The Wall Street Journal’s Holman Jenkins offers some really bizarre ideas for how the newly-elected Republican majority in the House can fix the health care law:

Happily, a path back to the future exists that just might be politically actionable in a divided Washington. It involves not repealing ObamaCare but adding something to it—an optional federal charter for health insurers.

Under this charter, let’s permit insurers to design their policies free of ObamaCare’s mandated benefit levels and free of state regulation. Let’s let these policies be purchasable with pre-tax dollars and allow them to satisfy ObamaCare’s mandate requiring individuals to have insurance and employers to provide it. [...]

What’s the first thing the new nationally-chartered insurers would do? Rush out cheap, high-deductible policies, allaying some of the resentment that the mandate provokes among the young, healthy and footloose affluent. At the same time, these policies would quickly re-revolutionize ObamaCare from within. Here’s why:

First, these folks could buy the minimalist coverage that (for various reasons) actually makes sense for them. They wouldn’t be forced to buy gold-plated coverage they don’t need so the money can subsidize the old and sick (the hidden tax logic of ObamaCare).

Secondly, this relatively healthy cohort would be covered for a rare major injury or illness. The rest of us wouldn’t have to pick up the tab.

Thirdly, and when paired with a health savings account—as would happen as employers large and small rush to take advantage of a better option than ObamaCare now affords them—it would provide a much-needed kick of consumer discipline to the medical complex’s pants, which has always been the conservative alternative to a creeping government takeover of medicine.

Unfortunately, this idea, just like the GOP’s efforts to repeal the individual mandate will spell doom to the entirety of the health care law, which of course, is its intention. First, the existing legislation already gives younger individuals the option of enrolling in high deductible plans that cover less services at cheaper rates. Insurers will also be able to price their policies based on age and charge young people rates that are three-times lower than what older (and presumably sicker) applicants will be paying.

But the larger problem with Jenkins’ charter concept is that it it would only further fragment the risk pool and create a death spiral in the exchanges. If younger people have an incentive to take their premium dollars out of the exchanges and go elsewhere for cheaper high-deductible coverage, the exchanges will be left with sicker individuals who need comprehensive coverage and use it frequently. Without healthy individuals to offset the costs of this care, premiums will have to increase, pushing out everyone but the sickest and neediest applicants. As a result, the exchanges will become cost prohibitive for most Americans.

Meanwhile, the younger people who are enrolled in the cheaper high deductible policies will find their coverage inadequate once they — as we all inevitably are — fall ill. As The Incidental Economist’s Aaron Carroll points out, “Cheap plans are bad plans. There’s no magic to this. To a limited extent, you get what you pay for. The reason McDonald’s plans were low price was they they offered almost nothing in the way of benefits.”

The law’s mandated benefit levels are designed to get rid of these policies so that everyone has adequate coverage whether they need it now or later.

Tonight, during an appearance on CNN, Sen. Jim DeMint (R-SC) urged House Republicans not to fund the Affordable Care Act and predicted “a very intense showdown” should Obama “fight us on it”:

DEMINT: We don’t have to defund it, we just don’t have to pass the funding for it. The majority in the House can control the appropriation bills and we can just not include in those appropriation bills the funding for the implementation of ObamaCare. The president may fight us on it and it could be a very intense show down. But Republicans are in a position now to make sure no funding goes forward for Obamacare.

Watch it:

Prominent Republicans including House Minority Leader John Boehner (R-OH) and Newt Gingrich have all suggested that the GOP could effectively repeal the health care reform law by defunding it. But that may be easier said than done. As former Senator Tom Daschle explained in a recent interview, “a lot of what we did in health care reform has more of an entitlement than a discretionary funding base. So as an entitlement, they would really have to change the law rather than simply not fund in order for it to be effected. The entitlement sections of the legislation are going to be fairly immune from defunding.” The Congressional Budget Office (CBO) estimates that there is “at least $50 billion in specified and estimated authorizations of discretionary spending that might be involved in implementing that legislation” and presumably that’s the spending Republicans can more easily de-fund.

Gail Wilensky, administrator of CMS under George H. W. Bush, put it this way at a recent health event: “So you could technically see [defunding] as a way to go after all those thing that are not mandatory funding. But a lot of the activity in this early period is, I think not at risk.”

In the day since Democrats lost their majority in the House and suffered several setbacks in the Senate, President Obama and Majority Leader Harry Reid (D-NV) have suggested that they would be open to “tweaking” or revisiting parts of the Affordable Care Act. Republican leaders continue to advocate for complete repeal of the law, promising to replace it with “common sense” proposals from their Pledge To America.

