REPORT: Challenges To Constitutionality Of Health Reform Funded By Health Industry Money

Since Democrats secured 60 votes to pass health care reform legislation — and passage became inevitable — prominent conservatives relaunched an under-the-radar campaign to invalidate reform through the legal system. On the eve of the final health care vote in the Senate, Sens. Jim DeMint (R-SC) and John Ensign (R-NV) invoked a “constitutional point of order” to allow the Senate to rule by majority vote on whether the “Democrat health care takeover bill” is unconstitutional. Legislatures in approximately 14 states — organized by the American Legislative Exchange Council (ALEC), a “business-friendly conservative group that coordinates activity among statehouses — have also introduced initiatives to ratify constitutional amendments that would repeal all or parts of the pending health care reform legislation, and Attorney Generals in at least 13 states are challenging a deal secured by Sen. Ben Nelson (D-NE) to fund Nebraska’s Medicaid expansion for perpetuity.

In a letter to House Speaker Nancy Pelosi (D-CA) and Senate Majority Leader Harry Reid (D-NV), the attorneys generals from South Carolina, Washington, Michigan, Texas, Colorado, Alabama, North Dakota, Virginia, Pennsylvania, Utah, Florida, Idaho and South Dakota “wrote that they consider the [Nebraska] provision ‘constitutionally flawed’ and demanded that it be stricken from the final bill.”

Yesterday, Sen. Orrin Hatch (R-UT) penned an op-ed in the Wall Street Journal explaining “Why the Health-Care Bills Are Unconstitutional.” “The policy issues may be coming to an end, but the legal issues are certain to continue because key provisions of this dangerous legislation are unconstitutional,” he wrote, and went on to challenge the constitutionality of the individual mandate, the so-called sweet heart deal for Nebraska, and the requirements for states to establish health insurance exchanges and insurance regulations.

The effort may prove a strong political organizing tool for conservative activists, but the legal reasoning has little support beyond the right fringe of the Republican party and the health care industry. Several weeks ago, the New York Times reported, “The states where the [constitutional] amendment has been introduced are also places where the health care industry has spent heavily on political contributions.” The industry has also contributed heavily to the campaigns of at least 7 of the 13 attorney generals threatening to sue the federal government over the Nebraska provision. (Campaign finance data was not readily accessible for the other 6 attorneys generals.)

An analysis conducted by the Wonk Room of available campaign finance disclosures for AGs from South Carolina, Washington, Michigan, North Dakota, Pennsylvania, Utah and Idaho reveals that the health industry contributed heavily to their campaigns. For instance, Pennsylvania Attorney General Tom Corbett (who is also running for Governor) accepted some $24,300 from the health care industry for his campaigns, including $10,300 from Pfizer PAC, $3,500 from Aetna Inc. PAC, and $2,500 from United Health Group Inc. Read the full analysis here.