WASHINGTON -- A few hours after the Supreme Court upheld his signature health care legislation last week, President Barack Obama approached a White House podium, addressed the camera and declared that the nation's top justices had reaffirmed an important guiding principle of his presidency.
"Here in America -- in the wealthiest nation on Earth -- no illness or accident should lead to any family's financial ruin," Obama said.
That single sentence was a compelling invocation of nearly every political theme Obama has presented on the campaign trail this year: To live in a nation is to take part in a social contract; personal wealth does not determine human dignity; decent people in a nation of means do not allow the less fortunate to suffer needlessly.
But while the president has focused on lowering health care costs at home, he has repeatedly sought to impose higher drug prices abroad. For pharmaceutical companies, that has meant steady profits, but for the global poor in desperate need of affordable drugs, those lofty prices are often a matter of life and death.
Nevertheless, members of the Obama administration continue to pursue policies around drug pricing that multiple United Nations groups, the World Health Organization, human rights lawyers and patient advocates worldwide decry.
Two weeks ago, U.S. Patent and Trademark Office Deputy Director Teresa Stanek Rea sparked an uproar among public health experts when she testified before Congress on multiple administration strategies to affect drug pricing abroad by using American international political muscle. Her testimony focused on the Indian government’s efforts earlier this year to create an affordable generic alternative to an expensive cancer drug called Nexavar, which had been patented by Bayer AG, a multinational pharmaceutical conglomerate best known in the United States for aspirin pills.
Over the course of 70 minutes, Rea repeatedly castigated India's government for approving the generic drug, calling the move an "egregious" violation of World Trade Organization treaties. India's decision, Rea said, "dismayed and surprised" her, and she boasted about "personally" engaging "various agencies of the Indian government" in efforts to overturn it.
"This is unprecedented, really shocking testimony," says Judit Rius, the U.S. manager of Doctors Without Borders Access to Medicines Campaign, an international humanitarian aid group that won the Nobel Peace Prize in 1999. "It doesn't have any ground in international legal norms. I've never really seen a U.S. government official misinforming Congress in public like this. It's embarrassing for the White House."
The Rea hearing, which had all the trappings of an inconsequential technocratic snoozefest, was almost completely ignored by American media -- drowned out by the furor over the Supreme Court’s historic health care ruling. Only eight members of the 23-person House Subcommittee on Intellectual Property, Competition and the Internet showed up and asked questions.
Thus far the Indian government has resisted American pressure and continues to offer the generic alternative, which was approved in March after several months of negotiations with Bayer.
Not once during her testimony did Rea -- or any member of Congress -- cite the price Bayer posted in India for its version of the drug. Bayer, which earned $3.4 billion last year, was charging over $5,000 a month for standard doses, according to data from the Indian government. The cost of a generic version: $157 a month.
It was the high price that Bayer demanded for its cancer medication that prompted the Indian government to act. In a nation with a per capita income of just $1,410, the Bayer drug is financially out of reach for most Indians. The government authorized Natco Pharma to begin selling the generic version and ordered the firm to pay Bayer a 6 percent royalty on the proceeds.
That practice, known as compulsory licensing, is commonplace. It's explicitly protected by World Trade Organization treaties, an effort to ensure that good health care is not merely a privilege for the rich -- the kind of principle outlined by Obama in his celebration of the Affordable Care Act. The U.S. even deploys the compulsory licensing process to address domestic drug shortages.
But at the hearing, Rea said she planned to deploy the pressure it has used against India in other countries, too. "This is front and center," Rea said. "[We are] trying to stop the granting of further compulsory licenses."
Public health advocates have an entirely different take on the issue. They emphasize that Rea, who declined to comment for this article, did not offer a legal rationale for her agency's opposition to compulsory licensing, which goes against decades of international practices. Even the "Frequently Asked Questions" section of the WTO's website details broad leeway to approve generics that clearly apply to the Bayer cancer drug.
"Ignorance is no excuse for bad argument," says Anand Grover, United Nations Special Rapporteur on the Right to Health and Senior Advocate for the Supreme Court of India, who notes that, under WTO rules, "Setting an exorbitant price which makes the drug unavailable to those who need it ... [is] grounds for the issuance of a compulsory license."
Bayer declined to comment on specific pricing for the drug, or the Indian government's calculations, based on Bayer data, that just 2 percent of eligible patients had received the drug during its first few years on the market.
"We will rigorously continue to defend our intellectual property rights which are a prerequisite for bringing innovative medicines to patients," Bayer spokeswoman Heather Levis Guzzi said in an emailed statement. "The limited period of marketing exclusivity made possible by patents ensures that the costs associated with the research and development of innovative medicines can be recovered."
