THERE IS ONE NUMBER TO KEEP IN MIND as Congressional Republicans drone on with their protest of the “Democrat” majority’s decision to fast-track a final vote on health care reform.
That’s how many House Republicans voted for the Obama administration’s budget on April 29, the day after Pennsylvania Senator Arlen Specter announced he was leaving the Republican Party. The same number of Republican senators voted for the same budget resolution later in the day. If you’re looking for a pattern, the same number of House Republicans voted to support President Obama’s stimulus package in February. There was a slightly more bipartisan moment in the Senate, where three Republicans voted for the president’s $787 billion stimulus bill. One of them was Arlen Specter.
What does this have to do with health care reform, beyond the extra vote the Obama administration picks up in the Senate? A great deal. The Republican Party that drove Specter into the arms of the Democrats has found its identity in obstinacy. It has become the intractable and unyielding opposition.
IRRECONCILABLE—And the president can count. Having been stiffed by Congressional Republicans on the stimulus bill, shut out on budget legislation, and discouraged by their near-unanimous opposition to most of his legislative agenda (House Minority Leader John Boehner said Obama’s legislation makes him “want to throw up”), the president decided that health care reform is too important to be blocked by legislative short sellers taking a position and betting on failure. At a Sunday-night meeting in the office of Senate Majority Leader Harry Reid, Obama’s chief of staff, Rahm Emanuel; his budget director, Peter Orszag; and his White House legislative liaison, Phil Schiliro, closed the deal. In five hours they agreed on reconciliation instructions that will circumvent a Senate veto—if the Congress doesn’t pass a health care reform bill by October 15.
The reconciliation process requires committee chairs to route final drafts of legislation through the House and Senate Budget Committees. Floor debate is limited to twenty hours in the Senate. And there is a simple majority vote. That’s fifty-one senators rather than the sixty required to invoke cloture and end a filibuster.
Senate Minority Leader Mitch McConnell (R-KY) said the use of the reconciliation process makes it “absolutely clear that the Democrats intend to carry out their plans on a purely partisan basis.” New Hampshire Republican Senator Judd Gregg warned that Senate Republicans will use their own procedural tactics to ensure that no bill brought to the floor under reconciliation rules will pass. Gregg is the ranking Republican on the Senate Budget Committee.
“The floor of the Senate will become a very untidy place if they start using reconciliation for major policy,” Gregg told the New York Times. In comments to the Boston Globe he said, “What you’ve essentially got there is negotiations where one side decides to pick up a gun and load it, and the other side has the gun pointed at its head.”
There’s nothing novel about reconciliation. Bill Clinton used the process to enact welfare reform. More recently it was used by House and Senate Republicans to pass George W. Bush’s tax cuts and trade legislation. Senator Gregg didn’t object when the reconciliation process advanced the Bush agenda. Nor did McConnell.
These guys are, in fact, serial abusers of minority rights.
As Senate Majority Whip in 2005, McConnell openly flogged “the nuclear option,” which would have suspended the filibuster and allowed a simple majority of Republican senators to circumvent the minority to confirm Bush appointees to the federal bench.
The most egregious abuse of House and Senate rules in recent history occurred in the early months of the George W. Bush administration, when the Congressional Review Act (CRA) was deployed to overturn a substantial body of ergonomics rules that had been through more than ten years of hearings and revision at the Department of Labor.
Massachusetts Senator Ted Kennedy described the CRA as a “procedural atom bomb.” The measure is so poisonous that it was used only that one time, in 2001, to eliminate protections for workers. Senators McConnell and Gregg enthusiastically supported its use even as it foreclosed on the filibuster and limited amendments in both houses.
They were in the majority then, exploiting every device at their disposal to undermine the procedural rights of the minority. Relegated to minority status by broad and deep electoral mandates, both men are now shocked, shocked to discover gambling in Casablanca.
GOING PUBLIC—Their posturing is transparent. It’s not a state secret that Republicans oppose most of Obama’s health care agenda. And a public health-insurance program that would compete with private providers is a game changer they can’t accept. The basics of public insurance are straightforward, as Ron Pollack of Families USA (a national health care advocacy organization) explained: “A public plan would be more efficient because of economies of scale. And because it wouldn’t spend money on advertising, marketing, and profits, it would provide good benchmarks of health care costs. So it would provide a positive role in bringing down costs.”
