The Health Care Spectator

Starving ObamaCare

Could a new GOP majority win a government shutdown battle over defunding the national health care law? From our July-August issue.

By From the July 2010 - August 2010 issue

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One of the most popular debates in Washington these days is whether this year's midterm elections will be a repeat of 1994, when Republicans rode a wave of anti-big government sentiment to retake Congress, delivering a blow to a young liberal president. But the natural follow-up question is whether a new Republican majority could produce an encore of 1995.

When the Republican majority set out to slash government spending that year, it encountered stiff resistance from the White House that ultimately triggered a government shutdown.

Ever since Democrats rammed through President Obama's overwhelmingly unpopular national health care law, conservatives have been grappling with ways to undo it. One problem is that the strategy of repealing the law isn't viable until 2013, when there's a chance to inaugurate a Republican president. In the meantime, other conservatives are pinning their hopes on a successful legal challenge to the law's mandate forcing all Americans to purchase government-approved health insurance policies. But however strong the constitutional arguments may be, that strategy leaves ObamaCare's fate in the hands of judges who have already discarded federalism and stretched the Commerce Clause to the point of meaninglessness.

With tremendous uncertainty surrounding both these avenues, another strategy is emerging that would give the GOP an opportunity to deliver a more immediate blow to the health care law. Should Republicans regain control of Congress, they could theoretically use their new power of the purse to deny Obama the funding needed to administer his signature accomplishment. This prospect is already gaining steam among opponents of the law. The new group DeFundit.org has gotten more than 90 candidates and current members of Congress to sign a pledge supporting stripping ObamaCare of money.

There are a lot of scenarios for how a defunding push could play out, especially based on whether Republicans gain control of one or both chambers of Congress. But in the end, such a strategy could result in a replay of late 1995, when a budgetary standoff led to a government shutdown.

Newt Gingrich, who as House Speaker was a central figure in the standoff leading to that shutdown, has been one of the most vocal proponents of the defunding strategy, and he presented the idea during an April breakfast hosted by TAS.

"A simple majority can refuse to fund," Gingrich said. "So if [John] Boehner is Speaker and Mitch McConnell is majority leader, all you have to do is write it into the appropriations bills. If the president vetoes the appropriations bills, you repass them. The president has got to go to the country and convince the country...to spend money on a program that has a 20 percent margin of disapproval."

He continued, "So the president has to somehow make it into a positive political issue to veto the appropriations bills. The only person who can close the government is the president. If you're determined to pass the appropriations bills, he has to decide to veto a bill you have passed."

The idea would be to gut ObamaCare by denying the money needed to implement its sweeping provisions. "There are 159 new offices, agencies, and commissions in this new bill," Gingrich explained. "All you say is, we're not gonna fund them. And you have in effect, stopped the project."

REP. TODD TIAHRT OF KANSAS is the ranking member on the House Appropriations Subcommittee on Labor, Health and Human Services, and Education. The spending bill that emerges from his committee would ultimately be the one that would include the funding associated with the new health care law.

Shortly after the signing of the new law, Tiahrt called for House-Senate talks on how to defund the legislation. In a phone interview with TAS, he agreed it was theoretically possible to stop ObamaCare in its tracks through the appropriations process. Even spending that is considered "mandatory" still needs to be implemented by an agency.

"If there's no money to administer it, nothing gets done," Tiahrt said, echoing Gingrich. "If the money is not there to write the regulations, the regulations won't be written."

Logistically, a member could offer an amendment to the committee that targeted a provision of the law, adding the language, "No funds shall..." The amendment would have to pass out of committee to be included in the bill that goes before the larger chamber. Tiahrt said he used this method last year to strip the Environmental Protection Agency of funding needed to regulate live-stock emissions, which he said would have crippled cattle production.

While he said he supports presenting an amendment that would defund the law in its entirety, his comments suggested it would be more likely that Republicans would target specific aspects of the bill.

In May, the Congressional Budget Office released a new analysis estimating that $115 billion in discretionary spending has been authorized under the new law for the next decade. But the office cautioned that it couldn't issue a more thorough estimate because in many cases the legislation simply says that Congress shall allocate whatever sums it deems "necessary" to implement given provisions, without specifying how much those sums would be. One Republican staffer on the Hill described discretionary spending as the "low-hanging fruit" for defunding.

"It's possible to defund the whole thing," Tiahrt said. "It's possible to defund sections of it. It would be more likely that some of those things that were done as special provisions to capture one or two votes are more vulnerable than others."

For instance, he noted the "Louisiana Purchase" of $300 million in Medicaid money, inserted as Democrats were courting Sen. Mary Landrieu to vote for the Senate bill. Another example is the increased funding for Internal Revenue Service agents to audit businesses and individuals to enforce mandates.

Yet Tiahrt admitted that "there are some things in the health care law I approve of," and cited funding for community health centers as an example. "The whole idea here is we need to find sections that are not effective, or are in the wrong direction for the recovery of our economy and our nation, and put those to the test through the amendment process," he said.

If the Republicans control both chambers of Congress and choose to defund the administration's chief legislative achievement, it would trigger a showdown with President Obama. If they control just one body of Congress, the conflict would still occur, but it would be between the two chambers.

