Missouri voters learned last week that just because they vote for something, that doesn’t mean they’ll have the last word.

When Republicans on the House Budget Committee voted not to fund Medicaid expansion, they set up a confrontation that could last well beyond this year’s session.

They were following in the tradition of previous votes to undo, or at least circumvent, the will of the voters. Political and legal experts say that while the move could land the state in court, it may not prove to be politically risky because of the way those representatives’ districts are drawn.

In August, 53% of Missourians voted to alter Missouri’s constitution to expand Medicaid coverage to nearly 250,000 more Missourians. On Thursday, budget committee members who opposed expansion argued that it would take money needed in other areas and killed the spending plan.

If lawmakers in the House or Senate fail to add funding back into the budget, this would mean that on July 1, when the expansion takes effect, the funding which was allocated for about 1 million Medicaid participants would be stretched to cover 1.25 million Missourians. This would potentially widely limit the coverage and services participants are able to receive.

This isn’t the first time the Missouri legislature ignored or challenged the expressed will of voters. This type of behavior isn’t unique to Missouri, either. This power struggle between elected officials and voters is evident nationwide and takes many forms.

Not only can legislatures deny funding, but they can also introduce new proposals that undo decisions made by voters that they don’t agree with.

The House Special Committee on Small Business heard House Bill 726 on Tuesday night that would slow the state’s minimum wage increase plan that voters approved in 2018 with more than 62% of the vote. That bill, like the recommendation not to fund Medicaid expansion, was put forth by State Rep. Cody Smith, R-Carthage.

Mandate remains

Lawmakers’ opposition to Medicaid expansion could not undo the constitutional amendment’s mandate.

If the decision to withhold funding gets through both houses, “could it prevent that constitutional amendment that says we are going to have Medicaid extension July 1?” asked Sidney Watson, director of St. Louis University’s Center for Health Law Studies. “I think not.”

“They’re saying, ‘So, we’re just not going to appropriate the money, and then you’re not going to be able to do it.’ Well, that’s just not exactly the way ballot initiatives work.”

As some lawmakers noted in Thursday’s committee meeting, failing to fund the program does not violate the amendment because the amendment does not mandate that lawmakers fund the change. Despite the issues that may arise, said Watson, lawmakers are technically within their legal capacity to provide no extra Medicaid funding this year.

Other legislation proposed by Smith could more effectively reverse the August vote. He has proposed House Joint Resolution 64, which states any assistance provided under Medicaid would be subject to lawmakers’ appropriations, and that no provisions in the Constitution would require providing such benefits in absence of funding.

The implications of lawmakers ignoring the will of the voters are troubling, according to MU political scientist Peverill Squire.

“When a legislature cavalierly dismisses the expressed policy preference of a voting majority, it raises concerns about their commitment to democratic principles,” Squire said in an email.

Politically, most Republicans don’t have to worry about backlash from going against what voters asked for, Squire said.

This is true. Most Republicans statewide are protected by districts that were drawn to include large conservative majorities and won’t face a competitive primary or general election.

“The only Republicans who may find overriding the apparent will of the majority to be problematic are those members holding seats in suburban areas where support for Medicaid expansion is probably greater than it is in more rural districts,” Squire said.

Now that Medicaid expansion is in the Missouri Constitution, lawmakers have to make it happen, experts say. If lawmakers continue to refuse to appropriate expansion funds, the battle will move from the legislature to the courtroom.

In cases brought about by these funding issues, courts likely wouldn’t rule in favor of the state, said Mike Wolff, former Missouri Supreme Court Chief Justice and current SLU law professor.

According to Squire, the courts would tend to avoid ruling in a way that would, in effect, empower lawmakers’ ability to obstruct constitutional amendments.

Many paths

The legal future of this potential funding decision could take any one of many paths.

According to a couple of legal scholars, although it’s nearly certain failing to adequately fund the program will bring on legal challenges, it’s unlikely the state would be sued on constitutional grounds.

“If they were thinking this all the way through, they’d know there will certainly be a lawsuit,” said Elad Gross, a civil rights and constitutional lawyer.

These lawsuits will most likely relate to the effect of drastically underfunding Medicaid as a whole, according to Watson.

“In return for participating in Medicaid, the state gets a lot of federal money, and in return for taking that federal money, it has to cover certain people and provide certain services,” said Watson. “And so it doesn’t have this choice of appropriating the money or not appropriating the money, it’s simply just got to come up with the money. When states underfund Medicaid in this way, they open themselves up to litigation.”

Gross said the underfunding could also be taken as an issue of noncompliance with requirements of the program as laid out in our state statutes.

Though, according to Gross, there is a fair amount of leeway in the state’s Medicaid plan, there is still a chance the funding issue would affect service in such a way that the state would violate some mandate within its own law.

For a challenge on constitutional grounds, lawmakers would have to actually stop the expansion of eligibility or violate the constitutional amendment in some way.

Any effort to truly obstruct the eligibility expansion would have to come from the executive branch and the Missouri Department of Social Services, which runs the MO HealthNet program, which administers Medicaid.

Tim McBride, a health policy analyst at Washington University in St. Louis, said on the governor’s end, the plan is on track, noting the administration has already met planning deadlines and the governor has publicly stated an intent to stand by the will of the people.

Wolff said because of the clear legal threat, he thinks it’s more likely the funding will be put back into the budget at some point.

“A lot of people get excited, but planning committees do things,” said Wolff. “There’s several weeks left in the session. I’d say wait and see. Don’t panic yet.”

Smith released a statement on Twitter on Friday evening introducing new legislation that addresses how the state funding that would have gone toward Medicaid expansion should be spent. The money would go toward seniors, mental health programs, public defenders and other programs.

McBride said that with so many lawmakers discontent with the outcome of the August vote, the defunding decision isn’t unexpected.

“The Medicaid expansion went forward with the voters voting on it, but the legislature didn’t vote on it,” said McBride. “So this was their chance to vote on it. So now they can go back and say, ‘Well, I voted on it and here’s how I voted.’ They’ve registered their vote, but how they vote might not really impact whether it happens or not.”

  • Public Life reporter, fall 2020. Studying investigative journalism. Reach me at gczd42@mail.missouri.edu, or in the newsroom at 882-5720

  • Mark Horvit is the state government editor. Call me at 817-726-1621 with story ideas, tips or complaints.

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