Republicans’ Mixed Messages on Federalism

Care to take a guess how many Republican senators are willing to take a stand over federalism? Would you believe just two?

On Monday night, when the Senate considered legislation sponsored by Sen. Susan Collins (R-ME) about “gag clauses” in pharmaceutical contracts, only Utah’s Mike Lee and Kentucky’s Rand Paul voted no. Lee and Paul do not believe the federal government has any business providing for blanket regulation of the health-care sector.

Gag Clauses, Explained

I have experienced the distorted ways the drug pricing system currently operates. When looking to refill a prescription for one of my antihistamines, my insurance benefit quoted me a charge of $170 for a 90- to 100-day supply. But when I went online to GoodRX.com, I found online coupons that could provide me the same product, in the same quantities, for a mere $70-80, depending on the pharmacy I chose.

I found even greater discounts by purchasing in bulk. I ended up buying a nearly one year’s supply of my maintenance medication for $210—little more than the price for a 90-100 day supply originally quoted to me by my insurer. Had I used my insurance card, and refilled the prescription repeatedly, I would have paid approximately $300 more over the course of a year. Because my Obamacare insurance is junk, I have little chance of reaching my deductible this year, short of getting hit by a bus, so it made perfect sense for me to pay with cash instead.

In theory, anyone can go to GoodRX.com (with which I have no relationship except as a satisfied consumer), or other similar websites, to find the cash price of prescription drugs and compare them to the prices quoted by their insurers. But in practice, few try to shop around for prescription drugs.

Why Federalism Matters

In general, conservatives would support efforts to increase transparency within the health-care marketplace, and prohibiting “gag clauses” would do just that. However, some conservatives would also note that the McCarran-Ferguson Act of 1947 devolves the business of regulating insurance, including health insurance, to the states, and that the states could take the lead on whether or not to eliminate “gag clauses” in insurance contracts. Indeed, a majority of states—26 in total—have already done so, including no fewer than 15 state laws passed just this year.

Lee’s office reached out to me several weeks ago for technical assistance in drafting an amendment designed to limit the scope of federal legislation on “gag clauses” to those types of insurance where the federal government already has a regulatory nexus. Lee ultimately offered such an amendment, which prohibited “gag clauses” only for self-insured employer plans—regulated by the federal government under the Employee Retirement Income Security Act of 1974 (ERISA).

Unfortunately, only 11 senators—all Republicans—voted for this amendment, which would have prevented yet another intrusion by the federal government on states’ affairs. Of those 11, only Lee and Paul voted against final passage of the bill, due to the federalism concerns.

More Federalism Violations Ahead?

One of the prime sponsors of the discussion draft? None other than Sen. Bill Cassidy (R-LA), the author of legislation introduced last year that he claimed would “give states significant latitude over how [health care] dollars are used to best take care of the unique…needs of the patients in each state.”

The contradiction between Cassidy’s rhetoric then and his actions now raise obvious questions: How can states get “significant latitude over” their health care systems if Washington-based politicians like Cassidy are constantly butting in with new requirements, like the “surprise medical bill” regulation? Or, to put it another way, why does Cassidy think states are smart enough to manage nearly $1.2 trillion in Obamacare funding, but too stupid to figure out how to solve problems like drug price “gag clauses” and “surprise bills?”

Politics Versus Principle

The widely inconsistent behavior of people like Cassidy raises the possibility that, to some, federalism represents less of a political principle to follow than a political toy to manipulate. When Washington lawmakers want to punt a difficult decision—like how to “repeal” Obamacare while “replacing” it with an alternative that covers just as many people—they can hide behind federalism to defer action to the states.

Reagan had another axiom that applies in this case: That there is no limit to what a person can do if that person does not mind who gets the credit. Lawmakers in literally dozens of states have acted on “gag clauses,” but that matters little to Collins, who wants the federal government to swoop in and take the credit—and erode state autonomy in the process.

It may seem novel to most of official Washington, but if lawmakers claim to believe in federalism, they should stick to that belief, even when it proves inconvenient.

This post was originally published at The Federalist.

Republicans’ Spending Dilemma, In One Tweet

Most of official Washington woke up apoplectic on Sunday, when a tweet from President Trump invoked “the Swamp’s” most dreaded word: “Shutdown.”

Put aside for a moment specific questions about the wall itself—whether it will deter illegal immigration, how much to spend on it, or even whether to build it. The Trump tweet illustrates a much larger problem facing congressional Republicans: They don’t want to fight—about the wall, or about much of anything, particularly spending.

Voting for the Mandate after They Voted Against It?

Take for instance an issue I helped raise awareness of, and have helped spend the past several weeks tracking: The District of Columbia’s move to re-establish a requirement on district residents to purchase health insurance.

As I wrote last week, Sen. Ted Cruz (R-TX) offered an amendment in the Senate that would defund this mandate. The amendment resembles one that Rep. Gary Palmer (R-AL) offered in the House, and which representatives voted to add to the bill. If a successful vote on the Cruz amendment inserted the provision in the Senate version of the bill, the defunding amendment would presumably have a smooth passage to enactment.

So what’s holding it up? In a word, Republicans. According to Senate sources, Republican leaders—and Republican members of the Appropriations Committee—don’t want to vote on Cruz’s amendment. Several outside groups have stated they will key-vote in favor of the amendment, and the leadership types don’t want to vote against something that many conservative groups support.

Are Democrats Running Congress?

