security, and Medicaid serve as the primary drivers of our long-term debt. He stood on less firm ground when he told Bloomberg that “the single biggest disappointment of my time in Congress has been our failure to address the entitlement issue.” Contra McConnell’s claim, Congress—a Republican Congress—actually did address the entitlement issue this year: they made the problem worse.

This Republican Congress repealed a cap on Medicare spending—the first such cap in that program’s history. It did so as part of a budget-busting fiscal agreement that increased the debt by hundreds of billions of dollars. It did so even though Republicans could have retained the cap on Medicare spending while repealing the unelected, unaccountable board that Democrats included in Obamacare to enforce that spending cap.

By and large, both parties have tried for years to avoid taking on entitlement reform. But Democrats included an actual cap on Medicare spending as part of Obamacare, and Republicans turned around and repealed it at their first possible opportunity. That makes entitlements not just a bipartisan problem—it makes them a Republican problem too.

What Democrats Got Wrong

But McConnell’s comments suggested just the opposite. He noted that, while entitlements serve as the prime driver of the nation’s long-term debt, any changes to those programs “may well be difficult if not impossible to achieve when you have unified government.” McConnell said the same thing in a separate interview with Reuters on Wednesday: “We all know that there will be no solution to that, short of some kind of bipartisan grand bargain that makes the very, very popular entitlement programs in a position to be sustained. That hasn’t happened since the ’80s.”

Even though Congress needs to start reforming entitlements sooner rather than later—even if that means one political party must take the lead—McConnell indicated he would do nothing of the sort. In fact, his comments implied that Congress would not do so unless and until Democrats agreed to entitlement reform, giving the party an effective veto over any changes. Yet Democrats, who never fail to demagogue an issue, attacked him for those comments anyway.

Actually, they haven’t “earned” those benefits. Seniors may have “paid into” the system during their working lives, but the average senior citizen receives far more in benefits than he or she paid in taxes, and the gap continues to grow.

Making a Tough Job Worse

In this case, two wrongs not only did not make a right, they made our country worse off. Like outgoing Speaker of the House Paul Ryan (R-WI), McConnell wishes to absolve himself of blame for the entitlement crisis, when he made the situation worse.

On the other side, Pelosi and her fellow Democrats continue the partisan demagoguery, perpetuating the myth that seniors have “earned” their benefits because they see political advantage in defending nearly infinite amounts of government subsidies to nearly infinite numbers of people. For all their love of attacking “science deniers,” much of the left’s politics requires denying math—that unsustainable trends can continue in perpetuity.

At some point, this absurd game will have to end. When it finally does, our country might not have any money left.

This post was originally published at The Federalist.

If Republicans Can Confirm Kavanaugh, They Can Repeal Obamacare

So Republican lawmakers do have spines after all. Who knew? Last weekend’s confirmation of Brett Kavanaugh to the Supreme Court, notwithstanding the controversies surrounding his nomination, stemmed primarily from two sources.

First, many Republican lawmakers objected to how Democrats politicized the nomination—holding allegations of sexual assault against Kavanaugh for more than a month, then leaking them days before his confirmation.

Lawmakers defied the political controversies, protests, and Kavanaugh’s middling poll numbers, because they felt the need to deliver on a promise they made to voters. Well, if Republicans are going to go all crazy by starting to deliver on their promises, why don’t they deliver on the promise they made for the last four election cycles, by eliminating the health care law that has raised premiums for millions?

Meanwhile, Back at the Ranch

Senate Republicans’ bout of political courage in confirming Kavanaugh belies their other actions in the past several weeks. Even as most of the media generated ridiculous amounts of coverage on the Supreme Court nomination, the noise surrounding such topics as “boofing” allowed Republican lawmakers to renege on other political promises under the radar.

Case in point: The massive spending bill that Congress approved, and President Trump signed, last month. Despite funding most of the federal government, it does not include funding for a border wall. Republicans punted on that fight until after the election—ensuring they’ll never have it.

Mr. ‘Don’t Blink’ Blinked

But the piece de resistance of the spending bill had to come from the way that it fully funded all of Obamacare. Despite funding Obamacare—and breaking so many other promises to voters—only 56 Republicans in the House, and seven in the Senate, voted against the measure.