The devil, of course, is in the details. Developing a mechanism to set prices for services would be challenging. Health care providers, for example, complain that Medicare underpays them. It pays physicians at 56 percent of what private insurers pay for the same services, according to the Lewin Group, a highly regarded health care consulting firm. Pollack stressed that health care providers would have to be reasonably compensated and that setting payment levels for a public program will require hard work and serious thought. But that and other concerns can be addressed, he said.
“If people prefer a public option over a private option,” Pollack said, “we don’t see a reason why they should be precluded from making that choice.”
The reform supported by Families USA, and other progressive groups, such as the Economic Policy Institute, doesn’t include dismantling the current system. “I support an employer-based system,” Pollack said. “Not because I think that it’s the best way to provide coverage. But that’s what we have today. We’ve got 160 million people who are getting it and you don’t threaten that coverage if you expect health care reform to be acceptable to the American public.”
Public competition with private insurance providers is more than even moderate Republicans can accept. “A deal- breaker for Republicans if it’s in,” said Republican Senator Charles Grassley of Iowa, “and a deal-breaker for Democrats if it’s not.” Grassley is the ranking Republican on the Senate Finance Committee, where health care legislation is being drafted under the supervision of committee chair Max Baucus (D-MT).
There is not much daylight between Grassley and industry trade groups. “That’s really a line in the sand for us,” National Association of Health Underwriters CEO Janet Trautwein said of the public funding option. Trautwein spoke to reporters after she testified at an April 23 House subcommittee hearing chaired by Rep. Robert Andrews (D-NJ).
“I think one of the reasons [Andrews] came out of the box with that is because we have been so focused on opposition to the public program,” Trautwein said. “In the past two weeks, we’ve had 25,000 letters in opposition to that and I think it caused some agitation around here.” (In fairness to Andrews, the agitation was probably a response to Trautwein’s failure to answer his questions about controlling health care costs.)
“There are serious concerns with a government-run program,” said Robert Zirkelbach of America’s Health Insurance Plans, a trade association representing “200 million individuals insured by 1,300 insurance providers.” Zirkelbach cited Lewin Group predictions that “120 million people would leave the [private] system.
“That means that two-thirds of privately insured individuals would move to government-run plans,” he said. “That would force private insurers out of the market and limit the choice of providers for consumers.” Zirkelbach sees no pricing system that will protect private insurers. “Regardless of how the rates are set, if the government dominates the market, the government determines the rates.”
APPLYING CPR—The public face on the private über alles health care movement is Conservatives for Patients’ Rights (yes, CPR). CPR is underwritten by Richard Scott, a former CEO of the Columbia/HCA hospital system, who was ousted in 1997 after being investigated for Medicare fraud. (The company ultimately settled with the government, paying $1.7 billion.) Scott was also a major contributor to John McCain’s presidential campaign. He currently owns a chain of urgent care clinics. Scott has put $5 million of his own money into CPR’s campaign to keep the government out of health care. He has hired a lobbyist. And a public relations firm, Creative Response Concepts, whose last big play was the Swiftboat Veterans for Truth campaign against John Kerry. (The watchdog group Media Matters for America has been remarkably effective in doing the background reporting on Scott, which network reporters interviewing him somehow missed.)
Since early March, CPR has placed ads on the Web, radio, and cable news networks. The ads feature Scott himself. On one radio spot he warns: “Imagine waking up one day and all your medical decisions are made by a central national board. Bureaucrats decide the treatments you receive, the drugs you take, even the doctors you see.” You get the idea.
