We’ve written extensively (e.g., here, here, here, and here) about the problems with Congressional Republicans’ healthcare legislation, which would gut Medicaid and make it far harder for older people to afford individual health insurance plans, all in order to fund tax cuts that benefit the wealthiest. But the process by which Republicans are trying to pass their bill is equally alarming, and potentially disastrous for the future of the US legislative process.

An imperfect but useful status quo

Passing major legislation should involve extensive consideration of proposals’ likely impacts. Hearings allow members of Congress to hear from and question people with relevant knowledge and experience; this input can shape both the initial bill and later amendments. Once a bill is introduced, the nonpartisan Congressional Budget Office crunches the numbers and provides a score summarizing anticipated outcomes for the legislation’s first decade, while researchers and advocates calculate the likely impacts on the groups or industries they’re most concerned about. Members’ constituents and other stakeholders can weigh in with calls, letters, emails, and in-person attendance at town halls or office meetings. Marches, rallies, and protests might occur.

Media outlets also play a role in the process. Journalists report on the bill text, CBO score, and official statements, as well as interviewing constituents and members of groups that would be most affected; editorial boards and commentators weigh in; and pollsters gauge public approval of overall bills and specific provisions. Social media can bring the stories of affected individuals to larger audiences, as well as extending the reach of news and opinion pieces. All of this can make congressional staffers more aware of legislation’s likely impact and inspire more constituents to contact their members of Congress.

Ideally, this process would leave stakeholders and members of Congress with a clear, accurate picture of a bill’s merits and drawbacks and their constituents’ feelings about it. In practice, interest groups and commentators may mischaracterize bills or neglect to mention certain key provisions, and groups with more resources can make more of an impression on their Congressional delegations. Stakeholders often object to the parts of a bill that fund or otherwise allow for the popular provisions, and may or may not suggest appropriate alternatives. But a robust process of public input still gives members of Congress an opportunity to see pitfalls and alternatives that they would otherwise have missed, and respond with amendments. Sometimes it might even result in a member voting differently than originally planned.

The ACA vs the AHCA

There are legitimate criticisms to make of the process of developing and passing the Affordable Care in 2008-2010, but the law’s core provisions resulted from months of hearings and revisions – including Democrats’ extensive efforts to incorporate feedback from their Republican colleagues and make the bill sufficiently palatable to the many stakeholders involved. Topher Spiro summarized the process in a Washington Post op-ed:

In the House, Democrats held a series of public hearings before introducing a public discussion draft in June 2009. The House then held more public hearings before introducing new legislative text in July. All three relevant committees held “markups” — committee work sessions to amend the legislation — and the full House vote on the amended legislation did not take place until November.

In the Senate, the HELP Committee held 14 bipartisan roundtables and 13 public hearings in 2008 and 2009. During the committee’s markup in June 2009, Democrats accepted more than 160 Republican amendments to the bill.

Beginning in May 2008 — 20 months before the Senate vote and six months before Barack Obama, who would later sign the bill into law, was even elected president — the Senate Finance Committee held 17 public roundtables, summits and hearings. In 2009, Democrats met and negotiated with three Republicans for several months before the tea party protests caused the GOP to back away from negotiations. The Finance Committee held its markup in September, and the full Senate vote did not take place until December.

Here’s what happened this time around: House Republicans refused to let anyone outside their conference see the text of the American Health Care Act until they introduced it on a Monday evening (March 6); the Ways and Means and the Energy and Commerce committees cleared it on Thursday (March 9) with party-line votes without waiting for a CBO score. When the CBO did release its score on March 13, it estimated the bill would leave 24 million more people uninsured by 2026. (The March 22 amended version of the AHCA would have similar effects, CBO found.) The prospect of so many millions losing insurance reportedly “rattled” moderate Republicans. On March 24, House Speaker Paul Ryan announced that he was withdrawing the legislation before the House could vote on it. He stated, “Obamacare is the law of the land … for the foreseeable future.”

That assurance didn’t hold for long. On April 20, 2017, House Republicans announced that they had revived their bill and added the MacArthur amendment, which would allow states to adopt looser versions of ACA provisions governing premiums and essential health benefits. (A summary of the amendment was available on April 20; the full text was released April 25.) This time, Speaker Ryan didn’t bother to wait for a CBO score before holding a vote, and on May 4, 2017, the House passed the AHCA with 217 Republican votes. There were no hearings on either bill; many House Republicans faced angry crowds at town hall meetings, and others skipped public appearances. On May 24, the CBO reported that the version of the AHCA passed by the House would leave 23 million more people uninsured by 2026.

Senate Majority Leader Mitch McConnell wants to pass the Senate’s version of a healthcare bill by June 30, before the July 4^th recess. As Andy Slavitt explains in the Washington Post, speed and secrecy are McConnell’s tools for minimizing pressure on Republican Senators whose constituents might otherwise persuade them to vote against a bill that will likely be very similar to the House’s AHCA. The vote may occur within hours of the CBO score’s release. No hearings are scheduled and, two weeks before the vote, no bill text has been released to the public.

