Legal Commentary

Revisiting The Stupak Problem

By Big Tent Democrat

mcjoan addresses the Stupak Problem I wrote about yesterday. I think both mcjoan and her commenters misunderstand the reconciliation process and Stupak's position. First, it is important to remember that Stupak voted FOR the House health bill, once his amendment was adopted. So clearly Stupak's issue was a discrete one - public subsidies for private insurance policies that cover abortion services. Those subsidies are offered for individuals who earn too much to qualify for Medicaid (in the House bill, that was 150% of FPL, in the Senate bill 133% of FPL) but no more than 80K/year for a family of 4 (with the subsidies reduced on a sliding scale.)

Since a new bill can not be passed through regular order, I proposed a fix of the Senate bill (Stupak has stated the Senate bill is unacceptable) that could address Stupak's concerns while still complying with the Byrd Rule for reconciliation. In essence, my proposal is an elimination of the federal subsidies for the purchase of private insurance and a transfer of those funds to expanding Medicaid eligibility as much as possible. I think the de facto effect of this is to render the state based exchanges meaningless (which they pretty much are anyway imo), but it does not require actually eliminating them. Keep them in place. No harm done. More . . .

By eliminating the public subsidies for the purchase of private insurance you eliminate the need for a Stupak Amendment. There will be nothing for the Stupak Amendment to actually apply to.

This does create a different problem regarding the individual mandate. But this can also be addressed via reconciliation -- by altering the application of the tax that is the actual mechanism for enforcement of the individual mandate. Indeed, the Obama proposal tweaks the mandate in this way. Clearly then this is also doable by reconciliation.

Another possibility for addressing the Stupak problem is to compel uninsured individuals to subscribe into a public option, perhaps even Medicare. Thus, individuals could purchase their own private insurance or instead be auto-enrolled in Medicare (which is subject to the Hyde Amendment.) Again, the purpose of the Stupak amendment would be vitiated.

Any of these changes would resolve the Stupak problem and are doable via reconciliation.

Of course, if an obsessive love for the exchanges and the public subsidies for the exchanges makes such modifications untenable to some, that means they are saying they are willing to kill the health bills over the exchanges.

Such a position does not seem reasonable to me. But then again, there are people who feel the same way about the excise tax, and I find that unreasonable too.

Speaking for me only

Full post as published by TalkLeft on February 24, 2010 (boomark / email).