Patrick Leahy made the official announcement that he would file an amendment to the Senate health care bill that would repeal the insurance industry’s anti-trust exemption.

Leahy introduced the Health Insurance Industry Antitrust Enforcement Act in September. Leahy chairs the Senate Judiciary Committee, which held a hearing about the legislation in October. The bill is cosponsored by 18 senators, including Senate Majority Leader Harry Reid (D-Nev.), who testified before the Judiciary Committee.

Leahy said, “This amendment will prohibit the most egregious anticompetitive conduct – price fixing, bid rigging and market allocations – conduct that harms consumers, raises health care costs, and for which there is no justification. Subjecting health and medical malpractice insurance providers to the antitrust laws will enable customers to feel confident that the price they are being quoted is the product of a fair marketplace.”

There’s been a tremendous amount of confusion about this amendment. Though many claim it was taken out of the bill late to appease Sen. Ben Nelson, in fact we knew that Harry Reid would only offer the repeal as an amendment as early as October 21. Reid said this in a press release on that date, offered with Pat Leahy and Chuck Schumer. It was not the result of any late-game favor to secure Nelson’s vote; it’s entirely possible that favor was offered earlier, however. The excuse given to me by Senate leadership aides has been that the repeal wasn’t in the Senate Finance Committee or HELP Committee bills, and therefore not available to Reid to insert, but several other elements not included in either bill made it in – the tax on elective cosmetic surgery, to name just one example.

So we’ve known this would be an amendment for some time. We also know that controversial amendments will need 60 votes, in all likelihood, according to Reid communications director Jim Manley. And given that we can expect Ben Nelson to vote against repealing the anti-trust exemption, and probably other Democrats as well, passing the amendment would require Republican support. None of the 18 co-sponsors on Leahy’s bill are Republicans.

The bill passed by the House already has a repeal in it, so this could come back in conference even if the amendment fails. The CBO has dismissed that repeal would have a large impact, although unleashing the Justice Department’s anti-trust division could help in policing the insurance industry.

Text of the (short) amendment can be found here.

UPDATE: Leahy tells Live Pulse that he thinks he has the votes to pass his amendment.

David Dayen

David Dayen