In short, because Democrats might object. Appropriations measures need 60 votes to break a Senate filibuster, and Democrats have said they will not vote for any bill that includes so-called “poison pill” appropriations riders. The definition of a “poison pill” of course lies in the eyes of the beholder.

Politico wrote about the spending process six weeks ago, noting that new Senate Appropriations Committee Chairman Richard Shelby (R-AL) and Ranking Member Pat Leahy (D-VT) “have resolved to work out matters privately. Both parties have agreed to hold their noses to vote for a bill that they consider imperfect, but good enough.”

That “kumbaya” dynamic has led Senate Republican leaders and appropriators to try and avoid the Cruz amendment entirely. They don’t want to vote against the amendment, because conservatives like me support it and will (rightly) point out their hypocrisy if they do. But they don’t want the amendment to pass either, because they fear that Democrats won’t vote to pass the underlying bill if it does. So they hope the amendment will die a quiet death.

Conservatives Get the Shaft—Again

At this point some leadership types might point out that it’s easy for people like me to sit on the sidelines and criticize, but that Republicans in Congress must actually govern. That point has more than a grain of truth to it.

On the other hand, “governing” for Republicans usually means “governing like Democrats.” Case in point: The sorry spectacle I described in March, wherein Republican committee chairmen—who, last I checked, won election two years ago on a platform of repealing Obamacare—begged Democrats to include a bailout of Obamacare’s exchanges in that month’s 2,200-page omnibus appropriations bill.

The chairmen in question, and many Republican leaders, feared the party will get blamed in the fall for premium increases. So they decided to “govern” by abandoning all pretense of repealing Obamacare and trying to bolster the law instead, even though their failure to repeal Obamacare is a key driver of the premium increases driving Americans crazy.

With an election on the horizon, bicameral negotiations surrounding the spending bill could get hairy in September, because two of the parties come to the table with fundamentally different perspectives. Republican congressional leaders worry about what might happen in November if they fail to govern because they stood up for conservative policies. Trump worries about what might happen if they don’t.

UPDATE: On Wednesday afternoon, the Senate voted to table the Cruz amendment blocking DC’s individual mandate. Five Republicans who voted to repeal the individual mandate in tax reform legislation last fall — Louisiana’s Bill Cassidy, Maine’s Susan Collins, Alaska’s Lisa Murkowski, Alabama’s Richard Shelby, and Utah’s Orrin Hatch — voted to table, or kill, the amendment.

Because the vote came on a motion to table, senators may attempt to argue that the vote was procedural in nature, and did not represent a change in position on the mandate. Shelby, the chair of the Appropriations Committee, said he supported the underlying policy behind the Cruz amendment, but voted not to advance the amendment because Democrats objected to its inclusion.

This post was originally published at The Federalist.

Rescissions Package Shows Washington’s Spending Problem

Talk about swampy: Republicans control the House, the Senate, and the White House, yet even token attempts to reduce spending cannot succeed.

Last week’s failure of a $15 billion package of rescissions (i.e., spending cuts) that the administration had proposed partly reflected the narrow Republican majority in the Senate. With Republicans’ one-vote margin, objections by Sens. Susan Collins (R-ME) and Richard Burr (R-NC) sank the measure in a 48-50 vote.

Health Care: Dems Demagogue, GOP Caves

Nearly half of the proposed savings, approximately $7 billion, in the rescissions package came from the State Children’s Health Insurance Program (SCHIP)—roughly $5.1 billion in unobligated balances, and $1.9 billion in child enrollment contingency funds for the current fiscal year that ends in September.

Liberals claimed the rescissions package would “gut” the contingency fund and “put the health of children at risk.” However, the Congressional Budget Office (CBO) last month noted that, with respect to the $5.1 billion in unobligated SCHIP balances, “authority to distribute the funds to states…expired in 2017.”

CBO also “projected that the rescission from the child enrollment contingency fund would not affect payments to states.” In sum, the budget office concluded that the $7 billion rescission “would not affect…the number of individuals with insurance coverage.”

Had Republicans stuck to their prior principles on SCHIP, much of the rescissions package would have proved unnecessary. Congress never would have authorized the funds in the first place, eliminating the need to rescind that spending. They did not. Collins voted against the package because of the SCHIP funds, while Sen. Lisa Murkowski (R-AK) voted to support it, but very begrudgingly.

Parochial Interests Clip the Other Vote

The other Senate Republican no vote came from Burr, a surprise opponent of the measure. Burr said he opposed the package’s $16 million reduction in funding for the Land and Water Conservation Fund.

Burr’s staff told the Washington Post they had not received assurances that Burr could receive a vote on an amendment striking the land and water reduction from the package, leading the senator to oppose the procedural motion to bring the package to the floor.

On the other hand, killing a $15 billion spending reduction package over literally 0.1 percent of its contents seems more than slightly absurd. With the federal debt at $21 trillion and rising, if Congress will not act on this package—buckets of unspent money lying around at agencies, like spare change under the proverbial couch cushions—when will it discover fiscal discipline?

All Dessert, No Spinach

The defeat of this rescissions package means another may not follow in short order. The administration wanted to propose reductions in spending from March’s omnibus legislation. But appropriators like Senate Majority Leader Mitch McConnell (R-KY) said that one party clawing back money included in a bipartisan budget deal might impede Congress’ ability to pass budget-busting legislation in the future. (Quelle horreur!)

