Brian Beutler reports that some Senate Democrats who face a tough re-election bid are now proposing alternatives to the individual mandate, in hopes of stumbling upon some more popular way of getting healthy people to purchase health insurance coverage. Sen. Claire McCaskill (D-MO) is considering a plan that would create “an open-enrollment period for people who want to buy health insurance, and assess a penalty on anybody who tries to enter the insurance market after that window closes”:

As put it at a press conference Tuesday, “Take the word ‘shall’ out and say ‘if you don’t it’s really gonna cost you a bundle.’”

There was once bipartisan support for this structure — though there was also once bipartisan support for the mandate itself. The question is whether Republicans would be willing to play ball on fixing the law when their goal is to bring it down completely.

“We did look… when we were trying to look at alternatives during the debate, at a defined enrollment period, which allowed people to sign up, but didn’t make them sign up, but where there were penalties if they didn’t sign up during that period,” said Sen. Bob Corker (R-TN). “We had studies done that said that that in fact could well solve the problem of people enrolling after the fact.”

In today’s political climate, this idea sounds better than the individual mandate — although that had bipartisan support as late as August 2009 — but what makes for good politics doesn’t translate into better policy. As far as I can tell, and from what health economists who study these things told me, giving individuals a defined period of time to purchase insurance would cover far fewer people than mandating it (that’s because lower participation would lead to higher premiums since healthy people would stay out of the risk pooil.) Or at least, that’s what economists say — nobody has really scored the alternatives. One big advantage with the mandate is that we have experience in Massachusetts where, because of that policy, 98 percent of Massachusetts residents now have health insurance.

I understand why vulnerable senators like McCaskill, Bill and Ben Nelson, and Webb would want to find another option, but I fear that by searching for one so publicly they’re tacitly accepting the GOP’s premise that there is something inherently wrong or terribly coercive about asking able individuals to take personal responsibility for their health care expenses. Instead of playing defense, senators should be reminding the public of the long history of Republican support for the idea.

Former Senator and potential 2012 presidential candidate Rick Santorum (R-PA) appeared on Fox News to attack health care reform but defended the Medicare prescription drug doughnut hole, a provision passed by Congress in 2003, which forces seniors to pay out of pocket for their drug costs once they fall into a coverage gap:

SANTORUM: They got an expansion of the Medicare Prescription Drug Program, but that program was designed to do two things: take care of seniors who were poor and needed drug coverage and those who are high users of prescription drugs. It did both. It left a little hole in the middle for those, who frankly could afford to do it. And that was a good allocation of money. The Democrats said, ‘well we don’t care, we’re just going to throw more money at seniors, to offset the fact that we’re making huge cuts in Medicare.’

Watch it:

Under the Medicare Modernization Act of 2003, enrollees enter the doughnut hole when their total drug spending equals $2,830 and receive no Medicare coverage until they reach $6,440 in total drug spending. Almost three and half million, or 26 percent, of Medicare Part D enrollees reached this coverage gap in 2007 and those who couldn’t afford to pay for their medications stopped taking medicines altogether. For instance, a recent study of diabetes patients — who typically require multiple medications — found that beneficiaries who fell into the gap cut back on their drugs, “which may result in worse health outcomes.”

The health law relies on money from the pharmaceutical industry to close the gap in coverage, and HHS has been sending partial rebates to Part D beneficiaries who have reached the doughnut hole. Beginning this year, Part D beneficiaries who reach the doughnut hole will receive a 50 percent discount. This will be phased up to a 75 percent discount on brand name drugs by 2020 and a 7 percent discount on generic drugs — bringing costs to Part D beneficiaries back down to 25 percent (standard coverage level), thereby effectively closing the doughnut hole.

Towards the end of the segment, Sanotrum also expressed outrage that Democrats offset the costs of the coverage expansion by saving money in Medicare, saying “the Medicare program itself is in trouble and needs to be reformed to save it!” Of course, actuaries have estimated that reform would do just that, extending the life of the Medicare Trust Fund by 12 years.

Judge Roger Vinson’s opinion striking down the Affordable Care Act has been widely criticized by progressives and conservatives alike, and for good reason. I combed through Vinson’s opinion with my colleagues Neera Tanden and Tony Carrk, and identified at least 40 glaring factual and legal errors in the opinion:

In the accompanying interactive examination of Vinson’s opinion, we show how he effectively writes an entire provision of the Constitution out of the document. How he butchers history, thumbs his nose at binding Supreme Court precedent, and relies on a constitutional theory that George Washington would find shocking. As we explain, even conservative legal scholars have questioned Vinson’s reasoning. And he wholly misunderstands health care and how it works.

We also explain that one section of Vinson’s opinion was lifted from a brief filed by an organization that has been labeled a hate group. And when Vinson somehow concludes that the Boston Tea Party renders the Affordable Care Act unconstitutional, we take apart that argument, too.

