With the New ObamaCare Rule, Lack of Transparency Isn’t a Glitch

As I’ve written in these pages, the White House has long sought to expand coverage on ObamaCare exchanges in this way. But the law is clear; it made subsidies for exchange plans available if the employee had to pay more than about 10% of income for a self-only plan. Basing subsidy eligibility on the cost of self-only coverage meant that families that had to pay more than 10% of income for a family plan lost out on the subsidy. This created the so-called family glitch—even though the vast majority of families in these situations were insured on an employer plan.

Not only does this rule lack statutory basis, it comes with a high price tag. According to the Congressional Budget Office, it is expected to cost $45 billion over the next decade as it pushes people off their employer plans to obtain heavily subsidized exchange plans. Few currently uninsured people will get coverage.

Six legal and policy experts, including me, representing several free-market policy think tanks intended to share these concerns during two formal, on-the-record meetings with the White House’s Office of Information and Regulatory Affairs, which oversees the federal regulatory process. In addition to raising legal and economic concerns, we intended to discuss how OIRA failed to consider the economic effect its proposal would have on states and small businesses. We weren’t alone in our concerns. OIRA had received oversight letters from the ranking members of four congressional committees raising similar issues.

OIRA canceled both meetings and unveiled its regulation without our input. Our first meeting was scheduled for Sept. 28, but OIRA called it off, citing a “Zoom failure.” I then learned that it wasn’t immediately rescheduled because of Hurricane Ian, although the storm had no effect on our ability to meet. Eventually OIRA offered Oct. 12 as an alternative date. Yet on Friday the office officially canceled the meeting and concluded its regulatory review process early. OIRA’s conduct flies in the face of good governance and violates longstanding regulatory policy.

Under an executive order signed by President Clinton in 1993, which has been affirmed by every president since, members of the public are entitled to participate in docketed meetings with regulators finalizing new regulations. These meetings allow the public to share perspective, data and analysis directly with regulators and other members of the executive branch. They ensure, moreover, that everyone has a chance to speak during what is otherwise a relatively insular policy-development process. When reflecting about this process, President Obama’s OIRA administrator

Cass Sunstein

wrote that he was “aware of no case in which such a meeting was turned down.”

Our canceled meetings don’t seem to have been a one-off for the Biden administration. It held no meetings on its new ObamaCare subsidy rule and has shown similar disregard for transparency on other controversial topics. When the Ethics and Public Policy Center was scheduled to meet with OIRA and regulators from the Department of Health and Human Services to discuss a new family-planning rule under Title X, its meeting was also unexpectedly canceled at the last minute. HHS then finalized the rule without holding any outside meetings.

Contrast that with the Trump administration, which three years earlier held 14 meetings with outside groups on the same underlying rule. During the Trump administration, OIRA went to extraordinary lengths to accommodate these meetings, including with progressive organizations, scholars, and officials. If the Trump OIRA thought regulatory review might be brief, it invited stakeholders to come in early or join other, already scheduled meetings.

Congress should get to the bottom of the Biden administration’s shameful regulatory process. As a start, it should ensure that

Richard Revesz

—the administration’s pick to lead OIRA, whose nomination is currently before the Senate—will commit to a more transparent and open regulatory review process. If he doesn’t, our federal regulatory process will continue to march down a political course without any regard to the law or sound economics.

Mr. Blase, who served as a special assistant to President Trump at the National Economic Council, is president of Paragon Health Institute.