The administration relented in the short-term, hoping to start a virtuous cycle of fiscal responsibility and set spending-reducing precedent they could build upon. Unfortunately, however, the administration failed to recognize the magnitude of this Congress’ bipartisan addiction to federal spending.

Sooner or later, Congress will end up passing spending reductions of a much larger scale than last week’s rescissions package. That they failed to start that task when they had an easy opportunity—the lowest of the low-hanging fruit—will make the spending reductions Congress ultimately enacts that much larger, and more painful.

This post was originally published at The Federalist.

Summary of Health Care “Consensus” Group Plan

Tuesday, a group of analysts including those at the Heritage Foundation released their outline for a way to pass health-care-related legislation in Congress. Readers can find the actual health plan here; a summary and analysis follow below.

What Does the Health Plan Include?

The plan includes parameters for a state-based block grant that would combine funds from Obamacare’s insurance subsidies and its Medicaid expansion into one pot of money. The plan would funnel the block grant funds through the State Children’s Health Insurance Program (SCHIP), using that program’s pro-life protections. In general, states using the block grant would:

  • Spend at least half of the funds subsidizing private health coverage;
  • Spend at least half of the funds subsidizing low-income individuals (which can overlap with the first pot of funds);
  • Spend an unspecified percentage of their funds subsidizing high-risk patients with high health costs;
  • Allow anyone who qualifies for SCHIP or Medicaid to take the value of their benefits and use those funds to subsidize private coverage; and
  • Not face federal requirements regarding 1) essential health benefits; 2) the single risk pool; 3) medical loss ratios; and 4) the 3:1 age ratio (i.e., insurers can charge older customers only three times as much as younger customers).

Is That It?

Pretty much. For instance, the plan remains silent on whether to support an Obamacare “stability” (read: bailout) bill intended to 1) keep insurance markets intact during the transition to the block grant, and 2) attract the votes of moderate Republicans like Alaska Sen. Lisa Murkowski and Maine Sen. Susan Collins.

As recently as three weeks ago, former Sen. Rick Santorum was telling groups that the proposal would include the Collins “stability” language. However, as I previously noted, doing so would likely lead to taxpayer funding of abortion coverage, because there are few if any ways to attach pro-life protections to Obamacare’s cost-sharing reduction payments to insurers under the special budget reconciliation procedures the Senate would use to consider “repeal-and-replace” legislation.

What Parts of Obamacare Would the Plan Retain?

In short, most of them.

Taxes and Medicare Reductions: By retaining all of Obamacare’s spending, the plan would retain all of Obamacare’s tax increases—either that, or it would increase the deficit. Likewise, the plan says nothing about undoing Obamacare’s Medicare reductions. By retaining Obamacare’s spending levels, the plan would maintain the gimmick of double-counting, whereby the law’s payment reductions are used both to “save Medicare” and fund Obamacare.

Insurance Regulations: The Congressional Research Service lists 22 separate new federal requirements imposed on health insurance plans under Obamacare. The plan would retain at least 14 of them:

  1. Guaranteed issue of coverage—Section 2702 of the Public Health Service Act;
  2. Non-discrimination based on health status—Section 2705 of the Public Health Service Act;
  3. Extension of dependent coverage—Section 2714 of the Public Health Service Act;
  4. Prohibition of discrimination based on salary—Section 2716 of the Public Health Service Act (only applies to employer plans);
  5. Waiting period limitation—Section 2708 of the Public Health Service Act (only applies to employer plans);
  6. Guaranteed renewability—Section 2703 of the Public Health Service Act;
  7. Prohibition on rescissions—Section 2712 of the Public Health Service Act;
  8. Rate review—Section 2794 of the Public Health Service Act;
  9. Coverage of preventive health services without cost sharing—Section 2713 of the Public Health Service Act;
  10. Coverage of pre-existing health conditions—Section 2703 of the Public Health Service Act;
  11. Summary of benefits and coverage—Section 2715 of the Public Health Service Act;
  12. Appeals process—Section 2719 of the Public Health Service Act;
  13. Patient protections—Section 2719A of the Public Health Service Act; and
  14. Non-discrimination regarding clinical trial participation—Section 2709 of the Public Health Service Act.

Are Parts of the Health Plan Unclear?

Yes. For instance, the plan says that “Obamacare requirements on essential health benefits” would not apply in states receiving block grant funds. However, Section 1302 of Obamacare—which codified the essential health benefits requirement—also included two other requirements, one capping annual cost-sharing (Section 1302(c)) and another imposing minimum actuarial value requirements (Section 1302(d)).

Additionally, the plan on two occasions says that “insurers could offer discounts to people who are continuously covered.” House Republicans offered a similar proposal in their American Health Care Act last year, one that imposed penalties on individuals failing to maintain continuous coverage.

However, the plan includes no specific proposal on how insurers could go about offering such discounts, as the plan states that the 3:1 age rating requirement—and presumably only that requirement—would not apply for states receiving block grant funds. It is unclear whether or how insurers would have the flexibility under the plan to offer discounts for continuous coverage if all of Obamacare’s restrictions on premium rating, save that for age, remain.

This post was originally published at The Federalist.

Bill Cassidy’s New Health Plan Is Obamacare on Steroids

On Tuesday, Sen. Bill Cassidy (R-LA) released a policy white paper with ideas he claimed would “make health care affordable again.” By and large, however, the plan would do no such thing.

Some of the plan’s ideas—promoting consumer transparency in health care, for instance, promoting primary care, and cracking down on monopolistic practices that impede competition—have merit, although people can quibble with the extent to which Washington can, or should, solve those problems.

