President's recess appointment has reignited the debate over healthcare

President Barack Obama's recess appointment of Donald Berwick to lead Medicare was intended to avoid another high-profile congressional fight over healthcare reform. Instead, it’s renewed — at least temporarily — the well-worn partisan debate over the government's role in medicine.

The White House, with the help of congressional Democrats, had of late begun playing up the tangible benefits of the new law in hopes of picking up votes in November's midterms. But Berwick's appointment to head the Centers for Medicare and Medicaid Services [CMS] — without any formal discussion on Capitol Hill — offers Republicans an opportunity to rehash the ideological differences between the parties. And they are seizing it.


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"Here they go again," GOP conference Chairman Lamar Alexander (Tenn.) said Wednesday, "thumbing their noses at the American people, jamming through a controversial nominee to oversee Medicare cuts in the new healthcare law."

Sen. Chuck Grassley (Iowa), senior Republican on the Finance Committee, used Berwick's appointment to accuse the administration of reneging on previous vows of transparency — a chief GOP complaint throughout the health reform debate. 

"The American people have a right to know about Berwick’s background, his thoughts on rationing and government-run healthcare and any potential conflicts of interest," Grassley said. "All of that is hidden when the confirmation process is circumvented."

The White House said Tuesday that Republicans forced the recess appointment by drawing out the confirmation process "solely to score political points." Berwick was nominated in April.

The office of Senate Majority Leader Harry Reid (D-Nev.) echoed that message, arguing it was "unfortunate" Democrats had to resort to a recess appointment, but it became necessary to prevent Republicans from using the longer process as "a stalking-horse for their further attempts to hammer away at healthcare reform."

There's good reason the Democrats don't want that to happen: Recent polls have suggested the reform law’s popularity has risen — a trend that’s left the White House believing it's finally gaining traction on the "retail" selling of the bill, some observers say. House Speaker Nancy Pelosi (D-Calif.) has urged members to tout the bill’s benefits during the recess week and beyond, including at town hall meetings.

Democrats are hardly keen to revisit the ideological battles over healthcare that bogged down the reform effort in the first place.

Democratic lobbyist Licy Do Canto said Berwick "would not have received a fair hearing now because of the thorny politics surrounding the new reform law. Do Canto said he may have a better chance of winning Senate approval next year if he "plays politics and policy well" between now and then — even if Republicans make expected gains in the November. 

"It's all about relationships," said Do Canto, a principal with the Raben Group.

A Harvard pediatrician and founder of the Institute for Healthcare Improvement, Berwick is revered within the healthcare community and enjoys the backing of medical groups, patient advocates and health policy experts on both the right and left. Karen Ignagni, head of America's Health Insurance Plans (AHIP), told reporters Wednesday that Berwick's experience "is going to be essential" as policymakers seek sustainable ways of paying for care without sacrificing quality."

But two-year-old remarks praising Britain's nationalized healthcare system have made Berwick a polarizing figure on Capitol Hill, and some Senate Republicans had vowed to block his nomination. Berwick’s detractors say he would ration care to cut costs, threatening seniors' access to services.

"We have this nominee who is applauding — applauding — a system where care is delayed, denied or rationed," Senate Minority Leader Mitch McConnell (R-Ky.) said earlier this year.

As head of CMS, Berwick will play a vital role in implementing the new health reform law — a role for which Democrats say he’s perfectly suited. Sen. Tom Harkin (D-Iowa), who chairs the Senate Health committee, said Berwick is "one of the nation’s most respected voices for improving the healthcare delivery system."

"In light of Republican arguments for strengthening Medicare and reducing waste, fraud and abuse in the system, their opposition to Dr. Berwick’s nomination is unfathomable," Harkin said Wednesday.

Berwick was appointed Wednesday along with two other nominees struggling to win Senate approval. In March, the president appointed 15 other controversial nominees through the same process. As a recess appointee, Berwick's term will expire in late 2011 unless the Senate approves him before then.

Some Democratic leaders, though supportive of Berwick, also aren't thrilled with the recess appointment process that put him in place. Sen. Max Baucus (D-Mont.), who chairs the Senate Finance Committee, went after the White House on Wednesday for undermining the powers of Congress. The Senate's approval of presidential nominees, Baucus said, is "an essential process … that serves as a check on executive power."
 
Still, Baucus was quick to note that his criticisms of the process would do nothing to affect his working relationship with CMS as it implements the new health reform law.

Grassley wondered this week why Baucus and other Democratic leaders never staged a hearing on Berwick’s nomination. "I requested that a hearing take place two weeks ago," the Iowa Republican said.

A Finance Democratic aide said Wednesday that the panel "has been working through the standard vetting process it completes before holding a nominee’s hearing."

For the White House, the saga of Dawn Johnsen might have served as a cautionary tale in deciding to appoint Berwick without congressional approval. Obama had tapped Johnsen in early 2009 to head the Justice Department's Office of Legal Council. Senate Republicans balked, however, accusing the former ACLU lawyer of being too liberal.

The impasse extended longer than a year before Johnsen withdrew her name from consideration.

Julius Hobson, former lobbyist for the American Medical Association, offered another reason why the White House might have chosen the recess appointment route: It protects vulnerable Democrats — including Sen. Blanche Lincoln (D-Ark.), who's facing a tough re-election bid in a conservative state — from having to weigh in on the controversial figure of Berwick.

"This way," said Hobson, now senior policy analyst at Polsinelli Shughart, "nobody gets forced to vote on it."

Julian Pecquet contributed.

This post was updated at 5:31 p.m.

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