Monday, October 1, 2012

The Left and Right Myths of ACA's Path to Law

Ah, deflating myths. I've decided that the patron saint of those who attempt to deflate myths must be Pie Traynor. For some reason, Pie Traynor at one time wound up with the reputation of being the Greatest Ever Third Baseman, despite the clear fact that, well, he wasn't anything special, at least not of that level. Anyway, it took a long detour having to do with Brooks Robinson (a great player, to be sure), but as far as I know cares about Pie Traynor anymore, and  perhaps he's now actually unfairly undervalued, if anyone bothers valuing him at all. So maybe myths really can be deflated over time. At any rate:

One more time. Like it or hate it, everyone seems to agree about one thing when it comes to the Affordable Care Act: the way that it was passed was extraordinary. Republicans believe that it was “rammed through” Congress (see for example an otherwise excellent column over the weekend); Democrats believe it was stalled for months as Barack Obama and Max Baucus desperately tried and failed at a pointless effort to achieve consensus.

The truth?

Passage of the ACA was about as normal as it gets in the contemporary Congress. Was it unduly delayed? No, not really; sure, it’s always possible to find ways that a schedule could have been accelerated a week here or a week there, but there’s really nothing in the timeline for passing this extremely complex piece of legislation that cries out “delay.” As far as the conservative case, there's really nothing there either. The use of reconciliation as part of the final passage of portions of the bill was unusual, but that's normal under a regime of what Barbara Sinclair calls "Unorthodox Lawmaking." It's not as if they held the vote open on the House floor for hours while lobbyists bribed party leaders and their allies used personally rewarding highly persuasive methods to woo reluctant Republicans

Basically, what we learn from Sinclair and other Congressional scholars is that billls take a long time to become law; that in the current era many major bills are really omnibus combinations of many smaller pieces of legislation; that no bill becomes a law without numerous deals and trade-offs; that Congress is strongly polarized along party lines and that therefore we should expect partisan votes on key bills, especially when unified government allows bills to become law without out-party votes; that multiple committees and the party leadership will all be involved; and that the paths various bills take from soup to nuts can differ quite a bit, requiring lawmakers to be innovative and flexible about procedures. All of which was on display in the passage of the ACA. Basically, if you think something happened during that story that shouldn't have happened, go read Sinclair. There certainly are a lot of interesting things that happened, and it's a very good how-a-bill-becomes-a-law story, but mainly because it's such a great example of how the process works these days -- not because someone did something wrong.


  1. I've never seen anything particularly insightful on how student loans ended up in there. This is not to say that such reporting doesn't exist, but I haven't read it. Anyone have a good link on that? Because, from the cheap seats, the inclusion of the student loan thing seemed unnecessary, at least from the perspective of the ACA. I would think student loans would pass on their own, and that the ACA wasn't going to be helped by it, being SO MUCH higher in prominence.

    1. IIRC, the student loan bill was something that could be done via the reconciliation sidecar and might not get done otherwise, making it something of a freebie. I Am Not A Congress Scholar, however, and my memory may be fuzzy.

    2. I would think student loans would pass on their own.

      You'd think. They wouldn't. Not once their origination was taken away from the banks.

  2. I would think that the Massachusetts special election prior to the conference committee would rank, at the very least, as not business as usual.

  3. This type of myth making is quite common in other situations as well. The late, great Barbara Tuchman spent much of her career showing how untrue myths had been created surrounding various wars and how these myths could have a huge impact on history. I'd also say that James Fallows' great article about Obama and the Presidency from the Atlantic earlier this year was full of great examples of how the popular "collective knowledge" about past Presidents can be riddled with errors:

    "With nearly 20 years’ hindsight, it is “obvious” to everyone that the Clinton administration’s “Hillarycare” plan was a political disaster. But when it was first presented to Congress, it was popular in opinion polls and was expected to pass. (Skeptical? In September 1993, just after the plan was unveiled, the veteran political analyst William Schneider wrote, “The reviews are in and the box office is terrific. President Clinton’s health care reform plan is a hit … The more people read and hear about the plan, the more they seem to like it.”) Two weeks after the plan’s release, the “Black Hawk Down” disaster occurred in Somalia, which led to the resignation of Clinton’s defense secretary and a cascade of problems for the administration."