Fake Flexibility

Cassidy bases his plan on a state-based block-grant funding model, similar to the legislation he and Sen. Lindsey Graham (R-SC) developed last fall. Cassidy cites various state experimental programs to argue that a block-grant approach would allow more room for innovation.

However, the last sentence of the proposal undermines the rest of the discussion: “Flexibility to states would not jeopardize protections for individuals with pre-existing conditions.” That phrase implies that Cassidy believes, as the Graham-Cassidy bill indicated, that Obamacare’s federal insurance requirements regarding pre-existing conditions should remain in place.

That sentence belies the idea that states would get true flexibility to construct their insurance markets however they like. Instead, the Cassidy plan would represent a variation on Obamacare, whose state waiver program essentially lets them add more requirements and more government to their insurance markets, but not take requirements away. Put another way, the Cassidy plan would give states the “flexibility” to do what Bill Cassidy wants them to do, and only what Bill Cassidy wants them to do. That isn’t flexibility at all.

Costly Requirements Remain in Place

For instance, loosening Obamacare’s essential health benefits while keeping the pre-existing condition requirements will encourage insurers to stop covering treatments like chemotherapy. Because they must continue to accept all sick patients, and charge them the same rates as healthy ones, insurers will try to limit their losses by not covering cancer drugs, thereby discouraging cancer patients from applying for coverage.

The combination of these two policy dilemmas could result in the worst of all possible worlds, from both a political and policy standpoint: A plan that does not reduce premiums appreciably—because it keeps the most costly federal insurance requirements intact—yet still encourages insurers to discriminate against the sick.

Throwing Money at the Problem

Rather than trying to solve the problems Obamacare’s federal insurance requirements have caused, as I previously suggested, Cassidy’s plan goes to great lengths to avoid them. He endorses the health insurance “stability” (read: bailout) measure proposed by Sens. Susan Collins (R-ME) and Lamar Alexander (R-TN) earlier this year. Rather than lowering premiums by removing the federal insurance requirements, that plan would lower premiums—albeit only temporarily—by throwing more taxpayer funds at insurers.

Moreover, the need for more federal funding belies Cassidy’s claim that his plan would “make health care affordable again.” States should not need any more funding to encourage insurance enrollment, particularly if they receive sufficient flexibility from federal requirements to bring down premiums. Cassidy knows that any flexibility will prove illusory. As with a “stability” package, he proposes making coverage more “affordable” by throwing other people’s money at the problem.

Neither Repeal Nor Reform

I wrote last April, well before lawmakers ever contemplated the Graham-Cassidy measure, that “Republicans have a choice: They can either retain the ban on pre-existing condition discrimination—and the regulations and subsidies that go with it—or they can fulfill their promise to repeal Obamacare.” Judging from the ideas in his policy paper, Cassidy has made his choice: He supports Obamacare.

But more of the same—more spending to finance the same costly insurance because of the same costly federal insurance requirements—doesn’t constitute a repeal of Obamacare. It doesn’t even come close. Would that Cassidy, and his colleagues in Congress, actually thought about keeping their word and enacting the repeal they promised.

This post was originally published at The Federalist.

Does the Heritage Health Plan Include Taxpayer Funding of Abortion?

When lawmakers write legislation, little details matter—a lot. In the case of a health plan that the Heritage Foundation and former Sen. Rick Santorum (R-PA) are reportedly preparing to release in the coming days, a few words indicate the plan has not considered critically important details—like how Senate procedure intertwines with abortion policy—necessary to any substantive policy endeavor.

A few short words in a summary of the Heritage plan leave the real possibility that the plan, if enacted as described, could lead to taxpayer funding of abortion coverage. Either Heritage and Santorum—both known opponents of abortion—have undertaken dramatic changes in their pro-life positions over the past few months, or they have failed to think through the full import of the policies they will release very shortly.

However, multiple individuals participating in the Heritage meetings told me that the concepts and policies Spiro’s document discusses align with Heritage discussions. Spiro may have created that document based on verbal descriptions given to him of the Heritage plan (just as the New York Times’ list of questions Robert Mueller wants to ask President Trump likely came via Trump’s attorneys and not Mueller). But regardless of who created it, people in the Heritage group told me it accurately outlined the policy proposals under discussion.

What Cost-Sharing Reductions Do

The summary describes many policies, but one in particular stands out: Under “Short-term stabilization/premium relief,” the plan “Adopts the [Lamar] Alexander and [Susan] Collins appropriation for CSRs [cost-sharing reductions] and state reinsurance/high risk pool programs for 2019 and 2020.”

On one level, this development should not come as a surprise. Party leaders often incorporate recalcitrant members’ pet projects (or, in the old days, earmarks) into a bill to obtain their votes: “See, we included the language that you wanted—you have to vote for our bill now!” Given that Collins as of last week had not even heard about the Heritage-led effort, one might think she would need some incentive to support the measure, which attaching her “stability” language might provide.

About the Hyde Amendment and Byrd Rule

The reference to CSRs takes on more importance because of the way Congress would consider Heritage’s plan. As with the Graham-Cassidy bill and other “repeal-and-replace” bills considered last year, the Senate would enact them using expedited budget reconciliation procedures.

Those procedures theoretically allow all 51 Senate Republicans to circumvent a Democratic filibuster and pass a reconciliation bill on a party-line vote. However, as I outlined last year, the reconciliation process comes with procedural restrictions (i.e., the “Byrd rule”) to prevent senators from attaching “extraneous” and non-budgetary matter to a bill that cannot be filibustered.

