State Attorney General Rob McKenna is either a terrible lawyer or an opportunistic, dishonest, political hack — or both. And, last week, the fact that he is one or both of these things helped him greatly in his bid to become Washington’s next governor.
McKenna, you may recall, was one of the initial group of Republican state attorneys general (AG) launched the politically motivated lawsuit to overturn the Affordable Care Act (ACA), aka “ObamaCare,” the lawsuit decided by the U.S. Supreme Court last week.
At the time, McKenna’s lawsuit was widely considered frivolous by legal experts, many of whom underestimated the willingness of Republican-appointed federal judges to ignore precedent in favor of ideology. By the time the lawsuit got to the Supreme Court two years later, few people were still so sanguine.
In using taxpayer money to join the lawsuit on behalf of Washington state and against their wishes, McKenna set off howls of outrage from the governor, state legislative leaders, the state’s largely Democratic congressional delegation and a lot of ordinary citizens in a state that voted overwhelmingly for Barack Obama in 2008.
McKenna defended himself at the time by explaining that he objected to and wanted to overturn only the “individual mandate” portion of the ACA, not the entire law. Yet, at every stage, McKenna and the other AGs have argued in their motions to overturn the whole thing. (A lawsuit against McKenna that asked that he be forced to reconcile his public and legal positions was denied on the grounds that it’s legal for politicians to lie.)
McKenna, in other words, used his position and our money to argue to the U.S. Supreme Court that the citizens of Washington state believed the entire health-care-reform bill was unconstitutional. That’s also dishonest: Polls say a majority of Washingtonians support the law, and of those that don’t, a significant number oppose it because they think it doesn’t go far enough.
To the surprise of many observers, only four of the five conservative Supreme Court justices ruled in a nakedly ideological way, and so the bulk of the ACA was, narrowly, upheld. If you’re keeping score, that suggests that either McKenna’s understanding of the law wasn’t very good, or that he serially misrepresented both his reasons for joining the lawsuit and his moral authority for doing so — or both.
Better than the alternative
Why does that help McKenna’s effort to become governor? Because, from his personal viewpoint, the alternative would have been far worse. What if the law had been thrown out? The PI.com’s Joel Connelly listed some of the fallout that candidate McKenna would have owned:
•Some 52,000 young people in our state would have lost the ability to stay on their parents’ health insurance until age 26.
•Families seeking insurance could be then be denied coverage due to a child’s pre-existing condition.
•Insurers could reinstate lifetime limits on spending for an individual’s health care.
•More than 100,000 small busiesses in Washington state would have lost eligibility for a federal small-business tax credit designed to help provide employees with health care.
•The ACA’s “Health Benefit Exchange” co-ops, through which at least 800,000 Washingtonians would be able to get insurance they don’t now have, would never have gotten off the ground.
If I’m Rob McKenna, I would much rather fight perceptions of being a lousy lawyer (every lawyer loses some cases) or a political hack than to need to tell a parent why their adult daughter can’t get insurance, or to explain to a cancer patient why it’s important that they be “free” to die because they can’t be insured and can’t afford the treatments, or to tell a small-business owner why they shouldn’t be able to keep their best employees when they need coverage.
Jay Inslee, his political opponent for state governorship, would have been telling such stories nonstop until November. He still should, because that’s what McKenna wanted to have happen, but it won’t have the same impact.
Instead, McKenna will get credit with his base for having fought the losing battle, and he’ll work hard with more moderate audiences to pretend he never said or did any of those things he said and did.
No matter how hard Inslee hammers McKenna for what he wanted to do, the fact will remain that, unless Mitt Romney becomes president and Republicans win both houses of Congress, the ACA will stand; the most McKenna could do to monkey-wrench it is to refuse to comply with the ACA’s expansion of state Medicaid systems.
And nobody will much care about that, because that only affects poor people. Politically speaking, nobody cares much about them.
Clear bipartisanship
Nonetheless, McKenna’s central role in the lawsuit that nearly threw the American health-care system into chaos deserves to be remembered. It puts the lie to his carefully cultivated image as a “moderate” Republican who doesn’t play political games.
To the extent moderate Republicans exist any longer, McKenna isn’t one and never had been. Given the ACA lawsuit, his refusal to represent Democratic Lands Commissioner Peter Goldmark in court and numerous other clearly partisan acts as the state’s attorney general, McKenna seems quite capable as governor of adopting policies most Washingtonians don’t want.
McKenna has repeatedly insisted that, in his words, he’s “not Scott Walker,” the Wisconsin governor whose reactionary priorities tore his state apart. But if there’s anything McKenna’s anti-health-care-reform lawsuit should teach us, it’s that he should not be taken at his word — on anything.
GEOV PARRISH is cofounder of Eat the State! He also reviews news of the week on “Mind Over Matters” on KEXP 90.3 FM.
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