This morning, the Supreme Court upheld the validity of subsidies for health insurance bought through the federal exchange. A careful reading of the Affordable Care Act shows a line where, if you read just that line (and not the rest of the law), the literal meaning seems to be that federal subsidies can only go to states with their own exchanges, and that states that use the federal exchange must be left out.
No legislator who spoke on the House or Senate floor during debates about the Affordable Care Act ever stated that subsidies would only go if insurance was obtained through state exchanges. The Congressional Budget Office, which is responsible for preparing budget estimates, never assumed subsidies wouldn’t be available if the federal exchange was used. Yet the Supreme Court could have taken subsidies from 7 million people because of four words about subsidies for policies from exchanges “established by a state.”
If the Supreme Court had ruled against Secretary of Health and Human Services Sylvia Burwell, states using the federal exchange could have maintained subsidies if they established their own exchanges. Congress could have keep subsidies with a small wording change. If they didn’t act, the nation would have ended up following Maine into a semantic and political rabbit hole.
Maine’s situation involves Gov. Paul LePage, a politician known for his sharply negative, colorful personal rhetoric. Recently LePage said the Maine Senate Minority Leader Justin Alfond (D-Portland) should be “put in a playpen” and two years ago said that then Senate Majority Leader Troy Jackson (D-Allagash) “claims to be for the people, but he’s the first one to give it to the people without providing Vaseline.” By writing a letter and then withholding funds, LePage also tried and yesterday succeeded in blocking Speaker Mark Eves, a Democrat, from becoming the president of charter school Good Will-Hinkley.
But LePage has also tried to take advantage of a wording error with the 2013 law funding energy efficiency programs. While lawmakers wanted $60 million spent to help homemakers use less energy heating their homes, the snafu would have reduced that to $22 million—less than half.
The text error in Maine involved just one word left out—"and." However, it wasn’t just the wording that mattered but also a decision from a body controlled by his appointees, the Maine Public Utility Commission, that ruled 2-1 that there would be far less money for efficiency projects than legislators wanted.
The error came down to this, according to the Portland Press Herald:
The energy law authorizes the PUC to set electricity rates to raise money for energy efficiency programs, as long as the amount raised does not exceed 4 percent of “total retail electricity transmission and distribution sales” in Maine. What the law should have said was 4 percent of “total retail electricity and transmission and distribution sales,” according to several members of the Legislature’s energy committee.
Rather than just adding the “and,” LePage, who has expressed distaste toward efficiency as an energy solution, asked for sweeping new powers over Efficiency Maine.
But his evasion of an obvious simplicity undermined LePage’s ability to change the law.
When hearings were held on the simple bill to fix the law, not a single citizen or group leader turned up to testify against it. In contrast, not a single member of the public or citizens’ group leader testified for LePage’s sweeping bill. After letters to the editor decrying LePage’s attempt to transform efficiency efforts, the Maine Legislature acted in near-unison. The “and” was added by a unanimous Senate and a 138-1 vote in the Maine House.
Is this what would have happened in Congress, if King v. Burwell had gone against President Obama?
It’s clear that this is what the public wanted. According to a recent Kaiser Family Foundation poll, 63 percent want Congress to maintain subsidies for people using the federal exchange. Still, given Tea Party and GOP opposition to Obamacare, it’s entirely unlikely that the U.S. Congress would have quickly come together to make the simple wording change.
Like Gov. LePage, Tea Party officials would have ignored what normally happens when a wording problem stymies policy. (The normal thing, of course, is to simply fix it).
But like what happened in Maine, it would have been very easy to convey that there was a very easy fix. The reality that Republicans were unwilling to make the simple change would have been painfully apparent—and would have had political and human costs.
It would also have been crystal clear that refusing to pass a law with just a few words would have been extremely damaging to many Americans. A few months ago, Ben Sasse, the junior Republican Senator from Nebraska, focused on the horrible actual and political consequences for his party should Republicans resist acting to restore the subsidies. Sasse pointed to “Chemotherapy turned off for perhaps 12,000 people, dialysis going dark for 10,000. The horror stories will be real.”
Republicans in Congress or the states who thought they could have won a public relations battle over a verdict that nixes subsidies should have a little chat with Governor LePage.
This post was updated at 11 a.m. to reflect the outcome of King v. Burwell.
Amy Fried is a professor of political science at the University of Maine and a member of the Scholars Strategy Network.