“Twenty-five days of consecutive session on a bill that was partisan in the sense that Republicans were angry with it, but we still had the courage of our convictions to have a debate on the floor.”
— Senate Minority Leader Charles E. Schumer (D-N.Y.), remarks on the Senate floor, June 19, 2017
To highlight the secrecy of the GOP health-care deliberations, many Senate Democrats have pointed out that the debate over the Affordable Care Act was the second-longest consecutive session in Senate history. Schumer even sought a parliamentary inquiry on the claim, and it was confirmed by the presiding officer, Sen. Joni Ernst (R-Iowa.)
“The Secretary of the Senate’s office notes that H.R. 3590 was considered on each of 25 consecutive days of session, and the Senate Library estimates approximately 169 hours in total consideration,” she said.
The longest session, Feb. 12-March 9, 1917, concerned whether to arm merchant ships during World War I, shortly before the United States entered the conflict. That lasted 26 days.
But this statistic obscures a reality: The key work on creating the Senate version of the ACA was done in secret. Let’s take a trip down memory lane.
To reconstruct this history, as we did in a previous fact check, we reviewed news coverage of the period and transcripts, and also relied on a detailed account of the legislative maneuvering compiled by John Cannan, research and instructional services librarian at Drexel University’s 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 biggest difference between the Democratic effort to reshape health care in 2009-2010 and the Republican effort to undermine that achievement is that the Democrats made full use of the committee process. Republicans have skipped the days of hearings and lengthy markups that were a feature of the crafting of Obamacare.
In the Senate, for instance, the drafting of a health-care 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. Sen. Olympia J. Snowe (R-Maine) even voted for the Senate Finance version.
That effort — and a companion effort in the House — allowed for the broad outline of the Democratic plan to be apparent to the American public.
But here is where it gets complicated — and more opaque. Working secretly in his office, much like Majority Leader Mitch McConnell (R-Ky.), Senate Majority Leader Harry M. Reid (D-Nev.) merged the two committee bills and unveiled his own version of a health-care bill on Nov. 18 that was scored by the Congressional Budget Office.
In a bit of legislative maneuvering, Reid offered his text as an amendment to a completely different House bill — the Service Members Home Ownership Tax Act of 2009. That’s because this bill had been sitting on the Senate Calendar of Business, avoiding the need for Reid to obtain unanimous consent to bring it up. This bill was also already obsolete — the issue had been taken care of in another bill — and so it was an ideal vehicle to start debate on the Senate floor. Reid inserted the text into the shell of the old bill.
On Nov. 21, a party-line vote allowed debate to begin on the health-care bill. But Reid still did not have the support of all Democrats. As Cannan put it:
“Democrats unhappy with the legislation’s initial form were unwilling to block its path to consideration, but they threatened to filibuster if changes were not made. Reid had to have the support of each one to get to a vote. While Republicans had not dug in their heels to fight the motion to proceed, hoping to tarnish vulnerable Democrats by forcing them to vote in a way that could be characterized as a substantive vote for the health care bill, they would not be so accommodating with the next cloture motion, and they were united in their opposition.”
So consideration of the bill “proceeded on two parallel tracks,” starting when the Senate returned to work on Nov. 30. The first track was public, with the illusion of debate and votes on amendments. The official record shows 506 amendments were offered.
Cannan says this activity suggests “a vigorous effort to alter the bill’s final form on the Senate floor. But this number is deceptive. In actuality, only a tiny fraction of these amendments has any significance” to the bill’s legislative history. Only a handful of amendments covered by a unanimous consent agreement (UCA) reached between the two sides had any relevance, he concluded. Meanwhile, “all of those amendments not covered by UCAs were ordered to lie on the table as soon as they were introduced and had no parliamentary standing at all.”
That’s because the real work was going on behind closed doors, back in Reid’s office, where he negotiated significant changes with a group of moderate Democrats. Eventually, Republicans and Democrats would no longer agree to even keep debating the matter on the floor, and so the public spectacle ended on Dec. 16. The Senate turned to other matters, including passage of a Defense Department appropriations bill, while the private negotiations continued and the Senate remained in session.
During the private talks, Reid agreed to remove a public option in the bill, as well as drop a plan to allow people between the ages of 55 and 65 to buy into Medicare. There was also a significant change in abortion coverage, which The Washington Post reported required hours of Schumer’s and Reid’s shuttling back and forth in Reid’s offices between antiabortion Sen. Ben Nelson (D-Neb.) and key supporters of abortion rights, Sens. Barbara Boxer (D-Calif.) and Patty Murray (D-Wash.), who never sat in the same room as Nelson. Some lawmakers, like the now-retired Nelson, cut special deals. Nelson negotiated enhanced Medicaid reimbursement for his state.
Once the deals were in hand, Reid on Dec. 19 revealed a manager’s amendment revising the proposed bill, which was also scored by the CBO. He filed three successive cloture motions to end debate on the revised manager’s amendment, on his original amendment and on the original House bill. He also filed three other amendments that had the effect of “filling the amendment tree” — cutting off opportunities for the Republicans to alter the text.
Just as McConnell appears to be determined to have a vote before the July 4 holiday so that lawmakers don’t get nervous after confrontations with constituents, Reid pushed forward with a vote before Christmas. Republicans cried foul. “I do not remember, in my 15 years in the Congress, both in the House and in the Senate, any major piece of legislation such as this being debated and ultimately brought to a final vote within such a short period of time,” declared Saxby Chambliss, at the time a senator from Georgia.
Over three successive days, the Senate took a series of votes, all of them split 60 to 39, to deal with Reid’s various amendments. Washington was snowbound, and delaying tactics by Republicans meant votes took place as late as 1 a.m., forcing the 92-year-old, wheelchair-reliant Sen. Robert C. Byrd (D-W.Va.) — who had missed 40 percent of the roll call votes that year — to make a late-night journey through the snow and ice. One Republican, Sen. Tom Coburn (R-Okla.), even offered a prayer to stall the vote. “What the American people ought to pray is that somebody can’t make the vote tonight,” he said. “That’s what they ought to pray.” (One housekeeping item: Renaming the Service Members Home Ownership Tax Act of 2009 to The Patient Protection and Affordable Care Act.)
Final passage came with on a 7 a.m. vote Christmas Eve morning.
All told, from the Friday night, Dec. 18, when Nelson and Boxer agreed to abortion language, to the Thursday morning/Christmas Eve of final passage, there were about five days of consideration for the final bill in the Senate.
The late David Broder, the fair-minded Washington Post columnist, was scathing in his criticism of the spectacle in a column headlined “Health Reform’s Stench of Victory.” Reid, he wrote, “reduced the negotiations to his own level of transactional morality. Incapable of summoning his colleagues to statesmanship, he made the deals look as crass and parochial as many of them were — encasing a historic achievement in a wrapping of payoff and patronage.”
The Bottom Line
As we noted, Republicans have skipped the lengthy, open process of hearings and markups of legislation that characterized the Democrats’ march to passage of the ACA. Instead, they moved directly to floor votes. Moreover, Democrats at first tried to enlist some Republican support, while Republicans have not reached out to Democrats.
But recalling the second-longest Senate session obscures the fact that the floor debate was mostly for show, an exercise designed to allow the closed-door negotiations that shaped the final bill to take place. Once the deal was struck, Reid pushed the final draft forward with as much speed as possible. That’s what McConnell is doing now, having skipped the preliminaries.
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