This is a perversion of the democratic process, and it sets a dangerous precedent. Mitch McConnell apparently cares more about getting 51 votes on a healthcare bill than about getting public input that could improve the bill and give Senators a better idea of what they’re voting on. This is not government “of the people, by the people, for the people”; it’s cynical, short-sighted gamesmanship with the health of millions at stake.

What will Senators stand for?

McConnell’s attempted evasion of public debate will only work if Senate Republicans allow it to do so. Vox’s Sarah Kliff quotes three Republican Senators — Bob Corker of Tennessee, Ron Johnson of Wisconsin, and Bill Cassidy of Louisiana — who expressed dissatisfaction with the lack of openness in the Senate bill process, but notes that the three of them could get McConnell to agree to release the bill text or hold hearings. All it would take is three Republican Senators threatening to vote no on the bill for McConnell to accede to their demands, or else face the death of a bill he seems determined to pass. Kliff writes:

The health care bill only gets to remain secret if Republican senators allow it to. They could force it into the sunlight if that was their desire. A decision not to do so is tacit consent to a closed process, no matter how much Republican senators criticize that process to the press.

Another important article from Vox is one containing transcripts from interviews of eight Senate Republicans by Tara Golshan, Dylan Scott, and Jeff Stein. They asked these Senators what problems their healthcare bill is trying to solve, and how the bill will actually solve them. The responses were distressingly vague. Several Senators suggested that the Republican bill would lower premiums, though they declined to specify exactly how that would happen — and, notably, Senator Ted Cruz of Texas dodged Dylan Scott’s question about whether it was acceptable for some people to face higher premiums if the average result is lower premiums. The most encouraging response I saw came from Senator Shelley Moore Capito of West Virginia:

Dylan Scott: What do you want this bill to achieve, and how do you think it’s going to improve health care in America?

Shelley Moore Capito: First of all, we’ve got to stabilize the market of the places that have no coverage for the individual market, whose premiums are skyrocketing, whose deductibles are through the roof. This is a real phenomenon. Somehow we’ve lost sight of the fact that people are hurting here, and if we don’t act relatively quickly, the whole system could collapse.

Dylan Scott: So how do you evaluate, what metrics do you use to evaluate whether it achieves that or not?

Shelley Moore Capito: It’s simple. It’s the affordability, protect people with preexisting conditions, protect people with Medicaid. Try to figure out the differences between the Medicaid expansion states and the ones that didn’t expand Medicaid. These are the same principles we’ve been talking about because they’re better principles than what the ACA is giving us.

Dylan Scott: Are you confident that the Republican bill would do that in a way Obamacare has not?

Shelley Moore Capito: That’s the goal.

Dylan Scott: Right. But do you feel confident that it actually will?

Shelley Moore Capito: Unless I’m confident we can do that, I don’t know how we can move forward in good conscience.

I see that Capito doesn’t come out and say she would vote against a bill that doesn’t protect people with Medicaid coverage, though she’s apparently concerned about this. In a USA Today column, Andy Slavitt warns that the GOP will offer “fig leaf” deals that let Senators pretend the bill is addressing their concerns, even though the end result of millions of people losing insurance and/or benefits they had under the ACA remains the same. The likely fig leaves include an “opioid fund” that Slavitt explains “restores only a small fraction of the massive Medicaid cuts and does not require insurers to cover related physical and mental health services.” West Virginia, he notes, has the US’s highest opioid overdose death rate and the highest percentage of adults on Medicaid. Unless the Senate bill is a dramatic departure from the AHCA, there’s no way a few million in special opioid dollars can make up for deep cuts to Medicaid that will hit West Virginia especially hard. Will Capito accept a fig leaf, or will she vote against the bill?

The only rationale I can see for the AHCA and a similar Senate bill is that lowering taxes is more important than assuring affordable, high-quality health coverage. If that’s the rationale, its supporters should be willing to stand behind that assertion. The ACA has not allowed everyone to afford healthcare, but it has slashed the uninsurance rate and improved the quality of insurance coverage. Legislators who were most focused on improving these outcomes would probably work to improve the ACA, rather than replacing it with a bill that reduces consumer protections and fundamentally alters the federal role in Medicaid, resulting in billions of dollars in Medicaid dollars for states and fewer services for those most in need. Senators who are serious about improving coverage and quality would have a coherent vision for how their bill would do those things — but the Vox transcripts and other coverage suggest the top priority is creating a bill that can get 51 votes.

For the New York Times’ Upshot blog, Christopher Warshaw and David Brookman used results from eight national polls to estimate the level of support for the AHCA in each state. They note that bills polling poorly on a national level aren’t necessarily unpopular in every state — but in the AHCA’s case, its best performance is in Oklahoma, where only 38% support it. Any Republican Senator who votes for an AHCA-type bill will be voting against the preferences of his or her constituents, and voting for a system that slashes the safety net (which anyone using nursing home care will likely end up needing), disproportionately harms women, and makes it much harder for older and less-healthy people to buy the individual insurance policies they need. They could lose their seats over this bill whether they vote for or against it. Would they rather take that risk in order to stand for a defensible political process, or for a destructive political strategy to push a bill that has no clear rationale except tax cuts and very little public input?