Whether or not you have been intentionally following the health care reform bill and Senate discussion, it would be nearly impossible to tune into any news source and not see or hear the updates and opinions that have been circulating about this legislation. And, as the July 4th Congressional recess approaches and with it the self-imposed deadline for Senate bill passage, there will no doubt be more news coverage of the latest developments. A frequent headline of late is one that calls into question the legislative process or lack thereof, that the GOP is utilizing to move their repeal bill. In fact, yesterday’s headlines focused on statements by both Senate Democrats and Republicans alike decrying the lack of process and transparency. Given that Members of Congress raised this same criticism during the House’s construction of the American Health Care Act, we thought we would use this opportunity to dissect the “closed door” approach versus “regular order” and the benefits and detriments to both. We will use health care reform as our example with the understanding that our discussion can apply to any bill moving through Congress.
You may remember Schoolhouse Rock’s "I’m just a Bill." If you do not, we recommend you google it because much of this cartoon from 1975 still applies. In the episode, Mr. Bill walks the viewer through what happens to a bill as it makes its way through the Congressional legislative process and eventually on to the President who signs it into law. While it is a simple explanation, it serves as a great outline of how the legislative process is meant to work under “regular order.”
In short, these are the steps that “Mr. Bill” would follow. First, Members of Congress develop an idea for a bill. They work with their staff to develop their concept by seeking information from interest groups, state officials, and national data sources. Members of Congress then look for other Members to join in support of their bill, either from within their party or ideally from the other party, before introducing the bill. Once introduced, and if in line with the leadership's agenda, the Congressional committee with jurisdiction over the bill holds a hearing(s) on the bill where Members hear from experts both public and private on the merits and or challenges that the bill language offers. After these hearings, the committee “marks-up” the bill- or in other words, discusses it among themselves, adds amendments, changes language, etc., and then votes as a committee on the bill. If the bill passes out of committee, it will then potentially move to the floor for consideration and passage (or not). The Majority Leader's agenda dictates which bills get floor time. Often, a committee passed bill is not in sync with the Majority's vision and therefore never receives a floor vote. However, should a bill pass, both the House and Senate (and assuming both Chambers' language is exact) the bill goes to the President to be signed into law or vetoed. Obviously, this is an oversimplification of the process but has hopefully served as a primer on the process through which legislation moves through Congress using “regular order.”
However, as the headlines inform us, Congress is not utilizing “regular order” for the construction of their repeal/replace bill upsetting many. We also know that many bills have been passed outside of regular order, with increasing frequency over the years. So, why the concern? To be clear, adhering to “regular order” is the democratic process at work. However, over time, Congress has found ways in which to massage the rules to mitigate the obstacles that challenge their legislative priorities. Is this a bad thing? Not necessarily. These “other” approaches can allow for a more speedy process allowing the government to be more responsive to society’s needs. However, when Congress chooses to dismiss the use of regular order, we trade important aspects of the democratic process.
Take a look at the current health care reform process as an example. Neither the House nor the Senate has chosen to move their bills through regular order. That is not to say that there is no process. As we have written about in previous posts, both chambers are using a budget procedure referred to as reconciliation. While this budgetary process has strict parameters regarding several aspects of the legislative process, it does not dictate how Members work to develop their bills. In the case of health care reform, both the House and Senate leadership have chosen to prioritize legislative momentum over regular order, meaning no hearings, no bi-partisan committee work, and no language made public until right before votes are cast. In fact, Senate GOP Members have gone on record stating they have not seen the bill language, so we are a long way from public participation.
So, what have we learned? We have learned that while the ability to legislate more responsively to our society’s needs is at times necessary, it also means that we forgo important aspects of the democratic process as we are witnessing with the health care reform debate. The question therefore remains, shouldn’t we be able to have both?