Tag Archives: Nancy Pelosi

Lessons of the AHCA Collapse

Like the British evacuation of Dunkirk more than seven decades ago, Friday’s abrupt decision to halt proceedings on the American Health Care Act (AHCA) prior to a House vote represented victory only in that it averted an even costlier defeat—an embarrassing floor vote seemingly destined to fail, or passage of a bill unloved by wide swathes of the public and lawmakers alike.

Whether that decision is ultimately viewed as a “deliverance”—as Winston Churchill dubbed the 1940 Dunkirk evacuation—will depend in no small part on whether lawmakers can, both individually and collectively, learn the right lessons from an entirely predictable defeat.

“What went wrong?” poses an erroneous query about this bill. The question is not why it failed, but why anyone thought it might succeed. Virtually all of the premises upon which the legislation was based proved faulty, and were easily proven faulty prior to its introduction. There’s little need for Monday-morning quarterbacking if only one can see the flaws in one’s strategy on the Sunday morning prior to the game.

Republicans Need to Remember How to Govern

Leadership outlined its strategy—such as it was—in a February 27 Wall Street Journal article: “Republican leaders are betting that the only way for Congress to repeal the Affordable Care Act is to set a bill in motion and gamble that fellow GOP lawmakers won’t dare to block it.”

Irrespective of what one thinks of the bill’s policy particulars—whether the bill represents a positive, coherent governing document and vision for the health care system—this thinking demonstrates that Republicans have to re-learn not just how to govern, but also how to legislate.

As a legislative strategy, the House’s gambit represented a puerile cross between the “chickie run” in “Rebel Without a Cause” and Hans Christen Andersen’s “The Emperor’s New Clothes.” Daring lawmakers to challenge the process, and attempting to bully and browbeat them into submission—“testosterone can get you in trouble,” as Rep. Mark Sanford (R-SC) reportedly noted during one meeting—does not a durable process make. Unsurprisingly, that process broke down after a mere 18 days.

While many stories have focused on Speaker Paul Ryan, some minds might turn instead to one of his predecessors, and an axiom used by the longest-tenured House speaker, Sam Rayburn: “There is no education in the second kick of a mule.” That the outcome seems predictable—indeed, was predicted by many in private conversations—makes it no less painful politically, or personally.

In circumstances such as these, there is a fine line between learning lessons and pointing fingers. Focusing on the personalities behind the legislative failure would only further enflame tensions, while serving little productive purpose. On the other hand, understanding the reasons the legislation was in many ways doomed from the start can help prevent future calamities. Of the flawed premises that lay behind the legislative strategy, three seem particularly problematic.

1. Starting with the House

The House’s decision to consider the legislation first seemed ill-considered at the time, given the difficulties the chamber encountered the last time it moved first on repealing Obamacare. In the fall 2015, Congress considered and passed, but President Obama vetoed, repeal legislation under special budget reconciliation procedures. Passing the bill represented a “dry run” testing what a Republican Congress could do to dismantle Obamacare, but for the Democratic president who remained in the White House.

But as I noted the week after last November’s election, the House’s 2015 repeal reconciliation bill suffered from numerous procedural flaws. That legislation originally repealed Obamacare’s Independent Payment Advisory Board (IPAB), even though such Senate procedures meant that this provision, with an incidental fiscal impact, could not remain on a budget reconciliation bill. The House-reported legislation also increased the deficit in the years beyond the 10-year budget window, subjecting it to a potentially fatal point-of-order in the Senate.

The House’s 2015 reconciliation bill contained so many procedural flaws that Senate Majority Leader Mitch McConnell had to introduce an entirely new substitute version of the legislation. Had he not, the Senate parliamentarian would have advised the Senate to strip the bill of its procedural protection as a reconciliation matter, forcing the House to start its process all over again.

Given that near-death experience fewer than 18 months ago, it made much more sense for the Senate to take the lead in crafting a reconciliation measure. At minimum, House staff needed to solicit greater feedback from the Senate regarding that chamber’s procedures during the drafting process, to ensure they wrote the bill consistent with the Senate’s budget reconciliation rules. Neither happened.

House leadership claimed they wrote their bill to comply with the Senate’s reconciliation rules. But experts in Senate procedure could readily see that AHCA as released suffered from multiple procedural flaws, several potentially fatal to the entire bill. Last week, days before its scheduled floor consideration, the relevant House committees released a managers amendment re-drafting the measure’s tax credit, precisely because of the procedural flaws in the initial version.

All of which makes one wonder why the House insisted on initiating action. The Senate not only has more detailed and arcane procedures to follow than the House, Republicans also hold a narrower majority in the upper chamber. While no more than 21 of 237  House Republicans (8.9 percent) can defect on a bill passing solely with Republican votes, no more than two of 52 Senate Republicans can defect in the upper chamber, a much narrower (3.9 percent) margin.

Due to both its procedural quirks and tighter vote margins, it made far more sense for the Senate to initiate legislative action. Yet this year, as in 2015, the House took the lead—and ran into the same procedural problems.

2. The Unrealistic Timetable

The day before House leadership released a document outlining their vision for what became AHCA, I published a lengthy analysis of the legislative environment. I concluded that any legislation featuring either comprehensive changes to Medicaid or a refundable tax credit—the former I generally favored, the latter I did not—just could not pass in the timetable allotted for it:

The likelihood that House Republicans can get a comprehensive “repeal-and-replace” bill—defined as one with either tax credits, Medicaid reform, or both—1) drafted; 2) cleared by the Senate parliamentarian; 3) scored favorably by CBO [the Congressional Budget Office]; and 4) with enough Member support to ensure it passes in time for a mark-up on March 1—two weeks from now—is a nice round number: Zero-point-zero percent.

Likewise the chances of enacting a comprehensive ‘repeal-and-replace’ bill by Congress’ Easter recess. It just won’t happen. For a bill signing ceremony for a comprehensive ‘repeal-and-replace’ bill, August recess seems a likelier, albeit still ambitious, target.

Nothing in the above passage proved inaccurate. House leadership even skipped steps in the process I outlined—going forward with markups without a CBO score, and not writing the bill to comply with Senate procedure until just before a scheduled House vote—yet still couldn’t meet their targets. This would lead most people to believe those targets were just too ambitious.

Two vignettes show the problems caused by the sheer haste of the process. First, the managers amendments released last Monday night had to be re-written on Tuesday night. In both cases, the House committees had to submit second-degree amendments “to address drafting issues,” because the original managers amendments had no fewer than ten separate drafting errors among them.

