Consumer Power Report #196

Published October 1, 2009

Forgive me for not getting out a newsletter last week. I was in Michigan all week working with the Mackinac Institute to give four speeches in three days.

Meanwhile, the activities around ObamaCare keep getting stranger. On Tuesday, the Senate Finance Committee voted down two “public option” proposals, one sponsored by Jay Rockefeller (D-WV) and the other by Chuck Schumer (D-NY). This would seem to make the scenario of a “vapor bill” more likely. This is explained by Dan Perrin on the Red State blog.

In light of this, a growing number of grassroots activists are calling on Republican members of the Finance Committee to walk out of the committee sessions. They cite committee rules on a quorum that read:

“Rule 4. Quorums. – (a) Except as provided in subsection (b) one-third of the membership of the committee, including not less than one member of the majority party and one member of the minority party, shall constitute a quorum for the conduct of business.”

As far as I know this effort has not been picked up by any national organizations or Web sites, but it underscores the frustration being felt around the country.



In the last issue we reported on a number of polls showing that support for the current health reforms is waning, with pluralities now opposing what Congress is considering. Now comes the Kaiser Family Foundation with a survey that support has grown in September. The announcement says, “Fifty-seven percent of Americans now believe that tackling health care reform is more important than ever–up from 53 percent in August. The proportion of Americans who think their families would be better off if health reform passes is up six percentage points (42% versus 36% in August), and the percentage who think that the country would be better off is up eight points (to 53% from 45% in August).”

That is quite a change in just one month. It may give comfort to political supporters of the current bills, but it seems to be counter to all the other information out there. Rasmussen, for instance, finds that opposition is growing and is now at the highest level ever with 41 percent supporting reform and 56 percent opposing it.

Rasmussen polls much more frequently than Kaiser does, and the varying results may rely on exactly when the survey was conducted. KFF’s survey was done from September 11 through 18, and Rasmussen also found an up-tick in support during the week after Obama’s big speech. On September 12-13 Rasmussen found 51 percent in favor and 46 percent opposed, the biggest margin of support since late June. Also, Rasmussen polls “likely voters” while KFF appears to poll everybody.

So public opinion is volatile, and at best amounts to a pretty thin weed on which to build a fundamental restructuring of one-sixth of the American economy.

SOURCE Kaiser Family Foundation; Rasmussen


If you want to know why people feel betrayed by the Republican establishment in Congress, it is captured in a point-counterpoint on individual mandates published in U.S. News.

The first article is written by Bill Frist, M.D., former Senate Majority Leader from Tennessee. Dr. Frist is a nice guy and a superlative surgeon, but he’s a lousy policy analyst.

He begins by saying, “I believe in limited government and individual responsibility, cherish the freedom to choose, and generally oppose individual mandates.” So far, so good. But then he throws it all away and supports requiring every American to buy a private health insurance policy. Either his “beliefs” are not very deep or they are window dressing — throw-away lines to placate liberty-loving Republicans.

Why does he support mandates? Because “markets fail.” Problem is that the market hasn’t failed, government has. Government has piled on so many mandated benefits and other regulations that health insurance is no longer attractive or affordable to many millions of Americans.

He also thinks it is “unfair” that anyone should go bankrupt due to an accident or illness. Yet having health insurance is no protection against such bankruptcy. Accidents and illnesses often lead to the loss of a job, the loss of income, and the inability to pay bills in general. Not just medical expenses. That is why many people with perfectly fine health insurance still file bankruptcy when they get sick.

He also bemoans the problem of “cost-shifting,” never mind that cost-shifting is primarily a problem of inadequate payment by Medicare and Medicaid, not the uninsured.

Now, Dr. Frist is willing to limit the scope of the mandate to “catastrophic” coverage — to begin with. But this is more window-dressing. Once you have given up on the principle of mandates on individual citizens, you have lost the argument. Now you are simply negotiating the terms of your surrender. And no one in Congress would accept “catastrophic” coverage as being “adequate.”


The Counterpoint is written by Dick Armey, former Majority Leader of the House from Texas. Mr. Armey is also a nice guy and an economist who is now chairman of FreedomWorks.

Mr. Armey argues that a mandate is nothing more than a give-away to the private health insurance industry involving $200 billion in new premiums every year and half-a-trillion in federal subsidies over the next 10 years. Members of Congress also would benefit as every health care interest group would line up to lobby for their particular service to be included in the mandatory coverage.

He points out that such coverage would raise the cost of premiums dramatically, as it has done in Massachusetts, where the cheapest family coverage is now $906/month. In Iowa the same family can get coverage for $145/month.

He concludes, “Instead of forcing unnecessarily expensive insurance on us, why not simply let us purchase cheaper insurance across state lines? It costs the taxpayers nothing, immediately increases insurance competition, broadens choice, and, by making cheaper options available, would lower the number of uninsured.”



A big argument is brewing over whether such a mandate is even constitutional. Does the federal government have the authority to require citizens to purchase a private product? It never has happened before. The closest precedent might be the Selective Service System, but even there, people may be required to serve in the military, but they are not required to buy a private product. The Constitution is quite clear that Congress may raise an army and call forth the militia. A mandate may be more like the “takings” provision that allows eminent domain for public purposes, but it is not supposed to be used for private gain (at least until the Kelo decision came along). Many people argue that the Commerce Clause authorizes such a mandate, but it is doubtful that the “regulation” of interstate commerce includes mandating the purchase of a private product. Commerce would seem to be a voluntary activity. So this should be a fascinating debate that may decide whether the Constitution of the United States has any bearing whatsoever on current life and law.

