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Congress Could Easily Fix A Huge Obamacare Problem. It Won't

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WASHINGTON -- A handful of simple words in a piece of legislation could prevent more than 4 million people losing their health insurance, but Congress isn't going to write them.

At issue are several lawsuits against Obamacare moving through the legal system that may go all the way to the Supreme Court. Among other things, the suits contend the precise phrasing of the Affordable Care Act means that low- and moderate-income health insurance consumers in most states can't receive subsidies to make coverage more affordable.

Lawmakers could end that threat any time by changing the law's wording to make it clear subsidies are available nationwide. But in today's take-no-prisoners Congress, Republicans won't let it happen and Democrats won't even try.

"The political point has been very clearly made by Democrats: Let's fix it," said Rep. Henry Waxman (D-Calif.), who was chairman of the the House Energy and Commerce Committee, one of five panels that wrote the law in 2009 and 2010, and is now its ranking Democrat. "The Republicans won't allow it. The only thing they want to pass is repeal."

It's a sign not just of the unruly politics of President Barack Obama's health care reform law, but of the dysfunction that has taken root in a national legislature that used to routinely pass so-called technical corrections bills to clear up legislative ambiguity and assert Congress' authority.

"In the past, when you had even highly charged or controversial legislation, the attitude that members had, for the most part, was 'What's done is done. It's the law now. Let's make it work as best we can,'" said Norman Ornstein, resident scholar at the American Enterprise Institute and co-author of a book about Congress and contemporary politics entitled It's Even Worse Than It Looks.

"We're seeing this play out on a larger stage, on issue after issue after issue," such as this year's failure to pass an immigration and border security bill and the near-failure to keep highway funding flowing, Ornstein said. This follows other self-imposed crises, like last year's government shutdown.

Even confined to health care, there are numerous examples of Congress addressing problems in laws already enacted. Medicare itself has underdone many changes since 1965. The 2003 Medicare drug benefit law has been amended. The Balanced Budget Act of 1997 was followed by the Balanced Budget Refinement Act of 1999. And that's not including the countless small corrections to legislative errors that become part of larger bills.

Instead, this is where we are on Obamacare. The day two federal appeals courts offered divergent opinions last month on whether subsidies could be given individuals purchasing coverage on a federally run health insurance exchange, critics of the law didn't move to clear any ambiguity. They jumped to kill the entire bill.

“Today’s ruling is also further proof that President Obama’s health care law is completely unworkable. It cannot be fixed," House Speaker John Boehner (R-Ohio) said in a statement July 22.

These lawsuits come down to the phrase "exchange established by the state,” which appears in the Affordable Care Act. In a nutshell, the plaintiffs argue this means the tax credits available to people who earn up to four times the poverty level, which is $94,200 for a family of four this year, only can go to people who bought their health insurance in one of the 15 state-run health insurance exchanges, not the federal exchanges in 36 states.

Like other Democrats, Waxman rejects the contention that the law doesn't intend subsidies to be granted nationally. But he does acknowledge the Affordable Care Act language needs to be cleaned up in places.

Public opinion supports the Democrats' point of view, sort of. A majority of Americans disapprove of the Affordable Care Act, as illustrated by a poll conducted last month by the Henry J. Kaiser Family Foundation, but a larger majority prefers fixing it to repealing it, which Republicans have voted to do dozens of times.

But rather than write a bill that would make those lawsuits disappear and force Republicans to oppose people losing their health insurance, Democrats won't even try. To do so would provide Republicans more ammunition against Obamacare, Waxman said. "We're just giving Republicans an opportunity to say, 'Look at all these problems,'" he said.

So obstruction from Republicans and defeatism, however realistic, from Democrats means that potentially huge problems like these Obamacare lawsuits go unaddressed. And there are other known issues with the law that are undercutting its aims.

Waxman cited another example, known as the "family glitch," which blocks subsidies for spouses and dependents of workers whose employers offer health insurance only to them, and not their families. That means one parent could get health benefits from work, but the rest of the family still couldn't afford coverage.

Sen. Brian Schatz (Hawaii) and four other Democrats actually introduced a bill to fix ambiguous language in one part of Obamacare that could deprive Native Americans of health benefits. A few lawmakers also have floated more fundamental changes to the Affordable Care Act, like a bill from Sen. Ron Wyden (D-Ore.) and then-Sen. Scott Brown (R-Mass.), and a set of proposals from a sextet of moderate Democrats this year. None of them have gone anywhere.

When lawmakers have agreed to changes to Obamacare, it's mainly been to cut funding for things like preventive medicine and nonprofit insurance companies, or to ease tax filing for businesses -- not to make it work better.

And then there are the numerous cases where the Obama administration has stepped in to rectify confounding aspects of the law.

For instance, the Affordable Care Act requires members of Congress and their aides to get their benefits from the health insurance exchange in the District of Columbia, rather than from the federal employees' plan. But this part of the law wasn't clear whether the federal government would help pay for Capitol Hill employees' insurance, as it does for other government workers. So the administration wrote regulations saying it could. Some Republicans freaked out over the fix. Sen. Ron Johnson (R-Wis.) is still suing the president over it.

The administration also has postponed a number of Obamacare policies, like the employer mandate, that Congress could have adjusted with legislation. In a more collaborative political universe, the White House would have pushed for a legislative fix. But Republicans made clear that they'd attach amendments delaying the individual mandate as well -- something that would derail the entire law. And so, the president chose to make an administrative delay and Boehner responded by pledging a lawsuit.

"One of the great ironies here is that with the obduracy in the House and among Senate Republicans -- 'All we want to do is focus on repeal' -- they're abdicating their own power," Ornstein said. "They're giving it to the courts. They're giving it, especially, to the executive branch. They're leaving a vacuum here, and that vacuum's going to be filled."

Sabrina Siddiqui and Laura Bassett contributed reporting.

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