Compare How the ACA and ACHA Were Created

On July 15th, 2009, I wrote a piece at my home blog Booman Tribune called Watching Health Care Get Built. It was a detailed recap of the experience I had on the previous day watching on CSPAN2 as the Senate’s Committee on Health, Education, Labor, and Pensions (HELP) worked on marking up the Affordable Care Act. I am going to repost that piece here now because I think it’s really important that as many people as possible understand how even highly contentious legislation is supposed to be created so that they can compare it to what the Senate Republicans are currently doing with the American Health Care Act.

There have been no hearings for the American Health Care Act. There will be no bill for the public to examine.

A coterie of Republicans is planning to have the Senate vote before July 4 on a bill that could take health insurance away from up to 23 million people and make changes to the coverage of millions of others. And they are coming up with the legislation behind closed doors without holding hearings, without consulting lawmakers who disagree with them and without engaging in any meaningful public debate.

But perhaps most important for the quality of the final product, there will be no mark-up of the bill in the committees that have jurisdiction over health care. In 2009, there were three committees in the House of Representatives that did a mark-up and there were two in the Senate. In addition to the HELP Committee’s efforts (one day of which is described below), the Senate Finance Committee conducted their own process.

These efforts were eventually melded and all of the cumulative knowledge was available for inclusion in the final bill. The way the Affordable Care Act passed in the end was disrupted by the death of Teddy Kennedy and the election of Republican Scott Brown as his replacement. This caused the House’s efforts to get cast aside because no further changes could be made to the Senate bill which had already passed. Arguably, that made the contributions of Republican senators to the final bill even more important.

In any case, this is some pretty interesting history and I think it’s pretty educational about the legislative process. It also provides an excellent contrast to what we’re seeing from the Republicans today. Please remember that, in 2009, the HELP Committee started out with a draft bill that had been been informed by many public hearings, so even what they began with was more carefully crafted than what the Republicans are going to offer as their final product. I think my revisiting this piece ought to give the public an idea about the scope of the GOP’s current irresponsibility and incompetence.

So, here it is:

For a good part of the day, yesterday, I had the option of watching the confirmation hearing of Sonia Sotomayer on CSPAN or the mark-up of America’s Affordable Health Choices Act (AAHCA) in the Senate’s Committee on Health, Education, Labor, and Pensions (HELP) on CSPAN2. I was somewhat surprised to discover that the HELP committee coverage was more interesting and less predictable than the coverage of the Senate Judiciary Committee.

To explain why, first let’s take a look at the makeup of the HELP committee.

Sen. Chris Dodd has been chairing the committee in Teddy Kennedy’s absence. Two things of note about this: as Dodd is Kennedy’s best friend, we can be sure that he is faithfully executing Kennedy’s wishes, and, as Dodd also chairs the Banking Committee, we owe him a debt of gratitude for performing double duty. There is a certain level of pathos involved in watching Dodd try to fulfill Kennedy’s life-long dream of universal access to medical coverage while Kennedy struggles to survive an aggressive form of brain cancer. It adds an uncommon touch of drama to what is an otherwise dry congressional procedure.

The first surprise in watching this committee operate is the level of comity. Over the last two days the committee has discussed or dispositioned over two hundred amendments. After having the committee staff review them, the Democrats accepted over sixty Republican amendments without debate and by unanimous consent. In other words, the Republicans have worked hard to improve the bill and have made many constructive and well-thought out contributions. This is especially true of Tom Coburn, who is an obstetrician. As he does on the floor of the Senate, Coburn is in the habit of introducing a blizzard of amendments. But what might be less well understood is that Coburn’s offerings are a mix of obstruction, poison pill, peeve, delay, and smart. It was not uncommon for Coburn to get unanimous support for his amendments, and he has clearly played a large role in writing a bill that he has absolutely no intention of voting for.

Yet, Coburn also introduced a dozen or more amendments seeking to prevent the public option from paying for any abortions. With Bob Casey voting with the Republicans in every case, these amendments were beaten by a 12-11 vote over and over again. But even the tedium of beating back so many vain attempts at restricting a women’s right to reproductive care did not result in any testiness. Dodd (or, in his absence, Harkin) calmly explained their difference of opinion on the issue and held the votes.