Second, the managers amendment included an extra pot of funds to increase the refundable tax credits given to those near retirement age. However, the legislation created that pot of money not by increasing the refundable credits, but by lowering thresholds for a deduction available to those who itemize medical expenses on their tax returns.

The decision to provide the additional funds through a deduction, rather than by adjusting the credits themselves, was almost certainly driven by the mechanics of budgetary scoring, and ultimately the bill’s timetable. While the Joint Committee on Taxation (JCT) could estimate the relatively straightforward financial effects of a deduction quickly, altering the tax credit levels for individuals aged 50-64 would create knock-on effects—would more individuals take the credit, would more individuals retire early and drop employer-sponsored coverage, etc.—taking CBO staff a week or more to model.

So, rather than “wasting” time coming up with a policy and finding out the effects of said policy, prior to House passage, congressional staff instead created a $90 billion “slush fund” and pledged to sort the details out later.

Just before Obamacare’s passage in March 2010, former House Speaker Nancy Pelosi infamously said “we have to pass the bill so that you can find out what is in it.” House Republicans took her multiple steps further: By including a “slush fund” designed to change later in the process, and proceeding to both committee markups and a vote on House passage without a final CBO score, congressional leadership guaranteed that anyone who voted for AHCA would not by definition have known what was intended to be in the bill, let alone the fiscal effects of such policies.

The end result was a group of members in vulnerable districts who voted for the bill in committee without a CBO score—and could suffer serious, if not fatal, political consequences for having done so. Some of these moderates hold substantial disagreements with conservatives on how to structure an Obamacare repeal. But it was not conservatives that compelled the moderates to cast a tough vote for the legislation in committee without a CBO score analyzing the bill’s fiscal and coverage impacts—it was the hyper-aggressive timetable.

3. Unproductive White House Coordination

While publicly President Trump and others made statements insisting that his administration was “100 percent behind” the House Republican plan, the divisions within the administration were an open secret on Capitol Hill. From staff to officials, many had misgivings about the policy behind the bill, the legislative tactics and strategy, or both.

Those differences helped affect the ultimate outcome. Ryan attempted to turn his legislation into a “binary choice”—either support this bill, or support Obamacare—granting conservatives some concessions during the drafting process, but few thereafter. By contrast, factions within the administration attempted to woo conservatives and fought House leadership, which resisted making changes.

Ironically, had the administration halted negotiations sooner, and demanded an immediate vote earlier last week, they might have had a better chance of winning that tally. (Whether that victory would have ultimately proved Pyrrhic is another story, but they might have eked out a victory nonetheless.) But because the White House and congressional leadership weren’t on the same page, the former’s negotiations with conservatives left moderates to slowly trickle away from the bill, such that by Friday, it was virtually impossible to find a coalition to reach 216 votes whichever way leadership turned.

Even as the momentum slowly sapped from the bill, the administration and Capitol Hill leaders remained at odds on tactics. The New York Times reported on Saturday that some in the administration wanted to hold a House vote, even an unsuccessful one, to find out who opposed President Trump. But making such a demand misunderstands the dynamic nature of votes in the House of Representatives.

While AHCA might have passed narrowly, it would not have failed narrowly. Once a critical mass of 30 or so Republican “noes” signaled the bill’s clear failure, members would have abandoned the politically unpopular legislation en masse—likely with the implicit or explicit support of House leadership. Having witnessed these “jailbreak” votes in the House, it’s possible that, had the White House forced the issue, the bottom could have fallen out on support for the bill. As a tactic to snuff out disloyal behavior, calling a vote on a doomed bill would have yielded little in the way of political intelligence—only more political damage.

Underneath Tactical Errors Is Philosophical Disagreement

Beneath the obvious tactical errors lie some fundamental disagreements within the Republican party and the conservative movement about Obamacare, the future of our health-care system, and even the role of government. As I have written elsewhere, those differences do not represent mere window-dressing. They are as sizable as they are substantive.

On the one hand, the conservative wing of the party has focused on repealing Obamacare, and lowering health costs—namely, the premiums that have risen substantially under the law. By contrast, moderates and centrists remain focused on its replacement, and ensuring that those who benefited from the law continue to have coverage under the new regime.

That divide between “repealers” and “replacers” represents a proxy for the debate between reducing costs and maximizing coverage, a debate that precedes Obamacare by several decades, if not several generations. Some have argued that facts on the ground—the individuals gaining coverage as a result of Obamacare—necessitate an approach focused on maintaining coverage numbers.

Others believe that “repeal means repeal,” that Republicans ran, and won, elections on repealing the law—including as recently as five months ago—and that breaking such a deeply ingrained pledge to voters would represent political malpractice of the highest order.

The drafters of the House bill attempted to split the ideological divide, in part by retaining the popular parts of Obamacare while minimizing the law’s drawbacks. Both the House bill and the Better Way plan that preceded it maintained Obamacare’s restrictions on pre-existing conditions, its requirement that insurers cover dependents under age 26, and its prohibition on annual and lifetime limits for health insurance.

But policy decisions come with trade-offs, and in health care in particular those trade-offs can prove troublesome. Barack Obama did not wish to impose a mandate to purchase health insurance, having fought against one during his 2008 primary campaign; but CBO scoring considerations forced him to endorse one in the bill that became Obamacare. Similarly, the “popular” insurance regulations that Republican leadership maintained in its bill were the same ones that raised premiums so appreciably when Obamacare went into effect.

The AHCA approach of repealing Obamacare’s mandates and subsidies while retaining most of its insurance regulations created what Yuval Levin, a policy wonk close to Ryan, called a “twisted, fun-house mirror approach” to prior conservative health policy that yielded “substantive incoherence.” Dropping the individual mandate while retaining most of the insurance regulations created a CBO score that showed substantial coverage losses while failing to lower premiums appreciably—the worst of all possible policy outcomes.

The ideological divisions within the Republican Party, and the incoherent muddle of legislation that attempted to bridge the two, may have been overcome had the House released its bill the morning after the election, on November 9. But it did not release the bill on November 9, or on December 9, or on January 9, or even on February 9. The House introduced its bill on March 6, with the goal of passing legislation through both chambers by April 6. That timetable didn’t envision reconciling ideological differences so much as it hoped to steamroll them. It was all-but-guaranteed not to end well.

Lessons For the Future

What then of the future? One can only but hope that Republicans follow the example of Kipling’s poem “The Lesson,” written during the Boer War: “Let us admit it fairly, as a business people should; We have had no end of a lesson: It will do us no end of good.”