Former Judge Andrew Napolitano writes about this in The Wall Street Journal. He writes, “What we have here is raw abuse of power by the federal government for political purposes. The president and his colleagues want to reward their supporters with ‘free’ health care that the rest of us will end up paying for. Their only restraint on their exercise of Commerce Clause power is whatever they can get away with. They aren’t upholding the Constitution–they are evading it.”

SOURCE: Napolitano

The New York Times blog also addressed the issue in an article posted by Katharine Seelye. She writes, “Conservatives and libertarians, mostly, have been advancing the theory lately that the individual mandate, in which the government would compel everyone to buy insurance or pay a penalty, is unconstitutional.” She quotes David Rivkin, who served in the Justice Department under Reagan and Bush Senior, as saying, “If you say the government can mandate your behavior as far as this type of insurance goes, there will be nothing the government can’t do. They can control every single way in which you dispose of your income.”

But Mark Hall at Wake Forest University says such a challenge is “extremely unlikely to succeed.” But Mr. Hall also says, “Other than serving in the military through the draft or paying your taxes, it’s hard to think of anything else that the federal government requires you to do just because you’re a citizen.”

The article also cites a CBO statement from 1994 that says, “The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate has two features that, in combination, make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would have to be heavily regulated by the federal government.”

SOURCE: New York Times Blog


The New York Times reports that in more than a dozen states, “a small but growing group of lawmakers is pressing for state constitutional amendments that would outlaw a crucial element of the health care plans under discussion in Washington: the requirement that nearly everyone buy insurance or pay a penalty.”

This effort also raises constitutional questions. The article says, “Opponents of the measures and some constitutional scholars say the proposals are mostly symbolic, intended to send a message of political protest, and have little chance of succeeding in court over the long run. But they acknowledge that the measures could create legal collisions that would be both expensive and cause delays to health care changes, and could be a rallying point for opponents in the increasingly tense debate.”

Arizona is furthest along in the process. There will be a referendum on its ballot in 2010 amending the state constitution protecting the right of citizens to choose the kind of coverage they will have, as well as whether to have it at all.

Clint Bolick, litigation director of the Goldwater Institute, believes the state initiatives are winnable for the states in a clash with the federal government.

SOURCE: New York Times

CBS News ran an article on its Web site about mandatory coverage. It quotes Tim Phillips of Americans for Prosperity and Michael Tanner of the Cato Institute as opposing a mandate, and Len Nichols of the New America Foundation as supporting one.


A paper I wrote three years ago for CAHI is more relevant than ever. In it, I tick through 11 issues related to mandatory coverage and I conclude:

“Mandatory coverage is an idea that won’t solve the problems it is supposed to address, but will create a whole host of new problems and have serious consequences throughout the economy. Mandatory coverage is nothing more than the latest bromide, the newest simple solution to a complex problem. That problem has been aggravated by previous simple solutions that made bad situations worse.”



The Manhattan Institute has published a study by Steve Parente and Tarren Bragdon that examines the potential for “market-based” reforms for New York. An op-ed by Paul Howard summarizes the results. Mr. Howard writes that repealing New York’s current community rating and guaranteed issue laws “would lower premiums and help as many as 37 percent of the uninsured there to buy private, unsubsidized coverage. It would also help reserve scarce tax dollars for the poorest and sickest New Yorkers.”

When combined with other reforms such as buying coverage across the state line in Connecticut and Pennsylvania and reducing the mandatory coverages in New York, these reforms would lower costs by 24 percent and 18 percent respectively. He says, “Parente and Bragdon’s report offers several lessons. While recent legislation — like the draft Senate Finance bill — would require all Americans to buy insurance, GI and CR regulations will drive up the cost,” and “Congress’ mistake is trying to make 90 percent of the insurance market fit the 10 percent of people who need help. These efforts are well meaning, but they’ll wind up making a bad situation worse.”

SOURCE: Paul Howard op-ed; Parente-Bragdon Study


The Associated Press reported that, “Congress’ chief budget officer on Tuesday contradicted President Barack Obama’s oft-stated claim that seniors wouldn’t see their Medicare benefits cut under a health care overhaul. Elmendorf said the changes, ‘would reduce the extra benefits that would be made available to beneficiaries through Medicare Advantage plans,’ he said.”

SOURCE: Associated Press

No Medicare Cuts?

Writing for Real Clear Politics, Robert Robb makes the obvious point that most of the offsets that are supposed to make the Baucus plan deficit-neutral will never be realized. The 35 percent (or 40 percent) tax on Cadillac plans, for instance, is supposed to raise $53 billion, but, “this is a slight-of-hand. The insurer will try to shift as much of the cost as possible to the employer, who will in turn shift as much of the cost as possible to the employee. The incentive, then, becomes to maximize health insurance benefits up to the point that the tax will be triggered,” and “in terms of producing revenue, it’s likely to bring in closer to zero than $53 billion.” Ditto with the scheduled 25 percent cut in physician fees in 2011. It will simply never happen.

SOURCE: Real Clear Politics

CER Saving Money?

The Rand Corporation has released a new report that says “Comparative Effectiveness Research May Not Lead to Lower Health Costs or Improve Health.” It goes on, “Under some circumstances comparative effectiveness research might reduce spending for certain diseases, but there is no clear evidence that a large new undertaking in this area would result in overall savings to the U.S. health care system.” Now, that’s a kick in the head for all the folks who have been billing it as the next panacea.

SOURCE: Rand Corporation

Expand Medicaid?

The governors aren’t too thrilled about the Medicaid expansions being considered in Congress, according to AMNews. Although the Feds would pick up most of the tab in the first few years, the governors see this as a foot-in-the-door for a major new unfunded mandate on the states. Not welcome news at a time when almost every state is hard-pressed to pay for the most elementary of state services.