How the Midterm Elections Could Shape Reform

After months of debate over how health reform would influence the midterm elections, those elections are finally looming and the law’s effects on voter preferences are unclear.

Some seniors say they’ll vote against Democrats who backed reform; other likely voters say that the law does not go far enough. Meanwhile, just one of the eight Democrats who opposed the reform law before finally voting for it in March is expected to retain a seat.

While a full repeal of reform is unlikely given President Obama’s veto power in the absence of congressional supermajorities, Republican victories at the national level could alter reform’s scope, while GOP wins on a state level might shape implementation and perception of the law.

Congressional Shakeup Likely Ahead

Congressional Republicans’ strategy has coalesced around two goals: to strike down the individual mandate and defund the bill. That approach may be shaped further if Republicans win the lower chamber of Congress but Democrats retain the upper chamber.

The New York Times‘ FiveThirtyEight.com synthesis of polls suggests that Democrats are likely to lose 50-plus seats in the House and at least a half-dozen seats in the Senate. As of Wednesday morning, prediction service InTrade.com projected that the Republicans have  a nearly 89% probability of winning the House, though just a 15% chance of gaining control of the Senate.

What would Republicans do if they retook only the House? Reviewing the party’s motions to recommit during the reform debate offers clues to their top priorities, a senior GOP staffer told the Hill. Those motions included:

• Replacing rules governing coverage for abortion care services;
• Repealing the Independent Payment Advisory Board; and
• Striking comparative effectiveness research.

Rep. Joe Barton (R-Texas) — who could resume his chairmanship of the Energy and Commerce Committee, which has a pivotal role in overseeing health care market changes — told CQ Today that he would immediately try to repeal “everything after the enacting clause” of reform and ready replacement legislation. He also would form a Medicaid task force with governors and push for new rules on medical malpractice.

The elections’ effect on health reform in the Senate is less predictable. While some Democrats running for Senate have said they’d work to change the reform law, Republicans intentions are not quite clear. For instance, Republican Carly Fiorina has said that, if elected as senator representing California, she would work to repeal the federal health reform law and push for a different health care model that would foster greater competition among insurers and drugmakers.  However, Sen. Bob Corker (R-Tenn.) this month reportedly told top donors that most Senate Republicans don’t plan to support a full repeal and retiring Sen. Judd Gregg (R-N.H.) said the party should focus on retooling the law. Republicans also have signaled that they would like to preserve certain measures of the overhaul, like the insurance exchanges.

State-Level Changes May Be Less Sweeping

Although their dissatisfaction with reform could fuel further challenges to the law, state officials are more constrained than members of Congress in what they can do to oppose federal regulations.

For example, newly elected governors who oppose reform may delay crucial decisions that affect the law’s implementation, such as whether their states should create their own insurance exchanges or partner with others to manage regional exchanges. However, even in Texas — where Gov. Rick Perry (R) and the state’s attorney general have shown “open hostility” toward the overhaul and have joined or launched broad efforts in opposition to it — state officials say they are moving forward with efforts to comply with the federal law.

Meanwhile, several Republican candidates for attorney general positions are competing to be first in line to join a multistate lawsuit led by Florida and challenging reform’s constitutionality. South Carolina’s Alan Wilson says he would “be a leader” on repealing the law and immediately add his state to the suit; GOP candidates in Oklahoma and Kansas have pledged to do the same. In response, Democratic candidates for state attorney general positions have typically termed the suits as political “posturing” and a “waste” of state funds. Republicans have noted that the cost of the suit is presently $50,000 and is split among nearly 20 states.

Additional states seeking to join the Florida lawsuit would have to file a motion for participation, which the federal district court judge would have to approve. Although oral arguments for the case are set to begin on Dec. 16, attorneys general who are sworn in during early January 2011 should still have time to join the suit prior to a decision, CQ Today reports. Doing so may carry more implications for public perception than legal consequences, as the case appears bound for the Supreme Court regardless of whether more states join the effort.

Where do Stakeholders Stand?

Perhaps most telling is where the health care industry is spending its dollars ahead of the election.

Overall health care industry group giving in 2010 still favors Democrats, according to Center for Responsive Politics data, but the industry’s lobbying groups have shifted contributions toward Republicans after backing efforts to pass the reform law. Industry lobbyists have given $23 million to Democrats this year, compared with $15.8 million for Republicans.