But what are those lessons, and what good might result from heeding them? While the policy differences within factions of the Republican Party are sizable, the only way to bridge them lies through an open, transparent, and deliberative process—negotiating outcomes among all sides from the start, rather than imposing them from on high through fiat.

If, as President Reagan famously noted, “personnel is policy,” so too then process provides a key to optimal policy making. A good process by itself cannot create good policy, but bad process will almost assuredly result in bad policy outcomes. In the short- and long-term, five principles can provide the initial glimmer of a path forward from last Friday’s dark outcome.

1. Let the Senate Lead

The procedural details surrounding budget reconciliation, and the narrower margins in the upper chamber, both augur toward the Senate re-starting any action on health care. As a practical matter, tensions remain far too high—with tempers short, friendships among members and staff frayed, and patience thin—for the House to initiate any legislative action for at least the next few weeks.

On upcoming legislation ranging from appropriations to tax reform to additional action regarding Obamacare, the “world’s greatest deliberative body” will have to exercise its deliberative powers. The ideological gaps are no less narrow in the House than in the Senate—can Mike Lee and Susan Collins reach consensus on a path forward regarding Obamacare?—but the recriminations and scars of the past month smaller.

If the Senate, with its smaller margins and arcane procedures, can deliver a quality policy product, the House, having seen its legislation sink in mere weeks, might be much more inclined to adopt it as its own.

2. Listen

House leadership rightfully notes AHCA had its origins in the Better Way policy white paper released last June. Prior to that document’s release, leadership staff spent significant time and effort reaching out to members, interest groups, the think-tank community, and others to gain thoughts and feedback on their proposals.

But actual legislation is orders of magnitude more complex than a white paper. Moreover, Better Way and AHCA deviate from each other in multiple important respects. The Better Way proposal includes numerous provisions—incentives for wellness, conscience protections for health care professionals, and proposals to repeal sections of Obamacare regarding Medicare, and Medicare Advantage—never included in AHCA, or mentioned in any great detail as part of the House’s “three-phase” approach.

Meanwhile, AHCA doubles the funding for grants to states when compared to the Better Way proposal, and uses significantly different parameters for the state grants than the 2009 House Republican alternative to Obamacare referenced in the Better Way document.

It’s possible to speculate on why House leadership made all these changes, but leadership itself made very little attempt to communicate exactly why they made them, or even that they were making them at all. Saying that Better Way led to AHCA is like saying the Model T led to the DeLorean. The former are both health-care proposals just as the latter are both cars, but each differ in significant ways.

The process that led from Better Way to AHCA was almost as significant as the process that led from the Model T to the DeLorean, but was opaque to all but a few closely held staff. Even lawmakers who understood and supported every single element of the Better Way plan could rightfully feel whipsawed when presented with AHCA, told it was a “binary choice,” and they had to publicly support it within a few weeks of its introduction, or otherwise they would be voting to keep Obamacare in place and undermine a new president.

When the Republican Study Committee unveiled its health-care legislation in 2013, its public release culminated a months-long process of consultation and scrutiny of the legislative text itself. RSC staff reached out to dozens of policy experts (myself included), and spent hours going through the bill line-by-line to make sure the legislation would accomplish its intended goals, while keeping unintended consequences to a minimum.

AHCA would have benefited immensely from this type of under-the-radar analysis, rather than subjecting legislation not yet ready for prime time to the intense scrutiny that came with a white-hot political debate and a hyper-accelerated timeline.

3. Trust Experts

A note at the bottom of page 25 of a leaked draft of AHCA provides an important hint toward a larger issue. The bracketed note, in a passage regarding per capita cap reforms to Medicaid, calls for staff to “review with CMS [the Centers for Medicare and Medicaid Services] any conforming amendments required.”

Congressional staff I spoke with over the past few weeks questioned whether anyone within the relevant agencies had in fact reviewed the legislation, to provide the technical expertise necessary to ensure that AHCA could be implemented as written, and would actually result in a workable health-care system.

At the time the legislative process began, the Department of Health and Human Services (HHS) had relatively few political appointees—no more than a few dozen out of about 150 total spots filled, and a CMS administrator not confirmed until the week prior to the scheduled House vote. The combination of a stretched staff and mistrust between political and career appointees within the agencies could well have limited the exchange of critically important details regarding how to draft, and implement, the legislation.

In addition to working with career personnel at the agencies, congressional staff should also utilize the institutional knowledge of their predecessors. While working for the House Republican Conference in 2009, I made it a point to start the Obamacare debate by finding out what I didn’t know, reaching out to those who had gone through the “Hillarycare” debate 15 years prior. My idea came from an unlikely source—former senator Tom Daschle, who in his 2008 book “Critical” described how lawmakers went through a “Health Care University” of policy seminars in 1993. In trying to replicate those seminars for both members and staff, I hoped we could obtain some of the collective wisdom of the past that I knew I lacked.

As I had previously noted in November, most of the senior Republican health-care staff working on Capitol Hill during the Obamacare debate in 2009-10 have moved on to other posts. But they, and others like them, are not far removed from the process. Based on my experience, most would gladly offer technical guidance and expertise; in many cases, even the lobbyists would do so with “client hats” removed, in the hopes of arriving at the best possible product.

But reaching out in such a manner requires a deliberative and inclusive process; games of legislative hide-and-seek and talk of “binary choices” preclude the received wisdom of all but the select few participating in the policy-making.

4. Be Honest

The House Ways and Means Committee’s section-by-section summary of AHCA illustrates the dilemma lawmakers faced. Page three of the document, discussing verification of eligibility for the new tax credit, states that “the Secretary of the Treasury is empowered to create a system—building upon already developed systems—to deliver the credit.”

There’s just one minor detail missing: The “already developed systems” for verifying eligibility Ways and Means referenced are Obamacare eligibility systems. This goes a long way toward explaining the omission: If the House is using an Obamacare eligibility system to deliver a refundable tax credit (also included in Obamacare), how much of the law is it really repealing?

Capitol Hill leadership could never reconcile the inherent contradictions in their product. On MSNBC, Ways and Means Chairman Kevin Brady (R-TX) called AHCA “the best opportunity to deliver on our promise to repeal the awful law of Obamacare”—eliding the fact that the bill explicitly retains and utilizes portions of that “awful law.” When pressed, leadership staff relied upon absurd, legalistically parsed statements, afraid to admit that the bill retained portions of Obamacare’s infrastructure.

