THE BLOG

Is This How You Want Your Senate To Do Business?

04/14/2011 08:08 pm ET | Updated Jun 14, 2011

The U.S. Senate does not allow legislative provisions to be included in appropriations bills, for much the same reason that most Americans are concerned about earmarks: it creates a slippery slope by which lobbyists and special interest groups can sneak provisions into large, must-pass legislation.

Today, Congress has passed a massive appropriations bill -- funding the entirety of the federal government for the rest of the year -- and it includes a number of legislative provisions that have never been considered by a congressional committee or debated on the House or Senate floors. If this bill had been brought up under normal Senate procedures, any senator could have raised a point of order preventing the bill from passing.

One of the legislative provisions it included is the elimination of Free Choice Vouchers, a provision that I authored as part of the Patient Protection and Affordable Care Act to give employees some ability to hold their employers and insurance companies accountable for offering affordable health insurance. With the loss of Free Choice Vouchers, hundreds of thousands of workers will now be forced to choose between their employers' unaffordable insurance or going without health care.

Groups like the Business Roundtable and lobbyists representing human resource managers -- and others who profit from the current employer-based system -- claim that Free Choice Vouchers would somehow undermine the employer based system. They argue that it would somehow encourage young and healthy workers to leave their employer's risk pools, which misses the reality that employers who don't want to offer Free Choice Vouchers, don't have to offer free choice vouchers as long as they offer their employees affordable health benefits.

Without Free Choice Vouchers, there is little in the health reform law that discourages employers from increasingly passing the burden of health care costs onto their employees. In fact, since PPACA became law, employers have raised their employees' share of health insurance premiums by an average of 14 percent even though the premiums themselves have only gone up 3 percent.

Free Choice Vouchers would have given workers recourse against employers who continued to jack up their workers' share of health costs because with FCVs if your employer raises your premium contribution above 8 percent of your total income, you would have the option of going to your employer and saying "either offer me more affordable health insurance or let me take my health benefit to the new insurance exchange marketplace where I can find a better value in health coverage."

Without Free Choice Vouchers, no one will have that option.

While the Affordable Care Act promises to "ensure that American families and businesses have, quality affordable health care coverage options," without Free Choice Vouchers, if your employer raises your health insurance premiums over eight percent of your total income (which is the point at which the law considers your benefits "unaffordable" and exempts you from having to purchase health insurance) you won't have any affordable health coverage options. In fact, unless your income drops or your health costs rise to more than 9.8 percent of your total income, the health law doesn't give you access to the health insurance exchange marketplace or give you any additional assistance to make your health insurance more affordable. The only option it gives you is to attempt to pay what your employer requires or go without health insurance altogether.

With FCV, the federal government doesn't spend any additional money, because, as the Congressional Budget Office finds, the only money changing hands is employees making use of the employer health care subsidy -- which is already part of their compensation package. In fact, CBO found this week that the only revenue raised by repealing Free Choice Vouchers comes from employees who choose to go without health benefits having to pay taxes on income that would otherwise be tax free. And because CBO finds that many of these Americans would choose to go without health insurance versus pay for their employers unaffordable coverage, their choosing to convert their employer subsidies into a Free Choice Voucher wouldn't undermine their employer's risk pool -- as some employers claim -- because they wouldn't be in their employer's risk pool in the first place.

The reality is that the special interest groups that have lobbied against Free Choice Vouchers object to any measure that would empower employees to have a say in their health benefits because it begins to erode their power in the current health care system. Big employers and labor unions and health benefits managers like the advantages that the current system affords them. They don't want their employees and members to be able to get better health benefits someplace else.

But that isn't even the problem with today's bill.

The problem with today's bill is that without any public debate or congressional consideration, legislative language was slipped into a massive appropriations bill to eliminate Free Choice Vouchers. One lobbyist called the move "an Early Easter gift."

Is that the way we want the Senate to do business?

Earlier this year, President Obama used his State of the Union Address to take on special interest groups saying that "the American people deserve to know that special interests aren't larding up legislation with pet projects." He promised to veto any appropriations bill that included earmarks. He should extend that pledge to appropriations bills that include legislative language.

Because in my mind there is no difference between passing an appropriations bill with earmarks intended to reward lobbyists and passing an appropriations bill with legislative language intended to reward lobbyists. As President Obama said in that same State of the Union address, we should be "working to rebuild people's faith in the institution of government."

I agree and I think we can do better.