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Courthouse News Service - Political Sparring Stalls House Judiciary Markup

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Location: Washington, DC

By Ryan Abbott

The House Judiciary Committee met Tuesday to mark up the HEALTH Act, but partisan bickering over healthcare reform and states' rights forced the committee to recess for a day.

"Today, in stark contrast to a Senate that has not passed a budget in three years, the Judiciary Committee takes a concrete step to help the House pass a budget," said Committee Chairman Lamar Smith, R-Texas, beginning a hearing that he never managed to control.

At issue was a reconciliation submission, to the Committee on the Budget, of the Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011.

Democrats proposed two amendments: one was shelved while a House rule was checked with a parliamentarian and the other was bogged down by debate that ranged from the constitutionality of the Affordable Care Act to the correct pronunciation of Harvard.

"Hahvad," said Rep. Jerrold Nadler, D-N.Y.

The reconciliation proposal aims at cleaning up medical malpractice litigation by encouraging speedy resolution of claims and limiting some damages that claimants can collect.

For instance, the bill would deny punitive damages for claimants injured by products that comply with FDA standards. It also attempts to control the liability of healthcare providers.

"These reforms save the taxpayers billions of dollars and help avoid automatic defense cuts that threaten out national security," Smith said. "Let's send this proposal to the Budget Committee."

Democrats, led by Rep. John Conyers, disagreed.

"There's only one problem, is that this measure, HR-5, will undoubtedly be dead on arrival when it reaches the Senate, so I believe a more reasonable question is for us to examine some other outcome, and I would be willing ... to join with you and others to fashion such an instrument," said Conyers. "This is not the one."

Conyers proposed an amendment that would extend enforcement of antitrust regulations; it was shelved until the committee could check with a House parliamentarian on whether a House bill of reconciliation has to be germane.

Rep. Bobby Scott, D-Va., proposed an amendment to strike the Fair Share Rule of the reconciliation bill, which holds that each party in any healthcare lawsuit be liable for its share of damages only and not for the share of any other person.

"One legislative strategy that is frequently used is to cite a problem and then offer legislation without any meaningful explanation of how the legislation actually solves the problem, but passage of the legislation is often achieved because people believe the problem needs to be solved," said Scott.

The debate crumbled from there, with Republicans reciting challenges to the individual mandate of the Affordable Care Act, while Rep. Mel Watt, D-N.C., invoked states' rights.

"There's no argument for applying a federal standard in this context," Watt said of medical malpractice reform. "And yet all of you who say you believe so much in the Constitution and the prerogatives of the state seem to forget that when we get to this issue ... I just don't understand how you reach a different conclusion on these matters than your own basic political philosophy. ... Here I am, the person who would least likely be standing up advocating states rights on the Judiciary Committee always having to defend states rights."

Rep. Trent Franks, R-Ariz., invoked Ronald Reagan as a "big proponent" of federal tort reform, stating: "Ronald Regan also established a task force to study the need for tort reform that ... concluded 'in sum, tort law appears to be a major cause of the insurance availability/affordability crisis, which the federal government can address in a variety of sensible ways.'"

Holding his head in his hand, Watt responded, "Unfortunately, I didn't take constitutional law in law school from Ronald Reagan. ... Although Ronald Reagan was a pretty good cowboy and actor and maybe a reasonably good president, I don't know that he has any substantial background in constitutional law."

Chairman Smith tried several times to control the debate and put the amendment to a vote, but failed and ultimately called the committee into recess.

"Before we move on," Smith said, as multiple representatives from both sides called to be heard, "since we clearly are not going to get as far today as I had hoped, or even finish this amendment, a bipartisan and classified briefing on the subject of cyber security [has begun]."

Smith recessed the debate until Wednesday afternoon


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