During a speech at the Center for American Progress Action Fund this morning, Rep. Anthony Weiner (D-NY) predicted that the current make-up of the Supreme Court makes it more likely than not that the individual health insurance mandate will be found unconstitutional and said that such a ruling could build support for bringing back the public health insurance option:

WEINER: If they strike down the mandate, big deal. Big deal! … We pretty much see the direction the Supreme Court is going, although I think that it would be folly to strike it down, I believe this is clearly under the province of the commerce clause, it’s a relatively small number of people. And by the way, the solution if the mandate is struck down is not that the bill falls like a house of cards…the solution is going to be offering something that everyone agrees is constitutional and that’s the public option in the exchange.

Watch it:

As Austin Frakt put it, the mandate may be the price for maintaining a “private” solution to the health care crisis and the health insurers — the biggest opponents of the public –know it. As Mike Tuffin, executive VP of America’s Health Insurance Plans (the insurance lobby) pointed out in July of 2010, “Health care reform is not over. This is the only the end of the beginning,” Mr. Tuffin said. “Whether we like it or not, the bill was passed. Now we must be reliable and effective implementation partners. We need to stay engaged. The single-payer and public-option supporters have not given up,” he warned.

Also, if one were to review the arc of GOP criticisms against the law, the opposition to the individual mandate — at least from Congressional Republicans — did not develop until after the public option had been effectively taken off the table. Recall that while Sen. Orrin Hatch (R-UT) and former Senators Judd Gregg (R-NH) and Bob Bennett (R-UT) all previously supported the requirement, Sen. Chuck Grassley (R-IA) — who played a key role in the bipartisan negotiations within the so-called gang of six — favored the requirement as late as August 2009. Before that time, the crux of the opposition focused on the public option. As it stood on its last leg in the fall of 2009, Republicans developed a new allergy to requiring people to take responsibility for their eventual health care costs. So, the GOP may have created this conundrum and now they’re making the most of it.

Rep. Anthony Weiner (D-NY) responded to Judge Roger Vinson’s ruling against the constitutionality of the Affordable Care Act by pointing out, “We know this: the public option is constitutional.” During today’s Senate Judiciary Committee hearing, former Reagan Solicitor General Charlies Fried agreed:

FRIED: As I recall, the great debate in the Senate was between this device and something called the public option. And the government option was described as being something akin to socialism and I think there is a bit of a point to that. But what is striking Senator is that I don’t think anybody in the world can argue that the government option or a single payer federal alternative would have been unconstitutional.

Watch it:

Fried is no fan of the public option, but still finds it “odd that this attempt to keep it in the private market is now being attacked that way.” As Austin Frakt put it, the mandate may be the price for maintaining a “private” solution to the health care crisis.

But if one were to review the arc of GOP criticisms against the law, the opposition to the individual mandate — at least from Congressional Republicans — did not develop until after the public option had been effectively taken off the table. Recall that while Sen. Orrin Hatch (R-UT) and former Senators Judd Gregg (R-NH) and Bob Bennett (R-UT) all previously supported the requirement, Sen. Chuck Grassley (R-IA) — who played a key role in the bipartisan negotiations within the so-called gang of six — favored the requirement as late as August 2009.

Before that time, the crux of the opposition focused on the public option. As it stood on its last leg in the fall of 2009, Republicans developed a new allergy to requiring people to take responsibility for their eventual health care costs. So, the GOP may have created this conundrum and now they’re making the most of it.

The Affordable Care Act does not establish a national public option like many progressive would have hoped, but it does allow states to form their own public plans. Today’s Politico’s Pulse reports that Connecticut is aiming to do just that, and a new report from a state board to the General Assembly argues that such an option could save Connecticut taxpayers up to $355 million in 2014.

The option, called SustiNet, follows a 2009 state law which sought to use a publicly administered health plan to implement health care delivery changes designed to slow the growth of costs. Over the course of three years, the state hopes to expand the program from state-sponsored populations, state employees and retirees, to municipalities, private employers and families:

Effective on January 1, 2014, when most federal reforms become operational, SustiNet will offer comprehensive, commercial benefits to all of the state’s employers and households. This new health insurance choice will be available both inside and outside Connecticut’s new health insurance exchange, established under the ACA. SustiNet will undertake feasibility studies, develop business plans, conduct a risk assessment, and take any other steps needed to ensure that the new competitive option is viable and adds value in the marketplace. [...]

