SEATAC, July 11.—Bill McCollum, the former Florida attorney general who launched the national health care challenge that landed in the U.S. Supreme Court, says he felt like he took one “in the gut” when the ruling was finally released June 28. But no need to worry, he assured an audience at a Washington Policy Center luncheon Tuesday. You can be sure the Affordable Care Act will begin collapsing in short order.
What comes next – that’s a little harder to figure.
“I have run for political office, and a few of them I have won and a few of them I have lost,” he said. “It was just like losing an election.”
McCollum initially played the lead role in the lawsuit that was joined by Republican governors and attorneys general in 26 states, including Washington. The suit, which challenged the “individual mandate” at the core of the federal law, might have brought down the entire Affordable Care Act with it. But the majority opinion, from Chief Justice John Roberts, held that the requirement that Americans obtain insurance was permissible under the taxing authority granted to Congress by the U.S. Constitution.
It was a stunning decision, McCollum acknowledged, and one he never expected. But he says it settled only one small corner of the argument. As the Affordable Care Act takes full effect, he said its problems are going to quickly become clear. “I don’t know if we’re going to see a change in who the president is, or in the majority in the Senate, and whether we are actually going to see the law repealed or portions of it, but I know that it is going to fall, or a good portion of it is, by its own weight or some combination of all the reasons that I just talked about over the next two to three years. It is unworkable, it is unaffordable, and then at the end of the day, if we don’t replace it, we are going to have to find ways to patch something together.”
The Unaffordable Care Act
McCollum, the featured speaker at the Policy Center’s annual health care conference, was a congressman for 20 years before becoming Florida’s top legal official in 2006. He stepped down to make an unsuccessful run for governor in 2010, losing in the Republican primary.
Problems with the health care act are many-fold, he said, starting with the cost. The expansion of Medicaid for low-income Americans and taxpayer subsidies are going to cost $1.76 trillion over the first 10 years, he said, citing an estimate published in the Wall Street Journal – and that means higher taxes. Some estimate that the bill as it stands imposes $675 billion in new taxes over that same period, “but when you look at it, it just doesn’t add up.”
Much of the impact will be felt at the state level, where Medicaid programs will pick up the cost for low-income adults; even though the federal government will pick up most of the tab the first few years McCollum said it is hard to believe that it will be sustained. At the same time, many who are currently eligible for Medicaid will sign up for the program – for those who are currently eligible, the cost share is a far less generous 50-50 split. Congress and the White House will face intense pressure to cut spending, and as health services consume an even larger portion of the budget they will become the obvious target. Thus the quality of the health care system itself is at stake.
There was one small victory in the court ruling, McCollum said: It established that states can opt out of the Medicaid expansion; Texas, Mississippi and South Carolina are already making plans to do so. “I don’t know how many of the 26 won’t do it, it is still not a great victory in my opinion, but it is a very important constitutional point – you have a limit for the first time, according to the Supreme Court, on just how far the federal government can go in attaching strings to its spending bills to the states.”
Court No Longer Primary Battleground
McCollum said the ruling was really the last chance to overturn the entire law. He predicted that many interests and possibly states as well might sue to challenge other portions of the Affordable Care Act, and some parts still might be declared unconstitutional. In filing the lawsuit the 26 states focused on the individual mandate, because it was “what we thought, as attorneys general, was most affecting the broader community.” But at the Supreme Court level they also argued that the issue was not “severable” from the rest of the law. McCollum said the severability issue now seems to have been decided, and his side lost. “There will not be, in my opinion, any opportunity in any of these legal challenges to get any deep, broad type of ruling like that. There could be challenges to a lot of different components that could take pieces of it out over time, but that is going to take a lot more time.
“It took us a couple of years to go to the Supreme Court. If you follow these suits, we went there faster than most – maybe three years. Most of this is enacted or put into effect in 2014 or 2015 if it hasn’t been already. So the politics is probably going to overtake most of this. That is my opinion.”
A Simple Plan
Instead of focusing on repeal, it makes more sense to think about replacement, McCollum said. He said a simpler program might do the trick, and would certainly be cheaper. He said he supports a proposal from Congressman Paul Ryan of Wisconsin for a system that relies on refundable tax credits. Taxpayers would get a credit on their taxes equal to the premiums for a basic health care policy – a stripped-down plan with a high deductible, with benefits perhaps a bit more generous than a typical catastrophic policy.
“The idea would be like your TV plan at home for cable. You get ten channels or something, and 10 basic things that are in your policy, and then if you want to buy more widgets and add to the basic package, you get 10 more.”
The pure politics of medical-industry lobbying would probably prevent state legislatures from designing programs like that on their own, he said – every interest group would demand that policies include their particular service, and the list of mandates would creep skyward. Congress would have to do it, and it would have to hold the line. It wouldn’t be perfect, he said; many would complain that every possible contingency isn’t covered. But it would be more workable than a program micromanaged from Washington, D.C., outlined by a 2,700-page bill and buttressed by 12,000 pages of regulations.
“You could write that bill – because I’ve already worked on this – for 30 pages, 40 pages – maybe 50 by the time you got done amending it; I know how legislators work. But not 2,700. Not even close to that.”
McCollum said it’s just one idea. But people better start thinking about Plan B.
“I’m not a fatalist about this at all. I’ve always said that when the lawsuit was over, regardless of how it came out, the health care reform debate was just beginning. It wasn’t the end of it, it is just beginning.”