The White House had hoped to be reaping the political benefits of the new prescription-drug benefit, but the controversy over its passage won't go away.
It was given new life this week when the nonpartisan and respected Congressional Research Service found that the Bush administration probably violated federal law by ordering Medicare's chief actuary to withhold politically damaging cost estimates from Congress.
The benefit was billed as costing $395 billion — usually rounded off to $400 billion in press accounts — over 10 years. And some fiscal conservatives were balking at an expensive new entitlement the government would have to pay for by borrowing.
However, in a wee-hours vote last November, after the House leadership brushed aside the rules to hold the voting open while the whips twisted arms, the bill squeaked through to passage.
Then it turned out that the administration had suppressed estimates by chief actuary Richard Foster, a career civil servant, that the true cost of the drug benefit would be between $500 billion and $600 billion. Much later, in March, the administration conceded that the new law would likely cost about $530 billion. It is a safe bet that if those figures had been known at the time the bill would not have passed.
Adding to the controversy was Foster's assertion that his then-boss, Medicare administrator Thomas Scully, had threatened to fire him if he communicated his estimates to Congress.
Republican conservatives were outraged for fiscal reasons, and Democrats, who supported the benefit in any case, were outraged for political reasons. And many lawmakers were simmering simply because they had been misled.
The CRS noted that withholding the information violated a number of statutes and court decisions. "Such 'gag orders' have been expressly prohibited by federal law since 1912," wrote CRS attorney Jack Maskell.
It is doubtful anyone will be prosecuted, but the CRS report means it will be harder for the administration and the House Republican leadership to make the whole mess go away.
House Ways and Means Committee Chairman Bill Thomas, R-Calif., has resisted Democrats' calls to subpoena Scully and White House health-care adviser Douglas Badger. He said he would issue subpoenas if there were evidence that laws were broken. Now he has it.
As the CRS report put it, "Congress' right to receive truthful information from federal agencies to assist in its legislative functions is clear and unassailable." A vital principle is at stake here, and Congress should forcefully reassert it.