'Secretive' health care bill construction is just standard procedure in Washington

While many look with disapproval on the Republican effort to use a cloak-and-dagger approach to sneak a health care bill through the Senate, a look at history reveals that this process is far from new.  

Cliff Owen/AP
Senate majority leader Mitch McConnell (R) of Kentucky walks from his office on Capitol Hill in Washington, on April 6, 2017. Senator McConnell and fellow Republicans have been crafting a new health care bill behind closed doors in an attempt to whisk it through the Senate, though this process is not an uncommon strategy in the White House.

The Republican effort to secretly craft a health care bill and whisk it through the Senate is drawing fire from members of both parties. But it's not uncommon for either party to draft bills or resolve stubborn final hurdles behind closed doors, forgoing the step-by-step, civics-book version of how Congress works.

That's even true for the process that produced former President Barack Obama's health care law, the Affordable Care Act, which the GOP is now trying to dismantle. While Democrats reached out to Republicans, held scores of committee hearings and staged many days of debate on that legislation in 2009 and 2010, they also resorted to private meetings to reach agreements that clinched its approval.

Lacking the votes to block this year's GOP effort, Democrats are looking to score political points by targeting the closely held process Senate majority leader Mitch McConnell (R) of Kentucky is using to write legislation replacing much of Mr. Obama's statute.

GOP senators have been meeting privately to address disputes over cutting Medicaid, limiting insurance requirements and revamping tax credits. Senator McConnell wants a Senate vote before the chamber leaves town for a July 4 recess, giving Democrats scant opportunity to rally resistance against a major bill whose contents are unknown.

"Some version of secrecy has to happen. You're not going to get anywhere if that's not the case," said C.R. Wooters, a top House Democratic aide when Obama's law was being passed. But he added: "Most of our real private meetings were the final tweaks, not the original bill. I think that's the difference. The general parameters of the bill were widely known."

Democrats said they were planning to start forcing procedural votes to slow the Senate down, making floor speeches and taking other steps to call public attention to McConnell's effort. Democrats took turns giving speech in a mostly empty Senate chamber well into the early morning hours before ceding the floor. The Senate has not held any committee hearings or votes on the measure that McConnell is trying to craft, and even some GOP senators are critical.

"I always believe legislation is best crafted through the normal order," Sen. Susan Collins (R) of Maine told the Portland Press Herald. "I think it's much better to have committee consideration of bills, public hearings and to have a full debate."

McConnell said last week that "nobody is hiding the ball here" and that people are "free to ask anybody anything."

Three House committees voted on that chamber's version of the bill and there were a handful of hearings before the House approved a revised version of its legislation last month.

That pales compared to how the Democratic-run Congress handled Obama's legislation.

Starting in 2009, House and Senate committees held scores of hearings and voted on hundreds of amendments, including some from Republicans – who all ended up voting "no" on final passage. The initial House bill was posted online for 30 days before the first of three committees began voting on the measure, and the Senate spent 25 days debating health care overhaul.

The legislation didn't become law until March 2010.

"Just about everything was done in public," said Jim Manley, a top aide to former Senate Majority Leader Harry Reid (D) of Nevada. But when you encounter problems, he said, "sometimes you need to go behind closed doors to work it out."

There were plenty of hiccups that Democratic leaders resolved or tried to settle privately.

Early in 2009, a Gang of Six, three senators from each party, used secret talks to unsuccessfully seek compromise on an overall bill. That December, Mr. Reid used closed-door meetings to craft a final package using elements from differing measures approved by his chamber's finance and health committees.

There were private talks between Reid and former House Speaker Nancy Pelosi (D) of California after the late Sen. Edward Kennedy (D) of Massachusetts was replaced by Republican Scott Brown, costing Democrats their 60th Senate seat – the number of votes needed to end GOP filibusters aimed at killing the legislation. Closed-door discussions were also used to resolve differences with anti-abortion Democratic Rep. Bart Stupak (D) of Michigan that threatened the bill's passage.

The difference between his private negotiations and how Republicans are trying to move their bill through the Senate now is that the details of the entire Democratic bill and the language he was seeking were well-known to the public, Representative Stupak said Monday.

"They're talking about a whole new way of delivering health care" and people don't know the details, Representative Stupak said of Republicans. Last-minute negotiations among lawmakers and between Congress and the White House "are never in public," he said.

There are plenty of examples of bills that were essentially written, or had their final details completed, in private settings. These include a bipartisan bill the Senate approved last week sanctioning Russia for interfering in last year's election, and the deal McConnell and former Vice President Joe Biden helped finalize preventing sharp tax increases in 2013. There was also a bipartisan budget pact between the chairs of the Senate and House budget committees in 2013 and an agreement between Ms. Pelosi and former Speaker John Boehner (R) of Ohio on how Medicare reimburses doctors.

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