“Hyde amendment” restrictions—which prevent federal funding of abortion coverage, except in the cases of rape, incest, or to save the life of the mother—represent a textbook example of the “Byrd rule,” because they have a fiscal impact “merely incidental” to the policy changes proposed. Former Senate Parliamentarian Bob Dove said as much about abortion restrictions Congress considered in 1995:

The Congressional Budget Office determined that it was going to save money. But it was my view that the provision was not there in order to save money. It was there to implement social policy. Therefore I ruled that it was not in order and it was stricken.

After pushing for a vote for months, Collins suddenly backed off and didn’t force the issue on the Senate floor. She knew she didn’t have the votes—everyone knew she didn’t have the votes—because Democrats wouldn’t support a measure that restricted taxpayer funding of abortion coverage. Exactly nothing has changed that dynamic since Congress considered the issue in March.

Why We Can’t Fund CSRs

Republicans recognize the problems the abortion funding issue creates, and the Graham-Cassidy bill attempted to solve them by providing subsidies via a block grant to states. Graham-Cassidy funneled the block grant through the State Children’s Health Insurance Program (SCHIP), largely because the SCHIP statute includes the following language: “Funds provided to a state under this title shall only be used to carry out the purposes of this title, and any health insurance coverage provided with such funds may include coverage of abortion only if necessary to save the life of the mother or if the pregnancy is the result of an act of rape or incest.”

Because SCHIP already contains full Hyde protections on taxpayer funding of abortion, Graham-Cassidy ran the block grant program through SCHIP. Put another way, Graham-Cassidy borrowed existing Hyde amendment protections because any new protections would get in a budget reconciliation bill. It did the same thing for a “stability” fund for reinsurance or other mechanisms intended to lower premiums by subsidizing insurers, also referred to in Spiro’s document.

Creating a pot of money elsewhere in law—for instance, through the SCHIP statute, which does contain Hyde protections—and using that money to compensate insurers for reducing cost-sharing would prove just as unrealistic. The CSR payments reimburse insurers for discrete, specific discounts provided to discrete, specific low-income individuals.

If the subsidy pool gave money to all insurers equally, regardless of the number of low-income enrollees they reduced cost-sharing for, then insurers would have a ready-built incentive to avoid attracting poor people, because enrolling low-income individuals would saddle them with an unfunded (or only partially funded) mandate. If the subsidy pool gave money to insurers based on their specific obligations under the Obamacare cost-sharing reduction requirements, then the parliamentarian would likely view this language as an attempt to circumvent the Byrd rule restrictions and strike it down.

Not Ready for Prime Time

Four participants in the Heritage meetings told me the group has discussed appropriating funds for CSR payments to insurers as part of the plan. Not a single individual said the Senate’s “Byrd rule” restrictions—which make enacting pro-life protections for such CSR payments all-but-impossible—came up when discussing an appropriation for cost-sharing payments to insurers.

That silence signals one or more potential problems: A lack of regard for pro-life policy; an ignorance of Senate procedure, and its potential ramifications on the policies being considered; or a willingness to fudge details—allowing people to believe what they want to believe. Regardless, it speaks to the unformed nature of the proposal, despite meetings that have continued since the last time “repeal-and-replace” collapsed” nearly eight months ago.

Earlier this month, Santorum claimed in an interview that while the original “Graham-Cassidy was a rush…this time we have the opportunity to get the policy better.” But any serious attempt to “get the policy better” wouldn’t have major lingering questions about tens of billions of dollars in “stability” funding, and whether such funds would subsidize abortion coverage, mere days before its public release. In this case, eight months of deliberations may not lead to a deliberative and coherent policy product.

This post was originally published at The Federalist.

This American Life Doesn’t Understand This American Government

The most recent episode of NPR’s “This American Life” continues a line of liberal laments that the legislative process does not work, and blames most of that ineffectiveness on a single source: Donald Trump. (Shocker there.)

But the idea of removing Trump to Make Congress Great Again doesn’t hold up to scrutiny. Even if it did, such a development would not comport with the Framers’ design of our government, which put the “deliberative” in “deliberative process” far more than the modern-day Left would prefer.

“This American Life” correspondent Zoe Chace laments that the popularity of DACA—which covers individuals brought to the United States illegally as children—has impeded its enactment into law. She thinks lawmakers have used its popularity

as a spoonful of sugar to make tougher immigration measures easier to swallow—stuff like border security, restricting visas, or on the Democrat side, legalizing even more immigrants. That’s the curse of DACA. The most valuable thing about it, on Capitol Hill anyway, is the possibility that it could be used to pass other stuff. So even though we’re a democracy, even though 80% of the country wants DACA, the country doesn’t get what it wants because there’s no incentive for Congress to just put it to a straight up or down vote.

Having castigated Congress for using DACA “to pass other stuff,” Chace spends much of the episode highlighting Flake’s attempts to use “other stuff”—namely, tax reform—to pass DACA.

Looks Can Be Deceiving

Chace calls Flake “the most powerful senator in Congress right now.” Having announced his retirement, Flake has no political constituency to appease. That dynamic, combined with the current Senate split of 50 Republicans and 49 Democrats—Republican John McCain is recovering from cancer treatment in his home state of Arizona—at first blush gives Flake significant leverage.

