I have been warning since early June about the danger of the Independent Medicare Advisory Board.
IMAB is a board appointed by the President with congressional approval, to submit recommendations on Medicare payments and costs. IMAB is modeled, somewhat, on the Base Closing Commission which made recommendations on shrinking the military base structure in the late 1980s and 1990s.
IMAB’s recommendations will have the force of law under the Senate bill unless rejected by Congress in toto. Congress cannot accept one recommendation and reject another.
The purpose of IMAB is to take hard decisions on Medicare out of the hands of politicians, but the analogy to the Base Closing Commission does not hold:
The analogy of closing military bases to making health care costs decisions is fallacious. The base closing commission was a reaction to large excess capacity in military bases, largely as a result of pork barrel earmarks. Taking politicians out of the closing process was the only way to close military bases, so that politicians would not take the blame. There is no excess capacity, however, in health care services. To the contrary, if anything, there is a lack of capacity, or at least a capacity which costs too much because of new technologies and treatments.
As Erick Erickson points out in a post last night, the Senate legislation on IMAB goes even further than one could imagine. The Senate not only delegates the hard decisions to IMAB, it imposes a very tight timeline for consideration by the Congress, and precludes the Congress from ever changing the legislation.
Here is the applicable text from the Senate bill (at page 1020):
‘‘(C) LIMITATION ON CHANGES TO THIS SUBSECTION.—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.
‘‘(D) WAIVER.—This paragraph may be waived or suspended in the Senate only by the affirmative vote of three-fifths of the Members, duly chosen and sworn.
Erickson points out that this legislation violates current Senate Rules, because it changes Senate Rules without the necessary 2/3 majority vote. Erickson quotes from, and summarizes, Senator Jim Demint’s challenge this process, to no avail:
Senator Jim DeMint confronted the Democrats over Reid’s language. In the past, the Senate Parliamentarian has repeatedly determined that any legislation that also changes the internal standing rules of the Senate must have a two-thirds vote to pass because to change Senate rules, a two-thirds vote is required. Today, the Senate President, acting on the advice of the Senate Parliamentarian, ruled that these rules changes are actually just procedural changes and, despite what the actual words of the legislation say, are not rules changes. Therefore, a two-thirds vote is not needed in contravention to longstanding Senate precedent.
In this rush to pass legislation by Christmas, the most fundamental aspect of representative democracy is being lost. The Democrats are about to pass legislation which divests the Congress of its ability to change legislation.
This is what we have come to. A Democratic majority ready to hand over a fundamental aspect of our health care system to an unelected panel without any future Congress being able to change this procedure.
Some readers have e-mailed me asking if this is constitutional. The answer is that I don’t know, and in the rush to pass this by the day after tomorrow, no one will have time to fully sort through this issue. But that is the point of the rush. Load up the legislation with so many controversial points that no one can figure it all out prior to the vote.
We are like lambs led to the slaughter.
 At page 1032 of the bill there is a procedure giving Congress the ability to vote in early 2017, by Joint Resolution only and subject to a 3/5 majority, to dissolve IMAB. This appears to be a one shot vote, meaning that nothing can be done prior to or after 2017.