The company also pointed to the fact that Nexavar is not one of the 348 drugs on India’s National List of Essential Medicines -- a compilation of treatments intended to be available in a country’s health care system at all times.
The medical patent system has plenty of detractors. Many public health experts and economists advocate for public financing of research and development costs to avoid private sector pricing problems. Public health experts who deal with AIDS, in particular, have long sought to reform the patent regime, since HIV drugs must be taken continuously for decades, making high dosage costs an acute problem. Nexavar is one of several new cancer drugs featuring a similar treatment regimen to the best HIV drugs. It can extend a patient's life for years, but only if taken continuously.
Whatever the import patents have in protecting intellectual property and corporations' bottom lines, even the strictest patent rights have always been accompanied by exceptions and flexibilities.
"It's disappointing and outrageous," says Peter Maybarduk, director of Public Citizen's Access to Medicines Program, a consumer advocacy group, in reference to Rea's testimony. "Compulsory licensing is a sovereign right to protect public health and other public interests. It's been around as long as patents have been around. It goes back to the concept of 'crown use' in the oldest patent rules."
Rea and others at the briefing also failed to note that Bayer is a German company. During a lengthy discussion of the Obama administration's efforts to prevent the Indian government from providing affordable medication to its citizens, Rea declared, "We are doing everything we can to respect the rights of U.S. innovators." But she didn't mention that her efforts weren’t actually supporting an American corporation.
This is new territory for U.S. trade negotiation and enforcement, according to trade experts. During the Clinton and Bush years, American diplomats were dispatched to Brazil and Thailand to fight compulsory licenses on key AIDS drugs. However, the medications facing newfound competition were patented by U.S. corporations -- not foreign companies.
The Obama administration was quick to push back on Rea's testimony, with another key trade office downplaying her comments.
"We have expressed concern with India's interpretation of its law in authorizing the issuance of this license but we have not opined with regard to whether the action is consistent with [WTO treaties]," Carol Guthrie, spokeswoman for the Office of the U.S. Trade Representative, told HuffPost.
While the Patent Office has extensive foreign educational and advisory operations in developing nations, it does not have authority to bring unfair trade cases before the WTO. That power rests with the USTR, a White House agency that is also responsible for negotiating international trade deals. In a blog post published a few days after the hearing, Rea walked back some of her comments, acknowledging that compulsory licenses can be acceptable under WTO rules. Nevertheless, she said her agency "encourages" other nations to adopt policies that are stricter than WTO standards and maintained her opposition to the Indian generic.
"Although compulsory licensing can be permissible under the TRIPS Agreement, we encourage our trading partners to consider ways to address their public health challenges while maintaining intellectual property rights systems that promote investment, research, and innovation," Rea wrote. "The broad interpretation of Indian law in a recent decision by the Controller General of Patents of India regarding compulsory licensing of patents, in my view, may undermine those goals."
Public health experts emphasize that this kind of political pressure from the U.S. can be damaging to developing nations, even if no formal trade complaint is ever brought before the WTO.
"The [U.S. Patent and Trademark Office] is viewed as a regulator in other parts of the world, and not a lobbyist for U.S.-style patent laws or patent enforcement," says Kajal Bhardwaj, a human rights lawyer in India who has done extensive work on legislation to combat HIV in India."The statement by the USPTO official that its trainings are a method for preventing the issue of compulsory licenses is of great concern."
Rea's testimony is only the most explicit example of the Obama administration's efforts to use intellectual property maneuvering to inflate medical costs abroad. This year alone, the Department of Health and Human Services and the State Department have joined USTR and the USPTO in disrupting World Health Assembly talks over reducing research and development costs for medicines targeting developing nations, and shut down World Intellectual Property Organization negotiations aimed at curtailing the prices of existing drugs in poor countries.
Of course, high medicine prices abroad mean high profits for pharmaceutical firms, and drug companies were an important White House ally during the legislative push for the Affordable Care Act. Obamacare seeks to contain medical costs by focusing on insurance reform -- it makes only very modest changes to prescription drug policies, and in many respects, actually breaks new ground on pharmaceutical company efforts to establish drug monopolies.
"We're taking the worst parts of U.S. law, the parts that make these medications unavailable to patients, and putting them into a trade policy as a guiding principle for developing countries," says Reshma Ramachandran, a fellow with the American Medical Student Association, which advocates for universal quality affordable health care and global health equity, among other priorities. "That's ridiculous."
As HuffPost reported in the fall of 2009, the Obama administration cut a deal with PhRMA -- the dominant drugmaker lobbying group -- intended to smooth the bill's congressional path. Obama agreed to go easy on pharmaceutical companies with his reforms, if PhRMA would support the overall legislation. One of the key giveaways to PhRMA? A new 12-year monopoly on test data used in medical trials for drugs derived from proteins or living tissues. Obama approved the PhRMA freebie over the explicit objections of the Federal Trade Commission, which concluded in a 2009 report that the new test data rights would lead to anti-competitive behavior.
