WASHINGTON — There are three possible lead sentences to this story:
1)The Senate voted for the first time to repeal part of ObamaCare;
2) The Senate voted to keep the entire health care law; or
3) A year after voting to approve the health care law, the Senate today debated whether or not it was constitutional.
Indeed, it seemed like the old Bill Murray movie (where he repeats the same day ad infinitum) had resurrected itself around the Capitol. Because one year after the Senate voted to pass health reform in the first place, it dominated the legislative agenda again.
Once again, there was a vote on the health care law. This one was to repeal it — as before on straight party lines — with Amy Klobuchar, Al Franken and Democrats voting no and every Republican voting yes.
Strategically, the move was a bit of a win-win for both sides. Senate Republicans can tell their constituents that they kept their campaign promise, that they forced a vote on the law but the numbers just weren’t there.
It can no longer be said that the Democratic-led Senate hasn’t allowed a vote on repealing the bill — it did, and the amendment that needed 60 to pass, failed 47-51.
However, on a wide margin, the Senate did chip away at the law by approving an amendment to repeal an unpopular bureaucratic requirement.
The health care law’s “1099 provision” requires that businesses, nonprofits and government units fill out a 1099 tax form to the IRS for every vendor they receive more than $600 in goods or services from. The provision doesn’t take effect until 2014, but business groups howled about it because of the time and money lost by filling out an estimated 20 times more 1099 forms.
“It is important that we change this reporting requirement which would be a burden on all businesses,” Klobuchar said following the vote, which passed 81-17. Franken opposed that amendment, saying that while he supports elimination of the 1099 requirement, he thought the potential cuts on the table to make up the lost revenue would hit too hard in Minnesota. Both Klobuchar and Franken had supported a previous amendment to eliminate the 1099 requirement with different pay-for guidelines, but it failed to garner enough support to pass.
Perhaps the only surprise out of Wednesday’s health care deja vu came in the form of testimony from Charles Fried, the former solicitor general for President Ronald Reagan and now a law professor at Harvard University, in a hearing on the constitutionality of the health care law.
Fried has long been an opponent of the health care overhaul on its merits, but he told the Senate Judiciary Committee that it was easily a constitutional law, to the surprise of some Republicans on the panel.
“I’m not sure it’s good policy, I’m not sure it’s going to fix health care, but I’m quite sure it’s constitutional,” Fried said. “I would have said it’s a no-brainer, but I can’t say that with such intelligent brains going the other way.”
The questions from Franken, a member of the Judiciary Committee, hinged on whether refusing to buy health insurance is a form of commerce, given that federal law requires hospitals provide care to patients regardless of their ability to pay. In effect, Franken argued, insured people are subsidizing the health coverage of the uninsured.
“The idea that being uninsured doesn’t affect commerce is factually inaccurate,” replied John Kroger, attorney general from Oregon, who agreed with Franken that premiums do rise by an average of about $1,500 to cover the uninsured who seek emergency care — which at Oregon hospitals runs between 3 and 12 percent of patients.
Michael Carvin, a partner at Jones Day in Washington, D.C., said Franken and Kroger’s argument “means that you’ll always have an excuse to regulate” the health care and health insurance arena.
“The more the federal government encroaches on these areas, it gives them more freedom to regulate based on these so-called free-riders,” Carvin argued. In essence, he said, it’s a self-building philosophy and if Congress regulates more and more and more then eventually it can regulate anything it wants.
And so on and so forth it went, three panelists saying it was constitutional and two saying it wasn’t. No senator on either side seemed swayed from their prior positions.
The Senate Judiciary Committee didn’t vote on the matter at the end of the hearing, indeed, it was pointed out that the Senate already decided the constitutionality of the law twice last year (once by defeating a specific point of order that the bill was unconstitutional and again by passing the measure).
Instead, Republicans and Democrats came to one point of agreement on the question of health reform constitutionality — that the issue itself would be settled in time by nine justices in a building across the street.
Said Iowa Republican Chuck Grassley, “Ultimately, we all know that the subject of this hearing will be decided by the Supreme Court.”
Note: Hat tip to Slate’s Dave Weigel for the Groundhog Day inspiration.