It was the middle of 2016, and Obamacare supporters were stuck.
Nineteen states were refusing to participate in the health law’s Medicaid expansion, which provides health coverage to low-income Americans. States run by Democrats eagerly signed up for the program, lured in part by generous federal funding.
Most Republican governors and legislatures had little interest in expanding the reach of the Affordable Care Act, and declined the money.
“People were frustrated,” said Chris Jennings, a longtime health care strategist who served in the Clinton and Obama administrations. “We were left with either doing nothing or finding a new solution. And then these guys came up with this referendum strategy.”
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“These guys” are the Fairness Project, a nonprofit created by a California health workers union. Their strategy: ask voters to expand Medicaid with state ballot initiatives.
In a few years, the Fairness Project’s ballot campaigns have gone from an untested tactic to the main approach for expanding the Affordable Care Act’s reach. Five states have expanded Medicaid through ballot initiatives since President Donald Trump’s inauguration. A sixth, Virginia, did so after Democrats gained control of the state legislature.
These efforts have extended Medicaid eligibility to nearly 1 million low-income Americans living in states where governors or legislatures have opposed the program. “Some of us were a little skeptical at first,” said Jennings, who has since become an informal adviser to the Fairness Project. “We thought there would be extraordinary resources waged against them. But they’re taking on hard issues in hard states, and they’re a lot more successful than some of us can say.”
Missouri will vote on a Medicaid ballot initiative Tuesday. If passed, it would extend coverage to an estimated 217,000 people. Gov. Mike Parson, a Republican, opposes the ballot initiative and has argued that it will harm a state budget that is already under strain because of the pandemic.
The financial impact of Medicaid expansion is uncertain and could range from $200 million in extra costs to $1 billion in additional annual savings, according to an estimate prepared by the state’s auditor, Nicole Galloway, a Democrat who is running for governor in November.
The Fairness Project grew out of a memo that a California union leader wrote in 2014, warning that steep declines in union membership could leave workers unprotected with fewer benefits.
“Unionism is in decline, and there is no end to that in sight,” Dave Regan, president of United Healthcare Workers West, said recently. His group represents 95,000 hospital workers in California. “But we still need to give regular people the opportunity to have positive change in their lives.”
In his memo, Regan proposed creating a nonprofit that would use the ballot initiative process to secure policies that would benefit workers, like increased access to health coverage and a higher minimum wage.
“Ballots are an opportunity to put a question, in its undiluted form, in front of millions of people,” he said. “As opposed to traditional legislative work, where things get watered down to get out of committee, you end up with what you actually want when you use the ballot.”
Not all of his union members were enthusiastic about the project. Some questioned why dues paid in California would be spent running campaigns in the Midwest. But the initiative had enough support that the United Healthcare Workers West executive board approved its funding, and has continued to do so each year since.
The Fairness Project began in 2016, starting with ballot initiative campaigns for increasing the minimum wage in California and Maine. The next year, it returned to Maine to support the country’s first Medicaid expansion referendum.
The Maine legislature had already passed bills to expand Medicaid five times, only to have each vetoed by Gov. Paul LePage.
“We kept falling a vote or two shy of overriding the governor’s veto,” said Robyn Merrill, executive director of Maine Equal Justice. “It felt like this was a huge problem that many wanted to fix, and that we had to find a way to make it happen.”
Merrill’s group quickly gathered enough signatures to secure a spot on the 2017 ballot. The Fairness Project joined the campaign shortly afterward, providing financial support for advertising and data about which voters to target and how to reach them.
“The way we ensure that we win is by running these campaigns like gubernatorial or Senate races,” said Jonathan Schleifer, a former congressional staffer who now leads the Fairness Project. “They have modeling, they have research, they have a diverse coalition; we have that, too.”
The Maine campaign succeeded, with 59% of voters supporting Medicaid expansion. That caught the attention of supporters in other states, who were similarly struggling to enact the program.
“I got in touch with the Fairness Project and basically asked: What would it take to have you come to Nebraska?” said state Sen. Adam Morfeld, who had spent years introducing legislation to create the program. “They immediately did a poll in December 2017, and saw there was a path to victory.”
In 2018, the Fairness Project ran successful Medicaid expansion campaigns in Nebraska, Utah and Idaho. A fourth ballot campaign, to continue funding Montana’s existing Medicaid expansion, failed, but the state legislature ultimately stepped in to pay for the program.
The Fairness Project does not disclose a list of its donors, and declined to provide one to The New York Times (Schleifer did identify United Healthcare Workers West as the group’s “most significant” supporter). This lack of transparency has led to some criticism of the group because it makes it harder for voters to know who is supporting and organizing the ballot measures.
The ballot initiative method has its drawbacks. After the initiatives pass, governors often delay, alter or outright refuse implementation. Some have even changed the ballot initiative process, making it harder to secure spots, after seeing a Medicaid ballot succeed.
LePage of Maine said he “would go to jail” before expanding Medicaid. The program did not start enrolling members until the state elected a new governor, Janet Mills, a Democrat, in 2018.
Utah’s government added a provision that Medicaid enrollees had to work, volunteer or search for work to secure coverage, a restriction not in the original ballot.
Nebraska began enrolling patients into its Medicaid expansion only this month, nearly two years after the ballot passed. It also added a work requirement, although both it and Utah have suspended those rules during the pandemic.
“Even after the people pass it, they still fight it,” Morfeld said.
Such post-ballot resistance prompted the Fairness Project to revise its strategy for its 2020 Medicaid campaign in Oklahoma. The ballot asked voters to approve a constitutional amendment, which could be altered only by another statewide referendum. The referendum passed in June. The Fairness Project is employing the same method in Missouri.
A constitutional ballot typically requires more work and stronger support. In Oklahoma, for example, ballot organizers can pursue statutory or constitutional initiatives. The constitutional initiatives have more staying power, but also require gathering twice as many signatures.
Not all states allow ballot initiatives. Of the 12 remaining states that have not expanded Medicaid (excluding Missouri, where voters will decide Tuesday), only four have referendum processes: Florida, Mississippi, South Dakota and Wyoming.
Florida, which has 2.7 million uninsured residents, is the Fairness Project’s next major focus.
“We’ve been working in Florida for about two years now,” Schleifer said. “It’s such a massive undertaking, but the number impacted would be the same as everywhere else combined, close to 800,000.”
He has targeted 2022 as the earliest date the Fairness Project could run a campaign there.
“One of the things we’ve learned is there is a huge benefit to building a long runway,” he said. “You need a substantial campaign entity, especially in Florida where every region is like its own state. We need the grassroots infrastructure, and we need to disrupt the messaging and all that has been invested in attacking this policy.”