This new power, called data exclusivity, prevents companies from relying on another firm's clinical trials when seeking government approval for their own drug. The practice violates centuries of scientific standards, but it can also lengthen patent monopolies and prevent the development of new, even broadly unrelated, medications that rely on previous scientific tests.
"The 12 years of exclusive rights in test data creates an automatic monopoly right that is stronger than a patent monopoly in most countries, and it raises drug prices," says James Love, Director of Knowledge Ecology International, a nonprofit dedicated to public health and access to knowledge. "It violates the Helsinki Declaration on ethical principles for research involving human subjects, because it requires the duplication of experiments on human subjects."
The WTO has never required countries to abide by these standards, but according to Rea, the U.S. is trying to use trade negotiations with 10 other Pacific nations to export the policy abroad.
India isn't part of the Trans-Pacific deal, but Rea's discussion of the pact underscores the administration's multi-pronged approach to elevating drug prices. While attempting to prevent the introduction of generic drugs in WTO nations, the U.S. is simultaneously seeking new trade agreements that would impose stricter rules than those required by the WTO. Countries involved in the Trans-Pacific talks include Malaysia, which has a per capita income one-third less than that of the U.S., and Vietnam, a nation significantly poorer than India.
"We view that the Trans-Pacific Partnership provides a good venue to make sure that we get appropriate data protection, and that the 12 years of data exclusivity is something that we are definitely trying to negotiate for right now," Rea said during her testimony.
The USTR rejected Rea’s statement.
"That is incorrect," USTR's Guthrie told HuffPost, referring to Rae's claim about data exclusivity. "U.S. negotiators have not proposed a specific term for data exclusivity for biologics ... discussions on issues relating to biologics are continuing because we want to get the substance right."
Although the Patent Office is a key adviser on trade agreements, negotiating the Trans-Pacific deal is USTR's responsibility. Draft terms of the pact, and the Obama administration's hoped-for final results, are withheld from the public -- a policy which has embroiled the agency in considerable controversy with members of Congress, who want staffers to be able to access key documents. Rea's announcement of a negotiating goal was a major diplomatic faux pas.
Rae walked back this point from her under-oath testimony in her blog.
"I was also asked to comment on a twelve year period for data protection for biologics which is favored by the research-based pharmaceutical industry," Rae wrote. "The Trans-Pacific Partnership (TPP) negotiations are ongoing and the United States Government has not made a proposal for a longer term of data protection for biologic medicines."
But while there is a clear pattern to the Obama administration's strategy on such issues, different factions of the executive branch do not always agree on details. In its latest budget proposal, the Office of Management and Budget suggested a 7-year time limit on data exclusivity. But if Rea's preference policy made its way into the Trans-Pacific deal, the U.S. would be subject to international trade sanctions if it ever opted to shorten or eliminate the 12-year right.
The U.N. Development Program and UNAIDS, meanwhile, oppose any term of data exclusivity whatsoever, and issued a report in June encouraging countries not to sign trade agreements that include the provision.
The latest round of Trans-Pacific negotiations began the week after the Supreme Court upheld the Affordable Care Act. The irony is not lost on health care reform activists in developing nations.
"That the Obama administration cannot see the gross inequity of charging $5000 per person per month for a cancer medicine in a developing country says a lot about this government," says Shiba Phurailpatam of the Asia Pacific Network of people living with HIV/AIDS. "Affordable care, it seems, is only for U.S. citizens, not for the developing world."
Article updated to reference India's nominal per capita income, rather than purchasing power parity figures.
Healthcare In America Is Already 'The Best In The World'
One of the more positive sounding admonitions from health care reform opponents was that the United States had "the best health care in the world," so why would you mess with it? Well, it's true that if you want the experience the pinnacle of medical care, you come to the United States. And if you want the pinnacle of haute cuisine, you go to Per Se. If you want the pinnacle of commercial air travel, you get a first class seat on British Airways. Now, naturally, you wouldn't let just anyone mess with someone's tasting menu or state-of-the-art air-beds. But like anything that's "the best," the best health care in the world isn't for everybody. The costs are prohibitively high, the access is prohibitively exclusive, and the resources are prohibitively scarce. What do the people in America who "fly coach" in the health care system get? Well, at the time of the health care reform debate, they were participating in a system that was, by all objective measurements, <a href="http://www.huffingtonpost.com/2010/06/24/us-health-care-expensive_n_624248.html">overpriced and underperforming</a> -- if you were lucky enough to be participating in it. As anyone who's fortunate enough to have employer based health care or unfortunate enough to have a pre-existing condition can tell you, health care for ordinary people already involved all of those things that we were told would be a feature of the Affordable Care Act -- long waits, limited choice, and rationing. When the <a href="http://www.commonwealthfund.org/Content/Publications/Fund-Reports/2010/Jun/Mirror-Mirror-Update.aspx">Commonwealth Fund rated health care systems by nation</a>, the top marks in the surveyed categories went to the United Kingdom, New Zealand and the Netherlands. Ezra Klein examined the study, and <a href="http://voices.washingtonpost.com/ezra-klein/2010/06/us_health-care_system_still_ba.html">observed</a>: "The issue isn't just that we don't have universal health care. Our delivery system underperforms, too. 'Even when access and equity measures are not considered, the U.S. ranks behind most of the other countries on most measures. With the inclusion of primary care physician survey data in the analysis, it is apparent that the U.S. is lagging in adoption of national policies that promote primary care, quality improvement, and information technology.'"
