The month of August historically offers a reprieve from the intensity of a congressional session, and we hope that when the Senate leaves town this week, history will repeat itself. If you have been following our blogs, you know that it has been a very intense first half of the year as Congress attempted to pass a health care reform bill. As you know, the House of Representatives did while the Senate did not. We used the health care debate and its legislative process as the context through which to provide posts breaking down various aspects of the legislative process and its jargon. In anticipation of future attempts at health care reform, we are providing a summary of the past process for use moving forward.
We began by focusing on how Congress begins its budgetary process each year. We discussed the budget resolution, which serves as a framework for the congressional budget process in that year. The resolution is not a bill signed by the President nor does it have any impact on the President’s budget; however, it does guide Congress as to where taxes, spending, and revenue should be found and may include instructions as to what tools may be used to pass the budget. It was within this year’s resolution that Congress was given the instructions to utilize a tool known as reconciliation.
Reconciliation, in its simplest sense, is a set of rules that Congress uses to pass federal spending, tax, and revenue bills, such as the Congressional budget. It’s not a process that legislators use every year to pass a budget, but because it requires only a simple majority (versus a super majority), it can help avoid some of the political pitfalls that keep legislation from passing particularly during very partisan times. Knowing that health care reform would be politically challenging, Members purposefully used reconciliation as a means to pass health care reform.
As the spring unfolded, we started to learn more about the substance of the House’s health care bill, their legislative language, and the various impacts of such legislation on the American health care system. For example, among the many aspects of reform, the House bill hoped to alter the Medicaid entitlement program into a block grant or per capita cap program. The Affordable Care Act did not alter the structure of the state and federal jointly funded public health insurance program for millions of Americans, including eligible low-income adults, children, pregnant women, elderly adults and people with disabilities. However, the House and Senate bills, in the name of reform decided to do so.
So, we tackled per capita caps. This federal spending structure will no doubt come up again in any new health care discussions. Per capita is another way of saying “per person” and of course “caps” are what we know them to be- limits. So, by using per person caps to set a limit on the amount of money the federal government spends on each Medicaid beneficiary, the federal government should, in theory, save money. Of course, it is much more complicated, but essentially, under a capped system, the federal government will no longer keep pace with the state’s Medicaid expenditures. If enacted, the sharing equation between the federal government and states would be changed forever.
We then focused on the importance of what is called a “score” by the Congressional Budget Office (CBO). The “score” tells us what costs and savings will be associated with a bill. In the context of the health care bill, the score informed us as to who would remain insured, what the public/private insurance markets would cost or save the federal government among many other critical pieces of information. Note that as explained in our reconciliation blog, while the House must initiate a spending bill (like the health care bill), the Senate MUST match the House bill’s revenue and deficit impact. The score for the House bill therefore was as important to the House as it was to the Senate bill.
We then addressed “regular order” or--- not. As you may recall, several Senators suggested that they had concerns as to how the development of the legislation was taking place in their chamber. We saw this play out when Leader McConnell called for the first vote on the bill- a procedural vote referred to as “a motion to proceed.” This first procedural hurdle, if won, allows a bill to go to the Senate floor for debate and perhaps eventual votes. However, it was challenging for the Leader to get past this initial stage due to several Senators' concerns that Members did not have the appropriate amount of time to learn about the issues, discuss alternatives, hear from various experts through hearings, and then work to craft language. That is what regular order would have looked like.
Ironically, although there were, in fact, enough votes to pass the motion to proceed, it was the lack of order that served as the ultimate demise of the Senate bill. In the end, three Senators could not vote for the bill not only because of the substance of the bill but because that substance was not crafted through regular order.
In many ways, this entire process was unprecedented and would be nearly impossible to repeat, not that anyone would want to. Many of us are still trying to understand the various twists and turns that this process offered. But hopefully, we have provided enough facts on how legislative process works for you to apply it to various bills in the future.