As you watch the Republicans operate, an interesting dynamic comes into view. Part of their motivation for offering so many amendments is simple delay. They clearly hope to slow down the process to make it harder for the Democrats to complete the mark-up and have a vote before the August recess. That’s why they offer ten or twelve amendments on the same issues (with only minor variations) that they know will not be accepted. Another category of amendments are intended to slip something by the Democrats that will undermine the intent and effectiveness of the bill. These amendments are usually caught by either Senator Jeff Bingman of New Mexico, Senator Sheldon Whitehouse of Rhode Island, or by chairman Dodd. Watching the proceedings, it quickly becomes obvious how critical it is to have some senators who have a holistic understanding of the health care system sitting in the room at all times. As senators are constantly moving in and out of the hearing room, some of what winds up in a bill is a matter of pure accident. Had Whitehouse or Bingaman been absent, several bad amendments may have passed simply because the other Democrats didn’t understand the sleight of hand being offered by the Republicans.

Some senators are making only a cursory contribution. John McCain, Lamar Alexander, Pat Roberts, Patty Murray, and Johnny Isakson are almost never in the hearing room. Sen. Lisa Murkowski is offering a mix of poison and sincerity, and is also the only Republican to occasionally side with the Democrats on party-line votes. Sen. Judd Gregg provides a mix of budgetary knowledge and silly talking points. Ranking Member Enzi is prone to impotent bitching, but adds value here and there.

Whenever a new amendment comes up for discussion, the staff passes out copies of the language to the members of the committee. Most of them quietly review the language while the author explains the rationale behind their offering. Sen. Barbara Mikulski doesn’t do this. She just asks, “What are you trying to do here?” She doesn’t want to hear a bunch of mumbo-jumbo. She just wants you to cut to the chase.

Sen. Harkin often gives a deceptive impression that he is confused. I think this is because he is losing his hearing. But, just when you think he is befuddled, he launches into a detailed discussion of the merits that shows he has a complete mastery of the details.

There are other surprises. Some amendments are co-sponsored by Bernie Sanders and Tom Coburn, others by Sheldon Whitehouse and Lisa Murkowski. Even as the Republicans show a public face in the media of total obstinate opposition to health care reform, and even as they take steps in committee to delay and poison the bill, they are also making important contributions that will make the final product better than it would have been without their contributions. The legislative process is considerably more complex than it appears on your cable news stations.

While some of the dilatory and deceptive practices of the Republicans are aggravating, this is, in general terms, how the process is supposed to work. The Democrats are wise to be conciliatory and patient, because they are getting real value out of the opposition’s skeptical eye. Provided that the Democrats accept the meritorious and reject the poison, they will produce a better product than if they had just shut the Republicans out.

The reason I find this so interesting is because the public face of the Republicans as the Party of No, would suggest that they are doing everything they can to obstruct and defeat health care and that they are doing nothing else. The truth is that they are multitasking. I doubt very much that Sens. Coburn and Murkowski are going to vote for the health care bill, but they will have significant authorship over the bill that they reject.

Watching this process is eye-opening. It changes my assumptions to see Tom Coburn finding cost efficiencies for a bill whose entire purpose he ideologically rejects.

Above all, watching the nuts and bolts of lawmaking is a bit humbling for someone like me who thinks he has a good grasp of how DC works. It’s true that only political junkies watch CSPAN, but we ought to watch more of it. We tend to watch the high profile hearings where senators and congresspeople do their grandstanding. You’ll learn a lot more by watching mark-ups and conference reports.

You’ll learn which senators are mere show-ponies and which are the real movers and shakers that create our laws. You’ll see who actually shows up to serve on their committees and who can’t be bothered. You’ll see how bipartisanship really works and why it has value, while also learning how much time is wasted in the interests of comity.

It’s unclear if the Democrats will be rewarded for their good-will by getting any Republican support for the health care bill. My guess is, probably not. But the bill will be better for having let the Republicans help write it, despite all their antics and acts of ill will.

[This appeared originally at Booman Tribune on July 15th, 2009]