This evening, during an interview on ABC News, House Speaker Nancy Pelosi (D-CA) reiterated that Democrats would work to preserve the core of the law, but said that they could willing to compromise with Republicans on the so-called 1099 reporting requirement. Members of both parties have argued that this portion of the law — which was designed to bolster the tax compliance of sole proprietors and pay for coverage expansion — is overly burdensome to small business. Obama specifically mentioned the provision during his press conference today and Pelosi echoed his comments tonight [Note this is an extended version of the transcript]:

PELOSI: So, I– I don’t– I don’t– think they’re going to take health care apart. There are certain parts of it that we all may want to review– one way or another. Put it out there. But the fundamentals of it, you know, when we have our patients’ bill of rights about– no preexisting conditions, and those provisions, they are– they cannot be there unless you have this basic structure of health care reform.

So, when we have this debate piece by piece, I think the American people will see how they like pieces of it, and how they relate to each other. And that some of that– you know, at 1099, it was a center provision. We didn’t like it in the House. The President mentioned it today. We’ve already passed on the floor– the repeal of 1099 in the House of Representatives. So, you know, there are certain pieces of it that should– always be subjected to review.

In September, senators from both parties proposed legislation to amend the provision, but neither version garnered 60 votes.

Sen. Mike Johanns’ (R-NE) amendment would have repealed the tax reporting requirement for small businesses, but made up for the revenue shortfall by eliminating $11 million from the Preventive Health Task Force and weakening the individual health insurance mandate. Sen. Bill Nelson’s (D-FL) alternative proposal would have required only larger businesses to report their transactions with vendors. Since then, Democrats have offered numerous other legislative compromises.

GOP pollster Bill McInturff of Public Opinion Strategies has some numbers out today that only reiterate my original contention that yesterday’s election should not be interpreted as a mandate to repeal the Affordable Care Act. And that’s for two reasons: 1) while it’s been first in my heart, reform took a back seat to the economy and 2) Americans didn’t oppose the actual law as much as they opposed the GOP’s version of the law, which as everyone has documented is full of lies and distortions.

As McInturff reports, “[t]he health care advertising could not be clearer to those respondents who recall seeing it in terms of message: 70% say the ad was in opposition to the Obama plan, 8% in support, with another 20% of voters saying they recall advertising on both sides of the issue” (Check out some of these ads here and here):

In other words: the GOP and outside groups funded by corporate interests that include parts of the health care sector have been far more successful in defining the legislation than HHS — even with the help of Andy Griffith. “Opponents of the legislation, including independent groups, have spent $108 million since March to advertise against it” — “six times more than supporters have spent, including $5.1 million by the Department of Health and Human Services to promote the new law.” That $108 million went to finance the false claims that individuals who don’t purchase coverage will go to jail, or sex offenders will have access to government subsidized Viagara and seniors will lose all their Medicare benefits.

HHS officials should keep that in mind when they’re forced to testify before Congress about implementing the law. It’s another opportunity to re-frame the discussion and tell the public about some key provisions as they go into effect.

President Obama opened the door to tweaking parts of the Affordable Care Act during his press conference about the midterm elections, specifically endorsing proposals to modify a provision to to increase the tax compliance of sole proprietors. The so-called 1099 provision, which requires small businesses to report payments they’ve made to corporations for goods, has been condemned as overly burdensome by small business lobbyists and a bipartisan group of lawmakers.

Obama insisted that the American people did not want to re-litigate the health care reform debate or repeal some of the more popular consumer protections, but said that “if the Republicans have ideas for how to improve our health care system, if they want to suggest modifications that would deliver faster and more effective reform…I’m happy to consider some of those ideas.” Then, he turned to the 1099 provision:

OBAMA: I know one of the things that has come up is that the 1099 provision in the health-care bill appears to be too burdensome for small businesses. It just involves too much paperwork, too much filing. It’s probably counterproductive. It was designed to make sure that revenue was raised to help pay for some of the other provisions, but if it ends up being so much trouble that small businesses find it difficult to manage, that’s something we should take a look at. So there will be examples where I think, you know, we can tweak and make improvements on the progress that we’ve made. That’s true for any significant piece of legislation.

Watch it:

HHS Secretary Kathleen Sebelius and Treasury Secretary Tim Geithner have endorsed the change, but this is the first time Obama has publicly opened the door to amending parts of the law. He did stress that he would not support revisiting the more popular elements of the law, like closing the doughnut hole and preventing insurers from denying coverage based on pre-existing conditions. Asked about exit polls that showed that “one out of two of voters apparently said that they would like you to see it overturned or repealed,” Obama said, “it also means one out of two voters think it is the right thing to do.”

In September, Republicans and Democrats proposed dueling legislation to amend the provision, but both bills failed after the Senate failed to agree on how to pay for the changes.

