:: The Candidates On Changes To ERISA Preemption

Try this little quiz –

Proposal A:

Maintain the current preemption provisions of the Employee Retirement Income Security Act.

Proposal B:

Amend ERISA to curtail the preemption provisions of the Employee Retirement Income Security Act.

Question:

Which candidates support Proposal A and which support Proposal B?

It may come as a surprise, but despite the reflexive identification of ERISA preemption with big business interests (”Republican” constituents), and diminution of ERISA’s preemptive reach as consonant with employees’ interests (”Democratic” constituents), the facts do not appear to be working out that way.

In a recent Human Resource Executive article, Dallas Salisbury observes that neither Democratic candidate favors altering ERISA’s preemption provision. And, in an article today, the same author writes that McCain would likely favor substantial curtailment of ERISA’s preemptive reach.

Many of Sen. McCain’s proposals coincide with the interests of business groups — although not all, particularly his proposal to remove self-insured plans from ERISA exemption. His proposals offer a clear contrast with his Democratic opponents.

As I have previously noted, the civic value of federalism, much diminished in the past century, now finds a central place in the continuing debate over the proper approach to health care reform. The issue divides the candidates along unfamiliar vectors.

Professor Roderick M. Hills, Jr., a federalism advocate, notes that much rides on how we approach the question.

It is not as if these preemption issues are small potatoes: The 2004 campaign involved prominent discussion of “Patients’ Bills of Rights,” federal bills that would have eliminated some ERISA preemption of state-law claims against HMOs. McCain was, indeed, the co-sponsor of one such bill (the McCain-Kennedy-Edwards Patient Protection Act). And the issue has been the source of raging controversy in DC, with the FDA, OCC, and other federal agencies taking strong preemption positions, opposed by the trial lawyers, one of the most powerful of the democrats’ constituencies.

On the other hand, he does not see it likely that the candidates or voters will see the issue in terms of larger policy issues, nor does he interpret the candidates’ positions as reflecting their platform in these terms:

But none of the candidates’ websites have anything to say about preemption. John McCain’s website has but a single line favoring tort reform, without elaboration.

In short, it appears that the candidates are stating their platforms in arrays of proposals on popular issues without much regard to the level of government implicated in the proposed solutions. Is the concept of federalism as a value too obscure to interest voters?

Professor Hills offers a possible rebuttal to this point of view in a recent paper by Professors Robert Mikos and Cindy Kam, Do Citizens Care About Federalism? An Experimental Test

From that article:

Our theory of political safeguards explicitly acknowledges that ordinary citizens play a role in policing the limits of federal power. Certainly, citizens care about policy outcomes. But they also care about preserving the authority of their state governments, first, because they trust their state governments more than the federal government, and second, because they value federalism.

We provide the first systematic examination of whether citizens can be entrusted to safeguard federalism.

When the dust clears on the health care reform debate, Professors Mikos and Kam will likely have additional empirical data bearing this thesis.

Almost forgot – the answer to the quiz:

Proposal A: Clinton, Obama *

Proposal B: McCain *

Bonus question: Which candidates support federalism as a principle of policy choice?

Answer: Possibly none of the above.

* Subject to question under a paradox which I will not declare in this post