The extreme secrecy is a situation without precedent, at least in creating health law. Still, it’s not hard to see how the country 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 former 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 health care, often in fundamental ways.
Despite promises from incoming Democratic and Republican leaders over the past decade to restore the time-honored process, regular order has not returned. In fact, not only has it become increasingly rare, but the legislative process itself has also 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, Representative Bill Natcher, a Democrat from Kentucky, 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, a Democrat from Illinois, were also frequently closed to the press and public, mostly for tax bills. I once personally held up a health subcommittee markup for nearly a half-hour because the vote to close the session—to make it members-only—required a majority to be 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 a person didn’t have the key they were just out of luck.
Of course, today there are fewer and fewer formal conference committees, where 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, a Republican from California, retreated with all the Republican conferees and two of the seven Democrats into his Capitol hideaway office—a group he called “the coalition of the willing.” They wrote a 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.