For the past several weeks, Senate Republicans have taken a highly secretive approach to crafting their plan to repeal and replace the Affordable Care Act, with a group of 13 Republican senators meeting behind closed doors to negotiate a new policy. Senate Republicans have not held any committee hearings or meetings, and they do not plan to. A vote on the as-yet-unseen bill could take place next week, with little time for senators or the public to review the legislation.
Mitch McConnell and his party have taken a lot of flak for their secretive approach. Even some Republican senators have grumbled about the process. It has been labeled unprecedented in modern American lawmaking.
However, secretive lawmaking is not new. It’s not unusual for lawmakers to draft legislation behind the scenes. It’s not unusual for Congress to bypass traditional steps of the legislative process. In my recent book, Legislating in the Dark, I show that on important and potentially controversial legislative proposals, congressional leaders frequently work in secrecy, even keeping their own party’s members in the dark about the specifics. Leaders’ abilities to restrict and manipulate other lawmakers’ access to information constitutes one of their most important sources of influence. It helps leaders manage the legislative process and make it harder for the other party and opponents outside of Congress to raise specific objections and derail a bill.
Behind-the-scenes approaches have been used on a number of important legislative efforts in recent years, including the 2009 economic stimulus bill, the 2010 reconciliation bill passed alongside the Affordable Care Act, the “fiscal cliff” bill passed in late 2012, the repeal of the long-maligned Medicare Sustainable Growth Rate formula in 2015, and the widely lauded, bipartisan 21st Century Cures Act passed in December 2016.
McConnell moved the development of the Senate’s health care bill behind closed doors because it gives his party its best chance at legislative success. On a controversial and contentious topic like health care reform, any attempt to negotiate in the open would almost certainly fail, and any leaks about unpopular-sounding ideas, even those that do not make the final cut, could derail the entire effort before Republican constituencies and groups can hear about the full outline of the bill, or parts of it that they may like. In keeping things quiet, McConnell not only ensures his negotiators stay on task but also gives himself the opportunity to frame and sell the final bill to his party and its voters, and then move it quickly toward passage while he still has them all on board.
Objections to this approach abound, with most arguing it is anti-deliberative and lamenting the lack of public bill drafting sessions and committee hearings featuring expert testimony about the bill. But the deliberative nature of these traditional processes is overstated. Congress almost never drafts bills in the open. Committee “markups” typically take place only after a bill has been drafted and negotiated in private. Especially on major legislation, these markups are usually highly scripted affairs, with most amendments either prenegotiated or rejected by the committee. The days of freewheeling committee meetings are long gone.
Committee hearings are also typically scripted affairs, especially on partisan legislation, with the committee majority ensuring most, if not all, of the witnesses called to testify support what the majority wants to do. In fact, the majority often conducts committee meetings for the explicit purpose of building a paper trail of testimony supporting the bill.
Congress started moving toward behind-the-scenes approaches to lawmaking in the 1980s because traditional approaches were not working. Open processes can work if all or most participants are actually interested in developing a bill they can support, but not everyone negotiates in good faith. Lawmakers often oppose proposals made on the other side of the aisle not because they disagree on substance, but in order to make the other side look heartless, corrupt, and ineffectual. In today’s climate of intense two-party conflict, the opposition party — in this case, the Democrats — has strong political incentives to oppose and obstruct, just as the Republicans did with the Affordable Care Act in 2009 and 2010. If Republicans opened up the process, they would be inviting Democrats to do the same, and possibly derail the entire effort.
What is really different this time around is that McConnell sidestepped any pretense of using traditional processes. Rather than wait for a committee-led process to fail, and rather than holding mock committee markups in which nothing of substance gets marked up, McConnell cut to the chase and started off the Senate’s efforts with the behind-the-scenes approach that was probably inevitable. This is a little different, yes, but not dramatically so.
None of this is to suggest that secretive and behind-the-scenes approaches to legislating are costless, or that they do not have negative consequences. They probably polarize public opinion on Congress and the policies it is considering, and over the long run, political processes viewed as unfair or corrupt can undercut the public’s faith in its political institutions. The optics are terrible for Republicans, but McConnell must believe this gives his party its best chance at legislative success. Soon enough, we will find out if he is right.