This has become increasingly clear as Republicans in the Senate struggle to craft a health-care deal that will gain at least 50 votes, the bare minimum necessary under the legislative path — known as reconciliation — chosen by the GOP. Republicans have only 52 senators, so only two can oppose a deal for Vice President Pence to cast the tie-breaking vote. Thus far, the negotiations on a bill to repeal parts of the Affordable Care Act and replace it with a new law have been conducted in secrecy, leaving critical details unclear.
When the Affordable Care Act was debated in 2009-2010, the process initially was different. There were 58 Democrats and two independents who voted with them, meaning that if the party stood together, the majority could avoid a filibuster by Republicans. The bills were drafted in various committees, numerous amendments were offered by Republicans, and there were efforts to win Republican support. (One Republican, Olympia J. Snowe of Maine, even voted to approve a health-care bill at the committee level.) We described that process at length in a previous fact check.
In the Senate, the bills that emerged from the committees were ultimately merged into a single bill in the office of Senate Majority Leader Harry M. Reid (D-Nev.) — what was decried at the time by Republicans as an overly secret process. The Senate held days of public debate, but the real work went on behind the scenes as Reid cut deals to win the support of moderate Democrats. On Christmas Eve, five days after the negotiated text was unveiled, the Senate passed the bill on a partisan vote of 60 to 39. (For more on this process, read our history lesson.)
Before the House and Senate versions of the health-care law could be merged through a conference committee, however, the Democrats lost their 60-vote majority when a Republican won a special election in Massachusetts. With just 59 votes in the Senate, Democrats opted to get over the finish line by using the reconciliation process in the Senate, prompting renewed outrage of legislative sleight-of-hand from Republicans.
With that history in mind, let’s look at how Senate Majority Leader Mitch McConnell (R-Ky.) speaks about similar situations then and now. (Also see the video above.)
McConnell, March 27, 2010:
“In one of the most divisive legislative debates in modern history, Democrats decided to go the partisan route and blatantly ignore the will of the people.”
McConnell, June 13:
“Unfortunately, it will have to be a Republicans-only exercise. But we’re working hard to get there.”
McConnell, Feb. 24, 2010:
“Democrats on Capitol Hill are working behind the scenes on a plan aimed at jamming this massive health spending bill through Congress against the clear wishes of an unsuspecting public. What they have in mind is a last-ditch legislative sleight-of-hand called reconciliation that would enable them to impose government-run health care for all on the American people, whether Americans want it or not.”
McConnell, June 13:
“There have been gazillions of hearings on this subject when they were in the majority, when we were in the majority, when we were in the majority. We understand this issue pretty well, and we’re now working on coming up with a solution.”
In both cases, the party in power opted for reconciliation (50 votes) to pass a bill. McConnell in 2010 denounced it as a “partisan route” and “legislative sleight-of-hand.” McConnell’s staff argues that he faced from the start absolutely no cooperation from Democrats — who have insisted that the Senate focus on repairing the Affordable Care Act, not repealing it. But Democrats have charged that McConnell, in 2009-2010, shut down efforts at bipartisan cooperation, forcing them to rely only on Democrats. In any case, in 2009-2010, Democrats briefly did obtain one Republican vote, though not on final passage.
Reconciliation is an unusual tactic — generally reserved for budget and tax policy — that gets around Senate rules designed to force a supermajority on bills. McConnell was against it when Democrats used it but has now embraced it from the start.
McConnell, Dec. 22, 2009:
“Americans are right to be stunned — because this bill is a mess. And so was the process that was used to get it over the finish line. Americans are outraged by the last-minute, closed-door, sweetheart deals that were made to gain the slimmest margin for passage of a bill that’s about their health care.”
McConnell, June 13:
“Nobody’s hiding the ball here. You’re free to ask anybody anything.”***
McConnell, Nov. 21, 2009:
“So I ask: Why should we consider a bill we already know the American people oppose? This is not anything anybody’s in doubt about. The American people think, if you don’t like this bill, you’ve got an obligation to try to stop it.”
McConnell, June 13:
“We’ve been dealing with this issue for seven years. It’s not a new thing. We’ve spent a lot of time on it, all of us, both sides over the last seven years. We know a lot about the subject.”
During the Affordable Care Act process, McConnell repeatedly decried closed-door negotiations, especially for a bill that fared poorly in opinion polls. But polling indicates the Republican replacement is even less popular — the House version polls at 29 percent, with opposition in every state in the nation — and the bill-writing process has become even less transparent.
The Republican effort is the most unpopular legislation considered by Congress in decades. The ACA, by contrast, averaged about 45 percent approval when it was considered.
Two veteran health-care writers who covered passage of the ACA, Julie Rovner of Kaiser Health News and Sarah Kliff of Vox, said they had never seen health-care legislation drafted in such secrecy.
“The extreme secrecy is a situation without precedent, at least in creating health law,” Rovner wrote, though noting that the Democrats had helped lay the track in earlier legislative debates. “Republicans plan to move more quickly and less deliberatively than Democrats did in drafting the Affordable Care Act,” Kliff wrote. “They intend to do this despite repeatedly and angrily criticizing the Affordable Care Act for being moved too quickly and with too little deliberation.”
McConnell’s staff notes that the reconciliation process requires both a floor debate and unlimited amendments from both sides, so eventually the bill would have a full airing.
The Pinocchio Test
It’s often a chicken-or-egg question about which party is responsible for the latest partisan outrage. The ACA ultimately was passed on a partisan vote, crippling it from the start because Republicans had no incentive or inclination to ever help fix it. That is now often cited as justification for repealing the law in a strictly partisan manner.
But it’s also clear that McConnell’s position has changed, even though he will not acknowledge it. He was against the reconciliation process for health care in 2010; he has embraced it now. He was against secrecy and closed-door dealmaking before; he now oversees the most secretive health-care bill process ever. And he was against voting on a bill that was broadly unpopular — and now he is pushing for a bill even more unpopular than the ACA in 2010.
McConnell earns an Upside-Down Pinocchio, for statements that represent a clear but unacknowledged “flip-flop” from a previously-held position.
An Upside-Down Pinocchio
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