The only thing that perhaps matched the vastness of the spread or the depth of the traction of the "death panel" lie was the predictability that such a lie would come to be told in the first place. After all, this was a Democratic president trying to sell a new health care reform plan with the intention of opening access and reducing cost to millions of Americans who had gone without for so long. What's the best way to counter it? Tell everyone that millions of Americans would have increased access ... <i>to Death!</i> The best account of how the "death panel" myth was born into this world and spread like garbage across the landscape has been penned by Brendan Nyhan, who in 2010 wrote "Why the "Death Panel" Myth Wouldn't Die: Misinformation in the Health Care Reform Debate." <a href="http://www.dartmouth.edu/~nyhan/health-care-misinformation.pdf">You should go read the whole thing</a>. But to summarize, the lie began where many lies about health care reform begin -- with serial liar Betsy McCaughey, who in 1994 <a href="http://www.huffingtonpost.com/2009/10/07/andrew-sullivans-mccaughe_n_313157.html">polluted the pages of the New Republic</a> with a staggering pile of deception in an effort to scuttle President Bill Clinton's health care reform. As Nyhan documents, she re-emerged in 2009 when "she invented the false claim that the health care legislation in Congress would result in seniors being directed to 'end their life sooner.'" Nyhan: "McCaughey's statement was a reference to a provision in the Democratic health care bill that would have provided funding for an advanced care planning for Medicare recipients once every five years or more frequently if they become seriously ill. As independent fact-checkers showed (PolitiFact.com 2009b; FactCheck.org 2009a), her statement that these consultations would be mandatory was simply false--they would be entirely voluntary. Similarly, there is no evidence that Medicare patients would be pressured during these consultations to "do what's in society's best interest...and cut your life short." But the match that lit the death panel flame was not McCaughey, it was Sarah Palin, who repeated McCaughey's claims in a Facebook posting and invented the term "death panel." As Nyhan reports, Palin's claims were met with condemnation from independent observers and factcheckers, but the virality of the term "death panel" far outstripped its own debunking. To this day, the shorthand for this outrageous falsehood remains more firmly planted in the discourse than the truth. One thing worth pointing out is that Palin, in creating the term "death panel," <i>intended</i> to deceive people with it. In an interview with the <em>National Review</em>, <a href="http://www.nationalreview.com/articles/228636/rogue-record/rich-lowry">Palin admitted</a>: "The term I used to describe the panel making these decisions should not be taken literally." Rather, it was "a lot like when President Reagan used to refer to the Soviet Union as the 'evil empire.' He got his point across." Of course, while Reagan was exaggerating for effect, he wasn't trying to prey on the goodwill of those who were listening to him.
The Affordable Care Act Is A "Jobs-Killer"
Naturally, the GOP greeted anything that the Obama White House did -- from regulating pollution to flossing after meals -- as something that would "kill jobs." The Affordable Care Act was no different. As you might recall, Republicans' first attempt at repeal came in the form of an inartfully named law called the "Repealing the Job-Killing Health Care Law Act." But did the health reform plan threaten jobs? Not by any honest measure. <a href="http://www.mcclatchydc.com/2011/01/17/106950/is-health-care-law-really-a-job.html">Per McClatchy Newspapers</a>: <blockquote>"The claim has no justification," said Micah Weinberg, a senior research fellow at the centrist New America Foundation's Health Policy Program. Since the law contains dual mandates that most individuals must obtain health insurance coverage and most employers must offer it by 2014, "the effect on employment is probably zero or close to it," said Amitabh Chandra, a professor of public policy at Harvard University.</blockquote> As McClatchy reported, the "job-killing" claim creatively used the "lie of omission" -- relying on "out of date" data or omitting "offsetting information that would weaken the argument." The Congressional Budget Office, playing it straight, deemed it essentially too premature to measure what the effect the bill would have on the labor market. At the time, Speaker John Boehner dismissed the CBO, saying, "CBO is entitled to their opinion." Perhaps, but lately, job growth in the health care industry has <a href="https://www.advisory.com/Daily-Briefing/2012/03/07/Jobs-report-preview" target="_hplink">bucked the economic downturn and health care has remained a robust sector of employment</a>. And it stands to reason that enrolling another 30 million Americans into health insurance will increase the demand for health care services and products, which in turn should trigger the creation of more jobs. Is there a downside? Sure. More demand, and greater labor costs, could push health care prices upward even as other effects of health reform push them down. But it's more likely that repealing the bill will have a negative impact on jobs than retaining it.