Don’t look for CPR’s twenty-second spots to address the complexity of health care reform. These issues are complex. Consider the 120 million individuals moving from private to public insurance—a bit of a stretch. The number is actually 119 million, a statistic pulled out of a frequently cited study conducted by the Lewin Group. The shift of 119 million from private to public insurance assumes that the government will use Medicare payment schedules to reimburse health care providers. But that’s not likely. To understand why sound bites don’t work, consider one paragraph of House committee testimony by Uwe Reinhardt, a Princeton economics professor who has spent twenty years studying health care:
Assuming a premium-elasticity of the demand for health insurance of -2.47 (meaning a 1 percent decrease in the premium of the public plan, vis-à-vis the premium of private insurers, would trigger a 2.47 percent migration from private to public insurance), the Lewin Group simulates that some 119 million Americans would shift from private insurance to the public plan, a large fraction of whom would be Americans hitherto covered by employment-based insurance in smaller firms. In fact, the Lewin Group estimates that if the public plan were forced to pay at what it calls ‘private payer levels,’ enrollment in private insurance would decline only by 12.5 million rather than 119 million. (Emphasis added.)
There’s a lot to unpack here. However, compensation at private payer levels is as unlikely as compensation at Medicare levels. And even if compensation were set at private payer levels, there is another problem. No one, according to Reinhardt, has yet defined “private payer levels.” And all the simulations are “the product of a computer algorithm into which researchers feed assumptions that largely drive the predictions.” If this is not rocket science, it’s close to it.
A SOCIAL GOOD—To introduce his testimony, Reinhardt set aside policy and opened with the heart of the matter: “At one end of the ideological spectrum, many Americans appear to believe that health care ought to be treated as a private consumer good that should be distributed on the basis of market principles.… At the other end of the ideological spectrum, just as many other Americans…believe that our health care system should be viewed as a social good.”
The social good voters won the last two national elections. The market principle lobby is digging in to defend the status quo—with some additional regulation. They are angling for a regulated monopoly with “community rating” (no denials based on preexisting conditions and standard pricing)—if everyone is compelled to buy insurance. In order to salvage the status quo, they have to kill the public insurance option.
Pollack predicts that the Democratic chairmen of the House committees working on health care reform, Charles Rangel, Henry Waxman, and George Miller, will agree on a public plan option.
The Senate—where Majority Leader Harry Reid is already equivocating on reconciliation—is uncertain.
DAWN IN DOUBT—Senator Ben Nelson (D-NE) and novitiate Arlen Specter (D-PA) are the only Senate Democrats opposed to the University of Indiana Law School professor whom President Obama appointed to direct the Office of Legal Counsel (OLC). Specter blindsided OLC nominee Dawn Johnsen at a Judiciary Committee hearing (see the May 1 issue of the Spectator), referring to something she had written in a legal brief twenty years earlier. In a conference call coordinated by the progressive advocacy group People for the American Way, former OLC director Walter Dellinger described the basis for Specter’s position (without referring to Specter) as “a criticism of no consequence.” Dellinger said Johnsen’s confirmation is being held up by the “misconstruction of a single footnote written twenty years ago while she was co-counsel with ten other lawyers, that made an allusion to government intrusion into women’s rights.” The brief was written for the League of Women Voters, the Association of American University Women, and a number of women’s bar associations, as well as the reproductive rights group NARAL, Dellinger said.
Nelson also uses Johnsen’s pro-choice position as a pretext to oppose her. Yet the OLC has nothing to do with abortion; it issues binding legal opinions that define what the executive branch can or cannot do. It is no surprise that Dellinger endorsed Johnsen, who served as his deputy at the OLC for four years, then served as acting director for a year and a half after he became solicitor general. Douglas Kmiec joined Dellinger on the call, unequivocally endorsing a candidate whose political philosophy is anathema to his. Kmiec was director of the OLC during the Reagan and George H.W. Bush presidencies. He served as dean of Catholic University Law School and teaches law at Pepperdine University, a conservative bastion in California. “When [Johnsen] has been performing her job as an advocate, or a lawyer, or as a counselor for the United States,” Kmiec said, “in each case she has performed those functions with a level of…care and precision. But, most importantly for the Office of Legal Counsel, objectivity. This is what was missing in the torture memo context. And this is what Dawn Johnsen so eloquently and appropriately challenged.” Indiana Republican Richard Lugar has announced that he will support Johnsen, leaving her confirmation exactly two votes short.