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Despite Noise Over McCarran Repeal, Enactment Is Unlikely

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For those insurance industry people old enough but still capable of remembering where they were when told that Elvis Presley had died, one of the fascinating parts of the whole experience was his subsequent sightings.

The craze has since died down, but for several years after his death in August of 1977, reports of his sightings across the world were rampant. This was especially so during the months of January, when he was born, and August, when he died.

So it is with the continual reports that the Senate Judiciary Committee will soon mark up legislation repealing the McCarran-Ferguson Act and granting oversight of such hot button issues as life insurance sales practices to the Federal Trade Commission.

The latter is a particular sore point with life agents, who believe prior scrutiny of their practices was Draconian and constituted overreaching.

The latest on this story is that some industry trade groups believe the Senate Judiciary Committee is preparing to deal with such legislation in September.

The rumors of pending action are still strong despite official denials from powerful elements in Congress. Specifically, the minority staff of the Senate Judiciary Committee with Sen. Arlen Specter, R-Pa., ranking member of the committee, denied such plans, and the majority staff wouldn’t comment. Moreover, in the House, the staff of the House Judiciary Committee said action on such legislation is not on their radar screen.

Currently, the insurance industry is the usual suspect for a host of the nation’s ills. Indeed, Barack Obama just recently included the insurance industry as part of the nation’s Evil Empire, along with the pharmaceutical and oil industries. Was it just coincidence that a few days later polls showed him losing ground to Hillary in the race for the Democratic presidential nomination in 2008?

For sure, many powerful senators are mad at the industry. For example, Sen. Specter is angry at insurers for the role they played in waylaying the asbestos legislation the senator had personally spent hundreds of hours drafting over an 18-month period.

And Sen. Patrick Leahy, D-Vt., chairman of the committee, harbors dislike of the industry because of what he believes are excessively high rates for medical malpractice insurance.

Sen. Trent Lott, R-Miss., is a new recruit; a product of his being a charter member of the Slab Club, those members of Congress (MOCs) who felt wronged when the industry didn’t reimburse them instantly for the loss of homes swept away by Hurricane Katina.

And Senate Majority Leader Harry Reid, D-Nev., is an avid supporter of the plaintiff lawyer’s industry, as is Sen. Richard Durbin, D-Ill., another member of both the Senate majority leadership and the Judiciary Committee.

As a result, is there a threat that McCarran-Ferguson repeal–with FTC oversight the piece de resistance–will be reported out by the Senate Judiciary Committee this year or next? The answer is “Yes,” there is a threat.

But, enactment of such legislation is another story.

As one industry lobbyist put it, “it will be hard to get to the finish line with such legislation.” Moreover, the lobbyist said, in stating an industry consensus, such legislation currently lacks the 60 votes needed to get through the Senate.

“Yes, the votes in theory exist to report out such legislation from the Senate Judiciary Committee,” the lobbyist said, but, practically, he doubts Reid will force Democrats on the committee “to walk the plank” to support such legislation, especially since some of these members attempt to get along with the insurance industry on many issues and aren’t looking to pick a political fight on an issue not likely to be enacted.

Moreover, with little interest in the House for action on such legislation, the lobbyist said, there is no rational reason for the Senate Democratic leadership to force the issue at this time.

At the same time, action in September is out with MOCs facing a huge backlog of must-do and vexing issues when they return and few legislative days to deal with them because of religious holidays and the difficulty of starting up again after a month’s break.

There is a very credible school of thought among industry lobbyists that some trade groups are fueling the flames because they are aware that outside of the few senators who have signed on to the legislation few other senators understand the complexities of McCarran-Ferguson and have no interest in stirring up waters they may not be able to easily calm.

These cynics contend that with the high hurdles associated with repealing McCarran and FTC oversight, why not create the specter of potential repeal? Then, if nothing happens, you can take credit, and, in the process, perhaps earn yourself a nice bonus from grateful members of your trade group.

But, these people say, stirring up the flames could backfire. As one lobbyist noted, “every time you ‘raise the specter’ of repeal, you make the point of Sens. Leahy and Specter that there are bad industry practices out there that need correcting.”

In other words, the lobbyist explains, whenever concerns are voiced about onerous federal regulation, an MOC is thinking, “What’s wrong with the FTC going after the insurance industry, anyway? They can go after everyone else, can’t they?”


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