and employers alike, costs continued to rise,56 and still a large segment of
the U.S. population was uninsured or underinsured.57 Senator Edward
(“Ted”) Kennedy, who was widely expected to be the Democratic nominee
for president in 1972, made UHC a central plank of his platform and
strongly advocated adoption of a single-payer national health insurance
(“NHI”) system.58 The Nixon Administration countered in 1971 with a
pluralistic, market-based NHI plan built on the existing framework of
private insurance and EBHI.59 Kennedy did not become the Democrats’
1972 presidential candidate, Nixon’s NHI proposal went nowhere,60 and
health care costs continued to rise.
Some larger employers, those who had a large enough number of
employees to constitute a sufficiently balanced risk pool, moved to self-insurance.61 With the assistance of a strong in-house HR staff or good
outside support, such employers could run their own health insurance
program at a lower cost.62 The Employee Retirement Income Security Act
56. See Christina H. Park, Prevalence of Employer Self-Insured Health Benefits:
National and State Variation, 57 MED. CARE RES. & REV. 340, 341 (2000) (discussing self-insurance as a way to combat the soaring cost of health care throughout the 1970s and
57. See Robin A. Cohen et al., Health Insurance Coverage Trends, 1959-2007:
Estimates from the National Health Interview Survey, 17 NATIONAL HEALTH STATISTICS
58. See Congressional Quarterly, Health Insurance: Hearings on New Proposals, 27
CONGRESSIONAL QUARTERLY ALMANAC, 92ND CONGRESS 1ST SESSION 541-544 (saying
Kennedy proposed the Kennedy-Griffiths bill in Jan. 1971).
59. Nixon’s Comprehensive Health Insurance Plan (CHIP) was drafted and circulated
as a proposal from 1971 on but was not formally introduced before Congress until February
6, 1974. See President Richard Nixon, Special Message to the Congress Proposing a
Comprehensive Health Insurance Plan (transcript available at http://
www.presidency.ucsb.edu/ws/index.php?pid=4337). See also STUART ALTMAN & DAVID
SHACTMAN, POWER, POLITICS AND UNIVERSAL HEALTH CARE: THE INSIDE STORY OF A
CENTURY-LONG BATTLE 42 (2011); Nixon insisted on an employer mandate under which
employers would purchase health insurance coverage for their employees from private
insurers; however, Kennedy was unwilling to support this and the proposal failed. Id. at 55.
See also Michael Meyer, Nixon and the PPACA, 22 ANNALS OF HEALTH L ADVANCE
DIRECTIVE 33, 37 (2012).
60. Note, however, that the basic architecture of the Nixon proposal, maintaining EBHI
and achieving UHC through employer-provided coverage, private insurance, and managed
competition carried forward as a foundational part of the ACA. See, .e.g., Robert Reich,
“Nixon Proposed Today’s Affordable Care Act” (2013), http://www.salong.com/2013/10/29/
nixon_proposed_todays_affordable_care_act_partner/; see also, http://www.forbes.com/
61. See Timothy Stoltzfus Jost & Mark A. Hall, Self-Insurance for Small Employers
under the Affordable Care Act: Federal and State Regulatory Options, 68 N. Y.U. ANN.
SURV. AM. L. 539, 540 (2013) (stating that, generally, self-insured plans are found among
large employers, since small groups are less capable of bearing risks associated with self-insured plans).
62. They still used health insurers to handle claims on an “administrative services only”