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Magazine / Need to Know: Health

The Tea Party’s Next Move

Activists are planning a frontal assault on federal health care programs by repurposing an obscure constitutional provision.

Power to the states: Tea Party Patriots co-founder Mark Meckler wants legislatures to take over federal health programs.(Chet Susslin)

February 10, 2011

Like a fast-mutating organism, the tea party morphed from protesting in 2009 to politicking in 2010. Now, in 2011, it is morphing again, this time into a force attempting to shape national policy.

The target is health care, not too surprisingly. What is more surprising is the movement’s idiosyncratic and radical choice of tactics. Tea partiers and other conservative activists hope to repurpose a little-known constitutional provision called the compacts clause to shift almost all federal health programs—including Medicare and Medicaid, the giant entitlements—to the states.

“This is bigger than ‘Obamacare,’ ” says Leo Linbeck III, a small-business owner in Houston who has emerged as a national leader of the effort. “This is about whether we’re going to take a step back toward self-governance on a sixth of the economy.”

 

Although success seems a long shot at best—and the project is more complicated in practice than its supporters seem to realize—the drive for a so-called health care compact may well serve its purpose politically. That is, it may sharpen the debate over health care and the size of government just in time for the Republican primaries next year, bedeviling Democrats and moderate Republicans in the process.

The constitutional provision at issue is Article I, Section 10: “No state shall, without the consent of Congress … enter into any agreement or compact with another state.”

Compacts are binding agreements between states. Worried that states would use such agreements to usurp the federal government’s powers (for instance, by colluding to establish preferential trade zones or de facto national taxes), the Founders required Congress’s approval for any interstate deal that might impinge on federal authority.

But in so doing, they also indirectly established a process for states to seek federal grants of authority for interstate arrangements. More than 200 such compacts are in force today. Most people haven’t heard of them because they are generally mundane and uncontroversial, having to do with such things as borders, water rights, agricultural marketing, interstate law enforcement, and transportation. (The Port Authority of New York and New Jersey and the Washington Metropolitan Area Transit Authority are examples.)

The idea of repurposing this obscure constitutional mechanism for a frontal assault on federal power originates, by all accounts, with a Houston-based lawyer named Ted Cruz. A former Supreme Court clerk, Justice Department official, and Texas state solicitor general, Cruz is running as a Republican for the U.S. Senate seat being vacated by retiring incumbent Kay Bailey Hutchison, R-Texas. In an August meeting with Linbeck and several other conservative activists, he suggested taking a look at the compacts clause as a way to rein in Washington.

They did, and they liked what they saw. In November, they presented the idea to the Tea Party Patriots, the largest national coordinating organization of tea party activists. The response was immediate and enthusiastic, with coordinators in more than 30 states volunteering to lead the charge.

By January, compact supporters had model legislative language in hand (a version is available online at healthcarecompact.com/compact). This month, supporters are introducing health care compact bills in half a dozen or so state legislatures, with more in the pipeline.

 

By this fall or early next year, activists hope to have a majority of states on board.

 

An ordinary compact sets up an interstate policy framework or regulatory body. This one is different—and unprecedented, as far as anyone knows. As usual, Congress would approve the compact and individual states could then choose whether to join. But the only interstate cooperation authorized by the compact would be a toothless advisory board. Rather than joining forces with its neighbors to pursue some common goal or policy, each participating state would simply be free to write its own health policy.

“It’s saying ‘thanks but no thanks’ to the [federal] regulations,” says Eric O’Keefe, a Chicago-based activist who worked in the term-limits movement. “Let us keep our money; you keep your regulations. We’ll take care of it.”

The impetus for the proposal, activists say, was last year’s controversial and, among conservatives, universally loathed federal health care reform. But supporters insist that the compact’s goal extends far beyond revoking or opting out of that reform. The federal government’s intrusive bungling broke the health care system long ago, they argue, and the best way to fix it is with local solutions developed through state-led experimentation.

Within their own borders, therefore, states participating in the compact could fashion any sort of health system they wanted. “If a state really wants to do a single-payer system, they should do it,” says Linbeck. “What it’s essentially saying is we’re not going to have a one-size-fits-all program any more. We’re going to move the decision closer to the people and we’re going to allow a lot of different solutions.”

Moreover, the larger goal is not just to reshape health care, supporters say; it is to change the balance of power between the states and Washington. “We did not work up this approach in order to fix health care,” O’Keefe says. “We’re working it up to try to fix our political system.” If they win a health care compact, they say, they can use the same approach in a series of other areas.

