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The Senate’s disastrous process for crafting the AHCA fits a historic pattern

The number and quality of committee hearings has declined greatly since the 1970s.

Sen. Claire McCaskill (D-MO) recently unloaded on Sen Orinn Hatch (R-UT) for failing to hold hearings on the Republican health-care bill.
Sen. Claire McCaskill (D-MO) recently unloaded on Sen Orinn Hatch (R-UT) for failing to hold hearings on the Republican health-care bill.
Bill Clark / CQ Roll Call / Getty

The crafting of the American Health Care Act in the Senate — which will affect the lives of millions of Americans — is taking place with almost no public discussion. Not only have there been no committee hearings so far, but it is unlikely that we’ll see any committee deliberation whatsoever.

As Sen. Claire McCaskill (D-MO) protested to Sen. Orinn Hatch (R-UT), chair of the Senate Finance Committee, in a moment that went viral: “We have no idea what’s being proposed. There’s a group of guys in a back room somewhere that is making these decisions. ... You couldn’t have a more partisan exercise than what you’re engaged in right now.”

We should not be surprised by the lack of Senate committee hearings on the AHCA. It is the culmination of a trend that stretches back to the 1970s. The three of us have studied congressional dysfunction, as evaluated by the changing nature of how Congress conducts its hearings. Compared to the 1970s, committees in both chambers today are spending markedly less time examining proposed solutions to the major policy problems confronting us.

That means committees are spending less time learning about what bills are on the agenda, which then means both that members are less informed about what they vote on and that they have fewer colleagues who they can ask.

Committee engagement combined with floor debate that permitted amendments used to be the hallmark of the Senate. Mitch McConnell (R-KY), the Senate majority leader, is among those who have expressed concerns about the lack of committee deliberation — at least he did when he was toiling in the minority. In 2014, he highlighted its importance in a speech critical of the Democratic majority at the time:

One of the traditional hallmarks of the Senate is a vigorous committee process. It is also one of the main things we have lost. There was a time — not that long ago — when chairmen and ranking members had major influence and used their positions to develop national policy on everything from farm policy to nuclear arms. These men and women enriched the Senate through their focus and their expertise. Just as important, they provided an important counterweight to the executive branch.

Now that he’s in charge, instead of relying upon the committee system to develop the Senate’s health care bill, McConnell has turned to a small Republicans-only “working group” that has met behind closed doors.

Hearings on policy solutions increase the quality of debate — and the quality of the result

This week, the Democrats voiced their opposition on the Senate floor not only to the bill but also the process being used to write it. Republican senators have echoed that frustration and confusion — even though they have the power to change not only the bill’s language but how that language is written. Republicans need only a bare majority of the Senate to approve the AHCA, so McConnell and the other party leaders cannot lose more than two senators (assuming Vice President Pence breaks a 50-50 tie to pass the bill). A Republican could threaten not to support the bill unless it goes through committee.

It is possibly not a coincidence that Senate Republicans have displayed a startling lack of knowledge about the AHCA. In a recent interview, Sen. John McCain was unable to even name the specific problems the AHCA would solve. Even Ron Johnson (R-WI), who once wanted to fire all of his policy staff and “refocus his efforts on political messaging” has criticized the secretive nature of the AHCA process: “Seems like around here, the last step is getting information, which doesn’t necessarily seem to be the most effective process.”

In response, McConnell, Hatch, and other leaders have argued that the Senate hasn’t needed to hold hearings on the bill because they’ve “been dealing with the issue for seven years.” Indeed, few issues have been on the national agenda in recent years as much as health care. But just because a policy issue is up for debate, policymakers don’t necessarily know what to do about it. We agree with Sen. Johnson that effective problem solving, however defined, requires good information. Whether or not that information is used to pursue partisan ends, good information makes it more likely that the solution will do what it’s supposed to.

Getting good information from the committee system would make Congress a more effective problem-solving institution regardless of whether the solution adopted is Republican, Democratic, or bipartisan.

