2013 General AssemblyArkansas LegislatureArkansas RepublicansMedicaidObamacare

Unsolved Mysteries of the Legislature: How Republicans Learned to Stop Worrying and Embrace Obamacare

Reps. Biviano, Burris, and others look on as Governor Beebe signs Medicaid expansion.

Shortly after my interview with Rep. Mark Biviano last week, he called me back to remind me that, on December 21 of last year, the Arkansas Legislative Council had voted to accept Obamacare exchange subsidies. We covered this vote before, but I thought it deserved one more look.

That December vote was probably the biggest 2012 partisan clash in the state legislature. Procedurally, legislative Democrats played a pretty good trick: they wrapped the Obamacare exchange funding ($18.4 million) in with a bunch of other funding and forced Republicans to vote up or down on the entire package. Republican Rep. John Burris moved to have the funding withdrawn and debated separately. His motion was defeated (you can see the roll call here). Burris (and several other Republican legislators) then asked for a second recorded vote, which would have underscored who was voting for and who was voting against the package; Democratic committee chair Tommy Lee Baker then announced that he wouldn’t grant Burris’s motion — causing Burris to make a pointed statement to the effect that granting such motions was a courtesy that one member should always extend to another, and furthermore that when he became a member of the majority (as would happen next month), he planned to grant them. Biviano was present that day and voted with Burris to separate the funding, as did almost every other Republican. It’s obvious to me that this entire debate was a strategic effort by Republicans to defeat the acceptance of exchange funding and to block Obamacare implementation from proceeding — or at least to create maximum embarrassment for pro-exchange Democrats. But the Republicans were outnumbered; they lost the vote and failed to block state exchange funding.

In just a few short weeks, however, legislative Republicans were embracing the idea of moving forward with an Obamacare exchange — a state exchange, meaning state taxpayers would eventually be responsible for a large portion of the costs, as opposed to a federal exchange under which the federal government would have funded 100% of the costs. If you’re like me, you’re wondering what changed from December to February that led to such a dramatic shift in Republican thinking. Arkansas Republican legislators had been fighting the implementation of an exchange for years as the minority party, arguing (correctly, in my view) that implementation of a state exchange would have been a beachhead for Obamacare implementation. But as soon as Republicans got the majority, they for some reason adopted a pro-state exchange position.

In our conversation last week, Rep. Biviano told me that there were two reasons that Republicans had been fighting the exchanges. First, they thought the Supreme Court might overturn Obamacare. Second, they thought Republicans might take the U.S. Senate and the presidency and repeal the law. But Biviano’s justifications don’t explain the legislative fight in the December meeting: it was after both the election and the Supreme Court ruling — and Republicans were still fighting the exchanges.

Rep. Burris did not return my call for comment on this issue. I did, however, connect with Rep. Biviano again. When I asked about his post-December exchange acceptance, he replied that what changed was that the state had made progress in implementing the exchanges and Republicans decided they should try to make them as conservative as possible:

We had obviously gotten to the point where we had to accept that the law of the land was the land of the now, okay? And they had gotten further along with the implementation of the hybrid exchange — the state-federal partnership. So, as we got into this session and discussed the many reform issues around health care, obviously controlling and influencing the operation of our exchange was important. That’s why legislation was proposed to give us that flexibility to do that and that’s what this act was all about.

Assuming all of that is correct, this still does not explain why Republicans fought an exchange for years — even up to the month before they took the majority — and then embraced it. Previously, Republicans had rejected the argument that a state exchange would give Arkansas “more control” over the exchange (and they were correct to do so; as AAI has explained in the paper linked above, the arguments that Obamacare’s design gives a state more control over a state exchange, as compared to a federal exchange, are very weak). I asked Biviano again what had changed from December to February. Rep. Biviano said:

I know that, during that time, I had the ability to work on this and understand, and have a realization of the reality of the implementation of the exchange was going forward in its current form. And what I tried to do was step in and I did — I passed a piece of legislation that I believe long-term is a more conservative approach to the operation of the exchanges. It is a fact that we are going to have these exchanges. So no matter how much we maybe didn’t want them initially, no matter how much we didn’t want this law, the fact of the matter is they’re in the process of being implemented, people are going to be enrolled, they’re going to go forward.

The puzzling part of this explanation is that nothing substantively changed from December to February. All of the facts and arguments Rep. Biviano mentions were on the table before the legislative session, and all of them were almost completely rejected by legislative Republicans — until the “private option” came along. As Rep. Biviano admits, establishing a state exchange is, in fact, part of implementing Obamacare. Regrettably, I believe conservatives are legitimately disappointed both in Republicans like Biviano who helped implement Obamacare — even if he explains that he decided to implement Obamacare by means of a “conservative approach” — and Republicans like Speaker Davy Carter, who hotly denied that implementing Obamacare was what they were doing.

(Biviano also suggested that the legislature was obliged to establish an exchange in 2013 once the ALC had voted to accept the funds in 2012. This is incorrect: the 2012 legislature can’t bind the 2013 legislature to establish an exchange in perpetuity; if it could, there would be no point in having elections at all.)

Biviano told me last week that the implementation of the state exchange was completely unrelated to the passage of the “private option.” He reiterated that point in our second conversation. But the sudden, widespread, pro-exchange conversion among legislative Republicans in 2013 makes Biviano’s argument hard to accept. For some time, I have suspected that, in return for a guarantee of “private option” approval, the federal government required Republicans to move forward with a state exchange. I see no other plausible explanation why so many Republicans changed their minds so quickly and so drastically.

I like Representative Biviano. He has been a friend, and he’s been a good representative for my hometown of Searcy overall. Unfortunately, on this issue, the justifications he has offered for his conduct — and the conduct of Republicans generally — don’t add up.

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