These Clintonian definitions—“It depends upon what the meaning of the word ‘repeal’ is”—do nothing but build mistrust among members and staff alike. At least some in the policy community felt that House leaders were relying upon Elizabeth MacDonough, the Senate’s parliamentarian, as a de facto human shield—claiming the House couldn’t repeal portions of Obamacare under budget reconciliation, when in fact leadership wouldn’t, for policy or political reasons.

The fact that House leaders claimed their bill comported with reconciliation requirements, yet had to re-write major portions of AHCA at the last minute because it did not, gives added credence to this theory.

Whenever “repeal-and-replace” legislation comes back before Congress, the leaders and committees preparing the legislation should include a list of all the major provisions of Obamacare not repealed by the measure, along with clear reasons why. Even if some members want a more robust repeal than that offered, transparency would at least prevent the corrosive mistrust—“You’re not being up-front about this, so what other things are you hiding?”—that comes from an opaque process.

5. Be Humble

More than perhaps any bill in recent memory, AHCA represented a feat of legislative hubris. As a policy matter, Obamacare imposed a more sweeping scope on the nation’s health-care system. But the tactics used to “sell” AHCA—“We’re doing this now, and in this way. Get on board, or get out of the way”—were far more brutal, and resulted in a brutal outcome, an outcome easily predicted, but the one its authors did not intend.

There is a different approach, one I’ve seen on display. Some job interviews are thoroughly unremarkable, but two during my tenure on Capitol Hill stand out—the chief of staff who described himself as a “servant leader,” one who ensures all the members of the team have the tools they need to succeed; and the legislative director who told me, “We want to make sure you have a voice.” Of course I took both jobs, and felt myself privileged to work in such inclusive and empowering environments.

In some ways, the process that led to AHCA represents the antithesis of servant leadership, with members being given a virtual ultimatum to support legislation many neither liked nor understood. But in its purest form, public service should be just that—service—to one’s constituents, and, in the case of elected congressional leaders, to the members who chose them.

A more humble, inclusive, open, and transparent process will not guarantee success. The policy differences among the disparate Republican factions are real, and may not ultimately be bridgeable. But an opaque, authoritarian, and rushed process will almost certainly guarantee failure, as it did in the case of AHCA.

Listening Is Crucial

Ultimately, the failure to legislate on AHCA lay in a failure to listen to the policy concerns of Members, and to the warning signs present from the start. One can only hope that Republicans learn from this proverbial mule-kick, and start listening to each other more carefully and more closely. That process can yield the wisdom and judgment that comes from understanding, which can only help to heal the many breaches within the party following the events of recent weeks.

On November 8, Republicans received an important gift from voters—the chance to serve the country. Recovering from last week’s setback will require leaders of a humbled party to recommit themselves to service, both to the American people and to each other, in service of a common good. The chance to serve the American people is solely within the public’s gift. That gift, if and when squandered, will likely not be renewed for a long time.

This post was originally published at The Federalist.

Past as Prologue? A Review of “The System”

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

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

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

Echoes of History

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

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

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

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

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

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

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

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

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

Lack of Institutional Knowledge

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

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

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

This post was originally published at The Federalist.

Four Ways Donald Trump Can Start Dismantling Obamacare on Day One

Having led a populist uprising that propelled him to the presidency, Donald Trump will now face pressure to make good on his campaign promise to repeal Obamacare. However, because President Obama used executive overreach to implement so much of the law, Trump can begin dismantling it immediately upon taking office.

The short version comes down to this: End cronyist bailouts, and confront the health insurers behind them. Want more details? Read on.

1. End Unconstitutional Cost-Sharing Subsidies

In May, Judge Rosemary Collyer ruled in a lawsuit brought by the House of Representatives that the Obama administration had illegally disbursed cost-sharing subsidies to insurers without an appropriation. These subsidies—separate and distinct from the law’s premium subsidies—reimburse insurers for discounted deductibles and co-payments they provide to some low-income beneficiaries.

While the text of the law provides an explicit appropriation for the premium subsidies, Congress nowhere granted the executive authority to spend money on the cost-sharing subsidies. President Obama, ignoring this clear legal restraint, has paid out roughly $14 billion in cost-sharing subsidies anyway.

Trump should immediately 1) revoke the Obama administration’s appeal of Collyer’s ruling in the House’s lawsuit, House v. Burwell, and 2) stop providing cost-sharing subsidies to insurers unless and until Congress grants an explicit appropriation for same.

2. Follow the Law on Reinsurance

House v. Burwell represents but one case in which legal experts have ruled the Obama administration violated the law by bailing out insurers. In September, the Government Accountability Office (GAO) handed down a ruling in the separate case of Obamacare’s reinsurance program.

The law states that, once reinsurance funds come in, Treasury should get repaid for the $5 billion cost of a transitional Obamacare program before insurers receive reimbursement for their high-cost patients. GAO, like the non-partisan Congressional Research Service before it, concluded that the Obama administration violated the text of Obamacare by prioritizing payments to insurers over and above payments to the Treasury.

Trump should immediately ensure that Treasury is repaid all the $5 billion it is owed before insurance companies get repaid, as the law currently requires. He can also look to sue insurance companies to make the Treasury whole.

3. Prevent a Risk Corridor Bailout

In recent weeks, the Obama administration has sought to settle lawsuits raised by insurance companies looking to resolve unpaid claims on Obamacare’s risk corridor program. While Congress prohibited taxpayer funds from being used to bail out insurance companies—twice—the administration apparently wishes to enact a backdoor bailout prior to leaving office.

Under this mechanism, Justice Department attorneys would sign off on using the obscure Judgment Fund to settle the risk corridor lawsuits, in an attempt to circumvent the congressional appropriations restriction.

Trump should immediately 1) direct the Justice Department and the Centers for Medicare and Medicaid Services (CMS) not to settle any risk corridor lawsuits, 2) direct the Treasury not to make payments from the Judgment Fund for any settlements related to such lawsuits, and 3) ask Congress for clarifying language to prohibit the Judgment Fund from being used to pay out any settlements related to such lawsuits.

4. Rage Against the (Insurance) Machine

Trump ran as a populist against the corrupting influence of special interests. To that end, he would do well to point out that health insurance companies have made record profits, nearly doubling during the Obama years to a whopping $15 billion in 2015. It’s also worth noting that special interests enthusiastically embraced Obamacare as a way to fatten their bottom lines—witness the pharmaceutical industry’s “rock solid deal” supporting the law, and the ads they ran seeking its passage.

