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Senate health care bill's two-front war: Policy and process

Louis Jacobson
By Louis Jacobson June 22, 2017

Now that a Senate health care bill has been unveiled, senators will be jousting over its provisions to repeal and replace the Affordable Care Act, President Barack Obama’s signature health care law.

But substantive policy differences aren’t the only front in this battle. Another one is the secretive process of putting together the Senate bill -- something that even some Republicans have criticized.

Here are six questions and answers about how the current Senate bill was put together, and the controversy surrounding it.

How did the Senate bill come together, and what happens to it now?

The bill made public on June 22 was negotiated behind closed doors by a subset of Republican senators. During that process, few details from the negotiations leaked out.

Now that the bill has been released, it will head straight to the Senate floor for debate. There, the GOP leadership intends to use a process called "reconciliation," which allows the chamber to pass a bill with 51 votes, rather than first having to dispense with potential filibusters, something that requires 60 votes. Given that Republicans have 52 Senate seats, reconciliation will be an easier legislative lift. There has been speculation that a vote could come before the July 4 congressional recess.

It’s easy to see why Republicans stand to benefit from a secret bill-writing effort followed by a blitzkrieg floor strategy: It gives Democrats less time to criticize the bill’s specifics and makes it harder for them to gin up public opposition.

"Even on bipartisan measures, House and Senate leaders prefer to manage all the bargaining behind closed doors," George Washington University political scientist Sarah Binder wrote recently. "Negotiating win-win deals requires secrecy. If information leaks out about the less popular parts of a deal before the various constituencies hear about the parts they want, the entire negotiation can blow up."

What are Democrats saying about the GOP’s "secret" bill-writing effort?

Of course, there’s a downside to the Republicans’ strategy: It opens them up to charges that they aren’t being open and transparent about a bill with far-reaching consequences for ordinary Americans.

"If the GOP continues to insist on ramming through a secret health care bill without any public input, they shouldn’t expect business as usual," tweeted Minority Leader Charles Schumer, D-N.Y., on June 20.

Senate Minority Leader Chuck Schumer, D-N.Y., responds to the release of the Republicans' health care bill on June 22, 2017. (AP/J. Scott Applewhite) 

Even some Republicans were critical of the bill-writing process.

"I think we should have debated it in open, in committee hearings, have both sides bringing in witnesses," said Sen. Rand Paul, R-Ky.

And in a video posted to his Facebook page, Sen. Mike Lee, R-Utah, complained that even though he was supposed to have had input in the bill-writing process as a member of a Senate Republican working group, "it’s apparently being written by a small handful of staffers for members of the Republican leadership in the Senate."

McConnell has defended his course of action.

Schumer "is somehow arguing that reconciliation is not an open process," McConnell said on the Senate floor on June 19. "It’s an open process. There are an unlimited number of amendments. First bill text is received, then a (Congressional Budget Office) score is issued. Members will have time to review both. After that, there is an open amendment process and robust debate. It’s the one type of amendment we have on the floor of the Senate that no one can prevent amendments on. Ultimately, at the end of the process, the Senate votes. That’s how reconciliation works."

The course McConnell outlines may provide Democrats with a significant opportunity to address the bill, but there’s no certainty, said Gregory Koger, a University of Miami political scientist. A lot depends on whether Democrats are shown the bill with enough lead time to formulate amendments, and whether McConnell doesn’t use a loophole to reduce the time for floor debate.

Have Republicans taken both sides of the transparency issue?

Democrats have sought to highlight the irony -- if not the hypocrisy -- of Republican pronouncements on transparency in writing major health care bills. And they have a point.

In 2009 and 2010, McConnell repeatedly took Democrats to task for flouting legislative norms. For instance:

Oct. 2, 2009: "We shouldn't try to do it in the dark. And whatever final bill is produced should be available to the American public and to the members of the Senate, certainly, for enough time to come to grips with it… And we are going to insist -- and the American people are going to insist -- that it be done in a transparent, a fair and open way."

Dec. 22, 2009: "Americans are right to be stunned — because this bill is a mess. And so was the process that was used to get it over the finish line. Americans are outraged by the last-minute, closed-door, sweetheart deals that were made to gain the slimmest margin for passage of a bill that’s about their health care."

Feb. 24, 2010: "Democrats on Capitol Hill are working behind the scenes on a plan aimed at jamming this massive health spending bill through Congress against the clear wishes of an unsuspecting public."

Other leading Republicans also criticized the Democratic bill-writing process in 2009 and 2010.

Then-Rep. Mike Pence, R-Ind. -- now the vice president -- tweeted, "It's simply wrong for legislation that'll affect 100% of the American people to be negotiated behind closed doors."

And then-Rep. Tom Price, R-Ga. -- now Trump’s Health and Human Services Secretary -- tweeted in 2010, "With Democrats discussing health care in secret, they're sacrificing the trust of the American people."

Academics who study Congress agreed that there’s no logical justification -- other than self-interest -- for McConnell and other Republicans criticizing secrecy in 2009 and indulging it in 2017.

"McConnell has no ground to stand on here," said Marquette University political scientist Philip Rocco. "It doesn’t take a political scientist to see that."

Did Democrats provide greater transparency back in 2009 and 2010?

Aspects of the Democratic process in 2009 and 2010 weren’t transparent and pushed the envelope of Senate procedure.

