I’ve been in meetings and travelling the last several days but a few pieces of news broke on the health care front on Friday that are worth commenting on and I’ll try to play catch-up today. As Lindsey noted on Saturday, the governor announced that a special session will be held to consider the future of the private option starting on April 6, a week before the fiscal session begins on April 13 — and crucially, the governor’s team has begun hinting that perhaps the private option could pass with a two thirds majority rather than a three fourths majority. 

I’ll save the legal technicalities for another post, but this seems like a pretty clear political signal that the governor is worried that cannot get the 75 percent supermajority that has been used as the threshold for approving and re-authorizing the PO in previous years. Or, at the least, he’s plenty nervous. 

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This tracks with what I’m hearing about vote counts. I’ve written before that there are seven senators who absolutely, positively will not vote to appropriate the funds for the private option no matter what. The aginners only need to add two names to that list. The problem for the private option: a number of Republicans at the Capitol have told me that among the five or six other senators leaning No, there are a few who also absolutely, positively will not vote for the PO. In other words, the vote count isn’t just steep; at the moment, it looks almost impossible. (The vote counts in the House are more fluid, but it’s a tough slog there as well.)

Before we game out the scenarios here, a little background. There are really two votes that will determine the future of the private option, the state’s unique version of Medicaid expansion, which the governor wants to continue with some conservative tweaks (Hutchinson calls his revised version “Arkansas Works”): 

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The enabling legislation. No one doubts that the actual law authorizing the continuation of the private option can pass with a simple majority. 

The appropriation. The problem for Hutchinson is that Amendment 19 to the Arkansas constitution calls for a 75-percent supermajority for certain appropriations. As Ernie Dumas has documented at length, precisely what that means is a matter of some dispute. There are decent legal arguments that the appropriation in question could pass with a simple majority. But as a matter of recent practice, it’s meant that the DHS Medical Services appropriation — which includes the entire Medicaid budget — must get 75 percent approval to move forward. And that means that a rump group of legislators – just 26 out of 100 in the House, or 9 out of 35 in the Senate – could potentially block the entire Medicaid budget in order to kill the private option.

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Bear in mind that almost of all of the private option funding in question is federal money: the feds pick up 100 percent of the tab in calendar year 2016 and 95 percent in calendar year 2017 (the next fiscal year runs from July of 2016 to June of 2017). But — again, at least if the state follows recent norms — the legislature can only appropriate that federal money if 75 percent in both houses approve. 

It’s worth noting that the constitutional tool the aginners aim to use is only workable if the pro-PO side caves or if the aginners are willing to play their game of chicken to the end and shut down the Medicaid program. In 2014, for example, Gov. Mike Beebe and the Republican leadership in the General Assembly simply refused to take No for an answer. When they fell short, they didn’t cave, they just kept voting. One big open question is whether Hutchinson is willing to spend the same kind of political capital if the votes aren’t there in mid-April. How long are they willing to fight? What will they do if they’re a few votes short and GOP aginners like Sen. Bart Hester are calling on the legislature to move on? How close to a shutdown would they be willing to come if the game of chicken starts? 

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Here’s the timeline to come: The governor has stated that he will not necessarily seek a supermajority during the special session convening on April 6. If the legislation enacting Arkansas Works passes with 51 percent support, it will have cleared its first hurdle. The tough part will come in the fiscal session to follow, beginning on April 13, when the small minority of aginners can potentially kill the PO by threatening to block the entire Medicaid budget if they don’t get their way. That threat of a shutdown, if carried out, would mean immediately stopping funding for all of Medicaid in the state – not just funding for the private option, but the elderly in nursing homes, children on ARKids, the disabled, etc. If you’re scoring at home, Democrats could potentially make the same threat in order to keep the private option. It’s a mess. 

For all of these reasons — and because the contentious 75-percent supermajority fights that have developed as a new norm are a disaster for the Republican party and for good policy — Hutchinson’s team is now floating the two-thirds idea. (I’ve got a line in to his chief of staff, Michael Lamoureux, to ask about the possibility of a simple majority, as suggested by Dumas and others.) 

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If that’s the only option, they should take it. Opponents of the private option will no doubt whine about changing the rules in midstream, and it frankly would look ugly — as recently as a few weeks ago, the 75-percent line was widely accepted as the threshold, including at the governor’s office. But voters typically don’t pay much attention to process issues and people’s intuitive sense of fairness is unlikely to side with the aginners, who are after all a small minority trying to block the will of the majority of the legislature. 

That said, it would also be a massive risk. The legal issues here are by no means clear cut. Lawsuits would be inevitable. The private option would continue but it would be in major legal limbo, its future dependent on the whims of unpredictable judges, presumably up to the Arkansas Supreme Court. And while voters probably won’t care about process issues, a few legislators might — Hutchinson can’t afford to lose any votes that don’t like the idea of the rules being changed. 

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Meanwhile, by floating this option so early, Hutchinson’s team also risks making it harder to grind out the vote count up to 75 percent in the first place. If there’s an out, wobbly Republicans are going to take it. No one wants to take a tough vote to be #27 if the governor only needs 24. This was the reason given to me in prior years for why the Beebe administration and legislative leaders were so mum about the Dumas Option. Any mention of abandoning the quest for 75 percent, the thinking went, made it that much harder to get to 75 percent. I think you can hear a little bit of that in resistance to the idea from Senate President Pro Tem Jonathan Dismang and Speaker of the House Jeremy Gillam (not to mention that they have no doubt been telling members for months that 75 percent approval would be necessary). 

And of course there’s still hope that the vote counts could shift once the governor releases two budgets — with and without the private option — and lawmakers actually see what they would have to cut if the PO is killed. The pressure from various powerful stakeholders will be immense. Worth keeping in mind that we’ve seen this movie before, albeit with a very different legislature, in prior years. If history repeats itself, some of those hard Nos may soften.

Did the governor’s office float the idea of moving the goalposts too early? Hard to say. Thing is, no amount of strategy is going to change the minds of certain lawmakers. Perhaps the governor has concluded that the anti-PO block that is simply immovable amounts to more than 25 percent. An openness to other legal options, such as a two-thirds threshold, suggests that Hutchinson is going to fight very hard to keep the private option even if the vote counts look ugly. Still, the future of health insurance for more than 250,000 Arkansans is starting to look very dicey. 

Support for special health care reporting made possible by the Arkansas Public Policy Panel.

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