SustiNet will offer all employers and families a new, competitive health insurance option that reforms health care delivery and payment to improve value and slow premium growth. These reforms will spark broader change throughout Connecticut. Leading by example, SustiNet’s innovations will make it easier for others to follow a similar path. Our proposal harnesses the power of competition, ensuring that successful SustiNet reforms will be replicated by private insurers seeking to preserve their market share. SustiNet will also work collaboratively to implement multi-payer reforms that help the state’s providers give their patients high- value, quality care. And by enrolling a large number of consumers, SustiNet will gain the leverage it needs to reform health care delivery and payment.

Connecticut could serve as a test case for the progressive public option talking points we all heard so much about (and repeated) during the national debate. Indeed, Oregon and Vermont are already considering more progressive alternatives than what the ACA allows and if Congress passes legislation offered by Sens. Ron Wyden (D-OR) and Scott Brown (R-MA) to permit states that meet certain benchmarks to opt out of some of the requirements of the law by 2014 (rather than the current date of 2017), we could expect even more state experimentation on the horizon.

Moments ago, during a hearing in the Rules Committee, another Republican who supports repealing the Affordable Care Act announced that he would forgo the Federal Employers’ Health Benefits Plan (FEHBP) — the exchange that offers coverage at reduced rates to federal employees. Rep. Richard Nugent’s (R-FL) decision now brings the total number of Republicans who are staying out of Congressional coverage to seven, or just 3% of all the Republicans in the House:

NUGENT: I will tell you this, what I will pay for insurance to get through my employer, not through the House, will be almost — will costs me $9,000 more a year. But I wan to remain with that, because I think it’s the right thing to do. Because I think that when you have Americans that are struggling, why should I get a cost saving because I just got elected to the United States House of Representatives?

Watch it:

Yesterday, Republicans voted down a proposal offered by Rep. Joseph Crowley (D-NY) that would have required members to disclose the source of their insurance coverage. A spokesperson for House Speaker John Boehner (R-OH) dismissed the measure as “junk food” political rhetoric, suggesting that it has nothing to do with the Affordable Care Act. Under the health reform bill, the exchanges that become operational in 2014 are largely based on the FEHBP program and members would have to enroll in the new market place and face the same kinds of choices as their constituents.

Nugent joins Reps. Sandy Adams (FL), Bill Johnson (OH), Mike Kelly (PA), Bobby Schilling (IL), Joe Walsh (IL) and Daniel Webster (FL), and Rep. Frank Guinta (R-NH) in opting out of the program.

This Ben Smith post really ties together the two arguments I made yesterday, namely that health insurers are extremely effective in shaping public opinion and that Fox News began referring to the public option as the government option to help sink reform, not offer a better explanation of the provision. As it turns out, that phrase first originated not with Fox or Frank Luntz, but AHIP — the insurance lobby powerhouse that shaped much of the law to its liking:

A former Republican Hill staffer closely involved in the battle over the health care plan — and concerned that credit go where it’s due — e-mails that the case for the linguistic shift first emerged in February in research provided the GOP by the health insurance industry group America’s Health Insurance Plans (AHIP).

AHIP focus groups from late February (whose findings appear in this document, provided by the former aide) found that voters like the idea of a “public” plan, and that the most negative term is a “government-run health insurance plan.”

A round of polling from AHIP in February and March confirmed that argument. “It is clear the most negative language to use when describing a ‘public plan’ is ‘a government-run health insurance plan,’” reads a presentation the group distributed, starting in March, to allies, Republican staff and opinion leaders and to conservative media, according to the former aide.

Sen. John Ensign was the first to pick up the talking point in a March 24 release blasting a “Government-Run ‘Public’ Health Insurance Plan.”

This is fairly significant because it once again reaffirms the existence of a messaging pipeline which stretches from the industry to the lobbyist to the lawmaker and to Fox — and not necessarily in that order. The effectiveness of this communication system was on full display during the health care debate, when Republicans went to the floor and literally read from the industry-sponsored critique of the health law and then again echoed their arguments about the causes of premium increases after the law passed. None of this happened through some coincidence or a meeting of the minds. More likely than not, Republicans and their friends in the media were reading from talking points they received directly from the industry.

