Sen. John Coghill and other opponents of Medicaid expansion should follow the suggestion offered by the Anchorage Superior Court judge who dismissed a legislative lawsuit this week: You can settle this by taking a vote.
But rather than risk the prospect that the full Legislature will support Medicaid expansion, Coghill and Company would rather stall by paying a high-priced Washington, D.C., law firm to continue a frivolous lawsuit, arguing about the meaning of the word "requires."
The Walker administration contends that "requires," inserted in a provision about Medicaid eligibility in state law in 1974, means what it says in the dictionary. The judge agreed, but legislative lawyers say it has a special meaning derived from two U.S. Supreme Court cases in the 1990s, allowing them to claim that Medicaid expansion is not required.
"It is unlikely that the 1974 Alaska Legislature infused the word 'requires' with a special meaning premised on a constitutional doctrine established in 1992," Superior Court Judge Frank Pfiffner said in dismissing the legislative complaint.
Unlikely bordering on impossible.
Two of the D.C. lawyers hired by the Legislative Council for this simple case collect customary fees of $575 an hour to more than $1,350. They received a flat fee of $250,000 for the losing phase of this case, so an hourly cost is unknown, but there is no reason to believe they offered an Alaska discount. The council also hired a law firm with Anchorage offices for up to $50,000 at hourly rates from $165 to $400.
While the Legislative Council lost, the contract allows an employee on Coghill's staff, lawyer Chad Hutchison, to decide whether the case will be appealed to the Supreme Court for Phase 2, which will cost $150,000 more.
Hutchison has argued that the governor was wrong in his interpretation of required. Coghill claimed last summer that Gov. Bill Walker was trying to violate the law "to foist an expensive entitlement program on Alaska."
Alaska is now one of 31 states that have expanded Medicaid. The federal government is paying the full cost of expansion in 2016, declining to 90 percent by 2020.
The contract states that if Hutchison "elects to not proceed to the Supreme Court, then Phase 2 does not apply and the services and payments are complete."
This should not be left to a legislative staff member. Sen. Gary Stevens, chairman of the Legislative Council, said he is waiting for a legal opinion from legislative attorney Doug Gardner next week before deciding whether the group should meet and vote on an appeal.
The rational thing would be to give up this dictionary debate and either confirm or reject the expansion decision, an option the Legislature has refused to take.
Legislators backing the lawsuit claim this is about the separation of powers, defending the Alaska Constitution and upholding lofty principles. In fact, it's mostly about not holding a vote.
Last summer, the Legislative Council failed in Superior Court and before the Alaska Supreme Court with efforts to stop implementation of Medicaid expansion. So far, more than 10,000 low-income Alaskans, about half of them in the Anchorage area, have signed up for coverage under the plan.
Legislative lawyers said the expansion would mean the Legislature and Alaskans would "suffer immediate and irreparable harm" if expansion took place Sept. 1, but Pfiffner and the Alaska Supreme Court disagreed. The lawyers also predicted an "administrative nightmare," if at some point a court decided that Medicaid expansion was illegal. The 10,000 people now getting coverage are not eligible for Medicaid, according to legislative leaders.
By not voting, legislators have communicated a different message. There are those who claim that refusing to vote is the same as holding a vote and rejecting the plan, but the latter option requires legislators to go on the record.
"The Legislative Council may disagree with the governor about the merits of expanding Medicaid," Pfiffner said in dismissing the legislators' case Tuesday. "The way for the Legislature to exercise its constitutional power to control the state's assets is through its constitutional power to pass laws."
Dermot Cole is a Fairbanks-based columnist for the Alaska Dispatch News. One of his daughters works as the deputy press secretary for Gov . Bill Walker. The views expressed here are Cole's and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary(at)alaskadispatch.com.