Partisanship in Congress has been around for a long time; this particular kind of dysfunction is newer. In our research project, the first of its kind, we evaluated congressional dysfunction by documenting how committee hearings had changed over time. While many deride committee hearings for the occasional grandstanding in which members indulge, they are still the best means by which members learn about issues help the institution derive good policy.

We examined nearly 22,000 hearings, in both the House and Senate, dating back to 1971 — analyzing the subject of hearings and the form that they took. We identified whether committees were exploring a new or emerging problem, the bureaucratic implementation of existing policy, or a proposed solution to a perceived problem (such as a bill or draft regulation).

We found a precipitous drop in hearings devoted to finding solutions to policy problems

Two-thirds of all hearings in the early 1970s were dedicated to studying proposed solutions to public policy problems. That kind of hearing declined precipitously in the ensuing decades. In more recent years, just one-third of congressional hearings are focused on policy solutions. The decline in solution-focused hearings occurred across most issue areas, including health care. About half of all health-care-related hearings in the early 1970s dealt with proposed solutions; today it’s closer to 10 percent.

On top of that, Congress is calling fewer witnesses in all of its hearings. Committees heard from 14 witnesses in each health-related hearing in the early 1970s compared to just six witnesses per hearing today, reflecting a general trend. Committees are bringing fewer information sources into the process by which Congress learns about how to make policy.

Congress is holding fewer hearings devoted to exploring solutions to policy problems
Congress is holding fewer hearings devoted to exploring solutions to policy problems
Lewallen, Theriault, and Jones

Republicans aren’t the only villains here. Despite the number of hearings that the Democrats held on the Affordable Care Act, the decline in solution-focused hearings is fairly linear, beginning in the early 1970s when Democrats held consistent majorities in both chambers. Congress and its committee system declined just as much under Clinton, Obama, and Democratic majorities as they have under Bush, Trump, and Republican majorities.

The decline in committee attention to proposed solutions has important consequences for how members of Congress debate and decide on legislation. We’re seeing the problem in spades in the AHCA case. Without informed committee members to tell them what is in a bill, members turn to the floor leaders to help guide their decision. Party leaders today do their best to shape the information they distribute for maximum partisan advantage.

By going around the regular process, senators aren’t subject to open meetings requirements they’d face otherwise. Without making deliberations public, Republican leaders can introduce the AHCA and have the Senate vote on it before senators have a reasonable chance to even read the bill.

A graph showing that Congress is also calling fewer witnesses to its hearings.
Congress is also calling fewer witnesses to its hearings.
Lewallen, Theriault, and Jones

While the broad contours of the bill may be available through newspapers (or Vox), the devil may very well be in the details. Most members of Congress had no role in shaping the AHCA, and will only be presented with take-it-or-leave-it opportunities to cast their vote. How, then, should their constituents evaluate their performance? Such legislative tricks empower Senate leaders and make their followers accountable to a process and a bill that they have little say in developing — a perilous place for an incumbent to be, especially in a competitive state.

Congress suffers from many ills, but few are as easily cured as this one. The Mitch McConnell of 2017 just needs to listen to the Mitch McConnell of 2014. Not only would committee hearings increase the amount of information that senators have at their disposal in reforming Obamacare, but they might also have the nice spillover effect of reducing partisanship. In the speech we quoted above, McConnell said:

Committees have actually served as schools of bipartisanship. If we think about it, it just makes sense. By the time a bill gets through committee, one would expect it to come out in a form that was generally broadly acceptable to both sides. … There is a lot of empty talk around here about the corrosive effect of partisanship. If we truly want to do something about it, we should support a more robust committee process. That is the best way to end the sort of shirts-against-skins contest the Senate has become.

McConnell has apparently decided that ramming a bill through the Senate is more important than drawing on the expertise of policy-minded senators from both sides of the aisle. That’s a bad call — bad for public policy and bad for representative democracy.

Jonathan Lewallen is assistant professor of political science at the University of Tampa. Sean M. Theriault is professor of government at the University of Texas at Austin. Bryan D. Jones is professor of government and J.J. “Jake” Pickle Regents Chair in Congressional Studies at the University of Texas at Austin.

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