Transcript: Health On The Hill – October 18, 2010

Some Democrats are talking about health care in their elections in a new way: send us to Washington to fix parts of the health care bill that you don’t like. Meanwhile, oral arguments in a Virginia court case challenging the law’s requirement that individuals purchase health care insurance are proceeding in court.

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JACKIE JUDD: Good day. This is Health on the Hill. I am Jackie Judd. The health care reform law passed by Congress and signed into law by President Obama was one of the most significant expansions of social policy since the creation of social security and Medicare. So, how significant an issue is it in the upcoming congressional elections, and what close are there about efforts that might be made to change the law, depending on the election outcome?

Before we get to that discussion, here is a sampling of some campaign commercials. First, Senator Russ Feingold, the rare Democrat who is actually touting his support of the law, and then his Republican opponent. [Commercials play.]

Candidates from both parties on both sides of the issue are getting help with these commercials from outside organizations. One such group is Revere America, chaired by Republican George Pataki, the former governor of New York. Its goal is to repeal reform. Revere America has launched an ad campaign against incumbent Democrats across the country. [Commercials play.]
The internet is home to many campaign videos produced by these outside groups. A pro-health reform organization, Healthcare for America Now, posted one in which actor Jack Black takes on Republican naysayers. Here is a portion. [Commercial plays.]

Here to discuss politics and health care 2010 are Mary Agnes Carey, correspondent for Kaiser Health News, and Julie Rovner of National Public Radio. Nobody says you can’t have any fun with these commercials, right?

MARY AGNES CAREY: That’s right.

JACKIE JUDD: Julie, you just reported on what the Democrats are and are not saying about health care reform, what is the latest?

JULIE ROVNER: Well, we have a handful of Democrats who, as we saw with that Russ Feingold ad, are actually up and advertising about health care, but most of them are really avoiding the issue. Most of the ads that you see tend to be Republicans, as we saw in the other ad talking about ObamaCare as this government takeover of health care, but frankly really health care is low down on the issues this year.

It is more when you talk about health care this health care law is an example of big government. This is an election about the economy and about bigger issues, about what is going to be better going forward, which party is going to be better at bringing more jobs. So, health care is sort of a second- tier issue.

JACKIE JUDD: It seems to be a kind of proxy for these other issues, for the economy, for voter dissatisfaction with Washington.

JULIE ROVNER: Indeed and when you talk to pollsters, that is pretty much what they say. So, Democrats, even though this was clearly one of the biggest domestic achievements that Democrats have had in decades, probably, they are not really anxious to go out and tout it because there is so much voter anger and angst about things that they see it, as you say, as a proxy for things that have really gone wrong, not that they don’t necessarily like the law.

And Democrats in particular do like the law and they like a lot of the things in the law, but there is so much unhappiness with just the way the country is going that when you sort of tout anything as having gone well, people don’t believe it because they still see the economy as being so sour that people really want to go forward. So mainly when you see Democrats, that it’s all about campaign themes or whose values do you share, and who do you trust? And you do see that in a lot of these campaign ads.

One of the campaign ads that I talked about in my story was an ad from Steve Israel on Long Island who painted really the insurance company, health insurance companies and big oil, and the guys of BP, as you know he was fighting against both of them for his constituents. That was sort of his theme and he used the health law in that guise.

JACKIE JUDD: And there are, though, a small group of Democrats anyway who are beginning to talk, certainly not repeal but repair. If you send me to Washington, I will fix this law to make it better.

MARY AGNES CAREY: Right. We have had candidates, like Brad Ellsworth who is a candidate in Indiana, Democratic candidate for the Senate, has said yes, we will have to make some fixes, we will have to make some changes. Same thing for Earl Pomeroy, a House member, Democrat from North Dakota, who is trying to get reelected. They are trying to kind of I think stake out a middle ground here versus embracing it, as Russ Feingold does, or not talking about it at all — just saying look, there are some things that are good, some things that are bad, as you say, Jackie, send me and I will help fix it.

JACKIE JUDD: Not everyone in the Republican Party believes this message of repeal is a winner. What are some of the thinkers of the party, the strategists, the pollsters, saying about some danger areas?

JULIE ROVNER: One of the things that is really interesting and there was a Kaiser note last week, Kaiser Family Foundation, that when you really look deep into the numbers on how many people say they would like to see this law repealed, actually a lot of people sort of are using that to express dissatisfaction with not necessarily the entire law itself. There was a wonderful Bloomberg Poll that 47 percent of the respondents said that they supported repeal, but then when they went down and took the pieces of the actual law, six of eight provisions in the law, people by fairly strong margins wanted to keep, so they actually really don’t want to see it repealed. And actually when you go back to what the Democrats are doing, they are campaigning on the more popular elements of the law, keeping older kids on their parents’ plans, these patients’ Bill of Rights type things, you know, making sure that insurance companies don’t take advantage of patients.
The only things that are really unpopular are things like this individual mandate requiring everyone to have health insurance, and I think people still don’t really understand how that works. And this Cadillac Tax, requiring people to –

JACKIE JUDD: In later years.

JULIE ROVNER: Right and I think people still don’t understand really how that works, so I think the two most unpopular things are the things that are still the least understood, and most everything else in the law is actually when you ask people about it are still overwhelmingly popular.

