Bud­get direc­tor’s as­ser­tions that Oba­macare was drafted in se­cret are wrong

The Washington Post Sunday - - POLITICS & THE NATION -

“It’s there. Any­body can read it. Folks watch­ing on tele­vi­sion now can go on­line and read what the bill is. They can watch the com­mit­tee hear­ings. Those are things that were dra­mat­i­cally miss­ing in Oba­macare.”

— White House bud­get direc­tor Mick Mul­vaney, in­ter­view on CNN’s “State of the Union,” March 12, 2017

“We already had two com­mit­tee hear­ings, which I be­lieve is two more than Oba­macare had in the House.”

— Mul­vaney, in­ter­view on ABC’s “This Week,” March 12

Leg­isla­tive sausage-mak­ing, par­tic­u­larly on big bills, is often com­plex and con­fus­ing. In the­ory, bills are drafted in com­mit­tees, but the re­al­ity is that hard work is often done be­hind the scenes, where law­mak­ers hag­gle over de­tails and cut deals. Some­times se­crecy is es­sen­tial, be­cause if some de­tails be­come pub­lic too soon, op­po­nents have more time to build op­po­si­tion.

The House Repub­li­can re­place­ment bill, for in­stance, for a pe­riod was kept un­der lock and key, avail­able only to mem­bers, un­til it was ready for de­bate in two key com­mit­tees.

Nev­er­the­less, we were rather sur­prised to see White House bud­get direc­tor Mick Mul­vaney as­sert on na­tional tele­vi­sion that the Af­ford­able Care Act, by con­trast, was drafted with no com­mit­tee hear­ings and that no or­di­nary Amer­i­can could read the bill be­fore it was passed.

Is that re­ally the case?

The Facts

We asked Mul­vaney’s staff for ev­i­dence of his state­ment. We did not re­ceive any­thing spe­cific. In­stead, we were told “the direc­tor was con­trast­ing a process where [then-House Speaker] Nancy Pelosi told us that you ‘had to pass the bill so you can find out what’s in it’ with the cur­rent one which is try­ing to clean up the re­sult­ing mess.” The sug­ges­tion was that Mul­vaney was talking about the chaotic end game that led to pas­sage of the Af­ford­able Care Act in both houses of Congress.

That’s a bit of ap­ples and or­anges, since the re­place­ment bill has not even passed the House, let alone gone through the Se­nate or through a con­fer­ence com­mit­tee. Mul­vaney even said “in the House” on ABC. But let’s re­view what ac­tu­ally hap­pened in 2009.

For the record, the Pelosi quote cited by Mul­vaney’s staff is often taken out of con­text, as she in­el­e­gantly tried to make the point that me­dia cov­er­age had ob­scured the con­tent of the leg­is­la­tion. “You’ve heard about the controversies within the bill, the process about the bill, one or the other,” she said on March 10, 2010, as the bill neared fi­nal pas­sage. “But we have to pass the bill so that you can find out what is in it, away from the fog of the con­tro­versy.”

To re­con­struct this his­tory, we re­viewed news cov­er­age of the pe­riod and tran­scripts, and also re­lied on a de­tailed ac­count of the leg­isla­tive ma­neu­ver­ing by John Can­nan, re­search and in­struc­tional ser­vices li­brar­ian at the Drexel Univer­sity Thomas R. Kline School of Law. His re­port, pub­lished in the Law Li­brary Jour­nal, made the case that the “ad hoc” process that led to the ACA is “an il­lus­tra­tive ex­am­ple of mod­ern law­mak­ing, es­pe­cially for ma­jor initiatives.”

The Demo­cratic process be­gan in March 2009, when three com­mit­tee chair­men (Ed­u­ca­tion and La­bor, En­ergy and Com­merce, and Ways and Means) agreed to work to­gether to try to avoid com­pet­ing bills. Af­ter hold­ing more than a dozen hear­ings be­tween March and May, the com­mit­tee chair­men re­leased a “dis­cus­sion draft” pro­posal on June 19, 2009. Each of the com­mit­tees then held ad­di­tional hear­ings in June, with the House En­ergy and Com­merce Com­mit­tee hold­ing a three-day ses­sion.

On July 14, the three com­mit­tee lead­ers in­tro­duced H.R. 3200, ti­tled Amer­ica’s Af­ford­able Health Choices. This es­sen­tially mir­rored the June draft, but it in­cluded a sur­charge on wealth­ier Amer­i­cans to help pay for the law. The three com­mit­tees then marked up the bill in hear­ings.

Can­nan noted that the votes in two of the com­mit­tees amounted to “house­keep­ing rather than ro­bust de­bate,” though the ver­sion that emerged from En­ergy and Com­merce (with a more con­ser­va­tive makeup) was scaled back af­ter hard bar­gain­ing be­tween law­mak­ers. The three bills were not re­ported to the floor un­til Oct. 14, a de­lay in part be­cause the House was wait­ing for the Se­nate to move for­ward as well. More­over, House lead­ers worked be­hind the scenes to come up with a com­pro­mise that would win enough votes for pas­sage.