The Affordable Care Act Would Add To The Deficit
The only thing more important than painting the Affordable Care Act as a certain killer of jobs was to paint it as a certain murderer of America's fiscal future. Surely this big government program was going to push indebtedness to such a height that our servitude to our future Chinese overlords was a <i>fait accompli</i>. <a href="http://www.huffingtonpost.com/2010/03/18/cbo-score-on-health-care_n_502543.html">As Ryan Grim reported in May of 2010</a>, the CBO disagreed: <blockquote>Comprehensive health care reform will cost the federal government $940 billion over a ten-year period, but will increase revenue and cut other costs by a greater amount, leading to a reduction of $138 billion in the federal deficit over the same period, according to an analysis by the Congressional Budget Office, a Democratic source tells HuffPost. It will cut the deficit by $1.2 trillion over the second ten year period. The source said it also extends Medicare's solvency by at least nine years and reduces the rate of its growth by 1.4 percent, while closing the doughnut hole for seniors, meaning there will no longer be a gap in coverage of medication.</blockquote> Recently, the CBO updated its ten-year estimate by dropping off the first two years of the law (where there was little to no implementation) and adding two years at the back end (during which time there would be full implementation). As you might imagine, replacing two years of low numbers with two years of higher numbers increased the ten-year estimate. But opponents of the bill immediately freaked out and declared the costs to have skyrocketed. <a href="http://nymag.com/daily/intel/2012/03/obamacare-haters-angered-by-facts.html">As Jonathan Chait reported</a>: <blockquote>The outcry was so widespread that the CBO took the unusual step of releasing a second update to explain to outraged conservatives that they were completely misreading the whole thing: "Some of the commentary on those reports has suggested that CBO and JCT have changed their estimates of the effects of the ACA to a significant degree. That's not our perspective. ... Although the latest projections extend the original ones by three years (corresponding to the shift in the regular ten-year projection period since the ACA was first being developed), the projections for each given year have changed little, on net, since March 2010." That is CBO-speak for: "Go home. You people are all crazy."</blockquote> As Chait goes on to note, the CBO now projects that "the law would reduce the deficit by slightly more than it had originally forecast."
The Affordable Care Act $500 Billion Cut From Medicare
Normally, if you tell Republicans that you're going to cut $500 billion from Medicare, they will respond by saying, "Hooray, but could we make it <i>$700 billion</i>?" But the moment they got it into their heads that the Affordable Care Act would make that cut from Medicare, suddenly everyone from the party of ending Medicare As We Know It, Forever got all hot with concern about what would happen to these longstanding recipients of government health care. In fairness, <a href="http://www.factcheck.org/2010/03/a-final-weekend-of-whoppers/">as Factcheck pointed out</a>, the GOP opponents of Obama's plan were simply picking up a cudgel that had recently been wielded by the president himself: <blockquote>Whether these are "cuts" or much-needed "savings" depends on the political expedience of the moment, it seems. When Republican Sen. John McCain, then a presidential candidate, proposed similar reductions to pay for his health care plan, it was the Obama camp that attacked the Republican for cutting benefits.</blockquote> <a href="http://www.factcheck.org/2010/03/a-final-weekend-of-whoppers/">Nevertheless</a>! <blockquote>Whatever you want to call them, it's a $500 billion reduction in the growth of future spending over 10 years, not a slashing of the current Medicare budget or benefits. It's true that those who get their coverage through Medicare Advantage's private plans (about 22 percent of Medicare enrollees) would see fewer add-on benefits; the bill aims to reduce the heftier payments made by the government to Medicare Advantage plans, compared with regular fee-for-service Medicare.</blockquote> The <i>New England Journal of Medicine</i> <a href="http://www.nejm.org/doi/pdf/10.1056/NEJMp1005588">concurred</a>: <blockquote>A phased elimination of the substantial overpayments to Medicare Advantage plans, which now enroll nearly 25% of Medicare beneficiaries, will produce an estimated $132 billion in savings over 10 years. [...] The ACA also produces nearly $200 billion in savings by assuming that providers can improve their productivity as firms in other industries have done. On the basis of this presumed improvement, the law reduces Medicare's annual "market basket" updates for most types of providers - a provision that has generated controversy.</blockquote> The law doesn't cut any customer benefits, just the amount that providers get paid. Hospitals and drug companies agreed to these cuts based on the calculation that more people with insurance meant more people consuming what they sell and, more importantly for the hospitals, fewer people getting treated and simply not paying for it.
