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Senate Likely to Keep Using Secretive Process to Hide Health Bill’s Damaging Impact

In recent weeks, the Senate has launched a process for revising the House-passed bill to repeal the Affordable Care Act (ACA) that, due to its extreme secrecy, independent observers have described as “a situation without precedent” for major health legislation. As Majority Leader Mitch McConnell prepares for a potential vote next week — just days after releasing a “discussion draft” of the bill’s text, and very shortly after Congressional Budget Office (CBO) will release its analysis that may not even reflect the bill in its final form — he appears likely to do even more to obscure the nature of the legislation he seeks to ram through.

Most crucially, while the Senate released the bill text on Thursday, substantial changes will likely occur before next week’s vote — as the term “discussion draft” implies. Yet there’s no guarantee that the public or other senators will see these changes until shortly before the vote or that CBO will have a chance to evaluate their impact on health coverage and consumers’ costs before a Senate or even a subsequent House vote if it passes the Senate. In all likelihood, both Senate leaders and on-the-fence senators will claim major improvements in the bill without facing real scrutiny as to whether the final product achieves what they promise.

  • No one knows how long the final bill language will be available, or whether a full CBO analysis will be completed on it before the Senate votes. While a version of a Senate bill is now public and a CBO analysis of it may be available for a few days before a final vote — and for the required 20 hours of debate — there’s no guarantee that the Senate will ultimately vote on that version of the legislation. Along with piecemeal amendments that the full Senate might adopt, McConnell could introduce a full substitute amendment up to the very end of debate that could replace what was the subject of debate with a substantially new piece of legislation. The result could be a literal “bait-and-switch:” debate over one proposal, followed by a vote on a significantly different one.

That means senators and the public might have virtually no time to see the actual text that the Senate will vote on — and that could become law if the House then passes it without further amendment. Moreover, McConnell could force a vote on this new substitute proposal without a CBO analysis of its impact on health coverage and cost of health insurance. That would enable senators who vote for the final bill to claim that it covers more people or increases costs less than CBO’s earlier analysis indicated, with no evidence to back up that point.

  • In such an environment, senators could portray small, last-minute changes as major “concessions” even though they do little to undo the bill’s overall damage. Undecided senators have expressed concern over issues like the time provided to phase out the ACA’s Medicaid expansion, the need for additional funds to respond to the opioid epidemic, and the depth of Medicaid cuts. Senators could portray changes in these areas as major wins that have secured their votes, even if they have little impact on the bill as a whole. (Indeed, some of these “wins” may simply amount to returning to language in the House bill that these senators once viewed as unacceptable.) Yet without a CBO score on the final bill that includes the impact on coverage and consumers’ costs, there will be no official data to rebut claims that these changes have “fixed” the bill.
  • We’ve seen this dynamic before – with the Upton amendment in the House. Introduced near the end of House consideration of its ACA repeal bill, the amendment sought to allay criticism that people with pre-existing conditions couldn’t find affordable coverage if states waived “community rating” requirements by providing $8 billion for high-risk pools. While prior history and independent analysis both questioned whether that funding would be anywhere near sufficient, House leaders claimed — without waiting for a CBO analysis to validate the claim — that the money would “allow people with pre-existing conditions who haven’t maintained continuous coverage to acquire affordable care.”

Unsurprisingly, CBO later confirmed that the funding “would not be sufficient to substantially reduce the large increases in premiums for high-cost enrollees.” But CBO didn’t release that analysis until weeks after the House passed the bill, with members justifying their “yes” votes on the basis of the exact claims that CBO later refuted.

And, unlike the House-passed bill — which was destined to undergo further changes in the Senate and return to the House — the Senate likely would never have to vote on the bill after CBO completes its analysis. Indeed, House leaders reportedly may rush a vote immediately after Senate passage.  This means that the bill could pass the House as well — sending it to the White House for the President’s signature — before policymakers and the public understand the health care implications of any last-minute changes.

At every turn, the Senate’s process has served to change the deeply damaging and unpopular House bill as little as possible while obscuring that fact. Since it’s impossible to improve the bill substantially while maintaining its basic structure — deep cuts to health coverage to pay for large tax breaks for the wealthy — the only way to achieve the Senate’s political imperative is to maintain as much confusion as possible as to what’s really in the bill. As the Senate races towards a vote, we have every reason to believe that the Senate will continue to try to obscure the impact of its bill.