Where things stand in the legislature on the private option for Medicaid expansion | Arkansas Blog

Wednesday, February 26, 2014

Where things stand in the legislature on the private option for Medicaid expansion

Posted By on Wed, Feb 26, 2014 at 10:54 PM

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The last few weeks have featured all manner of legislative drama over the private option. Today was a little quieter, so it’s a good time to step back and look at the big picture of the political lay of the land.

ALMOST THERE: For now, private option proponents are stuck on 73 votes. They continue to believe that they can eventually pick up the final two votes – anyone that followed this debate last year knows that vote counts can evolve quickly and they have a variety of ways to potentially get there. That said, the paths to the last handful of votes have proven rockier than many expected last week and though most Capitol observers confidently predict that the private option will pass in the end, no one has any clear idea of just how it will happen. The chances of the House passing the appropriation by March 6, House Speaker Davy Carter's goal date for ending the session, remain murky at best. 

DEFUND BITTER-ENDERS: On the other side, opponents have 27 votes, enough to block the appropriation but not enough to do much of anything else but holler. There’s no sign that they’re picking up votes; in fact, they’ve lost some to the Aye column over the last week. They have offered “compromise” alternatives, most recently via the Ballinger amendment, but every single alternative plan they’ve offered has expressly ended the private option. Their position is simple: Do what the minority wants or we’ll block the appropriation. That’s the trade they’re offering – if proponents agree to kill the private option, opponents will agree not to stop the entire Medicaid program. Here’s the thing: proponents may be facing a tough task snagging those last two votes, but something like the Ballinger amendment has zero chance of picking up the support it would need — Ballinger doesn't even have 51 votes to amend the appropriation on the floor; the thought that he could get to 75 by swinging 48 private option proponents to agree to end the program seems delusional. Think about this from the perspective of private option supporters: not only are they being asked to kill the private option, they're being asked to bend to the will of a small minority of the legislature. The same issues apply with Rep. Bruce Cozart's amendment floated today, as Cozart himself acknowledges

THE IMPASSE: In order to get a budget done, one of two things is going to happen: 1) At least two more representatives will vote for the appropriation and the private option will survive for another year or 2) the overwhelming majority in support of the private option will cave and go along with the minority. Almost no one, on either side of this debate, believes that #2 is going to happen. That leaves us with the situation that Rep. Nate Bell warned lawmakers about and that we reported on as a possibility back in August: a rump group with enough votes to block the appropriation, but nowhere near enough votes to amend or pass something in its place. There's a reason that opponents haven't bothered to make a motion on the House floor or in committee to amend the private option: they don't have the votes, and they know it. As Bell tweeted last night, "The idea that 26 votes against PO is enough leverage to convince 49 of the 77 who created the program to kill it is preposterous." Making substantive changes requires getting them through Joint Budget and likely Special Language, getting the Senate to take up a new bill, and getting a supermajority in both chambers. Bell tweeted out this image last night to illustrate the seemingly impossible math facing an effort to end the private option during this fiscal session. 

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Of course, the minority of private option opponents does have one tool at its disposal, unless a court says otherwise. It can block the entire DHS appropriation if it doesn't get its way. That's the thing: Though there doesn't seem to be a clear endgame or path for success for the diehard opponents, unless and until two more people push the yes button, we remain at a standstill — with the entire Medicaid program in the state of Arkansas in jeopardy come July 1. 

NEGOTIATIONS: House Speaker Davy Carter and Rep. John  Burris met with some lawmakers from the defund group this afternoon. The Speaker's office told KARK reporter David Goins that the talks were "productive" and Carter has been striking a more conciliatory tone today. The tricky part remains the issues described above: thus far the public offers from the defund group have either been to kill the private option or to ask for something that would be legally impossible without federal approval that will never come. Do opponents have an ask with any hope of getting enough votes in the House and Senate to pass? It's extremely difficult to imagine substantive changes to the bill itself. Perhaps one way out might be ancillary concessions not directly connected to the private option appropriation. It's also at least possible that some in the defund group may decide the math and politics are not in their favor, but felt they needed a respectful hearing of their concerns before they could move forward on a path to avoid leaving the session without a budget. Finally, the political reality is that anyone that flips needs to have a good reason for voting no four times last week and then coming around — I would imagine that any negotiation would include the terms of how a final vote would go. 

The backdrop of this round of talks: Carter yesterday stated publicly what many lawmakers have been stating privately for the last week — Bell had a group of lawmakers he was working with who agreed to vote for the private option appropriation if the Bell amendment was added. This came after weeks of negotiation (and reading between the lines, it sounds like Americans for Prosperity at least had a seat at the table too – they implicitly endorsed the Bell approach immediately after it came out and have been in active communication with lawmakers ever since). Then, when it came time to vote, Bell voted for the appropriation but the people in Bell’s group (somewhere between four to eight lawmakers, depending on who you ask) backed out. When asked yesterday, Bell himself declined to comment on this group directly but has made reference to them publicly in the past; Bell did say yesterday that he thought that proponents had negotiated in good faith and "made some rather large concessions...frankly [I] wish folks that were on my side had done more to come to the table to make it come together."(According to all of the private option proponents involved, Bell himself negotiated in good faith.)

From Carter's perspective, this explains his firm line about negotiations ending — he believed that the negotiations had already happened and produced a result that lawmakers now voting no had promised to support. No one has publicly denied this chain of events but it's impossible to know what was said or what promises were made behind closed doors. Perhaps some lawmakers backed out of an agreement, but perhaps there was just a simple miscommunication. Perhaps an agreement was made but got derailed by events, whether it was the way the deal got reported or the timing of the votes or something else entirely. Who knows! The salient point is that many private option proponents (particularly Democrats) believe that the Bell amendments were a bitter pill that came as a result of negotiations to pass the appropriation, and are now unwilling to go any further. 

THE GAME OF CHICKEN: Maybe today's discussions will pave a way forward. It's possible, as many proponents suggest, that there are holdouts likely to come around before the session ends. Many Capitol observers insist that things will be easier after the filing deadline for primaries this Monday. But every day without a deal brings us a day closer to leaving the session without a budget. That would force the governor to call a special session, with a hard deadline of July 1 to resolve the issue before the state's entire Medicaid program — including for children, the disabled, and elderly people in nursing homes — would be suddenly without funding.

As far as I can tell from talking to dozens of lawmakers over the past few weeks on every side of this debate, here's my read on the 27 holdouts: Probably a dozen at most actually believe they can win a defund fight this fiscal session. Meanwhile, a chunk of them would prefer that the private option pass this year, either for policy reasons or political reasons, but they do not want to be the ones to push the button (or a few might want something in return if they do). Some who sincerely oppose the private option aren't comfortable blocking the entire Medicaid budget to try to get their way. Some have concerns about the impact on the Republican party of a protracted "shutdown" style fight. 

One hardcore opponent in the House told me that he doubted that the 27 could hold out because "it's a smaller group of us who are really opposed on principle." Cozart said this afternoon that he personally was willing to "kill the budget" in order to stop the private option, but believed that others in the 27 were not. 

All of that would seem to point toward a resolution before the session ends, with the private option surviving at least another year. That may well happen, maybe even sooner than later. But that still requires two more votes...and nobody can say two names that will flip to yes with any confidence. As some lawmakers put it, somebody still has to "fall on the grenade." The House convenes tomorrow at 1:30. 

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