As an example of the kind of downright sloppy errors that are pervasive in Vinson’s opinion, the judge at one point in the opinion makes the implausible claim that “[t]t was not until 1887, one hundred years after ratification, that Congress first exercised its power to affirmatively and positively regulate commerce among the states.” This is a truly remarkable claim — and one that Vinson cites no authority to support — but it also took me exactly 10 minutes with LexisNexis to prove Vinson wrong:

Vinson is wrong: George Washington signed a law regulating interstate commerce.

The first Congress passed, and President Washington signed, “An act for registering and clearing vessels, regulating the coasting trade, and for other purposes,” which required the owners of U.S. ships to register their vessels and even contained special rules governing ships traveling from Baltimore to Philadelphia. [“An Act for Registering and Clearing Vessels, Regulating the Coasting Trade, and for other purposes,” Wikisource.”]

There are, of course, at least 39 other errors in Vinson’s opinion, but it really tells you all you need to know about the quality of his reasoning that he saw no problem with fabricating a facially absurd claim about American history that any minimally competent lawyer could debunk in less time than it takes to brew a cup of tea.

The interactive examination of Vinson’s opinion appears below (click on the yellow text to read why Vinson is wrong):

A handful of conservative leaders are jumping on Judge Roger Vinson’s decision to invalidate the entirety of the Affordable Care Act to stop implementing the measure in their states, despite the fact that Vinson found that just two of the 26 states had standing to sue the government. Below is a sampling of some of the most recent state activity along with the amount of money each state has received to crackdown on unreasonable premium increases, plan for health insurance exchanges, help businesses cover early retirees and help seniors afford prescription drugs. If the states are serious about rejecting the law, they’ll have to give back this money:

- FLORIDA (WOULD GIVE BACK $71.4 MILLION): Florida Insurance Commissioner Kevin McCarty said Tuesday he “will forfeit a $1 million federal grant that was supposed to go toward beefing up oversight of health-insurance rates” and is treating the law as if it didn’t exist. “As of right now, it doesn’t exist,” Deputy Insurance Commissioner Mary Beth Senkewicz said during a conference call of the McCarty-chaired Health Insurance Advisory Board.” McCarty also said he told Jay Angoff, director of the HHS Office of Consumer Information and Insurance Oversight, that Florida would not be spending any of the funds it had been allocated to implement the insurance exchange program.

- UTAH (WOULD GIVE BACK $22.8 MILLION): Utah Deputy Attorney General John Swallow believes that the state is “no longer bound by the act.” Utah Gov. Gary Herbert is still weighing his options.

- WISCONSIN (WOULD GIVE BACK $37.8 MILLION): Wisconsin Attorney General J.B. Van Hollen already has declared the law null and void. “For Wisconsin, the federal health care law is dead — unless and until it is revived by an appellate court,” Van Hollen said in a statement this week. “Effectively, Wisconsin was relieved of any obligations or duties that were created under terms of the federal health care law.” Last night, he seemed to walk back his statement telling Politico’s Pulse, that he “never claimed that … states can or should ignore the fact they will have to consider the practical implications.”

- WYOMING (WOULD GIVE BACK $13.9 MILLION): Both houses of the Wyoming Legislature “passed bills Tuesday intended to block implementation” of reform. The Wyoming House approved a bill declaring that the law violates the U.S. Constitution and is invalid. The Senate approved a “proposed state constitutional amendment that would specify that citizens reserve the right to make their own health care decisions.”

- WASHINGTON (WOULD GIVE BACK $82.9 MILLION):Republicans have introduced a measure that would prohibit the state from spending money to implement reform. “With the court’s recent ruling, and with our state facing a $4.6 billion shortfall, it would be irresponsible for us to spend any more state dollars on implementing a federal law that may never go into effect,” Rep. Joe Schmick (R) said. However, since “Democrats control both the House and Senate in Olympia, so it’s not likely that Schmick’s measure will pass.”

- NEW HAMPSHIRE (WOULD GIVE BACK $8.9 MILLION): House Republican leaders have called on the all-Republican Executive Council to “reject a proposed contract that would lead to a state health insurance exchange for people and businesses that have trouble finding or affording health coverage.” Speaker of the House William O’Brien and Majority Leader D.J. Bettencourt “urged the council to vote against the contract, proposed by the Department of Insurance. They cited a decision Monday by a federal judge in Florida, which held the Affordable Care Act contains an unconstitutional requirement that requires individuals to buy health insurance if they are not covered by a government or employer plan.”

- IOWA (WOULD GIVE BACK $17.1 MILLION): Yesterday, in a vote of 59 to 39, House Republicans approved a bill that would allow the state to ignore the individual health mandate.

- NORTH CAROLINA (WOULD GIVE BACK $80.6 MILLION) The state House voted 66-50 to pass a measure that seeks to block a provision requiring people to buy insurance beginning in 2014 or pay a penalty.

Since it’s in everyone’s best interest to settle the constitutionality of the law, it may also make some sense to adopt Sen. Bill Nelson’s (D-FL) proposal and expedite the review process. The Supreme Court may be more likely to uphold the law if there are less negative rulings and the states can then go on with the job of actually implementing the measure.