Recent testimony by a health care adviser to the Obama administration raises a big question: Who actually writes our laws?
Despite his previous claims that he had helped write the Affordable Care Act, MIT economist Jonathan Gruber struck a much more modest pose before the House Committee on Government Oversight and Reform: “I was not the ‘architect’ of President Obama’s health care plan.”
YouTube videos have shown Professor Gruber suggesting that there was trickery in the drafting of the legislation, and that the American people were too stupid to understand it. In one of the videos, he also said: “What's important to remember politically about this, is if you're a state and you don't set up an [insurance] exchange, that means your citizens don't get their tax credits.”
Because opponents of the law are making that very argument before the US Supreme Court, its supporters are eager to minimize his role. In his testimony, he was apparently trying to limit the political damage that he had caused.
He obviously had something to do with the development of the proposal: Even before his election, President Obama publicly acknowledged that he drawn on Gruber’s ideas. But as with so much internal White House politics, we will not really know the extent of his contribution until the administration’s archives become public, many years from now.
Whatever his role, writes Harvard political scientist Theda Skocpol, “the architects who fashioned the Affordable Care Act were elected representatives and senators serving in Congress in 2009 and 2010, along with the president of the United States.”
In a formal sense, that statement is obviously true: The lawmakers voted on it, the president signed it, and they were all accountable to the voters.
In a more practical sense, however, it is hard to argue that elected officials were the legislation’s architects. In the construction of a building, the architect is the one who plans every detail down to the inch. Most people would regard the “architects” as the people who actually wrote the language of the bill. And those people were surely not the elected representatives and senators, much less the president.
Ask anyone who has worked in the federal government: Elected officials generally do not draft bills. They delegate that task to staffers and consultants – people such as Gruber. One study of legislative drafting included these quotations from congressional aides:
“Senators are generalists. Very few senators write their own language.”
“The vast majority of members deal at the conceptual level.”
“[Senators] rely upon staff. They set the goals and ask staff to 'work it out.’ ”
“[T]here are very few instances when a senator is in the room when amendments are being drafted.”
“[T]here are only one or two senators who write text.”
Members of Congress often do not even read the bills. Rep. John Conyers (D) of Michigan, who next month will become the longest-serving lawmaker on Capitol Hill, has openly mocked the idea that reading the bills is important. Former Sen. Max Baucus, who chaired the Senate Finance Committee during the passage of the Affordable Care Act, admitted that he had not read it all the way through. “I don’t think you want me to waste my time to read every page of the health care bill,” Senator Baucus said. “You know why? It’s statutory language. ... We hire experts.”
The case before the Supreme Court is all about the meaning of the statutory language. Ironically, the people who passed the bill are not especially qualified to weigh in on that question. They will have to ask the architects.
Jack Pitney writes his "Looking for Trouble" blog exclusively for Decoder Voices.