Wednesday, January 19, 2011

Speaking of the Affordable Care Act ...

House Labor rehabilitates HB 35

The House Labor, Health and Social Services Committee worked hard – and late – on a nullification act that challenges the Affordable Care Act. It is sponsored by Rep. Bob Brechtel R-HD38, Casper) and a dozen other legislators, at least a few of them itching to prove their anti-federalism credentials.

House Bill 35 – Health care choice and protection act
proclaims the ACA unconstitutional and thus null and void in Wyoming. As drafted, the bill imposed a $5,000 fine and a felony conviction on any state employee, official, or public servant found to be enforcing the ACA.

But the sponsors ran into a storm of criticism from a wide variety of interest groups. Wyoming Public Employees Association lobbyist Bob Kuchera expressed worries that the bill puts state employees at risk of committing a felony if they simply went about their work of implementing the new federal law.

Sheila Bush of the Wyoming Medical Society said her members are divided in their opinion of the ACA. Nevertheless, she noted that some doctors in the state are making significant investments in health information technology with the assistance of incentives in the ACA.

“What does it say to our providers … if we say they are breaking the law by doing so?” Bush asked.

Lobbyist Tom Jones of the Wyoming Health Care Association said he believed the bill as proposed could make it legal for a Wyoming resident to refuse to pay taxes that fund Medicaid. And he said the legislative assertion in the bill that the ACA is unconstitutional is meaningless. He noted the Supreme Court reserved the right to rule on the constitutionality of all laws in the early 19th century.

The legislature’s opinion of the ACA “ … doesn’t matter in the end,” Jones said.

Lobbyists for the American Heart Association and the American Cancer Society noted the ACA brings many health benefits to people. Jason Mincer of the ACS asked, “What is (HB35)’s intent toward cancer survivors?”

Proponents said the act mirrored the Firearms Freedom Act approved last year. Rep. Keith Gingery, (R-HD 23, Jackson) pushed the committee to amend the bill to more closely mirror that bill. He offered successful amendments to change the felony crime to a misdemeanor carrying a $2,000 fine and made a number of other significant changes.

Rep. Frank Peasley (R-HD 3, Douglas) called the objections to the bill, especially fears of prosecution, “a lot of hooey.”

“We need to make a stand or we don’t make a stand,” he said. When it became clear there was no consensus on the committee over the meaning of some of its sections, Peasley later commented, “I guess we have to pass this bill before we know what’s in it.”

That remark sparked a few guffaws in the committee room and a retort from Chairman Elaine Harvey, who said Congress passes bills it does not understand, not the Wyoming legislature.

“I read this bill as the state is not going to go out and participate,” co-sponsor Rep. Lorraine Quarberg, (R-HD28, Thermopolis) said, and would refuse to allow state employees to enforce the bill. She argued that it does not say doctors cannot take grant money available because of the ACA without committing a crime.

That comment prompted Harvey (R-HD26, Lovell) to note that the state also cannot stop the IRS from impounding property to enforce the IRS code. Quarberg replied that the state needs to stand up to the federal government.

“This is a gutsy move,” replied Quarberg. “You dig down deep.”

Gingery pushed his amendments through, including one that pared down the list of those specifically in position to be accused of a felony. He trimmed wording that said “Any official, agent, employee or public servant of the state of Wyoming” would be found guilty of a felony if they attempted to enforce compliance with “this article.”

As the bill left the committee it said simply “Any public servant” who tried to enforce compliance with the ACA as defined in HB35 would be guilty of a misdemeanor.

Though he took some heat, Peasley may be right that at least some of the committee members did not understand the effect of what they did until they review the amendment on the House floor.

The bill was narrowly approved on a 5-4 vote. Rep Gerald Gay (R-HD36, Casper), Rep. Matt Green (R-HD45, Laramie) and Rep. Hans Hunt (R-HD2, Newcastle) joined Peasley and Gingery in supporting the bill.

Rep. Joe Barbuto (D-HD48, Green River), Rep. Bernadine Craft (D-HD17, Rock Springs), and Rep. David Miller (R-HD55, Riverton), joined Harvey in opposing the bill.

Quick notes on Wednesday action on bills of interest –

Senate File 3 – Campaign finance – organizations was approved in the Senate’s Committee of the Whole with a disclosure amendment that will require corporations and other organizations engaging in independent expenditure campaigns to name their top three donors in the advertisements they buy. The Senate seemed a little uneasy about how it will work, so we’re watching for amendments that might ease disclosure needed to keep elections honest.

Senate File 14 – Counties – election districts likewise made it through first reading. We still have fears that the “flexibility” in the bill allows counties to establish a combination of at-large and single-member districts is subject to mischief. At worst, in counties with a substantial minority population, it could lead to a “political quarantine” of the minority group. Sen. Wayne Johnson, R-SD 6, Cheyenne, mentioned similar concerns in comments on the floor.

Health Care Freedom resolutions – The legislature is determined to send a message to Washington, D.C. and the rest of the country that it intends to resist the Affordable Care Act passed by Congress last year. The Senate Judiciary Committee approved a heavily amended version of SJ 2 which would place a constitutional amendment on the 2012 ballot that asserts the federal government has never been granted the power to make decisions regarding lawful healthcare services. That power is reserved to the state of Wyoming and its people, the amended version says. It says the attorney general may assist any state resident in litigation to protect the right to make those decisions. The committee included several sections lifted from SJ 3, a similar but less strident proposal. Those sections denote the Legislature’s intention to continue its own authority to mandate care under Workers’ Compensation, at the state’s prisons, and at other institutions.

Contract validity?

The Senate Judiciary Committee heard more than an hour of testimony on SJF 5 – Defense of Marriage – constitutional amendment. Proponents argued the amendment is necessary to somehow protect the institution of marriage from gays, lesbians, and transgendered people. Opponents said they’re merely seeking the same legal protections that society extends to heterosexual couples.

Jason Marsden of the Matthew Shepard Foundation said the proposal will void valid existing contracts, something the Legislature simply would not allow to happen to existing business contracts.