Our Bart Stupak Story

Bart Stupak: Good riddance to a dangerous Congressman.

Most of you will suppose I’m referencing Bart Stupak’s double-cross of the pro-life movement, but that’s not the only thing. In the late 1990s, Stupak tried to have this institution charged with a federal crime for publishing materials inconvenient to the left on health care issues.

Up to then, I had naively supposed prosecutors didn’t investigate policy disagreements in America.

The issue in question was Section 4507 of the 1997 Balanced Budget Act, which prohibited Medicare patients from contracting privately with medical doctors unless the doctor opted out of the Medicare system for at least two years, among other requirements.

Here’s how Steve Forbes described it in the American Enterprise Institute’s magazine (11/1/97):

…buried in the 1,200-page budget bill is a nasty, little-known provision, Section 4507, that begins to write socialized medicine into law. Starting January 1, 1998, American doctors will effectively be prohibited from treating elderly patients on a private basis outside of the Medicare program.

The government health care bureaucracy had already been using its regulatory powers to forbid doctors who accept Medicare patients from also treating senior citizens who choose to pay out of-pocket. Republicans originally tried to insert into the budget agreement a provision that would overturn this regulation, but President Clinton protested and the Republicans caved in.

Since over 90 percent of doctors accept Medicare patients, this law makes it nearly impossible for seniors to find a doctor who will also treat them on a private basis, outside Medicare’s rules and regulations. Only doctors in the very wealthiest areas will be available to seniors hoping to engage in private health care between consenting adults. Astonishingly, even Britain, mother of socialized medicine, allows patients to contract privately with physicians. Senator Jon Kyl (R-Ariz.) is leading the charge to repeal Section 4507. He points out that the current law is the equivalent of forbidding everyone enrolled in Social Security from also investing his own money privately with stockbrokers: Such a law “would be met with disbelief and derision,” yet it is no different from what the new Medicare law does.

To seniors, especially those not living in big cities, this had the effect of making some medical procedures unavailable to them unless they travelled long distances, as in small towns there might not be a single doctor providing the services they desired who also was willing to forgo treating anyone receiving Medicare for two years.

To conservatives, this provision was a step forward for government control of medicine and a violation of the civil rights of senior citizens.

To liberals, including the Clinton Administration, it was a way to restrict private involvement in health care. They further argued that doctors would overcharge vulnerable seniors for services, and that it would be better for seniors to be denied certain services entirely than to risk being overcharged privately.

Section 4507 received scant public attention when the Balanced Budget Act of 1997 was adopted, but seniors soon began to report difficulties. Simple and inexpensive tests sought by people with diabetes or concern that they might have diabetes, for example, were not in all circumstances covered by Medicare, and now seniors could not get them unless they found a doctor who had entirely opted out of Medicare. Similarly, men over 65 were barred from privately contracting with doctors for screening tests for prostate cancer, although Medicare did not cover these tests for men without symptoms. And there were other examples.

We, along with several other institutions (not all of them conservative), began to call attention to the detrimental impacts of Section 4507 on seniors. One think-tank published a book. Another published numerous papers and held at least one symposium. A seniors group filed suit in federal court on civil rights grounds. And a U.S. Senator (Jon Kyl) and the then-chairman of the House Ways and Means Committee (Bill Archer) introduced joint legislation to repeal Section 4507.

Our work on this was routine for a think-tank. We published informational materials on it for the public and policymakers (for example, this, posted online at that time), press materials (for example, here) for talk radio hosts and editorial writers, and collected petitions from the public about Section 4507 and sent them to Congress.

Routine work, that is, until we got a phone call from a federal investigator. Rep. Bart Stupak, we were told, had a received a copy of some of our materials and had contacted law enforcement, alleging that the Section 4507 did not do what we claimed it did, and that our claims constituted mail fraud.

To me, this was preposterous, and as I was naive back then, I told the investigator to come over, and I’d share information about the provision with him. I didn’t contact legal counsel, as I did not want to waste donors’ money on such a ridiculous and (I thought) easily-rebutted allegation.

The investigator came over, and I showed him the book, and the policy papers by other institutions, and information about the Kyl-Archer bill to repeal, and press materials by the seniors group that had filed suit in federal court. The investigator, however, was unmoved. Just because other groups are saying the same thing you are, he said, doesn’t make you right. Instead, he said, it is evidence of a conspiracy.

I was taken aback, as one might expect, and the investigator added his coup de grace: the Congressional Research Service says all of you are wrong on this, he said, and what did I have to say to that? He made it clear he considered the CRS the final authority, and believed that publishing anything to the contrary and mailing it would constitute mail fraud. I hadn’t read what the CRS said, so I couldn’t comment on its position. The investigator left, and faxed me the CRS document soon after, with a cover note that wasn’t promising. The CRS document itself, however, was: The CRS agreed with our position entirely.

None of this should have happened, but it didn’t end there. Before long, we received a subpoena from the U.S. Justice Department requiring us to turn over all documents, communications, etc. relating to our work on Section 4507. We complied, and also involved counsel. Our attorney phoned the Justice Department attorney whose name was on the subpoena and pointed out that First Amendment protects our right to publish as we see fit on public policy issues. In fact, he said, the investigator’s entire line of questioning as to whether our papers were correct was inappropriate, as people have a constitutional right to publish things the government disagrees with. The Justice Department attorney told him she in fact agreed with him, but that, because of superiors, her hands were tied on the case. So we had to consider ourselves under active investigation.

We didn’t hear anything from them for about two years (to the best of my recollection, between the 2000 presidential election and Bush’s inauguration), when the DOJ returned all our subpoenaed documents. We never found out anything more about who at DOJ had considered the case worth investigating, but we couldn’t help thinking it was someone inclined to discourage conservative groups from working on health care. No charges were ever brought.

So now that Congressman Bart Stupak, whose office thought it was perfectly proper to sic federal law enforcement on a conservative organization simply for publishing perfectly accurate materials inconvenient to the liberal big-government position, has decided to retire, I say good riddance. We don’t need any Congressmen, on the left or the right, who believe in criminalizing policy disagreements, and who oppose the people’s right to free speech.

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