However, the five largest insurance companies and America’s Health Insurance Plans, the industry’s lobbying group, have given three times more money to Republican lawmakers and their political action committees than to Democrats since January 2010. Lobbyists also are treating open Democrat races and incumbent races differently, The Hill reports. The American Hospital Association and the Federation of American Hospitals have donated to 10 Republicans and one Democrat in open-seat races.

Stakeholders’ move to back Republicans reflects their hope for more favorable regulations, the Associated Press reports — and their belief that, after Tuesday, the party will be the one shaping the congressional agenda.

Here’s a look at other happenings in health reform.

Questioning the Overhaul

• Last week, three Republican members of the House Energy and Commerce Committee sent a letter to HHS Secretary Kathleen Sebelius requesting more information about the agency’s recent waivers to companies that provide employees with low-cost health plans, also known as “mini-med plans.” The letter was signed by committee ranking member Joe Barton (R-Texas), Oversight and Investigations Subcommittee ranking member Michael Burgess (R-Texas) and Health Subcommittee ranking member John Shimkus (R-Ill.) (Norman, CQ HealthBeat, 10/22).
• On Tuesday, Barton and Lamar Smith (R-Texas) sent a letter to Sebelius, defending health insurers’ right to criticize the federal health reform law. Barton and Smith were responding to a letter Sebelius wrote last month to America’s Health Insurance Plans, in which she stated that the government will have “zero tolerance” for “unjustified rate increases” and “misinformation” about the overhaul (Adams, CQ HealthBeat, 10/19).
• Virginia Thomas, wife of Supreme Court Justice Clarence Thomas, is retracting statements she made about the unconstitutionality of the federal health care reform law. Thomas called the overhaul “unconstitutional” in a position paper posted on the website of Liberty Central, a conservative group she founded last year. Officials from Liberty Central said Thomas’ name appeared on the position paper by mistake (Bloomberg/New York Times, 10/21).

Eye on Administration Advertising

• On Monday, Republicans on the House Ways and Means Committee sent a letter to Sebelius asking for more information about the HHS’ advertising spending for October (Pecquet, “Healthwatch,” The Hill, 10/18). The letter questions an ad series in which TV actor Andy Griffith says that the reform law “sure sounds good for all of us on Medicare.”  However, the letter — signed by the committee’s ranking member Rep. Dave Camp (R-Mich.) and health subcommittee ranking member Wally Herger (R-Calif.) — states that the ads “fai[l] to mention the one-half trillion dollars” in Medicare cuts included in the health reform law (Adams, CQ HealthBeat, 10/18).
• On Tuesday, the Government Accountability Office released a legal opinion stating that the Medicare advertising campaign featuring Griffith does not violate a federal ban on the use of appropriated funds for publicity or propaganda. According to the GAO opinion, the ads are not illegal because “they clearly identified their source, were not self-aggrandizing and were not a purely partisan activity.” However, the opinion said the ads overstate the benefits of the overhaul by pledging to maintain all beneficiaries’ “guaranteed benefits” (Reichard, CQ HealthBeat, 10/19).

Rolling Out the Reform Law

• State insurance regulators and health policy experts have clashed repeatedly over what to include and when to distribute four-page brochures summarizing insurers’ health plans. Under a provision in the overhaul, insurers would have to submit a standardized, four-page form with information detailing the consumer benefits and payment requirements of their plans, in addition to definitions of commonly used terms. The provision is not scheduled to take effect until 2013, but HHS is expecting a draft of the form within the next two to three weeks for review and approval by March next year (Kliff, Politico, 10/26).
• On Monday, CMS officials explained their plans for the new Center for Medicare and Medicaid Innovation, which will provide $10 billion in grants over 10 years in an effort to update the U.S. health care system. CMMI, which was created under the federal health reform law, should be fully operational by January 2011. During an event on health reform hosted by the Brookings Institution, CMS Administrator Donald Berwick and CMMI Director Richard Gilfillan outlined ways the grants could help improve care delivery, better public health and reduce health spending (Adams, CQ HealthBeat, 10/18).
• The federal health reform law creates “important opportunities” to rein in health care spending, but lawmakers must change the overhaul to capitalize on those chances, according to a according to a report by a bipartisan group of health policy analysts. The report released by the Engelberg Center for Health Reform at the Brookings Institution — was written by Engelberg Center Director Mark McClellan, a former White House policy adviser for President George W. Bush, Joseph Antos of the American Enterprise Institute, Harvard University economist David Cutler and former Wellpoint executive Leonard Schaeffer (Reichard, CQ HealthBeat, 10/22).