The Affordable Care Act Provides Free Health Care For Undocumented Immigrants
This lie was launched to prominence with the help of a false accuser, South Carolina Rep. Joe Wilson, who famously heckled President Barack Obama during an address to a Joint Session of Congress by yelling "You lie!" after the president had mentioned that undocumented immigrants would not be eligible for the credits for the bill's proposed health care exchanges. As Time's Michael Scherer pointed out, this was not much of a challenge for factcheckers: <blockquote>In the Senate Finance Committee's working framework for a health plan, which Obama's speech seemed most to mimic, there is the line, "No illegal immigrants will benefit from the health care tax credits." Similarly, the major health-care-reform bill to pass out of committee in the House, H.R. 3200, contains Section 246, which is called "NO FEDERAL PAYMENT FOR UNDOCUMENTED ALIENS."</blockquote> In fact, <a href="http://voices.washingtonpost.com/ezra-klein/2010/04/why_immigrants_get_short_shrif.html">as Ezra Klein pointed out</a>, the Affordable Care Act "goes out of its way to exclude" undocumented immigrants: <blockquote>As the AP points out...there are about 7 million unauthorized immigrants who will be prohibited from buying insurance on the newly created exchanges, even if they pay out of their own pocket. And the exclusion of this group from health reform -- along with other restrictions that affect fully legal immigrants as well -- could create a massive coverage gap that puts a strain on the rest of the health system as well.</blockquote> Klein goes on to add that "immigrants-rights advocates tried to prevent this scenario from happening," but they ended up losing to the politics of the day. The concession they won was a promise from the president that he would shepherd a comprehensive immigration reform package through the legislature. They lost that round, too.
Republicans, And Their Ideas, Were Left Out Of The Bill And The Process
Were health care policies dear to Republicans left out of the health care reform bill? Totally! <a href="http://thinkprogress.org/health/2009/10/29/171026/top-10-reasons-why-republicans-should-support-the-house-health-bill/">Unless we're counting the following</a>: --Deficit-neutral bill --Longterm cost reduction --Interstate competition that allows consumers to purchase insurance across state lines --Medical malpractice reform --High-risk pools --An extension of the time young people were allowed to remain on their parents' policies --No public money for abortion --Small business exemptions/tax credits --Job wellness programs --Delivery system reform In fact, the Democrats were eager to get GOP input and enthusiastic about including many of their desired components in the bill. Oh, and did we mention that the Affordable Care Act was modeled on a reform designed and implemented by a former Republican governor and presidential candidate, whose innovation was widely celebrated by the GOP while said former governor was running for president? And did we mention that the individual mandate that was used in Romneycare to ensure "no free riders" was originally dreamed up by the Heritage Foundation? And did we add that additional DNA of the Affordable Care Act was borrowed from the Senate GOP alternative to the Clinton plan in the 1990s and the <a href="http://www.bipartisanpolicy.org/news/press-releases/2009/08/bipartisan-policy-center-releases-report-improving-health-care-quality-a" target="_hplink">2009 Bipartisan Policy Committee plan</a>, which was endorsed by Tom Daschle, Howard Baker, and Bob Dole? As for the process, you might recall that the White House very patiently waited for the bipartisan Gang Of Six to weigh in with its own solution, and openly courted one Republican gang member, Sen. Chuck Grassley, long after it was clear to every reporter inside the Beltway that Grassley was intentionally acting in bad faith. And perhaps you don't recall the bipartisan health care summit that was held in March of 2009? if so, don't feel bad about it -- RNC Chairman Michael Steele couldn't remember it either, <a href="http://politicalcorrection.org/blog/201002250005">when he yelled at the president for not having one</a>.
