By Brendan Fischer and Laura Stiegerwald
The evening after the U.S. Supreme Court upheld the Patient Protection and Affordable Care Act, the Wisconsin chapter of the Koch-funded Americans for Prosperity held a "Hands Off My Health Care" rally to plan next steps in their effort to defeat "Obamacare." The plan apparently involves American Legislative Exchange Council (ALEC) model legislation.
"Nullification" of Health Care Law Advocated
"Any act or set of actions that you take on a state or a local level which has as its effect rendering a federal act null and void -- that's what we are trying to do," Michael Boldin of the California-based Tenth Amendment Center told the crowd of about 400 people gathered at the Country Springs Hotel in Pewaukee, Wisconsin.
Boldin was advocating for "nullification," a legal theory supported by conservatives that asserts any state has the right to nullify or invalidate a federal law the state deems unconstitutional. According to Boldin, "[Thomas] Jefferson said, 'whensoever the federal government assumes undelegated powers, its acts are unauthoratitaive, void and have no force; and nullification is the rightful remedy.'" The U.S. Supreme Court has rejected nullification, most recently in the 1950s when Southern states tried using the strategy to resist racial integration of public schools.
ALEC Has Lobbied to Defeat Health Reforms
Boldin said that constitutional amendments adopted in Ohio and Arizona could provide the basis for a nullification challenge to the federal health care law. He explained that the amendments declare, "no law or rule shall compel, directly or indirectly, any person, employer or health care provider to participate in the health care system."
The Ohio and Arizona laws Boldin referenced echo the ALEC "model" Freedom of Choice in Health Care Act. The ties between these laws and ALEC is revealed by in-depth investigations into ALEC's influence in Arizona and Ohio.
Open records requests submitted by the Center for Media and Democracy revealed that ALEC Health and Human Services Task Force Director Christie Herrera emailed Wisconsin legislators in December 2010 encouraging them to introduce ALEC's Freedom of Choice in Health Care Act. Herrerra recommended they use the language introduced in Arizona, which she says "expands and updates ALEC's original Freedom of Choice in Health Care Act." The following April, a version of the bill was introduced in Wisconsin and passed the state senate, but failed to pass the assembly.
Similar bills were introduced in 43 other states in recent years. The laws passed as a constitutional amendment in four states and as statutory provisions in eleven. According to ALEC, the laws set the stage for Tenth Amendment litigation by creating state laws at odds with the federal healthcare reform's individual mandate. Legal scholars expect that this litigation would fail because the federal law would trump state law under the U.S. Constitution's Supremacy Clause (Article VI).
Wisconsin State Senator Leah Vukmir, who is on the ALEC Board of Directors and the Chair of the ALEC Health and Human Services Task Force, was quoted in ALEC's press release about the Supreme Court's decision. She also spoke at the AFP rally.
According to ALEC's "Health" Co-Chair: "It Will Destroy our Economy"
At the rally, Vukmir did not specifically reference ALEC legislation but said generally that Obamacare is "devastating to our individual freedoms, our religious freedoms. To freedoms. It will destroy our economy."
"Obamacare is going to destroy quality healthcare and we have to intervene," she said, asserting the health care law would lead to "increased costs and lower availability."
Jon Peacock of the Wisconsin Council on Children and Families says otherwise. In an interview with the Center for Media and Democracy, he said there are approximately 500,000 people in the state who are currently uninsured, and estimated that between two-thirds and three-quarters of those individuals would get coverage because of the Affordable Health Care Act reforms, which include a Medicaid expansion, health care exchanges, and tax credits for small businesses that offer insurance to their employees.
Other Wisconsin legislators speaking at the rally included Reps. David Craig and Bill Kramer (who is a member of ALEC's Commerce, Insurance and Economic Development Task Force, as of 2011, which gives insurance company members an equal vote on "model" legislation).
The day after the "Hands off my Healthcare" rally, Americans for Prosperity launched a massive, $9 million ad buy in twelve battleground states for the November elections (including Wisconsin), attacking President Obama for passing a healthcare reform law the Supreme Court described as a "tax" in finding the law consistent with Congress' powers. "How can we afford this tax? We're already struggling," the ad claimed.
Walker Plans to Thwart Healthcare Reform
In a statement released after the U.S. Supreme Court announced their decision, Wisconsin Governor Scott Walker said, "Wisconsin will not take any action to implement ObamaCare." Walker reiterated that point in an appearance on CBS' Face The Nation on Sunday, a sentiment shared by other GOP governors like Louisiana's Bobby Jindal, who has also worked to implement ALEC's agenda in his state.
Last year, Walker turned down $38 million in federal funding and announced the state had stopped work on designing the health insurance marketplace "exchanges," pending the outcome of the Supreme Court decision. Under the Supreme Court's decision, states are still required to implement the exchanges but can opt-out of expanding Medicaid coverage. Walker now says the state is awaiting the outcome of the November elections before implementing any part of the health care law -- but if Romney loses, the state would only have two months to design an exchange before the January 2013 deadline, after which the federal government would impose its own plan.
Even if former governor and Bain Capital partner Mitt Romney were to win, Republicans would also have to retain control of the House and get control of sixty votes in the Senate to overturn "Obamacare." Few expect this to happen.
"There will be an exchange and the real question is whether the state is going to participate in the developing of the exchange or not," said Walker's Democratic predecessor Jim Doyle, who now serves as a national co-chairman for the group Know Your Care, which promotes the health care law. "Part of a governor's job is preparing for things that may not go the way you want them to go."