KHI News Service

A legislator’s guide to repealing Obamacare

Are Kansas officials studying the ALEC playbook?

By Phil Cauthon | August 29, 2011

The American Legislative Exchange Council, a controversial and somewhat shadowy national group that works to influence state legislators, has a manual for fighting the federal health reform law. It is called: "The State Legislators Guide to Repealing Obamacare."

The guide, available to legislators at seasonal, expense-paid ALEC conferences and on the organization's website (PDF), includes 14 specific steps state officials can take to undo or impede the 2010 federal health reform law known as the Affordable Care Act (ACA).

Several actions from the playbook, including last year's passage of a bill that was essentially drafted and promoted by ALEC, already have been taken in Kansas.

More recently, about 20 Kansas lawmakers and at least two key officials from the governor's office attended a major ALEC conference earlier this month in New Orleans.

Shortly after the conference and facing growing political heat over the reform law from conservative legislators and Republican Party activists, Gov. Sam Brownback announced he was returning to the federal government a $31.5 million grant that was awarded to help Kansas create a health insurance exchange as required by the ACA.

Rejecting grants, like that one, was one of the 14 moves outlined in the ALEC guide.

While in the U.S. Senate, Brownback voted against the health reform law, and he campaigned for governor last year vowing to fight Obamacare “every step of the way.” But his decision to reject the grant was an about-face. The grant application was submitted before he took office and was awarded after he wrote a letter to federal officials saying the grant would be administered by Kansas Insurance Commissioner Sandy Praeger.

And as recently as June 14, he had defended his decision to accept the grant in front of critics at a meeting of the conservative Johnson County Elephant Club.

Brownback said then that supporting creation of a health insurance exchange was not the same as supporting the health reform law. He said his support for the grant, which was awarded in February, was in the best interest of Kansans.

"The state of Kansas for over a decade has tried to do some form of insurance exchange itself ... where you get a number of people in the marketplace present and you have them bid on a similar type of policy and let Kansans decide" which coverage they want, Brownback said at the time.

"I thought we could use the innovator grant not to do Obamacare ... but to use that to do an exchange that provides a market mechanism, because I think we could use more market forces in health care."

But then he rejected the grant, saying: “There is much uncertainty surrounding the ability of the federal government to meet its already budgeted future spending obligations. Every state should be preparing for fewer federal resources, not more. To deal with that reality Kansas needs to maintain maximum flexibility. That requires freeing Kansas from the strings attached to the early innovator grant."

The ALEC playbook offers similar language in making the case for rejecting federal health reform grants: “While these grants may be attractive to cash-strapped states, federal funding comes with federal strings.”

Political winds

Praeger said the timing of the governor’s decision to cancel the grant might have been affected by the political winds blowing through the ranks of conservative Republicans.

"I think the pressure's been building from folks who don't want to have anything to do with the health reform law,” Praeger said.

Insurance Commissioner Sandy Praeger.

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“Many of our legislators were at an ALEC meeting in New Orleans, and I think the message there was that if you do anything to implement the health reform law, then it could undermine the legal challenges. So that may be part of what's driving it."

At the ALEC meeting, attendees were told that implementing any part of the health reform law could weaken some two dozen pending court cases that are challenging the ACA's constitutionality.

Kansas is one of 26 states involved in a federal lawsuit seeking to overturn the law, which starting in 2014 would require virtually all Americans who can afford health insurance to have it or pay tax penalties.

Earlier this month, an appeals court ruled that the law’s so-called “individual mandate” is unconstitutional. Because another appeals court previously upheld the law, the matter will likely be settled by the Supreme Court.

• Sen. Terry Bruce (R-Hutchinson),
• Sen. Garret Love (R-Montezuma),
• Sen. Julia Lynn (R-Olathe),
• Sen. Ray Merrick (R-Stillwell),
• Sen. Ralph Ostmeyer (R-Grinnell),
• Sen. Chris Steineger (R-Kansas City),
• Rep. Rob Bruchman (R-Overland Park),
• Rep. Terry Calloway (R-Pittsburg),
• Rep. TerriLois Gregory (R-Baldwin City),
• Rep. Amanda Grosserode (R-Lenexa),
• Rep. Lance Kinzer (R-Olathe),
• Rep. Marvin Kleeb (R-Overland Park),
• Rep. Forrest Knox (R-Altoona),
• Rep. Kelly Meigs (R-Lenexa),
• Rep. Susan Mosier (R-Manhattan),
• Rep. Larry Powell (R-Garden City),
• Rep. John Rubin (R-Shawnee),
• Rep. Ronald Ryckman (R-Meade), and
• Rep. Scott Schwab (R-Olathe).

On ALEC's influence<a name="continued"></a>

Among those attending the ALEC meeting from Kansas were Brownback’s Chief of Staff David Kensinger and Policy Director Landon Fulmer. At least 19 Kansas legislators also registered for the event.

