Descent into secrecy: Senate health talks speak to steady retreat from transparency

large white building with dome
Over the years, it has become progressively—and distressingly—more acceptable to set transparency aside in lawmaking. (Pierre-Selim /CC BY-SA 2.0)

This article was originally published by Kaiser Health News

Congress struggling to finish a huge budget reconciliation bill. A GOP president pushing a major overhaul of federal payments for health insurance that could transform the lives of sick patients.

Sound familiar? The year was 1986. I was a rookie health reporter on Capitol Hill and watched a Medicare bill move from introduction, to hearings, to votes in subcommittees, to full committees and then to the entire House—an operation that took months and was replicated in the Senate, before the two chambers got together to iron out their differences for final passage. Everything was published in the official Congressional Record in almost excruciating detail for everyone to see—as long as they could read really tiny type.

Since then, in three decades of reporting, I’ve had a front-row seat to Congress’ slow, stuttering retreat from such step-by-step transparency, a process known as “regular order.”

It has now culminated in the Senate GOP leadership’s top-secret process to try to write a health bill that could change the formula for nearly one-fifth of the nation’s economy, with a vote they want to cast by July 4. In fact, a GOP Senate aide told the news site Axios on Monday that no details would be forthcoming until the bill is finished, adding, “We aren’t stupid.” That means bypassing the debate that traditionally went into lawmaking, in order to achieve consensus.

The extreme secrecy is a situation without precedent, at least in creating health law. Still, it’s not hard to see how we got here—and there is plenty of bipartisan blame to go around.

Since 1986, I have chronicled the passage (and repeal) of the Medicare Catastrophic Coverage Act, the fight over President Bill Clinton’s health proposal, passage of the Medicare prescription drug bill and passage of the Affordable Care Act, in addition to a dozen budget reconciliation measures that altered healthcare, often in fundamental ways.

Despite promises from incoming Democratic and Republican leaders over the past decade to restore a time-honored process, regular order has not returned. In fact, not only has it become increasingly rare, but the legislative process itself has become ever-more truncated, with Congress skipping steps it deemed inconvenient to partisan ends, particularly as leaders have “end run” the committees that are supposed to do the lion’s share of legislative work.

So long as there is bipartisan agreement, regular order can still prevail. A major bill completed in 2015 to reconfigure how Medicare pays doctors was the product of 15 months of work by Democrats and Republicans in the House and Senate, and passed three committees in open session by unanimous roll call votes.

But it has become progressively—and distressingly—more acceptable to set transparency aside in lawmaking over the years.

In the 1980s, Rep. Bill Natcher (D-Ky.) routinely closed the subcommittee markup of the spending bill to fund the Departments of Labor, Health and Human Services, and Education, even when there was no particular controversy to avoid. Reporters got to see the bill for the first time at the full Appropriations Committee markup.

Markups at the House Ways and Means Committee under Chairman Dan Rostenkowski (D-Ill.) also were frequently closed to the press and public, mostly for tax bills. Still, once I personally held up a health subcommittee markup for nearly a half-hour because the vote to close the session required a majority of members present. I refused to leave until a couple of committee members could be located and brought to the room to vote in person and kick me out.

Even meetings open to the press were sometimes less than revealing. In House-Senate conference meetings, members would frequently refer to what they were talking about using numbers on notes that were not shared with the audience, including reporters. So they basically spoke in code, and if you didn’t have the key you were just out of luck.

Of course, today there are fewer and fewer formal conference committees, places the two sides hammer out their differences in the public eye. Often the final versions of contentious bills are worked out behind closed doors, often without all of the members of the conference committee. In 2003, House Ways and Means Committee Chairman Bill Thomas (R-Calif.) retreated with all the Republican conferees and two of seven Democrats into his Capitol hideaway office in a group he called “the coalition of the willing.” They wrote the final bill in secret while reporters and lobbyists stood outside in the hall for weeks on end. (Sitting in the Capitol is considered civil disobedience and is strictly forbidden.) We were there so long and got to know one another so well that on my birthday someone got all the conferees in the room to sign a birthday card for me.

The final version of that bill was the one that passed the House in the dead of night—Republicans purposely scheduled the vote to begin at 1 a.m. (on the theory it would be easier to get wavering members to vote yes if only to go home to bed). The vote didn’t end until nearly 6 a.m., after President George W. Bush reportedly got the last few members to switch, via phone calls.

In 2009, creation of the Affordable Care Act was both open and closed. There were hundreds of hearings and markups that lasted days, or, in the case of the Senate Health, Education, Labor and Pensions Committee, months. But the unsuccessful effort by Senate Finance Committee Chairman Max Baucus (D-Mont.) to bring Republicans into the fold consisted of weeks of closed-door discussions, and the Senate bill that would ultimately become the foundation of the ACA was written in Senate Majority Leader Harry Reid’s office before being debated on the Senate floor for almost a month.

We got a sneak preview of how the GOP might shepherd its health bill through in 2015, when Republicans—who by then controlled Congress—orchestrated a “dress rehearsal” ACA repeal bill that was vetoed (as they knew it would be) by President Barack Obama. The bill was prewritten by leadership, approved by the relevant House committees, passed by the House and sent to the Senate. The Senate passed it with small changes (and without committee consideration). Rather than having a conference, the amended Senate bill was then simply approved by the House and sent to Obama for his veto.

That secretive process is being reiterated now. Only this time a Republican, Donald Trump, is president and the potential for change is real. People are outraged over the lack of transparency and the loss of regular order. But both Democrats and Republicans have laid the track on which this train is rolling.