Second, to pass the Senate, DACA requires not 50 votes, but 60, as most legislation needs a three-fifths majority to overcome a potential filibuster. The tax legislation, enacted under special budget reconciliation procedures, stands as an exception that proves the general rule that would apply to any DACA bill.

Third, by favorably viewing Flake’s attempt (which he privately admits to Chace is a bluff) to tie his tax reform vote to a commitment from leadership to take up DACA legislation, Chace supports the very problem she criticizes—namely, lawmakers using one bill or issue to “pass other stuff.”

Chace’s criticism of the legislative process therefore comes across as inherently self-serving. She doesn’t object to senators using unrelated matters as leverage. For example, she applauds Flake for threatening to hijack the tax bill over immigration, so much as she objects to senators using other matters as leverage on her issue: passing DACA. That double standard, coupled with an ignorance of basic constitutional principles, leads to some naïve misunderstandings.

Let’s Review Some of Those

That principle leads to the “other stuff” dynamic Chace described, because lawmakers have other competing priorities to navigate. Some might support DACA, but only if they receive something they perceive as more valuable in exchange—border security, for instance, or a broader immigration deal.

Occasionally lawmakers take this concept too far, but the system tends to self-correct. As the episode notes, Democrats’ tactics led to a partial government shutdown in January, as Senate Democrats refused to pass spending bills keeping the federal government operating unless Republicans committed to enact a DACA measure with it—“other stuff,” in other words.

But although most Democrats support DACA, they divided over the hardball, hostage-taking tactics that tied passing spending bills to enacting an immigration measure. That division and public pressure over the shutdown led them to beat a hasty retreat.

In 2007, under President George W. Bush an immigration bill famously failed on the Senate floor, in part because then-senator Obama and other liberals voted to restrict the number of guest workers permitted into the United States—a key provision necessary to win Republican votes.

Consider a Case Study in Virginia

To view the immigration debate in a nutshell, one need look no further than Rep. Eric Cantor (R-VA). Or, to be more precise, former Rep. Eric Cantor. In June 2014, Cantor lost his Republican primary to an upstart challenger in Dave Brat. Outrage over the possibility that the House might pass an immigration bill the Senate’s “Gang of Eight” muscled through in 2013 helped Cantor go down to primary defeat, and ended any debate on immigration in the 113th Congress (again, well before most people thought Trump would run for president, let alone win).

The way Cantor’s 2014 defeat changed the landscape on immigration in Congress illustrates that, while not a direct democracy, the American system remains responsive to democratic principles, even if they resulted in an outcome (i.e., inaction on immigration) Chace would decry. Chace might argue that a June primary election where only 65,017 Virginia residents voted—only about one-sixth the number who voted in that district’s November 2016 general election—should not determine the fate of immigration legislation nationwide.

But by making it difficult to enact legislation, the American system of government accounts for intensity of opinion as well as breadth of opinion. In the case of Cantor, a group of 36,105 Virginia residents who voted for Brat—many of whom cared strongly about stopping an immigration bill—sent a message on behalf of the hundreds of thousands of Virginia residents who didn’t care enough to vote in the Republican primary election. (Virginia conducts open primaries, in which voters can choose either party’s ballot, so any resident could have voted for or against Cantor in the Republican primary.)

That outcome might resonate with a former resident of Cantor’s district, Virginia’s own James Madison. In Federalist 10, Madison wrote of how a geographically diverse country would make it difficult for any one faction to command a majority, and impose its will on others. In Federalist 51, Madison returned to the topic of limiting government’s power by separating its responsibilities among co-equal branches: “Ambition must be made to counteract ambition.”

The stalemate on immigration and DACA would likely prove quite satisfactory to Framers like Madison, who feared government’s powers and purposefully looked to circumscribe them. To the modern Left, however, a constitutional government with limited authority seems an antiquated and inconvenient trifle.

‘Slow Government’ Complaints Are Way Older than Trump

Although Chace’s report claims that congressional dysfunction “has changed in ways that are very specific to Donald Trump,” liberals have criticized government inaction for decades. In “The System: The American Way of Politics at the Breaking Point,” Haynes Johnson and David Broder use their seminal analysis of the rise and fall of “HillaryCare” to decry a Washington “incapable as a nation of addressing the major long-term problems facing the society:”

At no point, we believe, has the cumulative assault on the idea of responsible government been so destructive of the very faith in the democratic system as now. A thoroughly cynical society, deeply distrustful of its institutions and leaders and the reliability of information it receives, is a society in peril of breaking apart.

Again, these words far precede any Trump administration. Broder and Johnson wrote them in 1996, while the tycoon looked to rebuild his empire following several corporate bankruptcies.

As “This American Life” notes, Trump has proved more indecisive legislatively than most presidents did. The episode highlights how Trump went from supporting any immigration bill Congress would send him to imposing major new conditions on same in the matter of hours. That series of events illustrated but one of Trump’s many reverses on legislation.

For instance, Trump famously called the American Health Care Act “mean” in a closed-door meeting weeks after Republican representatives voted to approve the legislation, and Trump publicly praised them for doing so. But presidents prior to Trump have also engaged in legislative U-turns or ill-conceived maneuvers.

In his 1994 State of the Union message, Bill Clinton threatened to veto any health-care bill that did not achieve universal coverage. As Johnson and Broder recount, that was a major tactical mistake that Clinton later attempted to undo, but ultimately contributed to the downfall of “HillaryCare.” And of course, Clinton himself might not have become president had his predecessor, George H.W. Bush, not made then violated his infamous “Read my lips—no new taxes!” pledge—the “six most destructive words in the history of presidential politics.”