As others have noted elsewhere, if Trump ends the flow of cost-sharing subsidies upon taking office, insurers may attempt to argue that legal clauses permit them to exit the Obamacare exchanges immediately. Over and above the legal question of whether CMS had the authority to make such an agreement—binding the federal government to a continuous flow of unconstitutional spending—lies a broader political question: Would insurers, while making record profits, deliberately throw the country’s insurance markets into chaos because a newly elected administration would not continue paying them tribute in the form of unconstitutional bailouts?

For years, Democrats sought political profit by portraying Republicans as “the handmaidens of the insurance companies.” Anger against premium increases by Anthem in 2010 helped compel Democrats to enact Obamacare, even after Scott Brown’s stunning Senate upset in Massachusetts. It would be a delicious irony indeed for a Trump administration to continue the political realignment begun last evening by demonstrating to the American public just how much Democrats have relied upon crony capitalism and corrupting special interests to enact their agenda. Nancy Pelosi and K Street lobbyists were made for each other—perhaps it only took Donald Trump to bring them together.

This post was originally published at The Federalist.

House Democrats Endorse a President Trump Power Grab

Last week, eleven leading House Democrats released a brief in a lawsuit regarding Obamacare, but one that could have implications far beyond this President’s health care law. Essentially, the Democratic leaders argued that courts had no power to intervene where a President spends money not appropriated by Congress—a position that the Democrats may endorse when the President in question is one of their own party, but one they will live to regret when the executive holds differing political views.

The brief in question was an amicus curiae filing in House v. Burwell, a case involving the legality of Obamacare’s cost-sharing subsidies. The text of the law nowhere provides an explicit appropriation for such subsidies—but the Obama Administration has disbursed funds to insurers regardless. In May, United States District Court Judge Rosemary Collyer ruled for the House of Representatives, ordering the Administration to stop the subsidy payments. House Minority Leader Nancy Pelosi and several of her Democratic colleagues filed the brief with the U.S. Court of Appeals for the District of Columbia, currently considering the Administration’s appeal of the District Court ruling.

The Democrats’ brief argues that the text of the law implies a subsidy for the cost-sharing subsidies, even if it did not say so outright. But more troublingly, the amicus filing discourages the Court of Appeals from even considering the merits of the case—encouraging the court instead to dismiss the case for lack of standing.

To read the lawmakers’ brief, Congress would have little recourse to the courts for relief should the executive spend money not appropriated. So long as a President at least makes an attempt to argue the existence of some appropriation, then the matter becomes what the Democrat lawmakers call “a quintessential disagreement about the proper interpretation of” statutes, one that the judicial branch should leave to the political branches. To Pelosi and her colleagues, the President violates the Constitution “any time the executive branch takes some affirmative action based on a misinterpretation of a federal statute,” since such actions involve spending money—but few if any of these violations warrant judicial intervention.

Surprisingly for a brief filed by a group of legislators, the amicus does not even articulate a clear set of circumstances when the legislature could legitimately sue the executive, other than to argue that House v. Burwell does not warrant such action. The Pelosi brief argues that not just one, but both Houses of Congress, must authorize such a suit—in other words, a Democratic-controlled Senate could block a Republican-led House from suing the President, and vice versa. It claims that a Congress injured by the President should use non-judicial means to remedy disputes, by passing corrective legislation—even though the President could veto such legislation, allowing his violations to stand unless 2/3rds of Congress agrees to rebuke him—or conducting Congressional oversight. As comforting as these remedies might sound in theory, few would likely prove effective in practice.

In an Obamacare context, House Democrats may consider complaints about the Constitution and the “power of the purse” mere trifling inconveniences. But they have just as much reason to be concerned as Republicans, for a future Administration could use the Obamacare precedents as grounds to make policy decisions few Democrats would favor.

To use a totally hypothetical example, suppose that a future President believed that—as this Administration has argued in court—that the context and structure of our nation’s immigration laws give the executive unlimited funding to build a big, beautiful wall—a yuuuuge wall, even—without Congress’ consent. Suppose also that said future President argued—as the House Democrats argued in their brief, and an Obama Administration official testified with a straight face before the House Ways and Means Committee in July—that because Congress didn’t pass legislation explicitly prohibiting it from doing so, it could spend unlimited funds on a deportation force to remove undocumented immigrants? Would Democrats value their constitutional prerogatives so lightly under those circumstances?

Call this a hunch, but I doubt that, under the immigration scenarios outlined above, the Democratic lawmakers would content themselves with the remedies they have laid forth in their brief about Obamacare’s cost-sharing subsidies. Faced with a President spending billions of dollars on a deportation force never appropriated by Congress, would Nancy Pelosi merely content herself with conducting hearings and “appeal[ing] to the public,” as her brief argues in the Obamacare context? Hardly.

The core issue surrounding the cost-sharing subsidies is not Obamacare, but the rule of law—a principle that, as Churchill noted, has existed since the barons met King John at Runnymede eight centuries ago: “Rex non debet esse sub homine, sed sub Deo et lege—the king should not be below man, but below God and the law.” A President cannot assume regal powers by spending money never granted by the peoples’ tribunes, essentially daring the courts and Congress to stop him.

That’s the point of House Republicans’ suit on the cost-sharing subsidies, and Judge Collyer’s ruling in May upholding the House’s position. And it’s a point that, their amicus brief notwithstanding, House Democrats should learn to discover and embrace. Because at some point in the future—whether immediately after tomorrow’s election, or years from now—they will find reason aplenty to cling to those important constitutional principles.

Have Republicans Gone Wobbly on Obamacare?

In the weeks after Saddam Hussein’s August 1990 invasion of Kuwait, British Prime Minister Margaret Thatcher famously remarked to President George H.W. Bush that “this was no time to go wobbly.” The Iron Lady’s maxim could well have applied to the Senate majority leader last week, when he made comments suggesting Republicans should have a hand in “fixing” Obamacare—the law collapsing in front of our very eyes—in 2017.

In comments at a Chamber of Commerce event in Louisville last Monday, Sen. Mitch McConnell (R-Kentucky) said the law “is crashing”—an obvious statement to all but the law’s most grizzled supporters. But McConnell also “said the next president will have to work with Congress to keep the situation from worsening, though he did not specifically say the health care law would be repealed.”

Those last comments in particular—about the imperative to “fix” Obamacare—should cause conservatives to remember three key points.