"Regardless of if Republicans control one body or both bodies, there could be a standoff," Tiahrt said. "And the standoff means no funding. So for those whose objective is to reform, repeal, and replace the health care system, that's a good opportunity."

Tiahrt said that ultimately, it was a matter of having the will.

"The bottom line is we've got to have strong leadership in the House and Senate," he said. "There are tools available. We can talk about different strategies, but unless you have strong leadership and people who are willing to withstand criticism from the administration, and probably from the national media, it would be difficult to get it done. So we can't send representatives and senators to Washington who cower in the face of conflict. We have to have courageous members."

HOW REPUBLICANS CHOOSE to proceed should they win a majority in at least one chamber largely depends on how they view the legacy of the 1995 government shutdown. Gingrich himself emphatically rejects the conventional wisdom that the event was a huge defeat for the GOP, allowing President Clinton to reclaim the center by portraying Republicans as extremists.

"Everybody in Washington thinks that was a big mistake," Gingrich said. "They're exactly wrong. There had been no reelected Republican majority since 1928. Part of the reason we got reelected, and we were reelected, remember, with [Bob] Dole losing the presidency...is our base thought we were serious. And they thought we were serious because when it came to a show-down, we didn't flinch."
He also said the shutdown helped lead to practical accomplishments, such as a balanced budget and welfare reform.

In today's climate, Gingrich said, Republicans could win the battle with Obama. "A Republican Congress could calmly and forcefully say, ‘We are not going to fund bigger government, more debt, and socialized medicine,'" he said.

But Michael Cannon, a Cato Institute health policy analyst and fierce critic of ObamaCare, disagrees.

"I don't think that anyone but Newt Gingrich believes that that was a success," Cannon said of the government shutdown. The reason why congressional Republicans were reelected in 1996, he argued, was simply that in most years, the public tends to reelect incumbents. "If he thinks that's evidence of success of his government shutdown, then I think he must be smoking something."

Instead of helping the cause of limited government, the government shutdown created an opening for Democrats to associate lower taxes with being uncompassionate, Cannon said. To avoid the same mistake this time, he suggested that if Republicans take back the majority, they should force the administration to defend the aspects of the law that generate the most public opposition.

"If you want to be successful, you have to make sure you're doing it in a way that is going to make the law unpopular and not make you unpopular," he said. "And to do that, you can't defund the whole thing. You have to pick something that is crucial, that will cause major problems for proponents of it."

One of the most effective tactics Republicans could use, he said, would be to pass an appropriations bill that includes the more restrictive language on abortion championed by Rep. Bart Stupak, who ultimately caved and supported a bill that did allow for public funding (though he vehemently denies it). Such a move would provoke a fight in which pro-choice Democrats would once again have to choose between ObamaCare and limits on private abortion coverage. (Given that the health care law has government subsidizing private policies, a broad number of private policies would be subject to such restrictions for the first time.) On top of that, public funding for abortion is something that Americans are overwhelmingly opposed to.

"If you put the Stupak language in an appropriations bill, you can win the message war and remind the public that this is what ObamaCare does, and that it's always going to do this unless you repeal it," Cannon said. Even if Republicans ultimately flinch, "We could spend weeks and weeks talking about how ObamaCare covers abortion and making it less and less popular."

While he said that he thinks it would be "fantastic" if a full defunding strategy worked, it could provide Democrats with an opening to win a battle that gets framed as uncompassionate Republicans versus compassionate Democrats.

"Nothing short of repeal is going to be worthwhile," he said. And according to this line of argument, a fight that reinforces the unpopularity of ObamaCare will make repeal more likely in 2013 than a fight that makes opponents of the law look bad.

The only thing that could change the dynamics, Cannon said, would be a Greek-style financial crisis that would make it easier for Republicans to publicly defend more drastic steps.

ALTHOUGH HE DEFENDED the government shutdown, Gingrich acknowledged that one of the lessons he learned from the conflict with Clinton was, "You have to consistently communicate."

A Washington Post/ABC News poll conducted during the 1995 government shutdown recorded a 65 percent disapproval rating for Gingrich. Especially harmful were comments he made after being asked to sit at the back of Air Force One on a trip to assassinated Israeli prime minister Yitzhak Rabin's funeral. Gingrich called it a "snub" from the Clinton White House and said that it was "part of why you ended up with us sending down a tougher continuing resolution." The media seized on the narrative that the House Speaker shut down the government because of his bruised ego, prompting the New York Daily News to publish a front-page cartoon depicting Gingrich as a toddler throwing a tantrum, with the headline "Crybaby."

The key is to think of defunding ObamaCare as one of several avenues to undermine the legislation, and not as some sort of magic bullet. Getting rid of the law for good will require persistence, conviction, and resolve among elected officials, but the only way to foster that is to sustain public opposition. Otherwise, the inertia of the welfare state will cement ObamaCare in place as an entitlement, crippling our health care system and handing over another massive financial burden to future generations.

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About the Author

Philip Klein is The American Spectator's Washington correspondent. You can follow him on Twitter at: http://twitter.com/Philipaklein