But the industry’s influence stretched far beyond the phrase “government option.” Insurers went to great lengths to develop messages that shifted public perceptions against the provision. As this AHIP presentation demonstrates, almost all of the following phrases became standard Republican talking points against reform — and they came straight out of the industry’s polling:

In his book Deadly Spin, Wendell Potter explains how this process works through the help of public relations firms and a mass distribution of information to friendly news outlets (read: Fox News) and conservative think tanks who then place favorable editorials in the country’s leading newspapers. This example deserves a prime spot in the book’s second edition, which, with some more investigative work, could contain whole treasure trove of anti-reform phrases and talking points that originated with AHIP.

Read AHIP’s research on the ‘public option’ here and see their presentation here.

I disagree with Kate Pickert’s argument that Fox News was right to re-brand the “public option” the “government option” because the latter phrase did a better job of explaining what the “option” actually did than the former. Responding to today’s revelation that Fox News executives sent emails to reporters reminding them to stick to the “government” descriptor, Pickert argues:

Here’s what Kurtz and Media Matters fail to note: Most Americans did not understand what the “public option” was. The term, in fact, seemed almost intentionally non-descriptive. Scores of journalists asked me during the health care debate to explain to them what the public option was – and these were folks interested in the news and paying attention to the issue.

The public option would have been a government-run insurance plan some Americans could have purchased. It would have been supported by premiums with no government subsidization and would be been purely voluntary. Like Medicare, the reimbursements paid by the public option would have been set by the government. Also like Medicare, the plan would not have needed to turn a profit, making it cost less than private insurance. It would have therefore provided tough competition for private insurers and pushed down premiums throughout the marketplace.

It’s true that Americans had a hard time understanding this and all the provisions in the Affordable Care Act. In fact, that’s part of the reason why its approval ratings are so low. But Fox News has always contributed to the misinformation. The network chose to call the the “public option” the “government option” not because it was hoping to educate Americans about the intricacies of reform, but because it was in the business of broadcasting the most sensationalistic and over the top claims about reform — claims that almost buried the entire effort. Multiple times! And ‘government option’ fit the bill since, as Frank Luntz put it, “using “government option” language made the public option unpopular with the American public.

In her column, Picker offers this clear definition of what the public option actually is: “The public option would have been a government-run insurance plan some Americans could have purchased,” she writes. “It would have been supported by premiums with no government subsidization and would be been purely voluntary. Like Medicare, the reimbursements paid by the public option would have been set by the government. Also like Medicare, the plan would not have needed to turn a profit, making it cost less than private insurance. It would have therefore provided tough competition for private insurers and pushed down premiums throughout the marketplace.” What’s instructive is that Fox News never explained it this way. Rather, through its use of the word “government,” selection of guests and general framing, the network insinuated that it would cause people to lose their existing coverage and lead to the death of private insurance as we know it.

In fact, this message was so successful that Fox, Republicans and the whole conservative movement used the “government takeover” meme even after the public option was dropped from the bill and people still say it today. That’s a testament to the network’s reach and influence, not its educational prowess or knack for clarity.

Two new polls solidify last week’s argument that most Americans don’t support repealing the health law. The surveys from Gallup and AP-GfK chip away at the Republicans’ argument that they have a mandate to eliminate or defund the health law:

- Gallup poll released this morning: 42 percent want to repeal it in some way, shape, or form. 49 percent would keep it or expand it. Significantly, 43 percent of Independents believe it goes to far and should be repealed, why the majority, 46 percent of want to keep or expand it.

- AP-GfK poll released on Thursday morning: 39 percent want to repeal of scale back the law. 58 percent would keep it or expand it. 21 percent want to leave it as is; 38 percent want to expand it.

Last week’s national exit polls found that 48 percent of Americans want to repeal the law, while 47 percent would keep it or expand it, suggesting that neither party has a mandate on the issue. But Senate Minority Leader Mitch McConnell (R-KY) still pressed on the party’s repeal rhetoric, arguing that Americans wanted to eliminate the law. [W]hether or not the administration has a mid-course correction, Republicans have a plan for following through on the wishes of the American people,” McConnell said in a post-election speech titled “Listening To The People Who Sent Us Here.”

“It means sticking ever more closely to the conservative principles that got us here…And, above all, it means listening to the people who sent us here,” he added. Unfortunately, McConnell didn’t explain what it would mean if his “conservative principles” clashed with “the people who sent us here.”

