Senate Republicans have decided their plan to repeal and replace Obamacare wouldn’t fare well in the sun, and so they have shielded it from any public scrutiny.
The bill — its contents still a mystery — could be voted on in the coming weeks without any committee hearings, expert testimony, or public debate.
The House cut plenty of corners in passing the American Health Care Act. The bill was rushed through marathon late-night markup sessions, and the House voted to pass it before the Congressional Budget Office finished estimating what its effects might be. Still, there was a rowdy, if abbreviated, public debate, and the final bill was wildly unpopular with the public — and so Senate Majority Leader Mitch McConnell decided the Senate would skip the usual legislative process entirely.
Instead, a group of 13 senators met in private rooms and Senate Republicans talked health care at their secluded lunches while reporters waited for updates that were usually opaque. Members were instructed not to divulge what was discussed in the meetings and aides were chastised for leaking to the press.
The private talks have been fruitful; Republican senators are now edging closer to a health care bill that could pass. It would likely lead to millions fewer Americans having health coverage and billions of dollars being cut from Medicaid, the nation’s largest insurer, as the House bill did. The upper chamber is mere weeks away from an expected vote, even though most senators have yet to see any legislative text.
Legislation overhauling one-sixth of the economy, in other words, could be rushed to the Senate floor with minimal public scrutiny. A plan that less than 20 percent of the public supports, that could determine whether millions of Americans will have health coverage, could pass without any experts testifying publicly in front of the Senate.
A public debate is not merely a West Wing fan’s fever dream. It promotes accountability by leaving a public record of how a law came to be, and hearings give lawmakers the chance to hear from experts on what their bill would do.
Yet Senate Republicans, for the most part, have seemed okay with the process.
“This has really been a committee of the whole. This really has provided very fulsome and genuine input from every Republican senator,” Sen. Ron Johnson (R-WI) told reporters last month when asked about the plan’s development in private. “There’s certain things you have to do, before you open it up to the public. ... This to me has been an open process. I don’t know how else you would have done it.”
That perspective fuels a gnawing fear among outside experts that, if McConnell’s gambit works, this secretive process could become the new normal.
Senate leaders cracked down to keep health care talks quiet
Normally, when the Senate writes a major new bill, it holds public hearings where experts offer their opinions or insight on the issues at hand. Some draft legislation circulates for stakeholders and lobbyists to review. Committees get an opportunity to amend and vote on the bill before it goes to the floor. The process involves hours of public debate and weeks of work.
None of that is expected to happen in the Senate.
The House took its bill through an abbreviated debate — far shorter than the year it took for Democrats to draft Obamacare. But the lower chamber at least went through a facsimile of regular order.
Four committees held hearings and marked up the bill. In the end, though, the final tweaks that got enough House Republicans on board were worked out privately. The bill was hustled to the floor once House leaders believed they had the votes — rather than wait, as would be the norm, for a Congressional Budget Office score.
The Senate is trying to skip straight to the end. McConnell convened his working group shortly after the House passed its bill. Health care became the dominant subject at their daily lunches. But no committee hearings were planned, and no expert testimony was heard. The text of a bill remains elusive; Senate aides told Axios that they wouldn’t release it until they absolutely must.
McConnell has cracked down to keep his conference in line. According to Roll Call, he ordered staffers out of one meeting after details of the private deliberations had leaked. Senators have repeatedly told reporters that they aren’t supposed to reveal what was discussed in their meetings.
“McConnell’s really asserting himself,” Kim Monk, who tracks health care policy for investors at the firm Capital-Alpha, told me. “Members are really holding their fire, on both sides.”
Some Republican senators treat the stealth as a feature, not a bug.
“There are many ideas being discussed and rather than battle them out in the press ... the conversations we’re having are productive. We’re seeing senators across the ideological spectrum working to try to get to yes,” Sen. Ted Cruz (R-TX) told reporters last month, a sentiment he’s repeated more than once.
Even the technical guidance from industry experts that lawmakers usually depend on has either been relegated to a formality or occurred out of the public eye.
