Early into the 114th Congress, multiple bills
have already been introduced that would repeal the insurance industry’s limited
antitrust exemption granted by the McCarran-Ferguson Act (15 USC 1011 et seq.).
On January 6, Representative John Conyers (D-Mich.)
introduced the “Health Insurance Industry Antitrust Enforcement Act of 2015,”
(H.R. 99). The legislation would amend the McCarran-Ferguson Act, which
currently provides the insurance industry with an exemption from the federal
antitrust laws for conduct that is “the business of insurance,” is “subject to
state regulation,” and does not constitute “an act of boycott, coercion or
intimidation,” (15 USC 1013), by removing the exemption for health insurers and
medical malpractice insurers. Notably, the bill would not eliminate the
exemption with respect to other lines of insurance, and is similar to McCarran
repeal bills that Representative Conyers has introduced in prior sessions of
Congress. Representative Conyers has previously stated that his bill would “end
the mistake Congress made in 1945 when it added an antitrust exemption for
insurance companies.”
Subsequently, on January 22, Representative Paul Gosar
(R-Ariz.), who was a practicing dentist for many years, introduced similar
McCarran repeal legislation, entitled the “Competitive Health Insurance Reform
Act of 2015” (H.R. 494). Representative Gosar’s bill would only eliminate the
exemption as to health insurers. In introducing his legislation, Representative
Gosar stated that “Since the passage of Obamacare, the health insurance market
has expanded into one of the least transparent and most anti-competitive
industries in the United States,” and that there is “no reason in law, policy
or logic for the insurance industry to have a special exemption” from the
antitrust laws.
Both H.R. 99 and H.R. 494 have been referred to the House
Judiciary Committee for further action. Whether these bills will gain traction
this Congress remains to be seen, but the fact that the bill has supporters on
both sides of the aisle certainly increases the chances that the legislation
will, at a minimum, be considered by the House Judiciary Committee (which
failed to take up similar legislation in the 113th Congress).