Erpenbach says Walker misled on federal health care law

Republican Mitt Romney’s defeat in the November elections, coupled with the U.S. Supreme Court’s June 2012 ruling, put an end to debate about whether President Barack Obama’s signature healthcare law would take effect.

Or did it?

Gov. Scott Walker, a vocal critic of the law, seemed to bow to legal and political realities on Nov. 16, 2012, when he announced his administration was "complying with the law, whether we like it or not."

The statement was part of an announcement that he would not create a state-run insurance marketplace to put the law into effect. Rather, Walker told reporters, he would let the federal government run it, another of the options under the law. Democrats and some prominent business organizations wanted a state exchange, arguing it could be better tailored to Wisconsin’s needs, and any problems could be dealt with at the local level.

State Sen. Jon Erpenbach (D-Middleton) issued a statement criticizing the decision.

"I am disappointed that Governor Walker does not have enough faith in the people of Wisconsin to help create a health insurance marketplace that best fits our needs as a state," Erpenbach said.

That critique was a common refrain from Democrats that day. But Erpenbach added a twist that caught our eye.

Walker, he said, "has led people to believe that if Wisconsin doesn’t implement an exchange, ObamaCare doesn’t happen here."

The background

A core of conservative critics of "Obamacare" believes that states maintain the ability to challenge -- and possibly block -- the federal health care reform law if they decline to run the exchanges.

The legal theory holds that an unintended loophole in the law could block federally run exchanges from functioning legally in states. The state of Oklahoma made a version of the argument in amended court filings in September 2012.

Wisconsin tea-party groups lobbied Walker not to create an exchange in part by raising this issue. And one of the leaders of that effort, Ross Brown of the Dane County group known as We the People of the Republic, feels it was a likely factor in Walker’s decision.

Brown said he has no hard proof of that. Walker spokesman Cullen Werwie told us the governor had not opted against a state exchange to keep the legal option open.

Werwie said Walker’s is aware of the legal argument and has not ruled out pursuing it, but added that it was not under active consideration now.

"At this time, this is how the Walker administration is moving forward," Werwie said.

Erpenbach’s claim

While there is some fuzziness about what could happen in the future, Erpenbach’s claim was entirely about the past -- that Walker had led residents to believe if the state did not create an exchange Obamacare would not be implemented here.

Erpenbach pointed us to several Walker statements at key junctures in the "Obamacare" drama:

February 2011: Walker joined 21 Republican governors favoring repeal of Obamacare if the courts don’t first strike it down. Lacking either, they wrote, federal officials should change the law to address the GOP governors’ fiscal and philosophical objections. They said that, lacking major improvements, they’d let the feds run the exchanges.

December 2011: Walker suspended planning for a state-run exchange, a change in position. He had previously talked about creating one. He cited the pending Supreme Court case.

In neither case was there a hint that Walker’s position on the exchanges was a move to stop the law.

Erpenbach argues that Walker omitted the fact that if Wisconsin didn’t run the exchange, the feds would. But the clear context of Walker’s statements, and the news coverage of it, was that it was either/or.

January 2012: Walker stopped work on a state exchange, eliminated his own Office of Free Market Health Care and turned down $37 million in federal planning money.

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Here’s how he explained his decision on creating an exchange:

"Stopping the encroachment of Obamacare in our state, which has the potential to have a devastating impact on Wisconsin’s economy, is a top priority. Wisconsin has been a leader and innovator in health care reform for two decades, and we have achieved a high level of health insurance coverage without federal mandates. When job creators and Wisconsin families are facing difficult times it doesn’t make sense to commit to a federal health care mandate that will result in hidden taxes for Wisconsin’s families, increased health care costs and insurance premiums, and more uncertainty in the private sector."

In that statement, Walker directly linked the exchange decision to "stopping" Obamacare in Wisconsin and not committing to it. And he did not explain the federal role.

June 2012: After the Supreme Court upheld much of the law, Walker issued a statement saying that "Wisconsin will not take any action to implement Obamacare."

He pinned his hopes for stopping it on the fall elections, and made it sound like the last hope: "I am hopeful that political changes in Washington, D.C., later this year ultimately end the implementation of this law at the federal level. If there is no political remedy from Washington and the law moves forward, it would require the majority of people in Wisconsin to pay more money for less health care."

He again pledged not to phase in any parts of the law pending the election outcome.

Around the same time, we fact-checked a Walker op-ed piece in the Washington Post. We rated False his claim that a study showed that Obamacare would "devastate Wisconsin" by pushing people off employer-sponsored insurance, driving up premiums, increasing dependency and making 122,000 people ineligible for Medicaid.

After the Nov. 6, 2012 elections, Walker contemplated his final decision on a state or federal exchange. This is when the tea-party lobbyists and Obamacare critics such as Sen. Frank Lasee, R- De Pere, pressed him to let the feds do it -- in part hoping to keep alive a possible legal challenge.

Walker, though, made no mention that we could find of that legal option when he announced on Nov. 16, 2012, he’d let the feds run it. Rather, he focused on possible costs to taxpayers.

Wisconsin "will defer to the federal government’s insurance exchange," Walker wrote to U.S. Health and Human Services Secretary Kathleen Sebelius.

One historical footnote: Walker’s remarks to reporters on Nov. 16, 2012, included the assurance that  "We are complying with the law, exactly as the law is written."

Was that a sly nod to the potential legal problem with how the law was written?

Werwie said no, that Walker simply meant the law gave states the option of not creating an exchange and deferring to the federal government.

Our rating

Erpenbach said Walker "has led people to believe that if Wisconsin doesn’t implement an exchange, ObamaCare doesn’t happen here."

There’s no doubt that some conservative Obamacare critics see a link between stopping federal health care reform and not creating a state exchange. They are thrilled that Walker did what he did, in part for that reason.

But Walker for the most part clearly cast his rhetoric about "stopping" the law in terms of the Supreme Court case and the election. And he has mostly made it clear that no state exchange would instead mean a federal exchange -- not no Obamacare.

An exception was his January 2012 remarks, which coupled some heated language about stopping the law with his decision to punt the exchange to the federal government.

That gives Erpenbach’s claim an element of accuracy, but we rate his claim Mostly False.