Upon its unveiling last week, the health insurance “stabilization” measure drafted by Senate Health, Education, Labor, and Pensions Committee Chairman Lamar Alexander (R-TN) and Ranking Member Patty Murray (D-WA) received praise from some lawmakers. For instance, Sen. John McCain (R-AZ) stated that “health care reform ought to be the product of regular order in the Senate, and the bill [the sponsors] introduced today is an important step towards that end.”
Unfortunately, the process to date has not resembled the “regular order” its sponsors have claimed. Drafted behind closed doors, by staff for a committee with only partial jurisdiction over health care, the bill’s provisions remained in flux as of last week. Moreover, the bill apparently will not undergo a mark-up or other committee action before the bill is either considered on the Senate floor—or, as some have speculated, “air-dropped” into a massive catch-all spending bill, where it will receive little to no legislative scrutiny.
Four questions help clarify the process concerns regarding the Alexander-Murray proposal.
Why didn’t Alexander know his bill provided taxpayer funding of abortion coverage?
Following my article last week highlighting how the cost-sharing reduction payments appropriated in the legislation would represent taxpayer funding of plans that cover abortion, a reporter for the Catholic-run Eternal Word Television Network interviewed senators Alexander and Murray (along with myself) about the issue.
Alexander told reporter Jason Calvi that he “hadn’t discussed” the life issue with staff, indicating he had little inkling of the effects of the legislation he sponsored:
WATCH: @March_for_Life & @SBAList condemn Alexander-Murray health compromise bc of abortion funds. I question both senators & @chrisjacobsHC pic.twitter.com/P3A5S2sb0T
— Jason Calvi (@JasonCalvi) October 19, 2017
Alexander then claimed that “I’m sure the president will address” the abortion funding issue. But executive action—which a future president can always rescind—is no substitute for legislative language. The pro-life community derided President Obama’s executive order designed to segregate abortion payments and federal funding as an accounting sham.
As I wrote in June, Republican leaders—including Senate leader Mitch McConnell (R-KY), and Mike Pence, the current vice president—clearly noted during debates on Obamacare that the law would provide for taxpayer funding of abortion coverage. The Alexander-Murray bill would do likewise unless and until the legislation includes an explicit ban on abortion funding.
Who inserted the earmark for Minnesota into the legislation?
Call it the “Klobuchar Kickback,” call it the “Golden Gopher Giveaway,” but Section 2(b) of the bill contains provisions relevant only to Minnesota. Specifically, that provision would allow a state’s basic health program—which states can establish for individuals with incomes between 133 and 200 percent of the federally defined poverty level—to receive “pass-through” block grant funding under a waiver.
Currently, only New York and Minnesota have implemented basic health programs, and of those two states, only Minnesota has also sought a state innovation waiver under Obamacare. Last month, the federal Centers for Medicare and Medicaid Services (CMS), in approving Minnesota’s application for an innovation waiver, said it could not allow the state to receive “pass through” funds equal to spending on the basic health program, because the statute did not permit such an arrangement. The Alexander-Murray bill would explicitly permit basic health program spending to qualify for the “pass through” arrangement, allowing Minnesota—the only state with such an arrangement—to benefit.
Likewise, multiple sources both on and off Capitol Hill have indicated that language in Section 2(c) of the bill (the bottom of page 4), which would change the standard of approval for state waivers from providing coverage to individuals “at least as affordable” as that in Obamacare to providing coverage “of comparable affordability,” was specifically designed to ensure that federal officials would approve Iowa’s insurance waiver. However, the Hawkeye State withdrew its waiver request yesterday, potentially rendering this provision moot.
Will a committee mark up the Alexander-Murray bill?
Alexander notably demurred on this topic when asked last week. One reason: As Politico has noted, it remains unclear whether or the extent to which Alexander’s committee has jurisdiction over the legislation he wrote. Revisions to the Obamacare state innovation waiver process comprise roughly half of the 26-page bill, yet the Senate HELP Committee shares jurisdiction over those matters with the Senate Finance Committee, whose chairman has derided legislation giving cost-sharing payments to insurers as a “bailout.”
Even as he praised the Alexander-Murray bill as a return to “regular order,” McCain—himself a committee chairman—doubtless would take issue with another committee “poaching” the Senate Armed Services panel’s jurisdiction, or failing to hold a mark-up entirely. Yet the process regarding the Alexander-Murray bill could include two noteworthy legislative “shortcuts”—which some may view as a deviation from “regular order.”
Are HELP Committee staff still re-writing the legislation?
A close review of the documents indicates that HELP Committee staff made changes to the bill even after Alexander and Murray announced their agreement last Tuesday. The version of the bill obtained by Axios and released last Tuesday evening—version TAM17J75, per the notation made in the top left corner of the bill text by the Office of Legislative Counsel—differs from the version (TAM17K02) publicly released by the HELP Committee on Thursday.
Notwithstanding Alexander’s apparent revelation regarding the Hyde amendment last Wednesday, the bill revisions did not include pro-life protections. But the revisions did include a change from “budget” neutrality to “deficit” neutrality in one instance, as well as other legislative changes.
The revisions to the legislation, coupled with Alexander’s apparent lack of understanding regarding its implications, raise questions about what other “surprises” may lurk within its contents. For all the justifiable complaints regarding the lack of transparency over Republicans’ “repeal-and-replace” legislation earlier this year, the process surrounding Alexander-Murray seems little changed—and far from “regular order.”