Frist / Breaux Op-Ed in Politico

(Politico, March 19, 2010)

By Sen. Bill Frist, M.D. and Sen. John Breaux

Though we come from different political backgrounds and disagree on key aspects of health-care reform, we share a deep concern about provisions of proposed legislation that would establish a super-powerful board to dictate the future of Medicare.

While the new entity, an “Independent Payment Advisory Board,” addresses a growing problem, its structure in the current legislation raises serious constitutional and process questions that Congress must confront.

The board, intended to help control Medicare costs – which, all agree, are rising at a concerning rate – would possess nearly total power over the federal health care program for the elderly and disabled.

After the president appointed its members, the board could propose sweeping and dramatic Medicare changes that would become law unless Congress enacted its own proposal to achieve the same level of cuts. Congressional leaders would have to muster nearly-impossible-to-obtain supermajority votes if they wanted to overturn the board’s decisions.

For all intents and purposes, the board would have the power to influence and re-write nearly all aspects of Medicare.

While independent commissions and boards have sometimes played important policy-making roles, Congress has refrained from giving them this degree of power. It represents a dangerous surrender of authority by the elected representatives of the American people.

The Constitution, after all, explicitly reserves “all legislative powers” to Congress. Courts have repeatedly found that it can’t even surrender these powers to the President — much less to an independent board.

Most significantly, in 1998, the Supreme Court ruled a 1996 “line item veto” law unconstitutional because it allowed the President to reject specific spending or tax provisions and mandated Congressional supermajority votes to overturn these partial vetoes.

In fact, the line item veto was less far reaching than the proposed Advisory Board. While the 1996 measure simply allowed the President to reject certain types of spending or tax provisions, the board will have the effective power to rewrite the law. Neither of us can understand how the proposed board could pass Constitutional muster if the line item veto did not.

We believe there’s a better way to control Medicare costs without infringing on the Constitution. History has shown that advisory boards and commissions don’t need sweeping power—or any at all—to prove effective.

In medical circles, the existing Preventative Services Task Force has enough influence over decision-making that it caused a firestorm several months ago when it changed its recommendations on mammograms. More significantly, the 9/11 Commission—which had no legislative power—had its recommendations passed into law by overwhelming bipartisan majorities simply because its findings were so convincing, well-researched and well-presented.

Even the best-known commission that does have some legal power, the Base Realignment and Closure Commission (which can close military bases), exists under firm Congressional oversight. Both Congress and the President can overrule it without taking extraordinary steps and, unlike the proposed Medicare board, it has no power to rewrite laws.

America does need to reform its health care system and part of any reform should involve an effort to control Medicare costs. An independent commission could help Congress to do this.

Ultimately, however, we would be better off looking to established Congressional oversight rather than implementing heavy-handed regulation to make significant – and potentially unconstitutional – changes to a program essential to the successful delivery of health care to America’s seniors.

Bill Frist is a former Republican senator from Tennessee who served as Majority Leader. John Breaux is a former Democratic senator from Louisiana and served as Co-Chair of the National Bipartisan Commission on the Future of Medicare