One Republican who supported rather than opposed the spending bill that broke so many Republican promises? None other than Sen. Ted Cruz. You may recall that in 2013, Cruz mounted a 21-hour speech prodding the Senate to defund Obamacare:

He pleaded with Republican lawmakers to deliver on their promise to voters, exhorting them, “Don’t blink!”

Last month, by voting for legislation that funded Obamacare, Cruz blinked. With “courage” like this, is it any wonder that Cruz faces the fight of his political life in his re-election campaign against Rep. Robert O’Rourke?

It’s no secret why Cruz faces problems, even in a ruby red state like Texas: Conservatives don’t feel particularly motivated to support his re-election. Given that Cruz said one thing about Obamacare five years ago, and acted in a completely contrary manner just before his election, their apathy is not without reason.

Do Your Job, And Keep Your Promises

For the past eight years, Republicans have promised to repeal Obamacare. They have control of Congress for at least the next three months. They could easily pass legislation undoing the measure in that time—provided they have the kind of backbone seen on display during the Kavanaugh nomination.

Some Senate Republicans may have voted for Kavanaugh not just because they support the nominee on his merits, but because they feared what voters would do to them if they did not support him. They should ponder that same dynamic when considering the fate of the health care law. And then they should get back to work, deliver on another promise to voters, and repeal Obamacare.

This post was originally published at The Federalist.

How a CBO Error Could Cost the Pharmaceutical Industry Billions

Government officials often attempt to bury bad news. Aaron Sorkin’s “The West Wing” even coined a term for it: “Take Out the Trash Day.” So it proved last week. A Congressional Budget Office (CBO) document released quietly on Thursday hinted at a major gaffe by the budget agency and its efforts to conceal that gaffe.

In a series of questions for the record submitted following Director Keith Hall’s April 11 hearing before the Senate Budget Committee, CBO admitted the following regarding a change to the Medicare Part D prescription drug program included in this past February’s budget agreement:

When the legislation was being considered, CBO estimated that provision would reduce net Medicare spending for Part D by $7.7 billion over the 2018-2027 period. CBO subsequently learned of a relevant analysis by the Centers for Medicare and Medicaid Services and incorporated that analysis in its projections for the April 2018 Medicare baseline. The current baseline incorporates an estimate that, compared with prior law, [the relevant provision] will reduce net Medicare spending for Part D by $11.8 billion over the 2018-2027 period.

As I wrote at the time, the provision attracted no small amount of controversy at its passage—or, for that matter, since. The provision accelerated the closing of the Part D “donut hole” faced by seniors with high prescription drug costs, but it did so by shifting costs away from the Part D program run by health insurers and on to drug companies.

The pharmaceutical industry was, and remains, livid at the change, which it did not expect, and tried to undo in the March omnibus spending bill. CBO didn’t just get its score wrong on a minor, non-controversial provision—it messed up on a major provision that will over the next decade affect both drug companies and health insurers.

Because the provision substitutes mandatory “discounts” by drug companies for government spending through the Part D program, it saves the government money through smaller Part D subsidies—at least on paper. (That said, the score doesn’t take into account whether drug manufacturers will raise prices in response to the change, which they could well do.) Because seniors actually spend more in the “donut hole” than CBO’s initial projections said, the provision will have a greater impact—i.e., cost the pharmaceutical industry billions more—than the February budget estimate says.

In its response last week, CBO tried to cover its tracks by claiming that “the $4 billion change…accounts for about 2 percent” of the total of $186 billion reduction in estimated Medicare spending over the coming decade due to technical changes incorporated into the revised baseline. But a $4.1 billion scoring error on a provision first projected to save $7.7 billion means CBO messed up its score by more than 53 percent of its original budgetary impact. That’s not exactly a small error.

Moreover, CBO didn’t come clean and publicly admit this error of its own volition. It did so only because Senate Budget Committee Chairman Mike Enzi (R-WY) forced the budget office to do so.

Enzi submitted a question noting that “CBO realized its estimate of a provision [in the budget agreement] was incorrect. Where is the correction featured in the new report?” CBO didn’t “feature” the correction in its April Budget and Economic Outlook report at all—it incorporated the change into the revised baseline without disclosing it, hoping to sneak it by without anyone calling the budget office out on its error.

Since that time, the purportedly “nonpartisan” organization realized it published an incorrect score—off by more than 50 percent—on a high-profile and controversial issue, changed its baseline to account for the scoring error, and said exactly nothing in a 166-page report on the federal budget about the change. If CBO won’t disclose this kind of major mistake on its own, then its “transparency efforts” seem like so much noise—a distraction designed to keep people preoccupied from focusing on errors like the Part D debacle.

To view it from another perspective: Any head of a private company whose analysis of a multi-billion-dollar transaction proved off by more than 50 percent, because his staff did not access relevant information available to them at the time of the analysis, would face major questions about his leadership, and could well lose his job. But judging from his desire to conceal this scoring mistake, the CBO director apparently feels no such sense of accountability.

Thankfully, however, members of Congress have tools available to fix the rot at CBO, up to and including replacing the director. Given the way CBO attempted to conceal the Part D scoring fiasco, they should start using them.

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.

Conservatives Have Themselves to Blame for Ominous Omnibus

Several years ago, I kvetched to a friend about various ways I found myself unhappy with my life. My friend listened attentively, and when I had finished, responded calmly and succinctly: “Well, what are you going to do about it?”

Conservative members of Congress face a similar dilemma this week, as they return to Washington for the first time since Congress passed a massive omnibus spending bill just before Easter. Politico last week highlighted senators’ concerns about a closed process in the Senate. Sen. John Kennedy (R-LA) went so far as to say the floor process, and the lack of amendment votes, “sucks.”

Consider the floor process in the House. The morning after Congress passed the omnibus, a staffer bragged to me about how his boss voted against the sprawling spending legislation. But my follow-up query spoke volumes: “Did your boss vote against the rule allowing for consideration of the bill?” The staffer hung his head and said that he hadn’t.

Therein lies the problem. Fully 210 Republican members of Congress voted to approve a rule that allows the House of Representatives to vote on a 2,232-page bill a mere 16 hours after its public release. In so doing, they blessed House leadership’s tactics of negotiating a budget-busting bill in secret, springing it on members without time to read it, and ramming it through Congress in a take-it-or-leave it fashion.

Or, to put it another way, those 210 Republican members of Congress signed their judgment over to the Republican leadership, which made all the decisions that mattered regarding the bill. Conservatives complained that, for the rule governing debate on the omnibus, House Republican leaders gaveled the vote to a close too quickly. Fully 25 Republicans did vote against the rule bringing the omnibus to the House floor, and if a few more that wanted to vote no had been given time to do so, the rule might have failed.

The conservatives who would not vote against the rule governing the omnibus also bear responsibility for the next omnibus. Had conservatives voted down the rule governing the omnibus, they could have demanded concessions to prevent future instances of congressional leaders ramming massive spending bills down Congress’ throat.

For instance, they could have demanded that Senate Majority Leader Mitch McConnell (R-KY) commit the upper chamber to passing a budget, and considering spending bills individually on the Senate floor this summer. But because not enough conservatives voted against the rule, they received exactly no procedural concessions, ensuring Congress will resort to another massive, catch-all omnibus spending bill late this year or early next.

A very similar dynamic exists in the Senate. Despite their complaints, Kennedy and his Senate colleagues have failed to use their considerable powers to demand changes to that process. In the Senate, a single member can make long speeches, object to passing legislation by unanimous consent, and object to routine procedural requests. One senator or a handful of senators using such tactics for any period of time would quickly attract the attention of Senate leaders—and could prompt a broader discussion about how to open up Senate floor debate.

In democracies, people generally get the type of government they deserve. That axiom applies as much to the internal functioning of Congress as it does to Congress’ role in the country as a whole. If members of Congress don’t like the process their leaders have developed for debating (or not debating) legislation, they need only look in the mirror.

This post was originally published at The Federalist.