Former senators eying Medicaid referendum that could delay any expansion

Two GOP rivals of Gov. Jan Brewer who were frequently on the receiving end of her veto stamp are hoping to return the favor.

Former Sens. Frank Antenori and Ron Gould are organizing a citizen referendum drive, dubbed the Unified Republican Alliance of Principled Conservatives, to put the governor’s Medicaid expansion plan up for a vote. If the Legislature approves the expansion of the Arizona Health Care Cost Containment System, the former lawmakers want to put it on the 2014 ballot in the hopes of convincing voters to reject Brewer’s proposal.

While the ultimate goal is to defeat Brewer’s plan, Antenori said just getting Medicaid expansion on the ballot will be a victory, even if the voters approve it, because it will turn up the heat on Republicans who supported Brewer’s plan. But for Antenori and Gould, who frequently clashed with Brewer during their time in the Legislature, there’s an added bonus.

“The other beauty of this is the guys who have got the most vetoes from this governor finally get to veto one of her bills. The two record holders for the most vetoes, we get to veto the governor. This doesn’t happen every day. Talk about karma. Karma, karma, karma. She loves vetoing me and Ron Gould’s stuff, this is karma coming back to haunt her. She should have been nicer to me and Ron,” said Antenori, a Tucson Republican.

In order to refer the Medicaid expansion to the ballot, Antenori and Gould will have to collect 86,405 signatures in the first 90 days after the Legislature adjourns. The number is equal to five percent of the votes cast in the last gubernatorial election. If they collect enough signatures to put it on the ballot, Medicaid expansion would be barred from going into effect unless voters approve it in November 2014.

Collecting signatures for ballot measures is an expensive proposition. But Antenori and Gould believe they can do it with unpaid volunteers. Antenori said they’ve gotten commitments from about 300 Republican precinct committeemen to collect signatures, and expects to ultimately have about 2,000 people on board.

Gould, a Lake Havasu City Republican, said it will be easy to get precinct committeemen on board because of the fierce opposition among grassroots conservatives to Brewer’s plan and the Affordable Care Act, known to opponents as Obamacare.

“Essentially, conservatives feel abandoned. We feel abandoned by the governor and we feel abandoned by Congress,” said Gould, who serves as chairman of the Mohave County Republican Party. “So I think this will give folks an outlet for their energy.”

Gould said he expects national conservative groups to pump money into the campaign if he and Antenori’s effort puts Medicaid expansion on the ballot.

If the former senators are successful, it could throw AHCCCS into disarray. The agency’s current agreement with the federal government, which provides significant federal funding, expires at the end of 2013. The U.S. Centers for Medicare and Medicaid Services (CMS) has indicated that it won’t renew the agreement, under which AHCCCS has frozen enrollment for childless adults.

That could leave AHCCCS without the ability to either continue its status quo or expand until after the 2014 election. The state could be left either funding childless adult coverage itself at the cost of several hundred million dollars, or temporarily eliminating the coverage altogether.

“I think everyone’s aware of the challenges that would be involved in that,” Brewer spokesman Matthew Benson said.

But the Ninth Floor believes it has found a legal shield to any potential referendum. Benson cited a 1992 Arizona Court of Appeals case in which the court ruled that a half-cent sales tax increase approved by the Greenlee County Board of Supervisors was not subject to a referendum due to a provision in the Arizona Constitution exempting legislation passed “to provide appropriations for the support and maintenance of the Departments of the State and of State institutions.”

The court ruled that a tax measure is not subject to a referendum because it was passed in support of an appropriation.

“Appropriations are customarily thought of as bills allocating money to state departments and institutions for their operating expenses. Support is a broader term embracing both the acquisition and allocation of funds. Support cannot occur without money,” the ruling read.

Benson said the provisions of the Medicaid expansion plan are intertwined. Arizona must expand coverage to 133 percent of the federal poverty level up from 100 percent in order to get additional federal matching funds that will be used to pay for both new patients and preexisting AHCCCS coverage.

“They weighed whether the exemption applies only to appropriations or whether it applied more broadly,” he said. “That is the importance of this case, the Court of Appeals finding that there is a broad test that should be employed when it comes to determining whether the exemption is in effect.”

Paul Bender, an Arizona State University law professor and expert on the Arizona Constitution, disagreed with the Governor’s Office’s analysis of the Greenlee County ruling.

Bender noted that the Court of Appeals said a sales tax passed to fund “existing county programs” was not subject to a referendum. Brewer’s plan, however, would create new coverage, in addition to funding preexisting AHCCCS coverage.

Though the hospital tax Brewer wants to implement to pay for the state’s share of expansion wouldn’t be subject to a referendum, Bender said, the actual expansion of AHCCCS coverage would be. Bender said he didn’t think that the entire program would be exempted on the grounds that it would also pay for a preexisting AHCCCS program.

“The new program part of it is clearly referable,” Bender said. “By adding … a tax to a program expansion, you can’t immunize the program expansion from a referendum.”

-Hank Stephenson contributed to this article.