The Demonization Of 'Deem And Pass'
So, here's a fun little story about obscure parliamentary procedures. In May of 2010, as the health care reform michegas was steaming toward its endgame, it looked like the measure might fall. The Senate had passed a bill, but the House was stuck in a bit of a jam. It had no other choice but to take a vote on the Senate's bill, because if the House bill ended up in a conference committee to be reconciled with the Senate's, the whole resulting she-bang was assured of a filibuster, as the Democrats had, in the intervening period, lost their Senate supermajority. But the House had a problem. <a href="http://www.huffingtonpost.com/2010/03/16/health-care-opponents-dem_n_501353.html">As I wrote at the time</a>: <blockquote>House members are averse to doing anything that looks like they approve of the various side-deals that were made in the Senate -- like the so-called "Cornhusker Kickback." The House intends to remove those unpopular features in budget reconciliation, but if they pursue budget reconciliation on a standard legislative timeline -- where they pass the Senate bill outright first and then go back to pass a reconciliation package of fixes -- they'd still appear to be endorsing the sketchy side deals, and then the GOP would jump up and down on their heads. Enter "deem and pass." Under this process, the House will simply skip to approving the reconciliation fixes, and "deem" the Senate bill to be passed. By doing it this way, the Democrats get the Senate bill passed while simultaneously coming out against the unpopular features of the same.</blockquote> "Deem and pass" is the aforementioned obscure parliamentary procedure. And here's the thing about obscure parliamentary procedures -- everyone <i>loves</i> them when their side is doing them, but when they're being <i>done to you</i>, then they are basically evil schemes from the blasted plains of Hell. So if you're guessing that the Republicans declared the Democrats' use of "deem and pass" -- which also carried the moniker "the Slaughter Rule," after Rep. Louise Slaughter, who proposed its use in this instance -- to be a monstrous and unprecedented abuse of power, then give yourself a prize! And give yourself a bonus if you guessed that in reality, the GOP had used "deem and pass" <i>lots of times</i>. <a href="http://www.huffingtonpost.com/2010/03/16/house-has-long-history-of_n_500623.html">As Ryan Grim reported</a>, "deeming resolutions" had been in use dating back to 1933, and in 2005 and 2006, Republicans employed them 36 times. Other Republicans complained that Slaughter was supporting a tactic that she once vigorously opposed. <a href="http://voices.washingtonpost.com/ezra-klein/2010/03/the_arms_race_of_rules.html">That's true</a>! She fought the "deem and pass" during the Bush administration and lost. Which is precisely when she learned how effective it could be!
The Affordable Care Act Would Create A Mad Army of IRS Agents
Lots of people wouldn't mind having better access to more affordable health care. But what if it came with thousands of IRS agents, picking through your stool sample? That sounds pretty bad. It also sounds pretty implausible! But that was no impediment to multiple health care reform opponents making claims that the tax man was COMMINAGETCHA! In this case, the individual mandate -- which requires people to purchase insurance or incur a tax penalty -- provided the fertile soil for this deception to spread. A March 2010 floor speech from a panicked Sen. John Ensign was typical of the genre: <blockquote>My amendment goes to the heart of one of the problems with this bill. There is an individual mandate that puts fines on people that can also attach civil penalties. And 16,500 new IRS agents are going to be required to be hired because of the health care reform bill.</blockquote> March of 2010 was a pretty great time for this particular lie. In one five day period, Ensign was joined by Reps. Paul Ryan ("There is an individual mandate. It mandates individuals purchase government-approved health insurance or face a fine to be collected by the IRS which will need $10 billion additional and 16,500 new IRS agents to police and enforce this mandate."), Pete Sessions ("16,000 new IRS agents will be hired simply to make sure that this health care bill is enforced.") and Cliff Stearns ("There is $10 billion to hire about 16,000 new IRS agents to enforce the individual mandate on every American"). All wrong! <a href="http://factcheck.org/2010/03/irs-expansion/">Per Factcheck</a>: <blockquote>This wildly inaccurate claim started as an inflated, partisan assertion that 16,500 new IRS employees might be required to administer the new law. That devolved quickly into a claim, made by some Republican lawmakers, that 16,500 IRS "agents" would be required. Republican Rep. Ron Paul of Texas even claimed in a televised interview that all 16,500 would be carrying guns. None of those claims is true. The IRS' main job under the new law isn't to enforce penalties. Its first task is to inform many small-business owners of a new tax credit that the new law grants them -- starting this year -- which will pay up to 35 percent of the employer's contribution toward their workers' health insurance. And in 2014 the IRS will also be administering additional subsidies -- in the form of refundable tax credits -- to help millions of low- and middle-income individuals buy health insurance. The law does make individuals subject to a tax, starting in 2014, if they fail to obtain health insurance coverage. But IRS Commissioner Douglas Shulman testified before a hearing of the House Ways and Means Committee March 25 that the IRS won't be auditing individuals to certify that they have obtained health insurance.</blockquote> As Factcheck goes on to note, <a href="http://www.gpo.gov/fdsys/pkg/BILLS-111hr3590enr/pdf/BILLS-111hr3590enr.pdf">on page 131 of the bill that was passed</a>, the IRS is explicitly prohibited from "from using the liens and levies commonly used to collect money owed by delinquent taxpayers, and rules out any criminal penalties for individuals who refuse to pay the tax or those who don't obtain coverage."
Affordable Care Act Bill Is Way Too Long And Impossible To Read!