Lack of ambition is not among their problems. For each participating state, the proposed compact would cash out Medicare, Medicaid, the Food and Drug Administration, and all other federal health programs except those for veterans, and then hand the state a check equivalent to federal health spending in that state, along with the authority to decide how to spend it on health care. If the compact were in effect this year and all 50 states were participating, about $700 billion, a sum equal to a fifth of the federal budget, would be shipped to state capitals.

Proponents hope to pass the compact in most or all of the 28 states that have already joined suits against the health reform law. By this fall or early next year, they seek to have a majority of states on board. At that point, they will present the compact to Congress for approval.

Legally speaking, a compact has no more or less force than any other federal law. Functionally, the health care compact would be no different from Congress’s passing an ordinary bill handing health policy to the states (and, as with any law, a subsequent act of Congress could modify or cancel it). Compact advocates, however, see a crucial tactical advantage in using the unconventional, state-driven process: Presented with dozens of legislatures’ demands for health care autonomy, states’ congressional delegations will have a hard time either ducking a vote on the compact or rejecting it.

Moreover, they believe the state-based approach improves their odds against the big, deep-pocketed lobbies—insurance companies, doctors, hospitals, and unions—that wield so much power in Washington. “I don’t have enough money to fight the Bigs,” Linbeck says. At the state and local level, however, activists believe message can trump money and grassroots campaigns can defeat air campaigns.

“This is a debate we’re happy to have,” says Mark Meckler, a cofounder and the national coordinator of the Tea Party Patriots. Proponents intend to frame the debate as being about political responsiveness, not health care policy. “The goal for us is to continually define the conflict correctly,” says Meckler, “and the conflict is who decides—the ruling elite or the people?”

Advocates believe this is a message that will resonate with many voters outside the traditional conservative base. Moreover, the likely timetable would put the compact on the agenda during the height of the presidential nominating process next year. “Which is right where we want it to be,” Meckler says.

As of early February, according to Keli Carender, a Seattle-based activist who is coordinating the Tea Party Patriots’ health care compact drive, bills endorsing the compact had been introduced in Arizona and Tennessee, with Missouri about to follow. The Missouri bill, according to Republican state Rep. Eric Burlison, will boast the entire House Republican leadership as cosponsors.

In Tennessee, the compact bill’s champion is GOP state Sen. Mae Beavers, who says she embraced the idea after her staff discovered it online. “This is one of the top bills that I’ll be pushing,” she told National Journal. “It’s a very unique idea that gives us some control.”

Behind her are local tea party activists such as Rachael Proctor, a stay-home mother and political neophyte from Memphis who says she volunteers 30 hours a week. Part of what attracts tea partiers to the compact idea, she and other supporters say, is that it gives local activists a lever with which to move federal policy—thus answering the question of how a headless, diffuse network like the tea party can make itself a legislative player in Washington. “We started out as a protest movement,” says Carender, “but people are very interested in working on active solutions and pursuing real policy initiatives.”

What looks to many activists like a straightforward proposition, however, is likely to be anything but. States can request any kind of compact they like, but what kind will be approved is entirely up to Congress. States would then choose whether to join. Usually, states and Congress negotiate the terms of a compact in advance. But that kind of backroom negotiating is exactly what health compact advocates abhor. They want to present Congress with a take-it-or-leave-it proposition. Democrats might choose instead to make a counteroffer on their own terms, bogging down the whole effort in Capitol Hill pettifogging.

Moreover, while compact supporters will insist the debate is about the scope of federal authority, Democrats will say that it’s about whether to gut Medicare by ending its status as an entitlement and turning it over to the tender mercies of the states. (The 30-second TV spots practically write themselves.)

Finally, the compact language may be simple, but amputating whole appendages of the federal government, transplanting the limbs onto the states, and rehabilitating what remains in Washington could require all sorts of ancillary changes in federal law, affecting everything from funding formulas to drug approval—and many of those changes would be controversial in their own right. “This won’t be a simple two-page congressional action saying ‘approved,’ ” says Michael Greve, a constitutional scholar at the American Enterprise Institute and an informal adviser to compact supporters. “This would be unbelievably complex and convoluted.”

Sweating the details, however, largely misses the point. “It’s an ingenious way to accelerate and force the debate,” Greve says.

In Texas, the idea’s originator is already licking his chops. Will Cruz use the compact issue in his own Senate race next year? “I would certainly be happy for this to be a significant argument in the primary race,” he replies.

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