Sen. Mike Johanns’ (R-NE) amendment would have repealed the tax reporting requirement for small businesses, but made up for the revenue shortfall by eliminating $11 million from the Preventive Health Task Force and weakening the individual health insurance mandate. Sen. Bill Nelson’s (D-FL) alternative proposal would have required only larger businesses to report their transactions with vendors.

Earlier today, Senate Majority Leader Harry Reid (D-NV) also conceded, “If there is some tweaking we need to do on the health care bill, I’m ready for some tweaking.”

While it’s difficult to generalize about an election that attracted older and more conservative voters, many of whom said that they were most concerned about the economy and unemployment, one can close the loop on debunking the notion that the Affordable Care Act is to blame for the Democrats’ dismal showings last night.

As Politico’s Pulse pointed out this morning, “Exit polls show health as the second most important factor driving votes (19 percent). It was distantly behind the economy (62 percent).” While half wanted the health law repealed “nearly another half wanted it expanded or kept in place.” And according to a Wonk Room analysis of the election results, of the 34 House Democrats who voted against the final health care bill, 18 lost their bids for reelection, 12 won, 3 retired and 1 race — Rep. Ben Chandler’s (KY) — is still too close to call. Two states, Oklahoma and Arizona, also passed anti-reform ballot initiatives, while voters in Colorado defeated the proposition:

- 18 Voted AGAINST health care reform, and LOST:
Rep. John Adler (NJ), Rep. Rick Boucher (VA), Rep. Travis Childers (MS), Rep. Lincoln Davis (TN), Rep. Chet Edwards (TX), Rep. Frank Kratovil (MD), Rep. Jim Marshall (GA), Rep. Charlie Melancon (LA) [ran for Senate], Rep. Glenn Nye (VA), Rep. Ike Skelton (MO), Rep. Zack Space (OH), Rep. Gene Taylor (MS), Rep. Harry Teague (NM), Rep. Michael Arcuri (NY), Rep. Bobby Bright (AL), Rep. Stephanie Herseth Sandlin (SD), Rep. Mike McMahon (NY), Rep. Walt Minnick (ID)

- 12 Voted AGAINST health care reform, and WON:
Rep. Jason Altmire (PA), Rep. John Barrow (GA), Rep. Dan Boren (OK), Rep. Tim Holden (PA), Rep. Larry Kissell (NC), Rep. Dan Lipinski (IL), Rep. Stephen Lynch (MA), Rep. Mike McIntyre (NC), Rep. Collin Peterson (MN), Rep. Mike Ross (AR), Rep. Heath Shuler (NC), Rep. Jim Matheson (UT)

- 2 Referendums AGAINST health reform PASS:
Arizona, Oklahoma

- 1 Referendum AGAINST individual mandate FAILS:
Colorado

Last night, members of the House Republican leadership reiterated that they would focus on the economy, before turning their attention to repealing health care reform “lock, stock, and barrel” — an almost impossible feat given the Democrats’ control of the Senate and the Presidency. But prepare yourself for a series of Congressional oversight hearings and investigations into whether or not the Democrats pressured CMS actuaries to sit on cost estimates, HHS regulatory and implementation efforts, and whether the government’s Medicare brochures and Andy Griffith commercials violated the law. Many will also try to de-fund certain parts of the law. Rep. Steve King (R-IA), for instance, has promised to attach repeal legislation to every single appropriations measure.

Republicans may succeed in changing small parts of the legislation, however. This morning, Senate Majority Leader Harry Reid (D-NV) told CNN that he would be open to re-visiting the health care law. “If there is some tweaking we need to do on the health care bill, I’m ready for some tweaking,” he said, possibly referring to the unpopular 1099 reporting requirement for small businesses.

But the greatest gain for anti-reform advocates will be felt in the states, where Republicans won control of 19 statehouse chambers on Tuesday. As Julie Appleby and Mary Agnes Carey point out in this morning’s Kaiser Health News, “Winners included Sam Brownback of Kansas, who called the reform law ‘an abomination.’ Tennessee’s governor-elect, Bill Haslam, said the law is an ‘intolerable expansion’ of federal power and a ‘reminder of the incredible arrogance of Washington.’” While these state Republicans won’t be able to repeal the law outright, they “could slow the pace of implementation, lean on congressional delegations to repeal or change the legislation, seek waivers from some of its provisions, veto state legislation related to it and appoint like-minded people to important positions, such as insurance commissioner slots.”

The success of the Affordable Care Act was always going to depend on the state implementation and even though yesterday’s elections shielded health reform from an outright, up or down Congressional repeal, the GOP’s victories in the statehouses will allow Republicans to weaken reforms’ effectiveness.