Beware of The Zombie Medicare Advisory Panel

The Senate health care bill has a number of good aspects and a number of good aspects. The hope is that after it goes through reconciliation with the House bill the good aspects will remain and the bad will be removed, but this outcome is not guaranteed. Another possible bad aspect of the Senate bill has come to light today. As it was originated by a Republican and is being spread by conservative blogs I have to take it with a grain of salt considering the number of false claims about the bill being spread by the right, but on initial evaluation this one is not clearly false as so many other false claims have been.

The Weekly Standard writes:

Senator Jim DeMint (R-S.C.) pointed out some rather astounding language in the Senate health care bill during floor remarks tonight. First, he noted that there are a number of changes to Senate rules in the bill–and it’s supposed to take a 2/3 vote to change the rules. And then he pointed out that the Reid bill declares on page 1020 that the Independent Medicare Advisory Board cannot be repealed by future Congresses:

there’s one provision that i found particularly troubling and it’s under section c, titled “limitations on changes to this subsection.”

and i quote — “it shall not be in order in the senate or the house of representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection.”

this is not legislation. it’s not law. this is a rule change. it’s a pretty big deal. we will be passing a new law and at the same time creating a senate rule that makes it out of order to amend or even repeal the law.

i’m not even sure that it’s constitutional, but if it is, it most certainly is a senate rule. i don’t see why the majority party wouldn’t put this in every bill. if you like your law, you most certainly would want it to have force for future senates.

i mean, we want to bind future congresses. this goes to the fundamental purpose of senate rules: to prevent a tyrannical majority from trampling the rights of the minority or of future co congresses.

They might have a credible objection here, but  it becomes harder to take them seriously when they also bring up “death panels.”

According to page 1001 of the Reid bill, the purpose of the Independent Medical Advisory Board is to “reduce the per capita rate of growth in Medicare spending.” For any fearmongers out there tempted to call an unelected body that recommends Medicare cuts a “Death Panel,” let me be clear. According to page 1004, IMAB proposals “shall not include any recommendation to ration health care”–you know, just like the bill says there’s no funding for abortion.

Paging Sarah Palin: the death panel is unkillable.

Putting aside the talk of “death panels,” this  is bad on two levels. First, while there is value in a Medicare Advisory Board which is to some degree  isolated from political pressure, I’ve feared that the Senate bill gives too much power to the board with regards to cutting costs. This was reduced in one amendment, but who knows what will wind up in the final bill.

Many liberals are pushing for a stronger Medicare Advisory Board and might see this as a good thing. This still leaves the question of how much power one Congress should have at tying the hands of those elected in the future. Imagine the outrage if the Bush administration had passed laws which could not be repealed.

There are some questions as to whether this can really happen happen. The original article suggests one way around the problem: “A friend suggests that Congress could kill IMAB by refusing to fund it. So much for zombie death panels, I guess, for now.”

The question remains if the current Congress could establish a “zombie Medicare panel” which could not die. Megan McArdle also questions if this would be Constitutional:

Luckily, a friend who has covered senate procedure in other contexts assures me that this probably will not work: as a law, it’s unconstitutional, and Senate rule changes require a 2/3rds majority that they are not going to get.

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