While Trump undoubtedly has introduced more foibles into the legislative process, he has not changed its fundamental dynamic—a dynamic “This American Life” criticizes yet does not understand. Chace says “we’re a democracy,” but she means that she wants a Democratic—capital “D”—form of government, one in which Congress passes lots of legislation, enacts big programs (more funding for NPR, anyone?), and plays a major role in the lives of the American people.

Yet Madison and the Constitution’s Framers deliberately designed a lower-case “r” republican form of government, one with limited powers and a deliberative process designed to make enacting major legislation difficult. That reality might not suit the liberal dreams of “This American Life,” but it represents how American democratic principles actually live and work.

This post was originally published at The Federalist.

Republicans Omit Obamacare Bailout from Omnibus — DO NOT CONGRATULATE

Congressional leaders finally released the massive, 2,232-page omnibus spending bill late Wednesday, a measure they want Congress to pass within 24 hours. The version released Wednesday night omits language of an Obamacare “stability” package that Republican lawmakers released separately on Monday.

But, to borrow a phrase echoing throughout the Capitol since a Washington Post story appeared Tuesday night, “DO NOT CONGRATULATE” Republicans for leaving the bailout provisions out of the draft. On both process and on substance, congressional leaders did not cover themselves in glory. Far from it.

Republicans Bad on Substance…

A cynic would question why Republican leaders found this particular issue non-negotiable. After all, Republicans ran for four straight election cycles—in 2010, 2012, 2014, and 2016—on repealing Obamacare, only to turn around and propose more than $60 billion in spending to prop it up. From Democrats’ perspective, since Republicans did a complete 180 on repealing Obamacare, why not expect the GOP to perform a similar U-turn on taxpayer funding of abortion?

…And Just as Bad on Process

In general, the process surrounding the omnibus—as with most appropriations legislation, and most major legislation in general—stinks. After completing a secretive drafting process among a small group of staff behind closed doors—the swamp personified—leaders now will turn to ramming the legislation through Congress.

Facing a potential government shutdown at midnight on Friday, they will rush through the massive bill spending trillions of dollars in a matter of hours, well before members of Congress or their staff will have time to read, let alone digest and understand, its contents.

One specific issue stands out: As I previously wrote, Senate Majority Leader Mitch McConnell (R-KY) wants to grant Sens. Susan Collins (R-ME) and Lamar Alexander (R-TN) a separate vote on bailing out Obamacare. He apparently will attempt to do so despite the fact that:

  1. Other Republican senators never agreed to give Collins a vote. McConnell spoke only for himself in his colloquy with Collins last December.
  2. Collins demonstrably moved the goalposts on the size of her bailout. McConnell agreed to support $5 billion in reinsurance funds in December, while now she has demanded more than six times as much, or more than $30 billion.
  3. McConnell literally shut down the federal government rather than grant Sen. Rand Paul (R-KY) a vote on his amendment to an appropriations bill just last month—and Paul’s colleagues publicly trashed his attempts to obtain a vote as a “stunt” and “utterly pointless.”

To most individuals outside Washington, Republicans moving to bail out Obamacare, and attempting to pass 2,200-plus page bills in mere hours, signifies a degree of insanity. Unfortunately, however, Congress seems to engage in these types of activities (at least) every year, raising the specter of the trite saying that defines insanity as doing the same thing over and over while expecting different results.

This week’s spectacle should raise one obvious question: How many more of these sorry affairs will it take before conservatives summon the will to end it, once and for all?

This post was originally published at The Federalist.

Mitch McConnell’s Amendment Dilemma

Mitch McConnell has a problem entirely of his own making. The Senate majority leader promised a vote on Obamacare “stability” legislation to Sen. Susan Collins (R-ME). Collins wants a vote on the package as a Senate floor amendment to the omnibus appropriations legislation (that is, if and when congressional leaders emerge from their smoke-filled rooms and actually release an omnibus package for Congress to vote on).

Except that not six weeks ago, McConnell literally let the federal government shut down rather than grant his fellow Kentuckian Sen. Rand Paul a floor vote on his amendment to appropriations legislation.

It’s a fun choice McConnell gets to make—and he’s running out of time to do it.

Shutdown Showdown

Lest anyone forget what transpired a few short weeks ago, Paul asked for a clean vote on his amendment to budget and spending legislation, to preserve strict spending caps enacted as part of the Budget Control Act. (When it passed in 2011, McConnell said the Budget Control Act spending caps would slow down the “big government freight train”—a freight train that he now apparently wants to put into hyperdrive.)

McConnell and the Senate leadership refused to give Paul an up-or-down vote on his amendment. As Senate Republican Whip John Cornyn (R-TX) put it, “Why reward bad behavior?” Because under Senate rules Paul could speak for an extended period of time, and because Senate leadership did not allow enough time for a full floor debate on the legislation—apparently thinking it appropriate for the Senate to consider and pass in mere hours a 652-page bill allocating trillions of dollars—the federal government briefly shut down.

Susan Collins’ Precious Bailout

Enter Collins, who along with Sen. Lamar Alexander (R-TN) has been pushing for a bailout of Obamacare insurers for months now. Collins claims she has a commitment from McConnell to support an insurer “stability” package. Alexander said he would demand a vote, asking for senators “to be accountable” for their positions on the issue, because he thinks bailing out Obamacare will lower premiums for 2019 (it won’t).

