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Does It Matter That Senate Republicans Wrote Their Health Care Bill In Secret?

Senate Republicans are expected to release the text of their health care bill Thursday morning, after weeks of negotiations that have occurred behind closed doors. We convened a group of FiveThirtyEighters to talk about the process so far — and what might be coming down the pike. The transcript below has been lightly edited.

blythe (Blythe Terrell, senior editor): Let’s set the stage. The American Health Care Act passed the House on May 4, and now the Senate GOP is working on its version of a bill to repeal and replace the Affordable Care Act (aka Obamacare). But the process has been … unusual: All of the discussion has happened in private. How weird is this? What has the response been?

anna (Anna Maria Barry-Jester, lead writer, health): I don’t claim to be a Senate historian, but it’s been interesting to read about this from people who are academics, or have covered the Senate as journalists for a long time. And they have written a lot!

The main thrust seems to be that this is very secretive, given that it’s such a big, important bill, but that the secrecy is also the extension of an existing reduction in quantity and quality of Senate hearings.

perry (Perry Bacon Jr., senior writer): From Sarah Binder of Brookings, an expert on congressional rules, here are four reasons why this process has been distinct:

  1. Most closed-door bargaining in the Senate is bipartisan.
  2. When leaders close the doors, it’s often because the legislative process has ground to a halt. For example, negotiations over federal discretionary spending often take place in secret.
  3. Senate Majority Leader Mitch McConnell’s tactics are particularly unusual because Republicans are trying to legislate on one of the nation’s most complicated policy issues.
  4. Bipartisan deals that emerge from closed-door groups are usually then defended in public in committee and on the floor, and the committee process is not happening here.

The reasons Binder gives for why Republicans are doing things this way seem right to me too:

  1. Avoiding President Trump getting involved.
  2. The bill will be unpopular.
  3. They only need GOP votes.

anna: Yeah, it’s particularly striking that closed-door sessions are usually used for bipartisan work, so that the public doesn’t see the sausage getting made, each party making concessions to get their big asks. That’s not the case here; this is a select group of Republicans crafting this bill.

blythe: Perry, do we have any idea if part of the GOP strategy is to keep Trump away from the bill? Is he seen as a liability here?

perry: This has not been said to me explicitly, no. I just think that Trump tends to tweet and comment on topics that are in the news a lot. And by having a closed process, Senate Republicans are kind of keeping this from becoming the only topic in Washington.

anna: Worth noting that a lot of conservatives are irritated that the GOP is using the arcane budget reconciliation process, which requires only 51 votes (50 senators and the VP). It really limits what the Senate can do, because they can’t fully repeal the Affordable Care Act, they can just make changes to it that affect the budget. It’s gonna make for some messy policy.

blythe: Right, they don’t have to bring any Democrats on board. But we’ll all see the text on Thursday (reportedly). Is there a long-term political risk to doing it secretly?

anna: I’ll let Perry get into political costs, but I certainly think the secrecy could have a policy cost, which is, of course, related. There’s a much higher risk of unintended consequences, loopholes, people falling through the cracks, in a bill that’s not subject to scrutiny from various constituencies.

perry: Right. I think it’s important to emphasize that this health care bill affects a lot of people differently. If you’re defunding Planned Parenthood, it might be worth hearing from that group. Or other constituencies who maybe the people writing the bill have not considered.

anna: Agree. And I should also clarify, I’m not really even talking about this politically, like whether it includes ideas people like or don’t like (though that’s also true!). More that you can end up with messy language that’s hard to implement, or legislative language that’s open to different interpretations and so ends up in costly legal battles.

perry: In terms of political costs, I assume the politics are about the bill itself — not the process. By 2018, the bill will be having real-world impacts. If this process were happening in October 2018, I might feel differently.

Also, if the closed-door process was going to kill the GOP politically, they would not be doing this.

blythe: Gotcha. So by then, the secrecy issue will likely have faded.

anna: Perry, as you’ve written, the process here seems to indicate that the GOP thinks there’s a bigger cost to not passing a bill than to passing one that people don’t like?

perry: I think questions of motives are always difficult. That said, they seem to understand that their vision of health care is not going to be easy to defend publicly, but they want to pass this bill anyway. I think it goes to others’ motives: this being a real goal of the party, party activists and donors really caring about repeal, etc.

blythe: OK, so it initially sounded like senators were going to write a new bill. But doesn’t a lot of what’s trickling out mirror what the House Republicans included in their bill?

perry: I’ll be honest: I never believed that.

anna: Agree with Perry.

perry: Republicans have been talking about repeal since 2010. And the basic outlines were always about rolling back Medicaid expansion and changing the tax credit systems.

anna: And they were pretty clear early on that they wanted to not only roll back Medicaid expansion, but also restructure the rest of the Medicaid program.