1. It’s Not Conservatives’ Job to Fix Liberals’ Bad Law

A crass political point, perhaps, but also an accurate one. Barack Obama, Nancy Pelosi, and Harry Reid rammed Obamacare through on a straight party-line vote, despite Republicans’ warnings, because, in President Obama’s words, “I’m feeling lucky.” These days, it’s the American people who might not be feeling so lucky, with insurers leaving the insurance exchanges in droves and premiums ready to spike.

Some might ask the reasonable question whether Republicans, as the governing party in Congress, should come together for the good of the country to make President Obama’s disastrous law work. But ask yourself what Democrats would do if the circumstances were reversed: Do you think that, if Republicans had enacted premium support for Medicare or personal accounts for Social Security on a straight-party line vote, and those new programs suffered from technical and logistical problems, Pelosi and Reid would put partisanship aside and try to fix the reformed programs? If you do, I’ve got some land to sell you.

We know Reid and Pelosi wouldn’t come together in the national interest, because they didn’t do so ten years ago to support the surge in Iraq. Instead, they passed legislation undermining the surge and calling for a troop withdrawal. The surge succeeded despite Reid and Pelosi, not because of them. So if Democrats abandoned the national interest to score political points a decade ago, why should Republicans bail them out of their Obamacare woes now?

2. Hillary Clinton’s Proposed ‘Solutions’ Range from Bad to Worse

On health care, Hillary Clinton’s campaign proposals have thus far fallen largely into three buckets: 1) increasing Obamacare subsidies, paid for by tax increases; 2) creating a government-run health plan; and 3) expanding price controls against pharmaceutical companies. Conservatives should endorse exactly none of those proposals. Moreover, Clinton’s proposals would actually exacerbate the exchanges’ fundamental problem: A product too few individuals want to buy because federal regulations and mandates have driven up premiums, making the purchase of coverage irrational for all but the sickest individuals.

But McConnell’s statement that “exactly how it [Obamacare] is changed will depend on the election” implies that a Clinton victory will allow her to set the tone and agenda for negotiations on “fixing” Obamacare. It also implies that Republicans should begin negotiating against themselves, and start rationalizing ways to accept proposals coming from a President Hillary: “Well, we could live with a government-run health plan, provided it were state-based…” or “We might be able to justify billions more in spending on new subsidies if…”

In addition to representing the antithesis of good negotiation, such a strategy brings with it both policy and political risk. Negotiating changes to Obamacare on a bipartisan basis puts Republicans on the hook if those changes don’t work. Clinton’s ideas for more taxes, regulations, and spending won’t make the exchanges solvent; if anything, they will only postpone the inevitable for a while longer.

3. Ridiculous Straw Men Can’t Justify Bailouts

Insurance industry spokesmen have been flooding Republican offices on Capitol Hill making this argument: Congress has to grant insurers massive new bailouts, or the American people will end up with a government-run health plan, or worse, single-payer health care.

That argument relies on several levels of specious reasoning. Unless Republicans lose both houses of Congress in November—a possible outcome, but an unlikely one—insurers’ argument pre-supposes that a Republican Congress will vote to enact a government-run health plan, or single-payer health care. As liberals themselves have pointed out, only one Democrat running for Senate this year even mentioned the so-called “public option” on his website. So why is this government-run health plan even a concern, when Reid couldn’t enact it in 2009 with a 60-vote Senate majority?

The honest answer is it probably isn’t—insurers are just trying to scare Republicans into bailing them out. It’s the oldest straw-man argument in the book: We must do something; this is something; therefore, we must do this.

If you don’t believe me, just read the following: “Everyone in this room knows what will happen if we do nothing. Our deficit will grow. More families will go bankrupt. More businesses will close. More Americans will lose their coverage when they are sick and need it the most. And more will die as a result. We know these things to be true.”

Those words come from none other than Barack Obama, as he tried to sell Obamacare in his address to Congress in September 2009. We know where that speech led us, and we should know better than to follow such illogical reasoning again.

Phineas Taylor Barnum once famously remarked that “There’s a sucker born every minute.” Here’s hoping that Republicans will disprove that adage next year, and decline to accept the sucker’s bet associated with trying to fix an inherently unfixable law.

This post was originally published at The Federalist.

Democrats’ Priorities: Obamacare or Zika?

If Nero was the emperor who fiddled while Rome burned, Barack Obama must surely qualify as the president who dithered while his signature initiative rapidly crumbled. Despite a public-health emergency in sections of the southern United States, the president seems more interested in shoveling money to insurers than in stopping the threat from the Zika virus.

Last week the New York Times reported that the Obama administration was attempting yet another Obamacare relaunch, this one including a federally funded “advertising campaign featuring newly insured individuals, as well as direct appeals to young people hit by tax penalties this year for failing to enroll.” With enrollment in the law’s exchanges well below original estimates, insurers leaving in droves, and premiums ready to spike, the move seems to be a desperate attempt to increase sign-ups and keep insurers at the Obamacare table.

But the timing of the announcement could not be more incongruous. Even as the Department of Health and Human Services wastes taxpayer dollars to promote yet again a measure enacted into law six years ago — on which public opinion has remained decidedly stable (and negative) — HHS also claims that it desperately needs additional funding to fight the Zika virus. Senate Majority Leader Mitch McConnell wrote to HHS on Friday to ask why the agency’s leaders  believe that taxpayer dollars “would be better spent propping up the failed Obamacare exchanges than other important public health priorities — such as preventing the spread of Zika.”

The fact remains, however, that HHS’s top priority is propping up the failed Obamacare experiment — a bigger priority than obeying the text of Obamacare itself. The non-partisan Congressional Research Service and other outside experts have concluded that, in implementing Obamacare’s reinsurance program, the administration violated the law by prioritizing payments to insurers over payments to the Treasury. As a result, insurers will receive billions of dollars in extra funding that legally should be returned to taxpayers.

To sum up the situation: The Obama administration is funneling billions of dollars to “greedy” insurers that Democrats hate, while Nancy Pelosi and other Democrats have called for Congress to return from its recess to pass billions of dollars in spending to fight Zika. There is, however, an easy win-win solution: Use the reinsurance funds to pay for the new Zika spending, rather than giving insurance companies another Obamacare bailout.

The Zika conference report that the House passed in June did pay for new spending on the virus by rescinding some unspent Obamacare funds. Two-thirds of the funds rescinded, however ($543 million in total), came from an account used to establish Obamacare exchanges in United States territories. With exchanges having been established for years, this “rescission” amounts to Congress agreeing not to spend money that was never going to be spent anyway — a “pay for” on paper rather than in reality.

