With the legislature stuck at an impasse in the funding fight for the private option Medicaid expansion, some procedural maneuvering could provide a way forward. 


The Senate will vote this afternoon on the Medical Services appropriation, the budget that includes the private option (as well as the entire Medicaid budget, including children on ARKids and the aged, blind, and disabled). “Arkansas Works,” the governor’s plan to continue the private option,  passed by overwhelming bipartisan majorities in the House and Senate, but a rump group of ten Republican senators are threatening to shut down the entire Medicaid program unless the majority caves and lets them kill the private option. 

The governor’s office and proponents of “Arkansas Works” are today hoping to move forward with a strategy to break the impasse. Everyone expects that the Medical Services appropriation will be voted down by the Tea Party Ten on the senate floor today. Once that happens, it will head back to the Joint Budget Committee. At that point, opponents of “Arkansas Works” can try to add a Special Language amendment that would strip “Arkansas Works” funding out of the appropriation. 


Because the aginners are such a tiny minority, the assumption has been that such an amendment would be rejected. But the strategy being floated today is that proponents of “Arkansas Works” would vote for this amendment. The reason: the governor can use a line item veto to veto that special language (the legislature could override his veto with a simple majority, but because the overwhelming majority of the legislature supports “Arkansas Works,” they would let the veto stand).  

There are no secrets here: the Tea Party Ten have been briefed on this strategy.


Here’s how it would hypothetically play out: After the amendment killing “Arkansas Works” was attached in Joint Budget, the appropriation would then go back to the senate. The Senate would approve the appropriation. Then, likely tomorrow, the House would approve it. Then the governor, also as soon as tomorrow, would veto the amendment killing “Arkansas Works.” Efforts to override the veto would fail and that would be that. The Tea Party Ten get to make their principled stand, but the Medicaid expansion would continue.  

That’s if everything went according to plan. And all sorts of things might go wrong! 

The biggest key, obviously, is that at least two of the Tea Party Ten have to go along with the plan. Because the governor is being upfront about his intentions, if the senate votes to approve the amended appropriation, that means that in practice the Medicaid expansion will continue, precisely the outcome that their obstructionist tactics are meant to stop. (The governor’s office always viewed this as an option that would be done openly rather than as a last-minute surprise attack against senators who might not be well versed on the line-item veto rules.)

However, the optics are awkward for the Ten if they voted down this appropriation too. Remember, this would be the appropriation that includes their own amendment. That means that they would have voted against an appropriation with “Arkansas Works” and an appropriation without “Arkansas Works (their own plan!) in the same day. All along, their only real leverage has been to threaten to shut down the entire Medicaid program and unleash a humanitarian disaster. But they have done everything they can to artfully dodge that framing — they say that they’re happy to vote for the Medicaid budget if “Arkansas Works” is stripped out. Under this scenario, they would be painted even more into an obstructionist corner: They would vote down their own appropriation, flatly signalling that their plan is to shut down the government unless the governor and the majority cave to the demands of ten senators. 


Scuttlebutt at the Capitol is that some of the Ten may be open to taking this out. They vote against the appropriation they oppose, they vote for the appropriation they support, and then the governor takes unilateral action to veto. They don’t have to abandon their stand, and they can blame Hutchinson. The problem: in terms of substantive policy outcomes, this would amount to a surrender. I’ve already heard word that Americans for Prosperity is strongly pushing the Hell No Caucus to vote against an appropriation with the special language killing “Arkansas Works.” That’s a tough vote for the Ten to take because of the obstructionist optics. But again, if they approve the amended budget, the Medicaid expansion continues — the governor is offering no policy concession, but merely a procedural out. There’s no mystery about the artifice here.

The governor himself would be taking on more heat, of course. Like someone like John Kasich in Ohio, Hutchinson would be taking full ownership and responsibility for continuing the Medicaid expansion even more than he has thus far. 

Some of the aginners will no doubt denounce this as an end-around or procedural shenanigans. But the Tea Party Ten has been shouting all week that they are merely following their constitutional prerogative. In this scenario, the governor would be merely following his. The rules about the line item veto are in the Constitution, just like the rules about supermajorities for certain appropriations. 

This idea has been floating around for some time, but typically was mentioned as something that would happen later in the process if they can’t get the votes, as a kind of last-ditch Plan B. However, Senate leadership decided that the time to act was now. If the Tea Party Ten is really willing to shut down the government to stop the Medicaid expansion, they’re going to have to vote against their own appropriation to do it.  

While this is a tool that has always been an option, it’s a somewhat convoluted approach and it demands a great deal of trust on all sides — Democrats, for example, have to trust that Hutchinson will in fact veto the line item. Lots of stories floating around the Capitol about the old days when Bill Clinton would veto a bill only after he had made arrangements with legislative leaders to override him. 

What about the levels of funding? Aginners could theoretically also insist that the levels were changed — for example, lowering the line item for the federal Medicaid grant funding. It sounds like they don’t plan to do so; the point is likely moot because the amendment killing “Arkansas Works” probably demands that the appropriation bill remain at the same overall levels in any case, because it will require additional state funds (the state would actually pay more for its share of Medicaid if “Arkansas Works” ends because certain beneficiaries would move to the traditional Medicaid program at a lower match rate). Even if aginners insisted on mucking with the levels, the governor’s office would have various procedural mechanisms to continue the Medicaid expansion, and it would represent an irritation rather than a roadblock to this approach. I am continuing to gather details on the legal and procedural issues and will update this post soon. 

Support for special health care reporting made possible by the Arkansas Public Policy Panel.