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Bill would add Virginia to health care opponents

Compact exempts states from law

- The Washington Times - Tuesday, January 17, 2012

RICHMOND — A Virginia lawmaker is pushing legislation to add the state to an interstate compact that would exempt members from President Obama's health care overhaul — a budding movement that's providing states across the country with another constitutional weapon to combat the landmark law.

Delegate Christopher K. Peace, Hanover Republican, introduced a bill under which Virginia would join other states collectively seeking to create their own health care policies through federal block grants and shield themselves from any conflicting federal law or regulation.

"In its essence, it's transferring the decision-making power and federal funds to the states," Mr. Peace said. "Would this include everything that, say, federal health care reform has in it? Likely not."

Four other states — Georgia, Texas, Oklahoma and Missouri — already have approved measures that put the compact into law, and legislation is pending in at least 12 others, including Virginia. For a compact to take effect, it needs at least two member states and congressional approval.

Some state legislatures have proposed entering the compact, only to be thwarted by their governors.

Montana Gov. Brian Schweitzer, a Democrat, vetoed such a measure last year, as did Arizona Gov. Jan Brewer, a Republican. Ms. Brewer cited separation-of-powers issues, and said she was concerned it would add additional costs to the state's health care system.

A spokesman for Virginia Gov. Bob McDonnell, a Republican and frequent critic of the health care overhaul, said the governor has not yet seen the legislation but that his office would thoroughly review any such bill passed by the General Assembly and make a decision at that time.

The effort is being coordinated by the Health Care Compact Alliance and grew out of studies at the conservative Texas Public Policy Institute. One organizer has said he would like to see at least 15 states join the compact before asking Congress to approve it.

Enabled by the "Compact Clause" in Article 1 of the Constitution, interstate compacts generally are used to solve cross-border problems such as transportation. About 200 compacts are currently in effect. In the Washington area, the Metrorail system is one example. But the health care compact would be the first to explicitly protect states from federal law.

Nick Dranias, director of the Center for Constitutional Government at the Arizona-based Goldwater Institute, said it had a good chance at gaining momentum.

"To get four states on an idea like this is a pretty significant achievement," he said. "If they plod along with the same success, they'll have it down in three to four years."

He said individual bills might meet more resistance than a compact, which has more of a "one jumps, we all jump" mentality.

"A universal bill that was not a compact might run into more political flak than this, [which] might move through a little faster and smoother," he said. "There might be a lobbying advantage to use a compact."

If nothing else, the movement provides another state-level outlet for conservative protest against the federal health care law, which has been at fever pitch even before its passage in March 2010. The law is scheduled to be considered by the Supreme Court in March.

Between January and November of last year, 45 states had more than 200 measures filed opposing elements of health care reform or approving alternative policies, according to the National Conference of State Legislatures.

Mr. Peace, calling it a "long road to hoe," said he wasn't sure that the legislation would be approved this year — but that he wanted to get the conversation started.

"A lot of like-minded people are out there that are tired of being labeled as 'the people of no,' " he said. "This is an attempt to be proactive and try to find a framework."

Wake Forest University law professor Mark Hall, an analyst on health care policy, said a larger political movement is afoot not just to repeal the law, but to replace it.

"The idea of giving states an option would be politically appealing," he said. "One advantage of bringing this to Congress is if you get congressional blessing, you might get federal funding for it. Rather than waiting for Congress to devise these measures, I see some advantage to the states getting together themselves and presenting a package sort of ideas to get approval and funding."

But Matthew Spalding, vice president of American studies at the conservative Heritage Foundation, said the compact clause was not designed for such a purpose.

"You're using a clause that was meant to be used in a situation where a small number of states are working together to essentially do comprehensive national legislation," he said. "The folks that are behind the compact movement are well-meaning. ... The concern is that they're grasping for a silver bullet, which just isn't the way they think it might be."

The inherently political nature of the issue has other opponents deriding the notion of a compact as merely another loud, fruitless way for Republicans to vent over the law.

Delegate Patrick Hope, Arlington Democrat, has introduced legislation that would set up a health insurance exchange in Virginia based on the recommendations of the Virginia Health Reform Initiative, a collection of lawmakers, business leaders and administration officials who worked for months to craft recommendations on how to implement the law in the state.

Mr. Hope said that if the compact provided all the benefits that the federal law would, he would take a look at it — but he appeared skeptical.

"I understand that people want to wait until the Supreme Court decision," he said. "We're here. I'm ready to do the work, and I hope Delegate Peace will roll up his shirtsleeves and help out."

Republicans have also introduced bills to set up an exchange, essentially a marketplace where consumers can shop for and buy various insurance plans, though it would be housed inside the State Corporation Commission. Democratic proposals have it operating as a self-sustaining, quasi-governmental entity.

Sen. Mark Obenshain, Harrisonburg Republican and Senate chairman of the General Assembly's Conservative Caucus, agreed with Mr. Peace in saying that taking steps to set up an exchange would be "premature."

Mr. McDonnell also thinks passing legislation to set up an exchange is not necessary during this session.

"There are too many variables and unanswered questions from the federal government that would make establishing a health benefit exchange at this time to be inefficient, costly, and unfocused," spokesman Jeff Caldwell said. "If the requirement is upheld by the Supreme Court, then Virginia will be well positioned to move forward and establish a state-run exchange once more direction is made available from the federal level."

States must indicate whether they intend to operate an exchange by January of next year.

"We've got to find ways to put pressure on the federal government to get us out of the mandate," Mr. Obenshain said. "If 20 states step up and say, 'get us out,' the federal government's going to have to step back and retool."

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