By contrast, utilizing reinsurance funds to finance Zika spending would represent a legitimate savings to taxpayers. Such a move would reclaim billions of dollars that otherwise would have been (unlawfully) diverted to insurance companies — some of which would fund the new Zika spending, and some of which would be returned to the taxpayers to whom the funds belonged in the first place.

Using reinsurance dollars to fund a Zika package would be not only good policy but good politics as well. Most Americans would put the health of infants and pregnant women over the health of insurance companies’ bottom lines — and so should Congress. If Democrats wish to defend crony capitalism and corporate-welfare payments to insurers, that is their right. But particularly after the premium spikes hit this fall, few may wish to do so.

As the old saying goes, to govern is to choose. Senator McConnell rightly pointed out last week that this administration has prioritized its failed Obamacare experiment over protecting Americans from the Zika virus. When it comes to finding any new source to pay for new Zika spending, ending Obamacare’s reinsurance bailout should stand at the top of the priority list.

This post was originally published at National Review.

Paying for the Medicare “Doc Fix”

House members are working on legislation to provide a permanent repeal of provisions capping Medicare reimbursements to physicians. As past debates have shown, failure to identify spending cuts to offset the pay increase to doctors would significantly impact seniors’ Medicare premiums.

Legislative language has yet to be released, but press reports have indicated the outlines of a potential agreement between House Speaker John Boehner and Minority Leader Nancy Pelosi. The proposal is expected to permanently repeal the sustainable growth rate (SGR) mechanism established in 1997 for setting physician payments and overall physician spending within Medicare. After only a few years, spending began to exceed the SGR spending targets, prompting Congress to pass a series of bills—known as the “doc fix”–adjusting the targets upward for short periods.

In general, Congress financed these short-term doc fixes by reducing spending elsewhere in the budget. More than $165 billion worth was covered this way. But lawmakers used two statutory mechanisms to lower the cost of these short-term spending bumps and promised to recover the remaining costs in the future. Each time it has come up, Congress has kicked the proverbial can down the line.

When it comes to physician payment, the agreement being negotiated by the congressional leaders is expected to do two things: First, it would fill in the shortfall from repeated budgetary gimmicks. Maintaining flat payment rates for the future, rather than letting the SGR cuts take effect, would cost $137.4 billion, according to the Congressional Budget Office. This would not be paid for but would be absorbed into the deficit. The second part of the agreement, which provides for modest increases in physician payments in the coming years, would have a net cost of $37.1 billion, according to CBO. This increase in spending would be paid for.

One ramification of the proposed $137 billion increase in deficit spending: Seniors would fund a significant portion. As CBO noted in its 2009 score of an earlier, unsuccessful SGR repeal bill: “Beneficiaries enrolled in Part B of Medicare pay premiums that offset about 25 percent of the costs of those benefits. . . . Therefore, about one-quarter of the increase in Medicare spending would be offset by changes in those premium receipts.”

The House Republican leadership is well aware of the premium effects of an unpaid-for SGR repeal. When then-Speaker Pelosi brought an unpaid-for SGR repeal bill to the House floor in November 2009, then-Minority Leader Boehner called it an “absolute train wreck,” because it “forces seniors to pay higher premiums.” All but one House Republican voted against the legislation—largely because it did not include spending cuts to pay for the repeal.

It remains unclear how many House Republicans today might change their position from 2009, or what their public justification for doing so would be. What is clear is that any unpaid-for legislation would have a fiscal impact on America’s seniors as well as the federal budget.

This post was originally published at the Wall Street Journal’s Think Tank blog.

More CBO Transparency Could Have Prevented Obamacare’s CLASS Debacle

Mere days into a Republican Congress, Democrats are making charges of ideological bias when it comes to the majority’s handling of the Congressional Budget Office (CBO). Last Friday, a group of leading Senate Democrats wrote a letter to Speaker Boehner specifically noting that “a CBO director should not be required to revise the score of the Affordable Care Act in order to please partisan interests.” It’s an ironic charge, given that it’s far from partisan to question why the CBO failed to perform analyses that could have predicted the collapse of an $86 billion Obamacare program—exactly what happened under its current director, Doug Elmendorf.

The program in question, Community Living Assistance Services and Supports, or CLASS, was designed to provide cash benefits for those needing long-term services and supports. CLASS made it into Obamacare at the behest of then-Sen. Ted Kennedy, and over the objections of both Republicans and moderate Democrats, who considered it fiscally unsustainable; then-Senate Budget Committee Chairman Kent Conrad (D-ND) famously dubbed CLASS “a Ponzi scheme of the first order, the kind of thing Bernie Madoff would have been proud of.” And so it proved—in October 2011, less than two years after the law’s passage, the Department of Health and Human Services determined CLASS could not be implemented in a fiscally solvent manner, and in January 2013, Congress repealed it entirely.

But Congress and the American people could have been spared this trouble had CBO performed a more thorough analysis of CLASS. In 2009, the budget agency assumed that CLASS’ administrative expenses would remain confined to three percent of premiums, even though HHS’ own actuary later called this requirement “unrealistic and undesirable.” The actuary hired by HHS went on to estimate total expenses at 20 percent of premiums—nearly seven times the level specified in the law.

The unrealistically low administrative expenses go to the heart of CLASS’ structural flaws. The program proved fiscally unsustainable because it faced a classic actuarial death spiral—a lack of healthy people paying into the pool to fund benefits for those needing care.

Had CBO formally analyzed CLASS’ administrative expenses, it likely would have concluded that the unrealistic assumptions written into the law meant premiums would eventually have to rise, benefits fall, or both, to meet the shortfall—making the program even more unattractive to healthy individuals, and further imperiling its solvency. The Congressional Budget Office does have models to estimate the cost of insurance; with Obamacare, it stated in November 2009 that insurance Exchanges would reduce the administrative costs of individually-purchased coverage. But when it came to CLASS, CBO did not perform a similar analysis.

Likewise, CBO at no point attempted to quantify the potentially massive costs to states that CLASS would have imposed. The program would have required state Medicaid programs to create a benefit eligibility system similar to that used by the Social Security disability insurance program. That program costs nearly $3 billion to administer every year—meaning CLASS could easily have imposed costs to states of $20-30 billion over a decade.

