Law made in secret? That's not what makes health-care bill unusual.

In some ways, the GOP health-care legislation represents the most abnormal drafting of a big legislative package in memory. But not because of the secrecy per se.

Joshua Roberts/Reuters
Speaker of the House Paul Ryan (R) of Wisconsin speaks on Capitol Hill on June 22 after Senate Republicans unveiled their health-care legislation.

The Senate Republican health-care bill was drafted behind closed doors. But secrecy has marked the creation of US laws since the Constitution – literally.

At the opening of the 1787 Constitutional Convention, delegates voted to keep their proceedings secret. For the most part, they did. The public did not learn the details of their proposed new US government until after the convention had adjourned.

This doesn’t mean the 2017 process that produced the Senate’s proposed health-care legislation was business as usual. Far from it – in some ways it was the most abnormal drafting of a big legislative package in memory.

What it does mean is that secrecy per se was not the most unusual part of the way Senate Majority Leader Mitch McConnell assembled the bill. The polarization of the process, the limited number of participants, and the rush to final passage – these may be bigger deviations from the norm.

“I can’t remember seeing anything like this before,” says Chris Edelson, an assistant professor of government in the School of Public Affairs at American University in Washington.

Political secrecy has a long and fraught history in the United States. Consider the Constitution: Delegates in May 1787 voted to pass their so-called “rule of secrecy” in part because the mood of the country was sour. Politics was marked by divisiveness. It seemed possible the nation might split up.

By keeping proceedings secret, leaders hoped to head off outside political pressures, particularly from state leaders with parochial concerns. They wanted to allow space for delegates to argue, and to change their minds. They wanted to produce a comprehensive agreement they could present to the nation as a package.

For the most part, it worked. Little leaked, in part because some delegates kept close watch over the notoriously loose-lipped Ben Franklin and his convivial dinners. The rest of the country got its first look at the proposed Constitution draft when it was published in a Philadelphia newspaper in September, two days after the convention had adjourned.

Vigorous public debate followed. On June 21, 1788, the Constitution became the law of the land when it was ratified by the ninth state out of 13, New Hampshire.

Secrecy today

Fast-forward 229 years to today. Secrecy as a political tool in America has had its ups and downs. In the context of the US Congress, periods of transparency have followed periods of centralized leadership control.

We're no longer in an era when powerful committee chairmen draw up bills in back rooms with a few of their buddies. But chamber leaders can still exert enormous control – if their party followers allow it, generally speaking.

“Secrecy is not new on Capitol Hill. We’ve always seen negotiations happen behind closed doors. Sometimes it’s the only way to get to agreement,” says Molly Reynolds, a fellow in governance studies at the Brookings Institution in Washington.

Secret discussions by small groups remain a favored method to begin work on controversial issues. Take the Senate’s 2013 effort on immigration reform.

Four Democrats and four Republicans – the “Gang of Eight” – worked behind closed doors to produce a package in which both sides gave up something to get something.

As a bipartisan group, they then defended their bill in Senate committees and on the floor. It passed with a strong majority – 68 to 32. (The House did not take up the bill, killing it.)

McConnell's select group

Majority Leader McConnell’s approach to health care began in approximately the same manner. But his small group had 13, not eight. 

The Senate’s approach to health-care reform has been a highly unusual process in other ways, as well.

The first difference was the homogeneity of the working group. All members were white Republican men. No Democrats were invited. Given the subject of the effort, the all-GOP aspect was probably inevitable. Any bill that could credibly qualify as a repeal of Obamacare would likely attract zero Democratic votes.

But McConnell also excluded Republican senators with backgrounds in insurance, including Susan Collins of Maine and Tim Scott of South Carolina, the Senate's only African-American member.

Secret from the start

The second difference was the speed with which McConnell reverted to the secret bill process. He used it from the beginning.

“Often we’ve seen secrecy happen after a more open process has failed to work,” says Dr. Reynolds of Brookings.

Broad immigration efforts, for instance, had already died in the chamber before the Gang of Eight took over.

Finally, and perhaps most important, the non-secret part of the Senate process of considering the health legislation is quite truncated. There are not going to be committee hearings. (Or state ratification conventions, as there were in the case of the Constitution.) Floor debate is limited.

To critics, that means the reason the Senate GOP leadership used secrecy was not to prepare for a difficult debate, but as a means to hustle the bill through as quickly as possible.

“To me watching what’s happened with this legislation, it seems like the goal was to keep this out of the public eye so it could move forward,” says Professor Edelson of American University.

It may also be that McConnell faces bureaucratic imperatives for moving quickly. The vagaries of the budget process mean that he needs to get this out of the way as soon as possible. Or he may just want to clear health care off the Senate's plate, win or lose.

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