At crucial points, the Democrats used small, secret sessions in the office of then-Senate Majority Leader Harry Reid, D-Nev., to write portions of the Affordable Care Act. Key moments in the legislative process came during blizzards and holidays. And the Democrats quickly passed the final piece of legislation using the reconciliation process, without going through committee consideration. (An earlier part of the bill did pass with a 60-vote majority.)

But scholars of Congress say the procedures undertaken by today’s Republican majority have pushed the envelope even more than Democrats did.

A key difference: In crafting the Affordable Care Act, the Democrats held extensive committee hearings for the better part of a year, with markups that allowed Republicans opportunities to offer amendments. Republicans today are skipping the committee process entirely.

"The Democrats did make a long, slow effort to move their bill through regular order and to attract bipartisan support," he said. This year, Republicans aren’t only locking out Democrats -- they’re "also keeping most Republicans in the dark."

How unprecedented is the approach McConnell is taking?

The current Republican strategy may be described as the culmination of a long evolution toward a more partisan Senate. "Over three decades, the legislative process has become more frequently contorted for partisan purposes," said Steven S. Smith, a political scientist at Washington University in St. Louis.

Still, the secrecy of the bill-writing process this year has been pretty unusual.

"Before World War I, a handful of bills, tariff bills most notably, were negotiated in majority-party caucus meetings and then brought to the floor with an agreement of majority senators to fend off all minority amendments," Smith said.

More recent examples of closed-door negotiations and rapid enactment have included some budget legislation, such as an October 2015 budget deal, as well as the Wall Street bailout bill in 2008, which was taken up urgently because it was aimed at heading off a potential economic spiral, Koger said.

That said, Binder called aspects of McConnell’s health care bill process "highly unusual" and "far out of the norm." Others agreed, emphasizing that the bill in question is of unusual scope and impact.

"I cannot think of another example in which Congress seemed poised to deprive benefits from 23 million Americans and roll back consumer protections with a process that was similarly rushed and secret," Rocco said, referring to the Congressional Budget Office estimate that the House version of the bill would eventually lead to 23 million fewer Americans having insurance. "Even welfare reform in 1996, which resulted in significant deprivation of benefits, was the result of a process that included extensive hearings, bipartisan markup, stakeholder consultation, and bargaining between legislative and executive branches."

What happens if and when the Senate passes a bill?

If the Senate is able to pass a bill, there are two ways for the House and Senate to resolve differences over the measures they have passed.

One involves a "conference committee." Using this process, each chamber appoints a handful of negotiators to hammer out a common bill, which then is sent to both chambers for approval. If both chambers vote in favor, it goes to the president to be signed.

The other involves "amendments between the Houses." Like home sellers and buyers, the chambers send "proposals" back and forth without ever meeting in person; it ends when one chamber accepts the other's proposal. Once both chambers have approved it, the measure goes to the president.

How long could this take? If the Senate does pass the bill, either process could take "weeks, maybe into right before the August recess," Koger said.

And that’s if the House and Senate can agree at all.

Editor’s note: This article is an updated version of a story originally published June 20, 2017. Read the original version.

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Our Sources

Mitch McConnell, remarks at a press conference, Oct. 2, 2009

Mitch McConnell, "Reconciliation Talks Cloud Health Summit Purpose," Feb. 24, 2010

Mitch McConnell, "Americans Are Right to be Stunned, Republican Leader Says," Dec. 22, 2009

Mitch McConnell, Senate floor remarks, June 19, 2017

Mike Pence, tweet, Jan. 10, 2013

Charles Schumer, tweet, June 20, 2017

Sen. John McCain, tweet, Nov. 6, 2009

Congressional Research Service, "Amendments Between the Houses: Procedural Options and Effects," March 23, 2015

Washington Post Fact Checker, "Mitch McConnell on the health-care legislative process, 2010 vs. 2017," June 19, 2017

Washington Post, "History Lesson: How the Democrats pushed Obamacare through the Senate," June 22, 2017

Sarah Binder, "Yes, Mitch McConnell’s secretive lawmaking is really unusual — in these 4 ways," June 19, 2017

Washington Post, "Are Republicans leading the most secretive health-care bill process ever?" June 19, 2017

Roll Call, "McConnell Expects Health Care Draft By Thursday," June 20, 2017

NBC News, "Republicans Prepare for a Vote on Health Care Next Week," June 19, 2017

Associated Press, "Writing a bill in private not unusual," June 20, 2017

The Atlantic, "The Real Story of Obamacare's Birth," July 6, 2015

Indianapolis Star, "2010 Mike Pence tweet blasting Obamacare negotiations gets new life as Trumpcare moves closer," June 20, 2017

Washington Post, "Senate GOP leaders unveil health-care bill," June 22, 2017

The Hill, "Senate Republicans criticize own party’s healthcare process," June 22, 2017

PolitiFact, "Bernie Sanders tweet exaggerates lack of input in Senate health care bill," June 14, 2017

Email interview with Julia R. Azari, political scientist at Marquette University, June 20, 2017

Email interview with Steven S. Smith, political scientist at Washington University in St. Louis, June 20, 2017

Email interview with Gregory Koger, a University of Miami political scientist, June 20, 2017

Email interview with Philip Rocco, Marquette University political scientist, June 20, 2017

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Senate health care bill's two-front war: Policy and process