Of the seven interviewed by KHI News Service, only Reps. Terri Lois Gregory, R-Baldwin City, and Susan Mosier, R-Manhattan, confirmed they had attended health-related panels at the conference and were familiar with the ALEC "Guide to Repealing Obamacare."

Gregory said Brownback's decision to return the money was a welcome surprise and consistent with what she learned at the ALEC conference.

"The people who wrote (the health reform law) knew that it would be unconstitutional, so what they've done is ask states to take part in it and then bait the states with large amounts of money," said Gregory, who is a member of the House Insurance Committee.

Senate President Steve Morris, a Hugoton Republican, was just named president of the National Conference of State Legislatures (NCSL). He said he was not very familiar with ALEC and couldn’t say how much influence the group has at the Kansas Statehouse.

“I do know that they operate a lot differently than NCSL and CSG (Council of State Governments) because they give scholarships … big corporations actually give money to legislators to go,” said Morris. (More information on these three national groups that provide guidance to state legislators.)

“Our legislative services (division) has tried to find out who gets those scholarships and how much they are and (ALEC) has been pretty close-mouthed about it. They say they don’t have to give out that information.”

'I'm not going to back off defending ALEC'

Sen. Ray Merrick, a Stilwell Republican, is on the ALEC Board of Directors, which means he's involved in awarding the scholarships and raising the money that funds them.

He said what separates ALEC from NCSL and CSG is that the state does not pay for legislators to attend the ALEC conferences.

“The other two are paid for by the state. I think the public would be happy to know that attending ALEC doesn't cost taxpayers money,” Merrick said. “That's the way it should be."

When asked which Kansas legislators received scholarships and who paid for them, Merrick declined to answer. He also said that the count of about 20 legislators attending the ALEC conference was "not accurate," but he would not confirm an accurate count.

"I just don't see how that's relevant," he said.

He said this year's ALEC conference had the highest attendance in its 38 years and that Kansas sent more representatives than it had in the past.

"I'm not going to back off defending ALEC, because if people understood what we stand for — limited government, Jacksonian principles … not what these hatchet jobs in the media say — they would support us," he said.

Sen. Ray Merrick.

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Merrick said he didn't think ALEC had anything to do with Brownback's decision to return the innovator grant.

"I've said we should return the grant from the day we accepted it," he said.

Legislative check

Among the ALEC guide's other suggestions for ways to oppose the health care reform law:

"Enact a moratorium on Obamacare rulemaking, which will allow your state to focus its limited regulatory resources on core functions of government."


GOP Central Committee resolution "C"

Download .PDF

On Aug. 13, the Kansas Republican Party passed a resolution that called for an immediate halt to efforts under way to develop an exchange and to resist "any and all efforts" to "study, develop or implement an ACA-compliant exchange or any component part."

“Serve as a legislative check on agency and executive branch implementation of Obamacare.”

According to the ALEC guide, "Legislators should be empowered to investigate how much their state is spending on implementation, and ensure that Obamacare-compliant governors gain legislative approval before taking any further action."

In response to questions about why the governor withdrew his support for the innovator grant, Brownback spokesman Samir Arif asserted the importance of legislative involvement.

“The timeline reflects the fact that the Legislature would not have been able to be involved in the process. The governor has consistently maintained that the elected representatives of Kansas citizens must have the opportunity to weigh in on this issue,” Arif said in an e-mail to KHI News Service.

House Speaker Mike O’Neal — who, the day before Brownback announced returning the innovator grant, had expressed support for exchange planning — also said that the Legislature needed to be involved before work planning the exchange as an “early innovator” proceeded.

House Speaker Mike O'Neal (left, R-Hutchinson) speaks with Reps. Bill Feuerborn (center, D-Garnett) and Marc Rhoades, R-Newton.

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"Federal mandates tie the hands of the Kansas Legislature on too many issues,” O'Neal said after Brownback's announcement. “With strings attached, an unknown ultimate price tag and an unworkable timeline, the ‘early innovator’ grant involves unreasonable risk. The governor made the right decision."

Other plays from the book

“Introduce ALEC’s Freedom of Choice in Health Care Act, the primary legislative vehicle for state pushback of the individual mandate and Canadian-style, single-payer health care.”

Kansas is one of 10 states to enact a statute stating that no person, provider or employer could be forced to participate in any health care system or to purchase insurance.

“ALEC was certainly one of the sources for that,” Mosier said, referring to model statutory language. “I didn’t know that it came from ALEC until I went to this meeting," earlier this month in New Orleans.

“Introduce a resolution supporting repeal of Obamacare to send the repeal message to members of your state’s congressional delegation.”

This year, a resolution “ expressing support of the Kansas House of Representatives for the state's legal challenge of Obamacare” (PDF) was introduced in the Kansas House but did not make it out of committee. Twenty-three states put such a resolution into law.

Related story: Three national groups provide guidance to state legislators