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Rubio’s Single-Handed ‘Obamacare’ Win Questioned

Four years after Russian efforts to sow division in the U.S., Rubio warned: "I’m not sure that we’re any less vulnerable than we once were."
The Florida Channel
Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.

Florida Sen. Marco Rubio says he’s the only Republican running for president who’s actually notched a win against President Barack Obama’s health care law, widely loathed on the political right.

“Last year, I stopped an Obamacare bailout and saved taxpayers $2.5 billion,” Rubio tweeted earlier this month. The campaign has amplified that claim on Facebook and in media interviews.

But Rubio’s proposals to completely repeal the health law’s “risk corridors” have gone nowhere in Congress. Other Republicans who quietly worked to successfully outwit the Obama administration on the issue say Rubio is taking credit for a victory he didn’t deliver.

There’s no dispute that Rubio was among the first politicians to criticize the “risk corridors” program, which compensates insurers that sign up sicker-than-expected patients and incur high costs.

Where Rubio’s frontal assault failed, an inside maneuver succeeded. The gambit in 2014 restricted the administration’s legal authority to make payments to insurers under the program, designed to help stabilize premiums in the health law’s insurance markets. The restriction was inserted into a massive government spending bill and got little notice.

But it had consequences. As a result, the government could pay only $362 million of $2.87 billion in risk corridor claims from insurers for 2014. The industry says the government still owes $2.5 billion.

In a statement Monday evening, campaign spokesman Alex Conant repeated the claim that Rubio “is the only candidate running for president with a signature win against Obamacare that stopped a $2.5 billion taxpayer-funded bailout of health insurance companies.”

“For over a year, Marco sounded the alarm about the bailout that was coming, introduced legislation to stop it, rallied support from conservative organizations and members of Congress, and ultimately succeeded by making it a Republican priority in the spending bill that became law,” Conant said.

But according to interviews and documents, the strategy and legal case for the spending restriction were developed over months of work involving the staffs of Sen. Jeff Sessions, R-Ala., and Rep. Fred Upton, R-Mich. Upton is chairman of the Energy and Commerce Committee. At the time, Sessions was the ranking Republican on the Senate Budget Committee.

They teamed up with former Rep. Jack Kingston, R-Ga., who chaired a panel that oversees spending on health care programs.

Asked by The Associated Press who was responsible for the spending restriction, Sessions released a statement crediting his staff, along with the offices of Upton and Kingston. It pointedly omitted Rubio.

“The essential feature of our joint approach was that it did not require the passage of a stand-alone bill,” Sessions said, drawing a contrast with Rubio’s approach to totally repeal risk corridors.

Instead, Sessions added, his approach established that the risk corridor program was legally flawed, lacking its own permanent appropriation, or specific congressional authority, to spend money.

That laid the groundwork “for successfully blocking the illicit transfer of funds in the budget bill,” Sessions said. Without the restrictive language the administration might have been able to shift funds to cover the $2.5 billion shortfall.

A Sept. 30, 2014, legal opinion from the congressional Government Accountability Office validated part of the Sessions-Upton strategy. The analysis confirmed that the president’s health law failed to provide specific authority for the risk corridor payments.

But there was a nuance. Under risk corridors, insurers whose medical claims costs are lower than expected in a given year pay in money to help insurers whose costs are high. GAO said those were “user fees” and the administration could still pay insurers through other health care accounts endowed with broad spending authority.

Those accounts could also be used to shift additional funding in case insurer payments into the program were insufficient.

Along with Kingston, Sessions and Upton sprang the trap, crafting a one-sentence budget provision that blocked the administration from covering any shortfalls.

Paul Winfree, a former Sessions staffer credited by his boss for uncovering the flaw in the health law, said that Rubio’s role was raising awareness about risk corridors.

“But most of the work that led to the actual stopping of the bailout wasn’t Rubio,” Winfree said. “That was based on other members.” Winfree now works on economic policy at the Heritage Foundation, a conservative think tank.

Kingston, now a principal with a major Washington law firm, said he doesn’t remember dealing with Rubio. But he added he thought it was possible Sessions and Rubio could have been working together.

Sessions did sign an Oct. 2014 letter circulated by Rubio to former House Speaker John Boehner, outlining legal concerns about the administration’s authority to make risk corridor payments.

Brian Blase, a former Republican staffer with the House Oversight and Government Reform Committee, said Rubio raised concerns.

“It’s not fair to say he was solely responsible, but it is fair to say he raised the initial concerns,” said Blase, now working on health care policy at the Mercatus Center at George Mason University in Virginia.

Rubio actually voted against the 2014 spending bill that contained the risk corridors restriction, but so did Sessions and a number of other Senate Republicans. The bill passed.

Rubio has aggressively promoted his risk corridors role on the presidential campaign trail.

In a Fox Business interview earlier this month, Rubio again took full credit. “Last year, I was successful in getting language at the end of the year in the budget bill that took that bailout money away,” he told host Neil Cavuto.

It’s also not clear if that will be permanent.

The administration says it will pay outstanding risk corridor claims with money collected in future years.

If that doesn’t happen, some legal experts say insurers may be able to take the government to court.

GAO ruling: