Rewriting History (and the Affordable Care Act!)
by John Lawrence
Deep in the bowels of the Capitol, Republican staff members (and perhaps some Members and outside policy wonks) are furiously fashioning a brand new national health bill that House leaders pledge will be passed by the end of March. It is an unconventional way to draft legislation that, if enacted, would not only unravel health insurance coverage for millions who have gained it under the Affordable Care Act (ACA) of 2010, but would have sweeping impacts on an industry that affects one-sixth of the nation’s economy.
However Republican leaders spin this secretive process over the coming weeks, there is no question that such “legislating in the dark,” as an account of the 2009 stimulus legislation termed the process, is the wrong way to approach so contentious and significant an issue as health policy.
Over the past several days, several legislators of both parties have endeavored to secure a copy of the much-vaunted “replace” component of the Republicans’ “repeal and replace” prescription for ACA. GOP Sen. Rand Paul and Democratic Whip Rep. Steny Hoyer both conducted futile missions to find the furtive bill drafters. Instead, Hoyer was informed by Majority Leader Kevin McCarthy, “You can look it up when we mark it up.”
How’s that? Does McCarthy mean to say that House Democrats will not see a bill that impacts millions of their constituents until the committees “mark it up”? For those who have not spent their lives in and around legislators, “mark up” is the amendatory process conducted by committees on legislation before it is passed (reported) and sent to the full House or Senate membership “on the floor” for amendment (sometimes) and final passage (usually). It is difficult to draft amendments to legislation you have not seen. It is even more difficult to vote on legislation that has never been the subject of scrutiny – not by the minority, by the press, by affected constituents, by the health care industry. Even the basic parameters of the law, let alone how much it would cost and whether it would deprive Americans of affordable care they posses under ACA, are unknown.
Speaker Ryan seems to disagree with his own Majority Leader, pledging that “This bill will go through the committee process. It will go under regular order.” But Ryan was unclear whether “regular order” would include open (or any) hearings, a full vetting of the bill, and unrestricted mark-ups – all processes used en route to passage of the ACA.
In an indication of how Ryan and Republicans are attempting to alter history, the Speaker asserted that regular order was the “opposite of what Democrats did in 2009.” But Ryan has his history wrong, and such assertions are little more than an effort to revise the record to impugn Democrats and sanction secret lawmaking.
House Democrats held hearings on the health care proposal in 2009 in three committees, providing an open forum to hear from an exhaustive list of supporters and critics. In the Senate, the hearings were among the longest on record, causing much consternation among House Members who feared the same kind of effort to run out the clock that had doomed a child health bill in 2008. Mark-ups occurred after a thorough public airing, and contrary to the revisionist versions of the ACA legislative process, many Republican amendments were accepted in an effort to secure bipartisan support that ultimately proved elusive. Republicans might not have liked the outcome – although the ACA, as is widely known, is based more on the Heritage Foundation/Mitt Romney Massachusetts model than the single payer/Medicare expansion many Democrats would have vastly preferred – but they were not denied an ability to review, discuss or amend the underlying bills.
Critics often point to Speaker Nancy Pelosi’s much ballyhooed statement that she could not know the provisions of the ACA until it was passed as evidence of the secret nature of the bill on which Members were compelled to vote. But this history, too, has been cynically misrepresented by those seeking to ridicule Pelosi and taint the ACA. Pelosi’s statement merely acknowledged that the final version of the bill could not be known until the House and Senate had completed their revisions to each other’s versions of the bills. For the uninitiated, it is called “the legislative process,” and Pelosi’s much maligned statement merely acknowledged the back-and-forth inherent in reaching a complex measure’s final provisions.
ACA critics certainly have every right to criticize the law’s impact, although they would do well also to acknowledge how severely their obstructive efforts have complicated implementation. Complex statutes always require amendment in the years following enactment, but instead of a good faith effort to address the inevitable problems in implementing a nationwide health law, Republicans have spent years wasting time on over four dozen futile efforts to repeal it with no idea how to substitute a program that matches ACA’s impressive achievements. Now, with majorities in the House and Senate and a Republican President, they have their chance, not as a symbolic sideshow but as substantive policy, and hopefully in the light of day and using regular order.