Senate Republicans did send a letter to health care industry groups, seeking feedback, but lobbyists I talked to laughed it off as ceremonial. McConnell also brought a top official from Blue Cross Blue Shield into one of the private meetings to talk about the insurance market, but there is no public record of their discussion.
The GOP’s health care secrecy is stunning for major legislation
To Democrats and some outside experts, the GOP’s procedural shortcuts are the height of hypocrisy and set a dangerous precedent.
Sen. Claire McCaskill (D-MO), during a hearing that was ostensibly about Trump’s proposed health budget, grilled Senate Finance Chair Orrin Hatch, one of the top Republicans working on the health care bill, last week. Hatch had to wait awkwardly for an aide’s input before responding.
“I don’t know that there’s going to be another hearing, but we’ve invited you to participate,” Hatch said, before McCaskill cut him off. She contrasted the Republican game plan in 2017 with what Democrats did in 2009 when they drafted Obamacare.
Democrats took some of their own procedural shortcuts to pass Obamacare, and leadership sometimes dictated the direction of the bill from the top down. But it was still subject to months of public hearings and the release of a “discussion draft.” Five hundred amendments were offered over the course of a single Senate markup. It took a year from the start of the public deliberations until President Barack Obama signed the bill into law.
This year, Republicans held a few public hearings, the House voted before the CBO released its official analysis of the bill, and the Senate is preparing to bring its own legislation up for a vote absent any public forums — all in less than six months.
“We have no idea what’s being proposed. There’s a group of guys in a back room somewhere that is making these decisions,” McCaskill said. “We are now so far from regular order that the new members don’t even know what it looks like.”
Democrats aren’t the only ones who think so.
“I have not seen anything like this,” Norm Ornstein, a congressional scholar at the American Enterprise Institute, told me.
The only parallel that comes to mind, he said, was when House Republicans kept the vote open for three hours to twist arms and approve prescription-drug coverage for Medicare in 2003.
“That was outrageous,” Ornstein said. “This is far worse.”
Senate Republicans gripe occasionally about the process. Johnson, for instance, told reporters on Monday that it was “not a good process” — but suggested this was only because the senators themselves might not have enough time to review the bill.
So I asked him about his earlier process quote and he responded: "If we don’t have enough time to look at it then it will be a bad process."— Robert King (@rking_19) June 12, 2017
Is this the new normal for big bills?
Not every Republican is thrilled with the secrecy. Sen. Rand Paul (R-KY) famously combed the US Capitol looking for the House bill when leaders refused to release it. Aides whine privately about the lack of transparency and their resulting reliance on media leaks to know what’s happening with their own bill.
I asked a conservative Senate aide if their office has seen any text of McConnell's mostly-drafted health care bill yet: pic.twitter.com/stPAINeEEl— Haley Byrd (@byrdinator) June 12, 2017
Backroom deals are a political cliché for a reason. This stuff does happen. But the difference, as George Washington University’s Sarah Binder explained it to me, is that this time it’s a wholly partisan exercise with significant consequences for millions of Americans.
In 2011, President Barack Obama and House Speaker John Boehner tried to secretly negotiate a “fiscal cliff” deal that ultimately fell flat. The 2013 budget deal, between Paul Ryan and Patty Murray, was also largely worked out in private. Same goes for the 2013 immigration reform bill from the Senate’s Gang of 8.
In each of those cases, though, Binder noted, the negotiations were bipartisan, and the private talks were either preceded or succeeded by public hearings. This time, Republicans are negotiating with themselves and nobody expects a meaningful public debate in the Senate.
“Centralized bipartisan deal making has become the norm, often behind closed doors,” Binder told me. “This episode ratchets up the secrecy with little promise for debate or amendment.”
There are limits — at some point, the public will see a bill. A Senate aide told me that the Senate’s rules would likely dictate up to a week of floor debate before a final vote.
But by then, it will almost assuredly be too late to change the legislation. McConnell is believed to be decidedly agnostic about the policy itself, but his procedural bet here could point the way forward for the next controversial bill. You can skip the ugly public deliberations and work it out among yourself.
“Just because it's become the norm doesn't mean it's the right way to legislate,” Binder said.