Senate Health Care Bill: How the 'Secret' Draft Process Endangers Obamacare Repeal Plan

Senate Republicans are finally unveiling a draft of their proposal to repeal and replace Obamacare on Thursday, after taking a hammering for weeks about how secretive they’ve been about the bill and its contents. “I’ve never seen a more radical or reckless legislative process in my time in politics,” Senate Minority Leader Chuck Schumer said Wednesday. “Write the bill in secret, discuss it in secret,” Schumer complained.

Related: Senate Republicans’ Obamacare bill could hinge on three women

The Democrat and other critics are exaggerating, however, when they say it’s “radical” to negotiate a bill behind closed doors. It has become the norm for a small group of lawmakers and staffers to hash out the details of large, complex pieces of legislation in private, before presenting a final bill to Congress and the public. That’s become particularly true in the age of the 24-hour news cycle that includes dissection of every incremental adjustment or compromise under consideration, and of a political environment that is growing ever more hyper-partisan. Former Republican Senator Trent Lott, who led Senate Republicans through numerous politically charged policy battles, says a lot more can get accomplished in Congress out of the public eye than in it. “When the camera lights go off, the tone of discussion improved markedly,” he recalls of past negotiations.

Republicans, meanwhile, are accusing Democrats of hypocrisy, noting that the minority party worked out the final draft of its health care law, the Affordable Care Act (a.k.a. Obamacare), in private in 2009. They also point out that it was an entirely partisan affair, with no GOP input, the same way Republicans are now excluding Democrats for their closed-door discussions. Both points are true. But they leave out a couple of very important differences.

Before finalizing their legislation, Democrats in Congress spent months holding dozens of hearings and considering the implications of various health care policy proposals in bipartisan committee sessions that were carried live on C-SPAN. House Republicans, meanwhile, held just three related hearings before unveiling their Obamacare repeal bill in March; the relevant Senate committees have held just one. And while the Democratic Senate set records in 2009 for its multi-day consideration (called a “mark-up”) of the health care legislation in two committees—and voted on dozens of Republican as well as Democrat amendments to the draft—the Republican-led Senate is not planning to mark up its health care proposal at all. House Republicans did conduct mark-ups (though not the marathon affairs of 2009) in March before passing their version of an Obamacare repeal bill at the beginning of May.

That’s highly unusual, congressional expert Sarah Binder wrote in a recent analysis. The professor of political science at George Washington University said Congress usually resorts to closed-door negotiations only after publicly airing a proposal—and hitting a roadblock. That has happened in many more cases than just with the original Obamacare negotiations: In fact, it’s difficult to find another example of hotly contested legislation in recent years—from President Bush’s tax cuts in 2001 and 2003 to the Senate’s failed 2013 attempt to overhaul U.S. immigration laws—where lawmakers made no attempt to evaluate and amend their proposals in committee settings before bringing them up for votes.  Yet, on health care, Binder writes, “Senate Republicans went straight to closed-door negotiations among their own factions, without even trying to move the House bill—or their own alternative—through the usual public drafting and amending sessions in committee.”

Senate Majority Leader Mitch McConnell defended that approach on Tuesday, as he’s done in the past, arguing, “We’ve been discussing all the elements of this endlessly for seven years.” But in truth, many parts of the GOP proposal, particularly the idea of radically overhauling federal funding for Medicaid, the government’s health care system for the poor and disabled, have gotten little public airtime. And fellow Republicans point out that they and their Democratic colleagues will be able to offer amendments to the legislation before the full Senate votes on it. “There won’t be much secret left by the time they get through with it next week,” says Lott.

But McConnell was also clear Tuesday he has little interest in a real debate with Democrats on health care. Pooh-poohing complaints about the secretive process, the Kentucky Republican told reporters, “No transparency would have been added by having hearings in which Democrats offered endless ‘single payer system’ amendments. That is not what this Republican Senate was sent here to do.”

Now, with the release of their much-anticipated Obamacare repeal bill, McConnell and other GOP leaders are giving lawmakers just a few days to review it before they hope to hold a vote. Their self-imposed deadline is June 30—when Congress leaves town for a week-long July 4 recess. Democrats are accusing their Republican counterparts of trying to rush the bill through because “they’re ashamed” of it, as Schumer suggested Wednesday. And certainly, the sinking popularity of the House version of the Obamacare repeal bill must be making the GOP nervous. But politics is only part of the reason for the speedy pace.

“Basically they’ve run out of time,” says Lott. That’s because Republicans in Congress are relying on a Senate procedure known as “reconciliation” to avoid a Democrat-led filibuster on health care. And that reconciliation process prevents them from moving on to their next priority—tax reform—until they’ve cleared health care off the decks. President Trump and the White House have been ramping up the pressure to get a tax reform bill passed in 2017, as well, but that means Congress needs to wrap up its Obamacare repeal this summer, before leaving for a six-week-long vacation in August.  

Even with reconciliation, Republicans still need to win over 50 of the 52 members of their caucus to pass their health care bill, and it remains unclear if they can get there by next week. But it's certainly possible. The problem is, this kind of hurried, heavily partisan, closed-door process makes anything that becomes law highly vulnerable in the future, because it will have gotten no public buy-in or cross-party support.  Lott, for one, predicts that in the same way the Democrat-passed Obamacare has been a top target for Republicans from the minute they seized power, any GOP law will also be on the chopping block the next time the political pendulum swings the other way and Democrats are in control. "Anytime you pass just a partisan bill, it’s not going to remain that way," Lott says.

In other words, any Obamacare repeal is likely to be temporary.