Within HHS, officials expressed concern that CLASS would “create significant new burdens on the states.” Coming at a time when governors of both parties were criticizing the “mother of all unfunded mandates” in the form of Obamacare’s Medicaid expansion, a CBO finding that CLASS imposed mandates on states in the billions, or tens of billions, would have prompted bipartisan outrage—and could have scuttled the program entirely. But from its introduction to its repeal, CBO at no point even acknowledged the significant cost to states associated with CLASS.

In fairness to CBO, the months leading up to Obamacare’s passage were by far the busiest in my time as a Capitol Hill staffer. Lack of enough hours and lack of sleep could, and did, cause details to slip through the cracks; to quote Nancy Pelosi, we really did have to pass the bill to find out what was in it. But that neither excuses nor explains why CBO has not publicly acknowledged the shortcomings outlined above, and what if anything it needs to change—whether in resources, oversight, or both—to improve its analysis going forward.

Judging from his silence on CLASS, Dr. Elmendorf may view protecting his office’s budget analysts as a prime objective of a CBO director. As much as I value loyalty, CBO’s prime loyalty should lay to Congress—and ultimately to the public, which funds both CBO and the programs it analyzes. While Dr. Elmendorf has taken measures to release more information publicly—developments I welcome—such steps generally fall into the realm of making CBO less opaque, rather than truly transparent.

Democrats’ political posturing aside, it’s not partisan to ask for a public explanation why an independent budget office did not produce analyses that could have revealed the instability of an $86 billion “Ponzi scheme” before Congress enacted it into law. In fact, the principles of good governance should compel the Congressional Budget Office in exactly this direction. Hopefully CBO’s next director, whoever he or she is, will move more rapidly down the road of this much-needed transparency.

This post was originally published at the Washington Examiner.

Obamacare and the Pitfalls of Congressional Legislating

Weeks before Congress embarked on its final push to put Obamacare on the statute books, then-House Speaker Nancy Pelosi infamously stated that Congress had to pass the bill “so that you can find out what’s in it.” But last week, a staffer at the heart of drafting the legislation admitted that Congress itself failed to comprehend the implications of the provisions it imposed upon the American people.

On Friday, a Capitol Hill newspaper published a story outlining the history of Obamacare’s employer mandate and whether the administration might delay its implementation still further. In the article, Yvette Fontenot—a lobbyist who helped write the bill for then-Senate Finance Committee Chairman Max Baucus and later worked on implementing the legislation at the White House—admitted that when Mr. Baucus’s staff drafted the employer mandate, “we didn’t have a very good handle on how difficult operationalizing the provision would be at that time.”

Indeed, the employer mandate has proved difficult to implement. Defining who counts as a full-time employee across a variety of industries and creating databases to track employees’ hours have taxed regulators and companies alike. While the administration has cited these difficulties in twice delaying the mandate’s implementation, the law’s critics take a different view—believing the administration postponed the mandate to avoid potential stories about job losses prior to the 2014 elections.

Likewise, the import of Ms. Fontenot’s admission. Liberals and supporters of a strong executive might argue that her comments highlight the need for agency rulemaking, rather than placing final authority in the hands of inexpert legislators and overtaxed congressional staff—essentially saving Congress from itself. House Speaker John Boehner obviously disagrees. The Ohio Republican views the impending House vote exploring legal action against the administration as one way for the legislature to regain its authority.

But more broadly, conservatives would argue that Ms. Fontenot’s comments highlight the need for a more deliberative—and more humble—Congress, one quicker to acknowledge its own flaws, and change its processes accordingly. Recall that Max Baucus—the prime congressional author of Obamacare—said four years ago that he didn’t want to “waste my time” reading the legislation, because “we hire experts.” But one of those “experts” now says she didn’t understand how one of the major portions of the bill would work. It makes a very compelling argument that Congress, rather than relying on agency employees to resolve its self-imposed problems, should instead revert to the Hippocratic oath, and focus first and foremost on doing no legislative harm.

This post was originally published at the Wall Street Journal’s Think Tank blog.

Morning Bell: Who Is Affected by Obamacare? EVERYONE

In response to the wave of insurance cancellations hitting millions of Americans, and the admission by some on the left that President Obama’s “if you like your plan” promise was false, Obamacare’s defenders are now taking a different tack.

While the law’s supporters finally admit that some people will be worse off under the law, they now claim that those “losers” will be few and far between.

The facts speak otherwise, because few Americans will be unaffected by Obamacare’s new health care regime:

If You Have Insurance Through an Employer: The Administration claims that employer-provided coverage is not changing under Obamacare—even as it brags that Obamacare is providing better benefits to those with employer plans. Those “better benefits” are not free, however. One recent survey from consultants at Mercer found that half of large employers believe Obamacare will raise health costs by at least 2 percent next year. With the average employer plan costing more than $16,000 per family, even a 2 percent increase amounts to hundreds of dollars in added costs for employers and families every year—for “benefits” they may not have wanted to purchase absent a government order.

If You Buy Insurance Yourself: As many Americans have found in recent weeks, the odds are that those who previously purchased their own health plan will not be able to keep it. Some experts have predicted that as many as 16 million individuals could fall into this category. Individuals whose insurance has been canceled will have to buy Obamacare-compliant insurance. As a result, they may face substantially higher premiums for insurance coverage that provides a smaller network of doctors and hospitals.

If You Qualify for Subsidized Insurance: Defenders of the law would argue that these individuals are clear “winners” under Obamacare. But many of these Americans may use taxpayer subsidies to buy insurance coverage they don’t need or want—because the federal government has forced them to, and/or because Washington bureaucrats have taken away their existing plan. What’s more, the nearly $1.8 trillion in spending on exchange plans and for Medicaid will create a significant new burden for future generations of taxpayers.

If You Are a Senior Citizen on Medicare: Obamacare will affect seniors as well—because, as House Minority Leader Nancy Pelosi (D-CA) famously said in 2011, Democrats “took half a trillion dollars out of Medicare in [Obamacare]” to fund the law’s new entitlements. The Administration’s non-partisan actuary concluded that the law’s unsustainable spending reductions to Medicare could cause 15 percent of hospitals to become unprofitable by 2019, and 40 percent to become unprofitable by 2050—which could have a significant impact on beneficiaries’ access to care.

The idea that “only” 3 percent of Americans will end up on the short end of a 2,700-page law remaking the nation’s health care system seems as fanciful as the President’s pledge that anyone who likes their current plan could keep it.

The facts are clear: Obamacare isn’t just unfair for a small percentage of Americans; it’s unfair for the entire country.

The American people deserve better.

This post was originally published at the Daily Signal.