Secrecy in Lawmaking and What it Spells for the rest of the 115th

Josh Huder | July 24, 2017

The House and Senate efforts to repeal and replace versions of the Affordable Care Act have relied on an amazingly convoluted, opaque, and covert process. It was, and is, a stunning display of haste and hubris, well outside the norms of the modern legislative process.

Speaker Ryan dropped the American Health Care Act (AHCA) practically overnight. The House Ways and Means and Energy and Commerce committees held pro forma markups, where after 18-hours and 27-hours, respectively, the committees approved a combined total of zero amendments. In a normal process, this simply doesn’t happen. It was an amazing display of party unity to protect a bill that, it turns out, many in the majority did not even like. After that bill failed, a compromise amendment was negotiated between Freedom Caucus Chair Mark Meadows (R-NC) and Congressman Tom MacArthur (R-NJ).  That amendment was cut and pasted over the original AHCA language, dropped on the floor with 40 minutes of debate, and later passed, 217-213.

Interestingly enough, the Senate has managed an even worse process. Majority Leader McConnell tapped 13 Republican senators to craft the Better Care Reconciliation Act (BCRA). The original version died. Since then, every group of senators that has set out to produce an alternative has been unable to find a bill that would get the support of 50 Republicans. As the third version of the bill founders behind closed doors, there still have been no hearings or markups and almost no public debate other than what’s been reported in the media.

Obviously, this is not a terribly transparent process. Nor is it one that should necessarily be celebrated. We have to look back over 100 years to find a process that is as opaque as the currently being employed. Given how transparent Congress has become over that time, it’s sort of like rewinding to the Middle Ages. Over the last 100 years committee hearings and markups have become more routine. Congress later required that those hearings be open to the public. Floor amendment votes have been recorded and made public. And shortly thereafter, the House and Senate agreed to televise their floor proceedings.

Transparency has aided democratic accountability but it also complicates lawmaking. Democracy is really hard. It requires real tradeoffs between members and constituencies. Compromise is necessary but not particularly pretty. And recently, rather than work difficult compromises through an open committee process, party leaders on both sides have opted to take control and do it behind the scenes. The AHCA and the BCRA are both examples of that. So was the passage of the Affordable Care Act (ACA). The second bill that makes up the ACA was written by party leaders in the Rules Committee. It included language that could not be found in any bill that came from the committees of jurisdiction. Instead, it was last second language negotiated by moderates and Speaker Pelosi. Had Speaker Pelosi not taken over, it’s likely the ACA would have died in the House. Leaders’ involvement in the process often grease the wheels. It’s not an ideal process, but it’s often what’s necessary for parties want to accomplish their goals.

However, Ryan’s and McConnell’s tactics come with risks. And here is where the heavy-handed nature of these processes can, and apparently are, affecting the 115th Congress and the Republican legislative agenda. Removing members from the deliberative process has consequences.  Committee chairs are not writing bills in their jurisdiction. Rank-and-file members have no formal avenue to offer amendments. In short, members not in leadership lose influence. They are relegated to begging leadership to listen to their ideas and concerns. Leaders serve as the conduit of compromise. If they do this job poorly, they can lose the confidence of their members.

We have reached this stage in the House and the Senate. Members do not appear to trust their leadership. House leadership is struggling to find the votes for the FY2018 budget, a fundamentally important document if they want any shot at tackling their prized objective: tax reform. On the other side of the Capitol, Republican senators question McConnell’s health care strategy. As it stands now, McConnell appears ready to expose Republican senators to a potentially damaging amendment process or subject them to a vote that puts them on the record against the repeal/replacement of the ACA. Neither strategy is particularly considerate of his membership and downright dangerous to the more vulnerable ones.

Republicans are a very diverse party at the moment. Passing bills of this magnitude will require serious compromise. It’s possible that there is no sweet spot. But one thing is clear: the leaders’ chosen processes are doing the party no favors. As a result, these leaders are facing a loss of trust and a loss of confidence among their members. That is a disastrous undercurrent as Republicans attempt to capitalize on their 2016 victory. Whether this is a problem of members or leadership is unclear. But what is certain is that Republican’s legislative agenda is the casualty. Unless this dynamic changes the road ahead looks rocky.

Josh Huder is a Senior Fellow at the Government Affairs Institute

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