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A Project of The Annenberg Public Policy Center

Chamber Continues to Mislead on Health Care Law

The U.S. Chamber of Commerce’s latest onslaught of television ads continues to miseducate voters about the potential impact of the health care law.

  • Ads attacking Sen. Bill Nelson and former Rep. Alan Grayson claim that the health care law “could” cause 20 million people to lose employer-paid health care coverage. The truth is that might happen under a very pessimistic scenario, according to the Congressional Budget Office. But the agency said it is more likely that about 3 million to 5 million fewer people, on net, would obtain health insurance from their employer under the law. The CBO said it’s also possible more people would be covered by employers, not fewer (which is what the CBO said actually happened in Massachusetts).
  • An ad attacking Lois Frankel in Florida claims that a federal judge in the state ruled “parts of Obamacare unconstitutional.” That’s true only up to a point. In fact, other federal judges have upheld the health care law’s individual mandate as constitutional. The Supreme Court is currently pondering the law’s constitutionality and will have the final word.

The Chamber of Commerce released a total of 21 30-second TV spots on May 9 — 17 in House races and 4 in Senate races. The ads are part of the Chamber’s “voter education” drive of 2012.

Losing Health Insurance Coverage

Two of the Chamber’s many ads attack Democratic Florida Sen. Bill Nelson and former Democratic Florida Rep. Alan Grayson for supporting the health care law. The law, according to the ads, “could” cause 20 million people to lose their current health care coverage.

In a March 2012 report, the CBO did say that as many as 20 million people could lose their employer-sponsored health insurance in 2019. But that was under one scenario (out of four alternatives) in which the CBO and the Joint Committee on Taxation assumed that employers reacted very negatively to the cost of obtaining health insurance for their workers.

In that scenario, the CBO said, it made assumptions about how employers of all sizes would react that were so extreme that they “have only rarely been reported in the research literature, and even then only for the behavior of small firms.”

But under the “baseline” estimates, which the CBO and Joint Committee on Taxation see as more likely to occur, the number of people losing employer-based coverage is expected to be much lower.

CBO, March 15: In their original analysis of the impact of the legislation, CBO and JCT estimated that, on balance, the number of people obtaining coverage through their employer would be about 3 million lower in 2019 under the legislation than under prior law. As reflected in CBO’s latest baseline projections, the two agencies now anticipate that, because of the ACA, about 3 million to 5 million fewer people, on net, will obtain coverage through their employer each year from 2019 through 2022 than would have been the case under prior law.

Furthermore, some of the people who would no longer have employer-sponsored insurance would have done so voluntarily — turning down health coverage through their employer to “instead choose to obtain coverage from another source.”

And the CBO report noted that under another very optimistic scenario, the number of people obtaining insurance through their employer increases, on net, by 3 million. And that’s not so far-fetched, considering what happened in Massachusetts.

CBO: One piece of evidence that may be relevant is the experience in Massachusetts, where employment-based health insurance coverage appeared to increase after that state’s reforms, which are similar but not identical to those in the ACA, were implemented.

But, of course, the Chamber ads don’t mention that.

Judges’ Rulings on Individual Mandate

Both an ad going after Lois Frankel, a Democratic candidate in Florida’s 22nd District, and the same ad targeting Grayson, note that a federal judge in the state ruled “parts of Obamacare unconstitutional.”

It’s true that U.S. District Judge Roger Vinson in Florida, who was nominated by President Ronald Reagan, issued a ruling in January 2011, saying that the health care law’s individual mandate was unconstitutional. Vinson wrote that, therefore, the entire law should be reworked:

Order Granting Summary Judgment, 31 Jan 2011: In the final analysis, this Act has been analogized to a finely crafted watch, and that seems to fit. It has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed. It cannot function as originally designed. There are simply too many moving parts in the Act and too many provisions dependent (directly and indirectly) on the individual mandate and other health insurance provisions — which, as noted, were the chief engines that drove the entire legislative effort — for me to try and dissect out the proper from the improper, and the able-to-stand-alone from the unable-to-stand-alone. Such a quasi-legislative undertaking would be particularly inappropriate in light of the fact that any statute that might conceivably be left over after this analysis is complete would plainly not serve Congress’ main purpose and primary objective in passing the Act. The statute is, after all, called “The Patient Protection and Affordable Care Act,” not “The Abstinence Education and Bone Marrow Density Testing Act.” The Act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker.

Vinson became the second federal judge to rule against the insurance mandate. The first, U.S. District Judge Henry E. Hudson in Virginia, who was nominated by President George W. Bush, ruled the individual mandate unconstitutional back in December 2010. U.S. District Judge Christopher Conner in Pennsylvania, also a Bush nominee, then followed with his own ruling against the mandate in September.

But what the ads don’t say is that other federal judges have upheld the individual mandate.

  • On Oct. 7, 2010, in Michigan, U.S. District Judge George Steeh, wrote, “The minimum coverage provision, which addresses economic decisions regarding health care services that everyone eventually, and inevitably, will need, is a reasonable means of effectuating Congress’s goal.”
  • On Nov. 30, 2010, in Virginia, U.S. District Judge Norman Moon wrote, “I hold that there is a rational basis for Congress to conclude that individuals’ decisions about how and when to pay for health care are activities that in the aggregate substantially affect the interstate health care market.”
  • And on Feb. 22, 2011, in the District of Columbia, U.S. District Judge Gladys Kessler wrote that “the individual mandate provision is an appropriate means which is rationally related to the achievement of Congress’s larger goal of reforming the national health insurance system.”

(Steeh, Moon and Kessler were all nominated to the courts by President Bill Clinton.)

The ultimate decision on the constitutionality of the individual mandate, however, will come from the U.S. Supreme Court. The court heard oral arguments over three days back in March, and a decision is expected in late June.

— D’Angelo Gore