JACKIE JUDD: And so there is this Republican pollster, Bill McInturff, who spoke with another corespondent at Kaiser Health News, who said it could be risky territory for Republicans because of this point Julie is making, that not every element of the bill is unpopular, by far.

MARY AGNES CAREY: Exactly. There are things people like, as Julie is talking about: not canceling your health insurance because you get sick, allowing your adult child up to age 26 to stay on your policy, people like these things. These protections went into effect for plan years starting after September 23rd, so I think the cautionary note in the piece we ran on Kaiser Health News was that voters might sort of wonder about, are you going to take something away from me if you repeal the law? And that, with the Bill McInturff interview, I think he was trying to strike the middle ground for candidates, say that you will get rid of things people don’t like, like Julie is talking about the individual mandate, but that you want to keep and preserve the things that they do like, that that’s the better spot for Republicans to be in.

JACKIE JUDD: Julie, let me put you out on a limb for a moment, as we all know what a candidate says during a campaign is quite different than what a politician or elected official will do in office. Given the recent polls that show Republicans are going to be doing quite well in the House anyway, what do you think goes on in the first few months of the next Congress regarding health care, potentially?

JULIE ROVNER: Is this assuming Republicans take over the House?

JACKIE JUDD: Well, certainly that they have a stronger hand than they do now.

JULIE ROVNER: Well, you know, obviously if Republicans take over the House and not the Senate and clearly they can’t take over the White House in this election, it’s not up for grabs, the chance for repeal is fairly small because they would need veto override proof margins, which no one is suggesting they are going to get. So, the talk of actually repeal, everyone assumes, not going to happen. But certainly they could, and lots of stories have been written about this, you know, perform mischief, they can try to stall funding for implementation. They can have lots and lots of hearings where they can drag people up from the Department of Health and Human Services who are otherwise busy trying to implement the law, and that actually does, that takes up a lot of time. And there are a lot of people who are working very hard to try and get the regulations written and do the negotiations, as we have seen with the business community, the insurance community, the states, and the time that they would have to spend preparing testimony and coming and testifying on Capitol Hill could really botch things up. So, that is not a small thing and they also have appropriations bills begin in the House, so if the House is Republican they can try and cut off funding for said implementation activities, whether that would go in the Senate if the Senate remains led by Democrats, but certainly we could have some kind of gridlock in the funding process, that would be difficult, or we could end up with appropriations bills that would then be vetoed by the President — you could see some kind of stall in the funding process. So, there is a lot of concern about those sorts of things, even if there is not an out and out repeal, there could be efforts to make changes to it. But as many academics have pointed out, you can’t really just take the individual mandate out of this law because the rest of it certainly is dependent. That’s part of the basic underlying structure. Yes, it is the most unpopular piece of it, but again when I go out and talk to people, I think they don’t understand a lot of how this works. That small businesses aren’t going to be required to insure their workers, that is a very common misunderstanding about this law. How much people will have to pay is still very ill understood. This doesn’t happen for another two and a half years, but it doesn’t happen until 2014. It is a while yet to still educate people.

JACKIE JUDD: And to change things.

JULIE ROVNER: And to change it.

JACKIE JUDD: There are a couple of other balls in the air two weeks out from the elections: one the ballot initiatives, two the court cases.

MARY AGNES CAREY: Exactly. You have got states that want to strike down the individual mandate. That is on the docket for Oklahoma, Arizona, and Colorado, and we have lots of lawsuits in play. Virginia will be heard today again. There is a challenge that the government cannot use the Commerce Clause of the Constitution to require individuals purchase insurance. Those oral arguments will proceed today. In Florida last week, a judge said the case could proceed and the challenge against the individual mandate and against the Medicaid expansion and then prior to that we had a judge in Michigan say no, Congress actually does have the power to require you to buy health insurance under the Commerce Clause, so we are going to see this legal fight play out all the way to the Supreme Court.

JACKIE JUDD: And Julie, you took a closer look at that Florida decision and found something interesting in there.

JULIE ROVNER: Yeah, the Florida case is considered the most serious because there are these 20 states, the Attorney Generals from 20 states who filed that suit, and interestingly the judge actually threw the states out of the challenge to the individual mandate. The only people who are left to challenge that are these two individuals.
They got these two individual plaintiffs sort of at the last minute and the National Federation of Independent Business, the only thing the Attorney Generals are left to challenge is whether Congress is overreaching on requiring the additions to Medicaid and the judge hinted pretty strongly that he is not going to fine for them on that, it’s just that it has been apparently argued in every other circuit except that one, so he’s going to let them proceed.

JACKIE JUDD: So, a final question, what is the practical impact of that first point of telling the Attorneys General you don’t have a role here?

JULIE ROVNER: I think mostly just a big political embarrassment. This was a big deal for these governors who filed. I think it was within 10 minutes of the signing of the law, this was a big, big deal, and again the Virginia case which is on its own, which is a little bit different from this other case. Virginia passed a law that said its citizens don’t have to abide by the federal law, which a lot of scholars have said, basically we fought a Civil War over this. State law can’t nullify a federal law, so a lot of scholars don’t think that the Virginia case is going to get that far either. So, basically what we have is what everybody predicted, is that the only people who actually have standing to pursue an appeal to the Supreme Court about the individual mandate are the individuals themselves.

JACKIE JUDD: Okay, thank you both so much. These are a certainly interesting couple of weeks we are facing, Julie Rovner, Mary Agnes Carey, I appreciate it.