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The White House has reportedly been talking to Sen. Olympia Snowe, R-Maine, about a "trigger option" for health reform. Rather than creating a "public option" government-health-insurance program, Congress would give insurance companies a deadline to expand coverage and lower costs. If the insurance companies should fail to meet it, then Congress would enact a public option.
The idea of a legislative trigger to get Congress to do later something that it doesn't want to do now is not new. Such triggers have an excellent track record of demonstrating resolve where none exists. But as a policy mechanism, they have nearly always failed.
In 1973, Congress enacted the War Powers Resolution. It gave the president 90 days after the start of any armed conflict to receive congressional authorization. If no such authorizations were granted, troops would be required to come home. The resolution has seldom been invoked at all, and Congress has never once imposed a 90-day deadline on any military action.
In 1978, Congress enacted the Humphrey-Hawkins Full Employment Act. Under the act, Congress gave itself five years to reduce the unemployment rate from 6 percent to below 4 percent. If that target was not met, Congress would create a public employment program. Five years later, unemployment was not down but up, reaching a postwar peak of 10.8 percent (significantly higher than it is today). Yet Congress did nothing. Today, Humphrey-Hawkins is remembered not for its full-employment provisions, which were watered down to meaninglessness prior to its passage, but, rather, for its requirement that the Federal Reserve Board make a semi-annual report to Congress about monetary policy.
In 1985, Congress enacted the Gramm-Rudman-Hollings Balanced Budget Act. If a specified "maximum deficit amount" were exceeded, spending (with certain exceptions) would be reduced by a uniform percentage across the board. Congress found ways to evade these mandatory reductions (called "sequestrations"), and the budget deficit rose from $212.3 billion to $220.4 billion in 1990, when the law was finally scrapped.
Legislative triggers have an especially dismal history in health care policy, argues Timothy S. Jost, a law professor at Washington and Lee. In 1996 the Health Insurance Portability and Accountability Act required states to impose health-insurance reforms similar to those proposed in the current health reform bill; if the states failed to act, the federal department of Health and Human Services would impose them. States failed to implement reforms—and so did HHS. In 2003, when Congress added a drug benefit to Medicare, it worried that its new program to provide coverage through private plans subsidized heavily by the government would prove ineffective. But a trigger to end the program focused only on whether these private plans would serve all regions of the country, which they did. The trigger failed to address the real problems that emerged: fraud, abrupt changes in formularies and drug charges after beneficiaries signed up, and high costs. Meanwhile, a separate trigger in the bill required the president to address projected shortfalls within 15 days of receiving notice that 45 percent or more of Medicare funding was drawing down general revenues for a second consecutive year. Congress would then eliminate the surplus spending under an expedited procedure. But when President Bush notified Congress in 2006 that the 45 percent threshold had twice been exceeded, Congress did nothing. The threshold has been exceeded every year since then. Congress continues to do nothing. *
The one legislative trigger that everyone agrees has worked is Congress' procedure for base closings. In 1990, the Defense Base Closure and Realignment Act created a commission to choose military bases to close in consultation with the defense secretary and various experts. If Congress doesn't vote down its choices within 45 days through a joint resolution, the bases are closed down. This procedure is an excellent one for achieving ends with which a clear majority of Congress is likely to agree (base closings are typically opposed only by members who represent the area affected). Moreover, the action triggered is straightforward: A base is shut down. The federal government works quite well on automatic pilot when it's writing checks (as it does for entitlement programs). It can also work well when it's ceasing to write checks.
Much of the outcome depends on how "soft" or "hard" a trigger is—i.e., how much wiggle room the legislation in question leaves Congress to avoid further action. A soft trigger provides maximum latitude; a hard trigger, almost none. "The usual device," observes Charles Peters, former editor of the Washington Monthly, "is to put subtle loopholes in the language that mean that the trigger will not necessarily have to be pulled." These loopholes are typically inserted at the direction of lobbyists whose clients' financial interests are at stake. (Trigger jargon, as Sen. Pat Moynihan once complained to William Safire, is metaphorically inapt, because on a real gun a "soft" trigger is easy to squeeze while a "hard" trigger is difficult.)
It's almost impossible to imagine a truly hard trigger mandating the creation of a public option should the insurance companies misbehave. Jost points out that it will take a couple of years after the target date just to assemble the data necessary to establish whether insurers are in or out of compliance. But let's assume the insurance lobby doesn't load up the trigger with so many conditions that the trigger becomes impossible to pull. Let's also assume Congress is faced with an unambiguous requirement to create a public-option program. Such a requirement will still be extremely difficult to fulfill because—unlike the decision to write a check or not write a check—creation of a government-health-insurance program doesn't result from a simple binary calculation.
Congress can't just say, "Abracadabra, we have a public option." It will have to decide howthe public option will work. In theory, the current health reform bill could spell this out in exquisite detail, using language in bills that have already cleared House and Senate committees. But in practice, it seems doubtful that today's opponents of a public option, if their opposition proves successful, will agree to allow the language enacting it provisionally into the bill. Even if they do, the simple fact will remain: If Congress doesn't want to create a public option after the trigger is pulled, no one will make it do so.
In May, Sen. Snowe issued a press release about a trigger. Here is what she said: "The essential issue is that the federal law … constrains the Administration within the confines of [an] arbitrary mathematical formula to trigger" action. She was complaining not about a public-option trigger, but about a trigger blocking the release of funds from the home heating oil reserve, a matter of no small concern to her chilly, wind-swept state. Snowe didn't get her wish. But you know what? Two years earlier, Congress ordered the federal government to sell off 35,000 barrels of oil. It did so for budgetary reasons. Trigger or no trigger, Congress does what it likes.
Update, Sept. 11: In a Denver Post column, David Sirota finds another trigger that proved a dud: Legislation allowing for the importation of a drug once the health and human services secretary affirmed that foreign-produced drug was safe. "[N]o HHS secretary has pulled the trigger," Sirota reports. Apparently no safe drugs can be found outside the United States.
Correction, Oct. 2, 2009: An earlier version of this column stated, incorrectly, that this trigger is activated after Medicare is found to draw 45 percent of its funding from general revenues in a single year. The trigger is activated after this circumstance occurs two years in a row. Also, the earlier version misstated the consequence as an appropriation of funds. It's a cut in funding. (Return to the corrected sentences.)