  4. The ACA passed before the Health Care and Education Reconciliation Act of 2010. They were not passed together, nor are they the same bill. The house had to pass the senate version of the ACA as there was not a filibuster proof majority in the senate to revote on house amended versions of the bill. Thus the house passed the ACA with the agreement that they would modify it with the subsequently passed Health Care and Education Reconciliation Act of 2010. I assume the student loan stuff was inserted to make it deficit neutral or decrease the deficit and therefore not be subject to a 10 year sunset clause, a la the 2003 tax cuts.

    1. Oh, OK. Makes sense. Have any links on the last part? (as in what they were thinking by including it?)

  5. Dead wrong Jonathan, as my series of blog posts in real time at econoblog Angry Bear showed.

    The House 'Tri-Committee' Bill (HR3982) with primary author Dingell passed in unified form out of all three Committees with jurisdiction under Regular Order. That is after hearings, full Committee markup/amendments including accommodation with Blue Dogs and some R's on House Finance. This was the first week of July. The next week, and once again under Regular Order the Kennedy-Dodd Bill passed out of Senate HELP. Now due to jurisdictional lines Kennedy-Dodd did not cover the full range of the Tri-Committee Bill in that both Medicare and taxes were under the purview of Senate Finance.

    Now things could have taken several paths. Senate Finance could have taken up the missing pieces from Kennedy-Dodd and perhaps held hearings starting in the Health Sub-Committee of Finance, then helmed by Rockefellerand then gone to the full Committee for final markup and final vote. At which time it would be Reid's responsibility to meld the HELP and Finance components into a single bill and then pass it in say August when the Dems in theory had a filibuster proof 60 votes. At which point it could have been sent to Conference with the House Bill, already quite compatible with the portions of the Senate Bill passed out of HELP.

    1. That didn't happen. Instead Baucus simply scrapped both the House Tri Committee Bill and Senate HELP and decided to start afresh. Moreover he deliberately sidelined his Health Sub Comittee Chair and formed a rump Gang of Seven that turned to. (the original) Gang of Six after Grassley bailed and even then was still even split between R's and Ds with 2 of the 3 D slots held by Conservadems. Which effort to achieve some bastard bi-partisanship failed after five months of delay and the loss of the supermajority when Kennedy died and was replaced by Brown.

      Reid and Obama did not have to let this happen. They could have insisted that Finance stick to its own jurisdiction and pass its version under Regular Order which would have involved something called "majority rule" during the Markup and Committee passage process. Instead they allowed the keys to be turned over first to Presidents Baucus and Snowe and after that effort failed in Dec to Presidents Nelson and Landrieu. We could have had a bill signing in August 2009 if Obama hadn't indulged his Grand Bargain fixation. And got a much better bill besides, one along the lines of Dingell's Tri-Committee Bill and Kennendy-Dodd. You know the two guys Obama signaled out in his first SOTU.

      Sorry JB, mot everything went down the Memory Hole. Or vanished off the Intertubes. Google "Gang of Six and Regular Order" for some real time reminders.

    2. Strongly disagree.

      Here's the post where I work through the timeline.

      I think they could have, and should have, finished by the end of 2009. But the summer delay wasn't really that big a deal. Most of it was during the August recess, where nothing would have been moving one way or another.

      I do think they should have been ready to mark up immediately after the August break, and then they should have moved rapidly to put the floor version together and take it to the floor. I think it's realistic that they could have done that before Thanksgiving, and maybe, maybe, by November 1 -- enough time to get through conference and pass it by Christmas.

      Now, the big caveat is that they could have gone double-time all year in 2009, including skipping August recess (and July 4 recess, etc). But that -- and the inexcusable slow movement in the fall -- weren't about the Olympia Snowe follies. That part of it probably slowed them 2-3 weeks.

      The other part is that it's also very possible that the Snowe delay actually helped pass the thing, even though it failed to get her and Collins. There were a *lot* of moderate Dems who had to be convinced to support the ACA. At the end, not only did they all stick, but a lot of them seemed to do it with a fair amount of bitterness at GOP opposition. There's no way to know, but I do suspect that bending over backwards to try to cut a deal, only to have Grassley and the others wind up with harshly partisan opposition, probably helped.

      But at any rate, the Snowe/Gang of Six delay was something like 2-3 weeks.

    3. Ah, we're overlapping a bit here - my response was to part one of your comment. I'll try to get back to this later, though, but I'm very confident that an August bill signing is entirely unrealistic. Among other things, they didn't even have 60 votes in the Senate for most of that time.


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