Did a Conservative Think Tank Really Invent the Individual Mandate?

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A former Heritage Foundation staffer explains the policy's origin and sheds some light on why the GOP has such problems with the health care issue

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In the course of defending the health care bill he passed in Massachusetts, Mitt Romney told Newt Gingrich that he got the idea for the individual mandate -- a rule dictating that everyone must buy health insurance or pay a penalty -- from the Heritage Foundation, a conservative Washington, D.C. think tank. Is it really responsible for creating the policy that is now so anathema to conservatives?

James Taranto, an opinion editor at The Wall Street Journal, has some relevant history to share. Before going any farther you should know that he writes his column in the first person plural. "Heritage did put forward the idea of an individual mandate, though it predated HillaryCare by several years," Taranto says. "We know this because we were there: In 1988-90, we were employed at Heritage as a public relations associate (a junior writer and editor), and we wrote at least one press release for a publication touting Heritage's plan for comprehensive legislation to provide universal 'quality, affordable health care.'

As a junior publicist, we weren't being paid for our personal opinions. But we are now, so you will be the first to know that when we worked at Heritage, we hated the Heritage plan, especially the individual mandate."

Where did it come from?

The plan was introduced in a 1989 book, "A National Health System for America" by Stuart Butler and Edmund Haislmaier. We seem to have mislaid our copy, and we couldn't find it online, but we did track down a 1990 Backgrounder and a 1991 lecture by Butler that outline the plan. One of its two major planks, the equalization of tax treatment for individually purchased and employer-provided health insurance, seemed sensible and unobjectionable, at least in principle.

But the other was the mandate, described as a "Health Care Social Contract" and fleshed out in the lecture: "We would include a mandate in our proposal--not a mandate on employers, but a mandate on heads of households--to obtain at least a basic package of health insurance for themselves and their families. That would have to include, by federal law, a catastrophic provision in the form of a stop loss for a family's total health outlays. It would have to include all members of the family, and it might also include certain very specific services, such as preventive care, well baby visits, and other items."

Taranto adds that "the Heritage mandate, at least in theory, would have been less burdensome than the ObamaCare one," since it demanded only coverage of catastrophic conditions, but that "the Heritage mandate was indistinguishable in principle from the ObamaCare one. In both cases, the federal government would force individuals to purchase a product from a private company--something that Congress has never done before and that, according to the 11th U.S. Circuit Court of Appeals, exceeds its power under the Constitution's Commerce Clause." Many liberals insist the mandate is both constitutional and necessary to create a viable insurance pool.

Peter Suderman argues that this history helps explain why Republicans have had such a hard time with the issue of health care in recent years:

Rather than make a prolonged case for health policy that does not involve endless expansion of entitlements and insurance subsidies, the GOP has instead focused primarily on reacting to Democratic proposals. The individual mandate was an attempt to beat Democrats at the universal coverage game and preempt the what would become HillaryCare. Medicare's prescription drug benefit was passed by a Republican president and a Republican Congress under the pretense that if they didn't do it, Democrats would, and it would be worse. In the debate over ObamaCare, Republicans spent more energy arguing against the law's Medicare payment cuts than any other part of the law. Riding a wave of anger over ObamaCare's passage to electoral victory in 2010, party leadership continued to refuse to talk about broader entitlement reform. And now they're on track to nominate a presidential candidate who, in his only gig as an elected official, signed a state-based law that would provide the model and foundation for ObamaCare--their top legislative target.

I'd like to suggest some additional reasons that the health care issue is going to plague the right for the foreseeable future.

1) Medicare, the most costly and fiscally fraught entitlement of them all, is very popular, and lots of voters would be worse off without it.

2) A lot of people who have private health insurance assess their experience and conclude, though they may not put it this way, that health care isn't like other markets. For example, once you get sick, it is basically impossible to behave like a normal consumer and switch from one company to another -- the insurer has all the power, and has used it on tactics like rescission in the past, provoking widespread calls for government intervention. And a lot of the pathologies introduced into the system by state governments are invisible to the average person. It isn't actually clear to most people what a "free market" in health care would look like precisely because having no federal or state laws governing the industry is never going to happen.

3) A transition to a freer, more consumer driven market in health care requires taking on some very powerful moneyed interests with no big donors on your side. Many doctors are against Obamacare, of course, but what they're for is autonomy and money, not a free market in health care that empowers consumers. The politics of moving to a system like what David Goldhill proposed in this magazine is both tough and not something right-leaning voters actively want.

4) Ultimately, even most people on the right think that if someone is poor or chose not to buy insurance and winds up requiring an expensive surgery or emergency care to keep living, their life should be saved. Letting people die is certainly impermissible to the general public, which tends to be more willing to sacrifice liberty when it has good reason to worry about a free rider problem. Are average Republicans ultimately going to be more persuaded by "no free riders" or "no problematic expansion of Commerce Clause precedent"? I seldom bet on right or left siding with liberty.

For all these reasons, it's inexplicable to me that some Republicans think the GOP nominee should run against Obamacare in 2012, especially given the poor shape of the American economy.

Image credit: Reuters

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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