Former Senate Majority Leader Tom Daschle (D-SD)’s new book Getting It Done: How Obama and Congress Finally Broke the Stalemate To Make Way for Health Care Reform comes out next week, but this morning he spoke to me about some of the concessions the administration made to pass reform and the shortcomings in the Affordable Care Act.

In his book, Daschle reveals that after the Senate Finance Committee and the White House convinced hospitals to to accept $155 billion in payment reductions over ten years on July 8, the hospitals and Democrats operated under two “working assumptions.” “One was that the Senate would aim for health coverage of at least 94 percent of Americans,” Daschle writes. “The other was that it would contain no public health plan,” which would have reimbursed hospitals at a lower rate than private insurers.

I asked Daschle if the White House had taken the option off the table in July 2009 and if all future efforts to resuscitate the provision were destined to fail:

DASCHLE: I don’t think it was taken off the table completely. It was taken off the table as a result of the understanding that people had with the hospital association, with the insurance (AHIP), and others. I mean I think that part of the whole effort was based on a premise. That premise was, you had to have the stakeholders in the room and at the table. Lessons learned in past efforts is that without the stakeholders’ active support rather than active opposition, it’s almost impossible to get this job done. They wanted to keep those stakeholders in the room and this was the price some thought they had to pay. Now, it’s debatable about whether all of these assertions and promises are accurate, but that was the calculation. I think there is probably a good deal of truth to it. You look at past efforts and the doctors and the hospitals, and the insurance companies all opposed health care reform. This time, in various degrees of enthusiasm, they supported it. And if I had to point out some of the key differences between then and now, it would be the most important examples of the difference.

Despite being “taken off the table” as a result of the “understanding,” the White House continued to publicly deny claims that it was backing away from the provision even as it tried to focus on other aspects of the bill. “Nothing has changed,” said Linda Douglass, then communications director for the White House Office of Health Reform in August of 2009 and many times thereafter. “The president has always said that what is essential is that health insurance reform must lower costs, ensure that there are affordable options for all Americans and it must increase choice and competition in the health insurance market. He believes the public option is the best way to achieve those goals.”

Daschle also said that he was disappointed that the law did not include greater specificity about ways to control health care spending and reform the delivery system. “I’m concerned that we are going to do potentially not achieve all that we might have achieved had we been more specific,” he said. “We lay out a very clear 10-year schedule, with great specificity about how insurance reform is going to work…[but] we don’t do that nearly as much with cost-containment and with delivery reforms.” “I think we could have put into the legislation specific targets and actions that would be required have to do with unnecessary care, in terms of primary care, transparency and even a more ambitious and delineated schedule for HIT, moving away from fee-for-service.”

Asked about the future of health reform, Daschle said he was “reasonably confident” that the government would prevail in the state legal challenges to the individual mandate, although admitted that “given the unpredictability of the Supreme Court as well as other appeals courts, it’s not as much of a closed case as I think as it should be.” He also expressed concern that newly elected Republican governors would refuse to implement the law, but said he had “two sources of general confidence building” about the GOP promise to defund the law, should they regain control of the House.

“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,” Daschle predicted. He also added that approval will likely increase as different benefits become available.

Daschle’s book, published by St. Martin’s Press, comes out next Tuesday, October 12th. To read more of my interview with Daschle, including his response to whether or not Obama advocated for progressive ideas, click here. Read more

Last week, while we were all at Netroots Nation, 128 House Democrats introduced a new public option bill that could reduce the deficit by $68 billion from 2014 to 2020 and offer premiums that “would be 5 to 7 percent lower than other private plans available within the exchange.” Emma Sandoe, who was gracious enough to do a post on this (including a very snazzy table), had this to say about the effort:

Realistically, this chances of this public option bill passing this Congress, who is exhausted from the last public option fight and in full midterm mode, are slim. This hasn’t deflated Woolsey who said, “This will be there for the next Congress.” Whether or not this proposal goes anywhere legislatively, it reminds more progressive voters and members of the party that the public option has not been forgotten. States have already begun showing support for public run insurance systems, this support from the federal government can work to galvanize the effort.

Democrats in progressive districts want to use the bill to turn out the base in November, and that’s a good thing. The public option is one of the most popular and controversial elements of health care reform and if structured correctly from a policy perspective, it could actually go a long way towards lowering health care costs and injecting some competition into insurance markets. We should welcome this move, but we should also urge Democrats to go further and spend equal energy on ensuring that the existing parts of the law, particularly the exchanges within which the public option will operate, are well implemented. After all, various parts of the health industry are busy influencing the implementation process and Democrats in Congress should too.

HCAN issued a report just last week about how the insurance industry is already spending millions of dollars to water down the medical loss ratio regulations and other sectors are undoubtedly working to craft their own regulatory exemptions. There are several progressive-based implementation efforts underway, but with the exception of a few dedicated health care wonks — Sen. Jay Rockefeller (D-WV) among them — few Democrats have spent time publicly countering the well-orchestrated industry lobby or pressuring the HHS Secretary and the other relevant agencies to issue regulations in the consumers’ interest.

But this fight is just as essential as the public option and Democrats should be holding Congressional hearings, working closely with their state insurance departments and legislatures, and doing all they can to ensure that the bill is properly implemented. If they don’t, we know that the industry will determine the effectiveness of reform, and in many respects, the future of the party.

Our guest blogger is Emma Sandoe, a Health Care Researcher at the Center for American Progress.

Just when you thought the last nail had been driven in the public option coffin months ago, like a phoenix rising from the ashes, the public option has once again returned to Congress. As Noam Levey reported last night, “[c]reating a major government health insurance program was roundly rejected last year, but 128 House Democrats are pushing to reconsider the idea, contending that it would hold down federal spending.” The legislation, HR 5808, is sponsored by Rep. Lynn Woolsey (D-CA) and the 128 cosigners are largely progressive caucus members and include all three chairmen of the committees of jurisdiction, Ways and Means, Energy and Commerce, and Education and Labor.

The Congressional Budget Office (CBO) scored the legislation and noted some promising findings. The public plan, in this form, has always been a deficit reducer and this is no exception. CBO found the proposal would reduce the deficit by $68 billion from 2014 to 2020. Despite likely lower reimbursements than private plans, CBO found providers would likely participate in large numbers because of the number of enrollees. CBO estimates the average public plan premium would be 5 to 7 percent lower than other private plans available within the exchange, making it more affordable to individuals. They also estimate approximately 13 million or one in every three individuals eligible for exchange coverage would chose the public option.

The legislation looks very similar to the original House public option that passed the Ways and Means and Education Labor committees. It is important to remember the public option that passed the full House of Representatives in November of last year looked very different from this initial version. Both the original House bill and the new legislation would create an option for a public plan within the health insurance exchanges beginning in 2014. Providers would be paid Medicare rates plus 5 percent in the initial years. The providers will not be required to accept Medicare to enroll in the program.

Realistically, this chances of this public option bill passing this Congress, who is exhausted from the last public option fight and in full midterm mode, are slim. This hasn’t deflated Woolsey who said, “This will be there for the next Congress.” Whether or not this proposal goes anywhere legislatively, it reminds more progressive voters and members of the party that the public option has not been forgotten. States have already begun showing support for public run insurance systems, this support from the federal government can work to galvanize the effort.

In comparison to the original House version of the public option, as CBO notes, some of the savings are not as large. This is primarily due to the fact, “that total federal subsidies for exchange participants will be substantially smaller under PPACA than they would have been under the legislation that was considered in the House.” In other words, because we aren’t spending as much as we were with the original House bill, we can’t save as much.

In comparison to a very early Senate public plan option, this public plan would cover more individuals and premiums would be cheaper for individuals. Providers would likely see lower rates which would make them not favor this plan. A public plan with payments linked to Medicare was never an option for this Senate.

A summary table comparing the three public option proposals is below.

	Initial House Proposal HR 3200, Summer 2009 (later became a negotiated rate system)	Early Senate Proposal for HR 3590, November 2009 (public option later dropped)	Woolsey HR 5808, July 2010
Deficit Reduction	Not separately scored – unofficial estimates had a savings of $110 billion	$3 billion 2014-2019	$68 billion 2014-2020
Premiums	10 percent cheaper than private plans in the exchange	More expensive than private plans in the exchange	5-7 percent cheaper than private plansin the exchange
Estimated number of individuals enrolling	9-10 million	3-4 million	13 million
Payment	Medicare rates with +5% bonus in first three years for physicians enrolled in Medicare	Negotiated rates with providers	Medicare +5% bonus for first three years
Sexy Fact	The public plan can negotiate drug prices from the start. Provider participation is voluntary.	Healthier enrollees, states could opt out of the plan, start up costs must be repaid.	State based exchanges with a federal Medicare linked payment system.