Health care coverage is a "perk."
That's the word from Edwards senior adviser Joe Trippi on why John Edwards's proposed bill to strip members of Congress and senior administration officials of health insurance is constitutional under the 27th Amendment, which bars changes to Congressional "compensation" between general elections. "It's not salary compensation," he said. "It’s a perk."
While I agree with Ezra that the ultimately constitutionality of the Edwards proposal cannot be decided in the absence of a ruling on whatever litigation his as yet unwritten law ultimately faces, should he win the Democratic nomination and then the general election, the argument that health insurance coverage is not a form of compensation strikes me as an unsound basis on which to begin the health insurance reform conversation. (My understanding has always been that health insurance is a form of untaxed -- i.e. tax-subsidized -- compensation, as it is described as in this 1994 Congressional Budget Office testimony.)
An argument that insurance is not compensation provides an opening for those opposed to health care reform to argue, as Trippi just had to, that health care is a "perk," rather than a social responsibility or something that ought to be mandated by government. This seems an odd starting position for a reform conversation. Either Edwards' proposed law is unconstitutional, or health insurance is not a form of compensation, but some kind of inessential frill not covered under the 27th Amendment, like the provision of Congressional stationary. The other possible line of argument, raised by the Edwards folks, is that a strict constructionist argument about the intent of the Madison Amendment would show that it was never intended to cover anything but salary, as contemporary benefits did not exist in the late 18th century. But since when are Democratic administrations in the business making strict constructionist constitutional arguments?
I fear this is a conversation many people in Washington would, Jonathan Prince's optimism notwithstanding, very much like to have, and which would put the lawyers of the new Edwards administration, in their first days, in the position of arguing various lines that Republicans and special interests would be only too happy to support.
UPDATE, 7:45 p.m.: Trippi calls back and says: "I misspoke. I said perks but I meant benefits." The Edwards campaign does not believe health coverage is a perk. "We really think we'll put this bill in and we'll do it in a way that's constitutional," he says. "John Edwards believes healthcare is the right of every American and that this is not about taking anybody's healthcare away. It's about getting healthcare for every American." Sounds like it's been a long day over in Edwards land.