However, as I noted just last week, Collins has moved the goalposts on the bailout package significantly. Whereas she initially requested “only” $5 billion in reinsurance funds, according to her December colloquy with McConnell, the new bill she and Alexander introduced this week contains more than $30 billion in spending on reinsurance—a sixfold increase. Because Collins has demonstrably walked away from her side of whatever bargain McConnell made with her, Senate leadership should have no qualms about doing the same.

Different Treatment?

However, the McConnell office appears inclined to give Collins her way, with multiple reports saying that McConnell was “open” to such an amendment vote to the appropriations bill. Compare that to the reactions Paul received from his colleagues last month, when he wanted an amendment vote to an appropriations bill. Congressmen called it an “utterly pointless” “stunt” that “doesn’t make any d-mn sense.” One unnamed Senate Republican aide called it “the stupidest thing to happen to Congress in three weeks….This is even stupider than the kid who didn’t recognize Justin Timberlake at the Super Bowl.”

Conservatives should watch with intense interest how the Senate floor debate plays out. If McConnell moves heaven and earth to get Collins a vote on her precious bailout, after moving heaven and earth to deny Paul a vote on retaining spending caps that McConnell himself used to support, they should neither quickly forgive, nor easily forget, the double standards created by Senate leadership.

This post was originally published at The Federalist.

Susan Collins Moves the Goalposts on an Obamacare Bailout

The 19th century showman P.T. Barnum famously claimed that, “There’s a sucker born every minute.” Apparently, Republican Sens. Susan Collins and Lamar Alexander think that Barnum’s dictum applies to their Senate colleagues. Both have undertaken a “bait-and-switch” game, constantly upping the ante on their request for an Obamacare “stability” bill — and raising questions about their credibility and integrity as legislators in the process.

Flash back to last December, when Congress considered provisions repealing the individual mandate as part of the tax reform bill. At that time, Collins engaged in a colloquy with Senate Majority Leader Mitch McConnell, who said he would support legislation funding Obamacare’s cost-sharing reductions, as well as Collins’ own reinsurance proposal.

I thank the majority leader for his response. Second, it is critical that we provide States with the support they need to create State-based high-risk pools for their individual health insurance markets. In September, I introduced the bipartisan Lower Premiums Through Reinsurance Act of 2017, a bill that would allow States to protect people with preexisting conditions while lowering premiums through the use of these high-risk pools….

I believe that passage of legislation to create and provide $5 billion in funding for high-risk pools annually over 2 years, together with the Bipartisan Health Care Stabilization Act, is critical for helping to offset the impact on individual market premiums in 2019 and 2020 due to repeal of the individual mandate. [Emphasis mine.]

Collins viewed McConnell’s commitment as so iron-clad that she put a transcript of the colloquy up on her website. Unfortunately, however, Collins didn’t find her side of the bargain as an iron-clad commitment.

One week after that exchange on the Senate floor, Alexander wrote an op-ed on a potential “stability” package. That op-ed claimed that Collins’ reinsurance bill included “$10 billion for invisible high-risk pools or reinsurance funds.” However, the text of the Collins bill itself would appropriate “$2,250,000,000 for each of fiscal years 2018 and 2019” — that is, $4.5 billion and not $10 billion. I noted that discrepancy at the time, writing that, “Alexander seems to be engaged in a bidding war with himself about the greatest amount of taxpayers’ money he can shovel insurers’ way.”

It turns out I was (slightly) mistaken. Alexander wasn’t in a bidding war with himself over giving the greatest amount of taxpayer funds to insurers — he is in a bidding war with Collins. Just this week, both Collins and Alexander issued press releases touting a (flawed and overhyped) premium study by Oliver Wyman. The press releases claimed that “Oliver Wyman released an analysis today showing that the passage of a proposal based on … the Collins-Nelson Lower Premiums through Reinsurance Act will lower premiums … by more than 40 percent.” [Emphasis mine.]

But the release went on to note that, “Oliver Wyman based its analysis on a proposal that would fund [cost-sharing reductions] … and provide $10 billion annually for invisible risk pool/reinsurance funding in 2019, 2020, and 2021.” Not $2.25 billion for fiscal years 2018 and 2019, as the actual Collins-Nelson bill would provide — but more than four times as much annually, for a 50 percent longer duration.

Not even Common Core math can explain the gaping chasm between the funding amounts in the two bills. Does Alexander really want to make a straight-faced claim that an estimate assuming $30 billion in funding is “based on” a bill providing only $5 billion in funding? And if so, then why should a Senator who fails a math test even a first-grader could comprehend chair the committee with jurisdiction over federal educational policy?

Collins and Alexander went to all this trouble because they want to have their cake and eat it too. Collins expects McConnell to abide by his commitment from December — she reportedly cursed out a senior White House aide when the “stability” package failed to pass late last year. But she has no place criticizing McConnell or others for not keeping their word when she has proved unable to keep hers, by upping the ante on her asks for a “stability” bill — and putting out misleading press releases to hide the fact that she ever asked for “only” $5 billion in taxpayer funds.

Collins has no place attacking the White House, or anyone else, for “reneging on the deal.” She reneged on the deal herself — by not sticking to her original commitments, and then putting out misleading press releases to cover her tracks. The White House, and McConnell, should never have made an agreement on a “stability” bill with Collins in the first place. But if they did, the unscrupulous way in which she has handled herself since then should have nullified it.

This post was originally published at The Federalist.