Freedom of Health Care Protection Act

I fervently oppose the Affordable Care Act and it’s negative affects on the people and businesses of South Carolina and this great nation. In response to that opposition, I have supported resistance efforts.  I support the decision not to expand Medicaid, which is a primary component of Obamacare. I support the decision not to create a state health insurance exchange in SC. I supported SC’s decision to become one of the first plaintiffs in the lawsuit challenging the law’s constitutionality. I support the effort to call on the US Congress, the only body capable, to repeal this misguided public policy. And I am working towards state solutions that attack the real problems with our healthcare system – the high cost of healthcare delivery – which Obamacare does not address.

Recently, there has been conversation and misinformation spread about the recent debate in the South Carolina Senate regarding legislation related to the Affordable Care Act.  I’d like to take the opportunity to outline the path of this legislation and clear up some of this misinformation.

The legislation recently debated (H.3101), also known as “Obamacare Nullification”, was sent to the SC Senate by the SC House of Representatives during the 2013 legislative session. A careful review of the bill revealed concerns. 1) After thorough research and speaking with many constitutional experts, I, along with many of my conservative colleagues, including Sen. Tom Davis, understood state nullification is unconstitutional. I personally believe that conservatives have it right when we adhere to the rule of law. Therefore, I was not comfortable voting for what I believe to be an unconstitutional law – no matter how strongly my feelings are against Obamacare. 2) Even if I could get by the constitutionality question, there were other problems with the bill. Most noticeably, the bill provided for a tax deduction for any individual that was assessed a penalty by the federal government for not complying with Obamacare. In essence this would mean that state funds, i.e. taxpayer money, would be used to fund the Affordable Care Act. So as you can see, in one breath we’re trying to say Obamacare is null and void in SC, yet we proposed sending state funds to Washington to subsidize its implementation. By all accounts, without subsidization, Obamacare is unsustainable. Further, not only would we send state funds under this plan, but we would be taking funds from some citizens in order to pay the penalty/tax for others. That’s just another bad policy that throws good money after bad.

So that’s the background. Recognizing that H.3101 was fatally flawed, attempts were made to correct the legislation and provide an alternative that was both constitutional and more effective at pushing back against Obamacare. That came to be known as the “Davis Amendment” and was authored by Sen. Tom Davis (R-Beaufort). The procedure timeline is as follows…

  • H.3101 came to the SC Senate from the SC House of Representatives and was immediately met with concern due to the content of the bill and questions about its constitutionality. This concern was broad based on the Republican side of the aisle. Nevertheless, it was an important piece of legislation on an important topic and all Republicans agreed to take up the bill.
  • Senator Tom Davis worked hard to craft a “strike and insert” amendment believed to be constitutional, and included many components that would have been real resistance to the Affordable Care Act (ACA). This amendment effectively replaced, in its entirety, the House language of H.3101. I fully supported Senator Davis’ efforts and voted each time along the way to advance the bill.
  • Opponents also introduced amendments that would have significantly weakened the Davis amendment.
  • All together there were 157 amendments filed to be debated. That number will be important later.
  • In the third week of debate, an opponent of the bill raised a point of order on the Davis amendment. The point of order contended that the content of the Davis amendment was not germane to the original bill, a requirement under the rules of the SC Senate. The rule is important as it prevents superfluous items from being attached to bills, as is done regularly in Congress.
  • As President of the Senate, the Lt. Governor is charged with ruling on points of order. After hearing arguments both for and against the point of order, and careful deliberation, it was ruled that the amendment was out of order and was not able to be considered. No appeal of this ruling, was filed.
  • Based on this ruling, nearly all of the other remaining 156 amendments were also ruled out of order at various points in the debate or withdrawn by their various authors before a ruling could be made against them. No appeals of these rulings, were filed.
  • Finally, another of Senator Davis’ amendments (1 of 6), but not the comprehensive “Davis Amendment”, was challenged with the same point of order that wiped out nearly every other amendment. This amendment, as all others before it, was ruled out of order. This time however, Senator Davis made a motion to overrule the Lt. Governor’s decision.
  • After arguments both for and against, the Senate was asked to override the ruling. This measure failed with most believing, while unfortunate, the ruling was an accurate interpretation of the rules of the Senate.
  • With that, all reaming amendments both for and against were withdrawn and we were left only with the option to support the original H.3101 which attempts to nullify federal law in South Carolina.
  • The original H.3101 was defeated 9 – 33.

Below is my personal vote history on H.3101

  • Voted YES to recall H.3101 from committee and bring to the floor for debate.
  • Voted YES to place H.3101 for special order ensuring debate on the floor.
  • Supported Senator Tom Davis in his attempts to amend H.3101 to ensure constitutionality and strengthen the bill.
  • Voted YES for cloture in order to cut off attempts from opposition to stall the bill and to ultimately force an up or down vote. (Cloture FAILED)
  • Voted YES for cloture in order to cut off attempts from opposition to stall the bill and to ultimately force an up or down vote. (Cloture PASSED)
  • Voted NO during attempt to adjourn which would have ended debate and avoided a vote.
  • Voted NO on all amendments presented by the bill’s opponents in an attempt to weaken the bill.
  • Voted YES to uphold Lt. Governor’s “Point of Order” ruling out of respect for, and compliance with, the rules of the Senate.
  • Voted NO on original, unamended, H.3101 due to unconstitutionality and content problems.

I hope this background is helpful to you as you evaluate this complicated process. If questions remain, I invite you reach out to me and I will be happy to discuss the issue further.

We have much work to do to enact policies that move South Carolina forward.  I look forward to that work.

© 2017 Senator Sean M. Bennett. All rights reserved.