You have to go back to the Woodrow Wilson administration to find an example of a legislative exercise as opaque and regressive as the Republican health care bill. Back then, according to Don Ritchie, historian emeritus of the Senate, it was the Democrats who shut Republicans out of the process. But, as Ritchie told the Los Angeles Times last week, the strategy did not wear well and hasn’t been reprised in almost a century.
Until now. The GOP’s Obamacare repeal effort has been rightly criticized as secretive, partisan, and male-dominated. But an economical way to fold all of these criticisms into a single framework would be to say that the Senate Republicans writing the bill have demonstrated immense contempt for democratic and Enlightenment values.
Republicans are attempting something that hasn’t been done since before World War I, and that has rarely succeeded, precisely because the country was founded to embody nobler ideals. Rather than run draft legislation through an open committee process, Republicans have outsourced the entire deliberation to 13 male senators from 10 states. The Senate GOP advantage in small states is reflected in the working group, and then compounded by the fact that it includes both senators from Wyoming and Utah. The senators who have been looped into the process represent less than one quarter of the nation’s population. If you hail from either of the coasts, your interests are being safeguarded by zero of the senators endeavoring to overhaul the U.S. health care system.
There is no provision of Senate rules holding that legislation must run through regular order, or win the support of senators whose constituents account for half or more of the country. Republicans could pass a bill nobody has had time to read, with 50 votes, and, pending action in the House of Representatives, it would become the law we all live under. But it would not reflect the majoritarian spirit democratically enacted legislation should aspire to.
As Missouri Senator Claire McCaskill noted in a colloquy with Utah Senator Orin Hatch that went viral online almost two weeks ago, the contrast with the process that resulted in the Affordable Care Act is striking.
That bill, of course, secured 60 votes from senators representing the substantial majority of the country. It ultimately passed on a party-line basis, but only after a lengthy public hearing process in two committees through which senators in both parties were given a say in the final product. Republicans weren’t simply allowed to propose amendments to the legislation—many of their amendments were adopted. Nobody’s interests went unconsidered along the way, and though then-Minority Leader Mitch McConnell ultimately corralled his members into lockstep opposition to the entire Democratic agenda, the great irony is that the law operates as a substantial transfer of resources from states Democrats represent to those Republicans represent.
While Obamacare has grown into a popular law that insures tens of millions of people, the Republicans’ American Health Care Act is unpopular in every state in the country. We can’t know with any certainty whether a more open process would result in better, more popular legislation. McConnell’s determination to cut the broader public out of the process points to a belief that sunshine would kill any bill that reflects GOP priorities.
Republicans cannot grapple with this basic fact honestly. If the point of keeping the bill text tightly held is to prevent the public from weighing in on unpopular provisions before the Senate votes, then admitting that there’s anything unusual about their bill, or their strategy, would give away the game. They thus respond to critiques of their conduct not by opening the process, but by lying about what’s really happening.
The good news is that Republicans can’t stave off democratic accountability forever. In a sense that should be obvious to them, the fact that they’re hiding legislation from the public because they know the public won’t like what they’re doing will become a defining fact about the law when people begin suffering under it. Republicans will face a reckoning at some point, in other words; the only thing we don’t know yet is whether the reckoning will come before it’s too late for the rest of us.