Oh, Congresscritters, the poor dears! So many bills to read and so little time -- between raising campaign cash at lush fundraisers and receiving marching orders from powerful corporate interests -- to actually read them all. <a href="http://www.washingtonmonthly.com/archives/individual/2009_08/019629.php">And this Affordable Care Act was a real humdinger of a long bill</a>. And long bills are bad because length implies complication and complication requires study and study implies some form of "work." So the proper thing to do is to mulch the entire print run of the bill and use it to power the boiler that heats the "sex dungeon" in the Longworth Office Building, the end! Actually, reading the bill is not that hard, despite the complaints. As the folks at <a href="http://computationallegalstudies.com/2009/11/08/facts-about-the-length-of-h-r-3962/">Computational Legal Studies were able to divine</a>: <blockquote>Those versed in the typesetting practices of the United States Congress know that the printed version of a bill contains a significant amount of whitespace including non-trivial space between lines, large headers and margins, an embedded table of contents, and large font. For example, consider page 12 of the printed version of H.R. 3962. This page contains fewer than 150 substantive words. We believe a simple page count vastly overstates the actual length of bill. Rather than use page counts, we counted the number of words contained in the bill and compared these counts to the number of words in the existing United States Code. In addition, we consider the number of text blocks in the bill -- where a text block is a unit of text under a section, subsection, clause, or sub-clause.</blockquote> <a href="http://www.huffingtonpost.com/2009/11/09/house-health-care-bill-ac_n_350810.html">As HuffPost noted in March of 2010</a>, "the total number of words in the House Health Reform Bill are 363,086," and when you throw out the words in the titles and tables of contents and whatnot, leaving only words that "impact substantive law," the word count drops to 234,812. "Harry Potter And the Order Of The Phoenix," a popular book read by small children, is 257,000 words long. (Although in fairness to Congress, the Affordable Care Act contains very few exciting accounts of Quidditch matches.)
The 2012ers Join The Fun
We couldn't have a list of Affordable Care Act distortions without noting the ways some of your 2012ers have added to the canon. Herman Cain said that if the ACA had been implemented, <a href="http://thehill.com/blogs/healthwatch/politics-elections/177511-video-cain-if-obamacare-had-been-implemented-already-id-be-dead-">he'd be dead</a>. Not likely! The new law expands coverage so that uninsured individuals who face what Cain faced (cancer) have a better chance of getting coverage, and it restricts insurers from tossing cancer patients off the rolls based on their "pre-existing condition." But more to the point, Cain would have always been the wealthy guy who could afford to choose his doctor and pick the care he wanted. The Affordable Care Act doesn't prohibit wealthy people from spending money. Rick Santorum says that his daughter, who is diagnosed with a genetic disorder called trisomy 18 and who required special needs care, <a href="http://blogs.desmoinesregister.com/dmr/index.php/2011/04/25/santorum-more-disabled-people-will-be-denied-care-under-obamacare/">would be "denied care" under the Affordable Care Act</a>. Nope! Again, the law restricts insurers from throwing people with pre-existing conditions off their rolls. And for individuals under 19, that went into effect in September of 2010. Michele Bachmann believes that the Affordable Care Act would open "sex clinics" in public schools. This is Michele Bachmann we're talking about. <a href="http://www.huffingtonpost.com/2009/10/01/bachmann-sex-clinics-will_n_306292.html">Do you even need to ask</a>? And finally, Mitt Romney has said, as recently as March 5, that he never intended his CommonwealthCare reform to serve as a "model for the nation." "Very early on," he insisted, "we were asked -- is what you've done in Massachusetts something you would have the entire government do, the federal government do? I said no, from the very beginning." Unless "very early on" and "from the very beginning" mean something different from the conventional definition of those phrases, <a href="http://thinkprogress.org/health/2012/03/05/438044/romney-mandate-model-video/">Romney should augment his daily pharmaceutical intake with some memory-enhancing gingko biloba</a>.
So Many More To Choose From!
Obviously, we did what we could to include as many of these lies and distortions as possible, but there's no way to include them all. If you're a completist, however, be sure to check out the <a href="http://www.thefrisky.com/2012-03-14/fact-or-fiction-obamacare%E2%80%99s-1-dollar-abortions/">Impossible Tale Of The One-Dollar Abortion</a>, the <a href="http://www.washingtonpost.com/wp-dyn/content/article/2011/02/09/AR2011020905682.html">Story of the State-Based Inflexibility That Wasn't</a>, <a href="http://politicalcorrection.org/factcheck/201101210006">The Curious Case of the Politically Connected Waivers</a> and <a href="http://www.minnpost.com/dc-dispatches/2011/03/michele-bachmanns-health-care-cover-charges-hard-fathom">Nancy Drew And The Hidden $105 Billion Expenditure</a>.