Republican leaders in Washington have come under withering assault for the way they are putting together their bill to repeal the Affordable Care Act ― specifically, for writing the legislation almost entirely behind closed doors, with zero Democratic input, and with plans to hold a vote mere days and maybe mere hours after finalizing the language.
Some Republican senators say they, too, are frustrated by the process. But so far none has seen fit to demand slower, more open deliberations. They say they are inclined to cut their leadership some slack, because ― supposedly ― Democrats acted the exact same way when they first wrote the Affordable Care Act in 2009 and 2010.
Here, for example, was Sen. John McCain (R-Ariz.) speaking to reporters earlier this week: “We used to complain like hell when the Democrats ran the Affordable Care Act ― now we’re doing the same thing.”
And here was Sen. Rand Paul (R-Ky.): “We were very polarized because the Democrats did, frankly, exactly the same thing. So we had a very polarized bill that the public debated for years and years. I don’t think the parties are any different. I would give criticism equally to the parties.”
Yes, Democrats cut plenty of backroom deals and pulled plenty of legislative tricks to get their bill through Congress. That’s how complicated legislation always comes together. And, yes, Democrats ultimately passed the Affordable Care Act on a party-line vote.
But what Republicans are doing now is fundamentally different and truly unprecedented for legislation of this consequence.
Democrats spent more than a year debating their proposal out in the open. Five separate committees, three in the House and two in the Senate, held literally hundreds of hours of hearings and produced testimony from experts representing multiple philosophical views and officials from pretty much every group or industry involved with health care. Republicans had opportunities to question those witnesses and to propose amendments, some of which actually ended up in the legislation.
Lately Republicans have made a big deal about Senate Minority Leader Chuck Schumer (D-N.Y.) vowing not to cooperate with Republicans unless they drop their insistence on repealing the Affordable Care Act, rather than finding bipartisan reforms that would fix its problems. But back in 2009, when Senate Majority Leader Mitch McConnell (R-Ky.) had the very same job Schumer does now, he made his own vow of noncooperation ― later telling The Atlantic’s Joshua Green he wanted no GOP “fingerprints” on Democratic legislation.
Even so, Democratic leaders tried desperately to win over a handful of moderate Republicans who seemed most likely to support health care reform. Then-Senate Finance Committee Chairman Max Baucus (D-Mont.) and former President Barack Obama personally invested hours in one-on-one meetings with individual Republican senators, especially then-Sen. Olympia Snowe (R-Maine) ― who ultimately voted for the Finance Committee’s bill, even though she voted against the final Democratic legislation on the floor.
Before the final Senate vote, in December 2009, Republicans warned they hadn’t seen final details before voting on the bill. But by that point nearly a year had passed and the big questions were all settled. Later, as the debate dragged into early 2010, Obama personally engaged Republicans ― at length ― on two separate occasions, one at a Republican Party retreat in Baltimore and then at a daylong bipartisan session at the Blair House.
Writing legislation is almost never elegant and there was plenty of negotiation that went on behind closed doors. The result was some famously ugly agreements, such as the “Cornhusker kickback” that would have boosted federal Medicaid payments to Nebraska to secure the vote of then-Sen. Ben Nelson (D-Neb.). The pharmaceutical industry cut a deal shielding it, at least temporarily, from direct federal regulation of drug prices.
As eager as Obama and Baucus were to court Republicans, plenty of other Democrats were begging them to stop. And of course the final legislation violated some key promises its supporters made ― chief among them, a vow to let people who liked their existing health care plans keep them.
But by and large the architects of the law were clear about what they were trying to do and how they proposed to do it ― in part because they’d been promoting and defending these ideas, in detail, ever since Obama had started his presidential campaign years before. And once in power they used the traditional committee process ― if not so much to write the legislative language then at least to give the media, interest groups and ultimately the public an opportunity to understand what was up for discussion and eventually form an opinion on that.
“I can’t think of another piece of legislation of this scope and magnitude that affects so many people that has been drawn up behind such a dense veil of secrecy,” Ross Baker, a Rutgers University professor and expert on Congress, told the Los Angeles Times. The Senate’s former historian, Don Ritchie, says the last time one party tried to write such sweeping legislation entirely on its own, mostly in private, was World War I.
It’s not hard to figure out why Senate GOP leaders are proceeding in the way they are. Although those leaders haven’t indicated how they intend to resolve some key issues, the ultimate impact of the bill is already clear, as HuffPost’s Jeff Young has written. That proposal would take away insurance from millions, remove consumer protections that people value, and push insurance in the direction of greater exposure to out-of-pocket costs.
None of this is popular. None of this is what Republicans promised to do. Debating their bill openly would force them to admit that, and so they are trying to avoid public scrutiny for as long as possible.
Igor Bobic contributed reporting. This article was updated to focus more on differences between Democratic and Republican health care efforts.