Why We Should Worry About the Ugly New Trend of Secret Legislation

Senate Republicans are trying to push through a healthcare bill with as little debate as possible.

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Jun 16 2017, 8:49pm

Photo by Mark Wilson/Getty Images

Since House Republicans passed the radically cruel American Healthcare Act (ACHA) on May 4, their Senate counterparts have been working nonstop on their own version of the bill. Yet for all the bandwidth healthcare has consumed in the Senate for over a month, as Democratic Senator Chris Coons told Politico on Tuesday, "Outside of the Capitol, it's basically off the radar screen."

That's (largely) because Senate Republicans have maintained an exceptional wall of secrecy around their work, and apparently plan to keep it as ineffable as they can until the last possible moment. Keeping the bill secret—and outside the normal committee structure—prevents Democrats from denouncing its specifics, since so little is known about it.

But it's unclear whether this process will win the Republicans a swift and painless vote on the AHCA, as they hope it will, in the end. Even if it doesn't, though, there's a good chance the Republicans will repeat and ramp up the tactics they're pursuing for this legislation in their approach to other major agenda items for at least the rest of 2017.

A degree of obscurity has become the norm in the legislative process over the past few decades. Chris Condeluci, who served as a Republican consul on the Senate Finance Committee from 2007 to 2010, recalls how the majority leader back then, Democrat Harry Reid, would periodically bypass committee markup processes and hearings, during which bills were debated. Instead, legislation was agreed to in backroom deals, then put onto the floor intact for final debate and votes.

"It is a practice that I don't like. I'm a policy guy," said Condeluci. "I think there should be debate, discussion, on all issues. But the way the institution sadly is run sometimes, leadership makes a decision" to bypass major forums for dialogue.

Sometimes there are good reasons for this. As Congress-watcher Sarah Binder pointed out on Twitter, often secrecy arises after long debates have led to an impasse, or when a major external deadline rushes Congress. And when legislation cuts procedural corners, it's still usually released with plenty of time for dissection and debate. Even the Affordable Care Act (ACA), which was slammed at the time by Republicans for moving through Congress too quickly and without enough transparency, took months to produce and went through weeks of debate.

Even the House version of the AHCA, which was pretty opaque by normal standards, went through committees, was discussed for more than a month, and saw changes to it after conservatives objected to some elements.

Contrast that to what Senate Republicans are doing with the AHCA. Not only has Majority Leader Mitch McConnell decided to forego any hearings or committee meetings, the legislation is being drafted by a gang of 13 Republicans (all white men) meeting regularly under strict secrecy. Not even Health and Human Services Secretary Tom Price has seen the legislation, and even other Senate Republicans are only getting limited briefs.


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It seems that McConnell and company don't intend on releasing the bill until the moment they have to do so in order to have it voted upon. Senate rules suggest that once the bill is released for a vote, there'll be about a week to discuss it. That's practically no time when it comes to dissecting a proposal to revamp the massive American healthcare system.

"Nobody's hiding the ball here," McConnell told reporters on Tuesday. "You're free to ask anybody anything." But that didn't mean any Republicans would answer those questions. It wasn't lost on the press that literally that same day, the Republican-led Senate Rules Committee apparently led an abortive attempt to limit media access to the Capitol and Senate buildings.

The Senate process has come under fire even from nominal Republican allies, who might support the AHCA but not the plan to keep it hidden until the last minute. "Frankly it is unacceptable," said Thomas Binion, director of policy services at the conservative Heritage Foundation. "I would hope that... the senators will subject the bill to public scrutiny before they subject the public to the bill."

But there are many reasons Senate Republicans wouldn't want to do that. The common read among liberals is that they know their bill is terrible and want to spring it on the public just to pass something and be done with it. (That was fueled by a Senate Republican aide telling Axios on Monday that they wouldn't release the bill to the public until necessary because "we aren't stupid.")

Mike Cannon, director of health policy studies at the libertarian Cato Institute, believes Senate leadership is trying to create a controlled space in which it's easy for Republicans to reach internal consensus without having to contend with a messy, contentious public debate . But overall, Condeluci argued, they're probably just trying to maximize their chances of passing something quickly, because the GOP's agenda is in an incredible time crunch thanks to the quirks of the legislative calendar.

If that's their goal, though, it's not necessarily working. The committee drafting the bill was expected to have a full text written up by Monday night that would be sent to the Congressional Budget Office for scoring, allowing the full Senate to vote on it by June 30. But that committee is still not done. Once a final bill is drafted (which could take an indefinite amount of back and forth with the CBO), it could still be derailed (perhaps permanently) by the esoteric rules of the reconciliation procedure they're using to try to pass it with a simple 50-vote majority. And Democrats will have a number of procedural tools at their disposal to potentially slow down the voting process, should they choose to use them.

But even if secrecy ultimately fails, in the case of the AHCA, to deliver them speed or immunize them from distracting critiques, Republicans are not likely to abandon it moving forward. Condeluci doubts their core constituencies will give them too much guff on the process they've pursued in town halls this summer. And he and Binion agree the incentives are in place for Republicans in both chambers to craft legislation behind closed doors, skip hearings and committees, and minimize debate and discussion time on other major issues, like tax reform, before votes.

"The time crunch does have a pretty big impact on lively debate and discussion," explained Condeluci.

Condeluci thinks we'll see transparent processes on less controversial items like infrastructure, at least in the short term. And it's clear, said Binion, that some Republican senators and their aides are upset by the opacity of their approach to the AHCA, so they may agitate for less secrecy moving forward. Future leadership in either party can also hit the reset button on this corrosive drift.

However for now this murky process is what we're stuck with. It's arguably a new low for the American democratic process. And it'll stay with us, as a newly viable option for any party to whip out to brute force its agenda, whether the AHCA becomes law or not.

Follow Mark Hay on Twitter.

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