(And let’s not forget cutting taxes!)

perry: I also think a broad-based new bill would be hard because they have to get it through the House. So writing a whole new bill, then having the House get into that, we could be into October. Or next year even.

blythe: What do we expect to be different in the Senate bill?

perry: Here’s a broad summary from Politico:

The Senate is on the verge of unveiling a sweeping Obamacare repeal bill that would end Medicaid as an open-ended entitlement, roll back health insurance subsidies and strike multiple taxes from the Affordable Care Act.

The bill is expected to repeal the biggest parts of the Affordable Care Act, including the individual mandate and the employer mandate. It is also expected to defund Planned Parenthood for one year by kicking the women’s health organization out of the Medicaid program. That provision could be dropped if Senate Majority Leader Mitch McConnell needs votes from key moderates who oppose it.

anna: Right, it’s clear Medicaid is going to be rolled way back. But the details are really important to senators here because they have a massive effect on state budgets.

perry: The House process had a big fight over pre-existing conditions. I think we are going to see one over Medicaid in the Senate.

blythe: Where are the battle lines in those fights?

anna: For Medicaid, how fast to roll back the program and how much to limit funding.

For the subsidies for people buying insurance on the marketplaces — folks that don’t get insurance from an employer or a public program — there’s the push and shove of how to calculate those subsidies.

Rand Paul really doesn’t want them tied to income or the cost of insurance, which is what the ACA does, because it’s maintaining an entitlement. But moderate Republicans like Susan Collins in Maine and Lisa Murkowski in Alaska do. Health care is really expensive in their states.

perry: And in a political way, there’s a group of Medicaid expansion state senators (Rob Portman of Ohio, Dean Heller of Nevada, Shelley Moore Capito of West Virginia, Murkowski) and then the “I want a big repeal” senators (Paul of Kentucky, Ted Cruz of Texas and Mike Lee of Utah).

One big factor I think we should mention here: In the House, a lot of members basically said, “We had a vote over here, but the Senate will fix whatever we did wrong.” This Senate bill is the real deal. This is the vehicle. So I think you are going to see a huge mobilization on the left to make calls to Senate offices. Dramatic speeches from senators.

The CBO score release will be a big event too.

blythe: Yeah, and that could come next week. The Senate wants to do this all before the July 4 recess, right? Is that still the goal?

anna: Right, that’s expected early next week. The last CBO score was pretty devastating to public perceptions of the House bill.

perry: So I think people should be watching how senators react, how key groups (AARP, Heritage Action) react, how Trump reacts, what the CBO says and how the public reacts.

But I would not plan your life around this happening before the July 4 recess.

blythe: Ha

anna: Phew.

perry: This just seems like a lot to do in a week. I assume the CBO score will force some members to demand changes.

blythe: Yeah, that will give Democrats and Republicans some numbers to wave around.

perry: I think Democrats only!

anna: This. 👆

perry: But I think the GOP can wave around something else: the number of insurers pulling out of markets. That is their big argument.

Last thing: Anyone who tells you they know what will happen, maybe other than Mitch McConnell, is lying.

anna: Ha. I mean, among other things, even once this bill comes out, there will be changes. Even if the usual hearings aren’t happening, etc., there will be changes.

perry: This is a very complicated issue, and I think some members actually don’t know what to do. There are something like seven GOP senators who would like this bill to go away. But voting against it is different.

blythe: Closing question: What would be the biggest surprise?

anna: It would surprise me greatly if Medicaid isn’t cut waaaaay back, even though those cuts are posing a problem.

perry: It would surprise me if there is a vote before July 4. Nothing happens on time in Washington. It would also surprise me if there is an actual vote and this fails (as opposed to it passing or it somehow never coming to a vote). I’d also be a bit surprised if Trump did not say something weird/unhelpful about the bill.

More broadly, I have expected this to pass since the House passed their version. I just think there is a deep desire among the power players in the party to repeal Obamacare. So if this legislation does not eventually pass, I will be surprised.

But remember, no one knows anything. Donald. Trump. Is. President.

blythe: On that note: It looks like we’re about to actually get some data (read: legislation). So let’s see where that takes us.

Anna Maria Barry-Jester is a senior reporter at Kaiser Health News and California Healthline, and formerly a reporter for FiveThirtyEight.

Perry Bacon Jr. was a senior writer for FiveThirtyEight.

Blythe Terrell is a former senior editor at FiveThirtyEight.