Fi­nally, on Oct. 29, a com­pro­mise ver­sion was in­tro­duced: H.R. 3962, the Af­ford­able Health Care for Amer­ica Act. It closely re­sem­bled H.R. 3200 but with con­ces­sions to win the votes of con­ser­va­tive and mod­er­ate Democrats.

“Much of the leg­is­la­tion that’s be­ing an­nounced to­day has been avail­able for re­view and com­ment for over three months on­line so that ev­ery Amer­i­can could read it and give us their in­put,” said then-House Ma­jor­ity Leader Steny H. Hoyer (D-Md.) when the bill was in­tro­duced. “We will keep our promise and com­mit­ment to the in­tegrity of this process by mak­ing the bill’s full text, which will be on­line, as the speaker said, as we speak, and the man­ager’s amend­ment, to make sure we have this ex­actly right, pub­licly avail­able for 72 hours be­fore the mem­bers are asked to vote, and by en­sur­ing a full floor de­bate.” The bill passed Nov. 7. Let’s pause here a mo­ment and see what we have. We have about 20 hear­ings, many aired on CSPAN. That’s 18 more than the cur­rent re­place­ment bill. On top of that, the bills were avail­able to read for many days (though, frankly, leg­isla­tive lan­guage is rather dense for most laypeo­ple). So Mul­vaney’s com­ments are clearly wrong.

(Al­though Mul­vaney claimed that the House com­mit­tees this year had two hear­ings — both markups — he is ap­par­ently un­aware that be­fore the markups, En­ergy and Com­merce in 2017 had three hear­ings on “col­laps­ing health mar­kets,” and Med­i­caid and Ways and Means had a hear­ing on the in­di­vid­ual man­date. The Bud­get Com­mit­tee, which marked up the bill Thurs­day, held a hear­ing on the “fail­ures of Oba­macare.” So count­ing those hear­ings, it would be seven for the re­place­ment bill and about 20 in the House for the 2009 Oba­macare bill.)

The Se­nate process was even more trans­par­ent, with many days of hear­ings and lengthy markups. The draft­ing of the bill in the Health, Ed­u­ca­tion, La­bor and Pen­sion Com­mit­tee took from June 17 to July 14, dur­ing which 500 amend­ments were made. In the Fi­nance Com­mit­tee, which drafted its ver­sion be­tween Sept. 22 and Oct. 2, there were 564 pro­posed amend­ments. Then-Se­nate Ma­jor­ity Leader Harry M. Reid (D-Nev.) an­nounced a merged ver­sion of the two bills on Nov. 18. Af­ter a lengthy de­bate on the Se­nate floor — at one point a Repub­li­can law­maker de­manded the en­tire 767-page bill be read by a Se­nate clerk — an amended ver­sion was passed Dec. 24.

The two houses never had an of­fi­cial con­fer­ence com­mit­tee to merge the two ver­sions be­cause on Jan. 19, 2010, the Democrats lost their fil­i­buster-proof ma­jor­ity with the elec­tion of a Repub­li­can to re­place the late sen­a­tor Ted Kennedy (D-Mass.). That left 59 Democrats in the Se­nate. Law­mak­ers re­lied on a par­lia­men­tary pro­ce­dure in the Se­nate known as rec­on­cil­i­a­tion to al­low pas­sage of the law with a sim­ple ma­jor­ity.

Un­der that process, the House passed the Se­nate bill and then both Houses passed a law amend­ing it to deal with con­cerns in the House. That’s one rea­son the num­ber of pages — about 2,700 — seems so large. It’s ac­tu­ally two bills. (The bills also in­cluded el­e­ments that had noth­ing to do with univer­sal health care, such as an overhaul of stu­dent loans and long-term care leg­is­la­tion.) A con­sol­i­dated ver­sion of the law, done by Michael Can­non of the Cato In­sti­tute, clocks in at 907 pages.

The Pinoc­chio Test

We’re not sure what Mul­vaney has been smok­ing, ex­cept his own pro­pa­ganda. The process that led to the ACA was lengthy and com­plex, but in­volved nu­mer­ous hear­ings and am­ple time for pub­lic com­ment and in­put. Any sug­ges­tion to the con­trary is ridicu­lous. Mul­vaney earns Four Pinoc­chios.

AN­DREW HARNIK/AS­SO­CI­ATED PRESS

White House bud­get direc­tor Mick Mul­vaney speaks about Pres­i­dent Trump’s bud­get plan dur­ing a press brief­ing Thurs­day.

The Fact Checker GLENN KESSLER

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