WASHINGTON (CN) – Senate Democrats escalated their protest against Republican secrecy over their efforts to repeal and replace the federal health care law Tuesday by shutting down committee hearings. The action came on the heels of a roughly six-hour talkathon staged Monday by the Democrats that stretched past midnight.
On Tuesday morning, Senate Democrats invoked the so-called “two -hour” rule, which blocks committee meetings once the Senate has been in session for two hours. Because the Senate convened at 10 a.m. Tuesday, the procedural gambit meant committee hearings scheduled after noon had to be postponed.
“As we’ve made clear to our Republican colleagues, if they continue to insist on ramming through a secret health care bill without any public input or debate, they shouldn’t expect business as usual in the Senate,” Senate Minority Leader Chuck Schumer, D-N.Y., said in a statement.
“Before passing a massive bill that will affect the lives of every single American, there ought to be a rigorous and robust debate in committees and a full debate on the floor,” Schumer said.
A group of 13 GOP Senators — all men — have been working for weeks behind closed doors on a bill to repeal and replace the Patient Protection and Affordable Care Act. Even their Republican colleagues, who are not privy to the deliberations, say they have not seen what’s in the bill.
Republicans have said they hope to force a vote on their version of the American Health Care Act, which the House passed on May 4, as soon as next week before Congress breaks for the July 4 recess.
Although Democrats can’t stop the vote, they are following through on a promise to use hardball tactics to shame Republicans for drafting the bill without public scrutiny, and without giving the public, Democrats and other Republican senators not privy to the negotiations an opportunity to review it.
The Democrats’ position was summed up Monday night by Sen. Chris Murphy of Connecticut who said legislation that will impact up to 20 percent of the American economy and millions of American lives shouldn’t be drafted in secrecy.
“Why are my constituents not allowed to see the details of what’s about to happen to their lives,” he said about four hours in to the talkathon. “Why are only a select group of Americans able to have a voice inside that room.”
Murphy cautioned his Republican colleagues: “You’re breaking the Senate. And it won’t get put back together that easily.”
Locking deliberations over big, complicated pieces of legislation behind closed doors is not a tactic unique to Republican-controlled Washington, but those types of negotiations typically only happen after lawmakers cannot hammer out an agreement in public, Molly Reynolds, a fellow of governance studies with the Brookings Institution, said in a phone interview.
Large bills like the spending packages the Senate puts together to fund the government often happen with little public back-and-forth Reynolds said, but those negotiations only take place after extensive debate on the topic and typically involve members of both parties.
Because Republicans are using a special process known as reconciliation that only requires 51 votes to pass, they do not need to have a single Democrat vote for the legislation to approve the health care overhaul.
This leaves little reason to include them in negotiations, though Republicans in the Senate insist that Democrats are unwilling to come to the table, a point Democrats likewise dispute.
“That Republicans are using this process, that means they don’t have to work with the Democrats,” Reynolds said. “And within those confines they’re doing it in a relatively secretive way that is different in kind from other closed-door efforts on Capitol Hill,” she added.
Senate Republicans have had a month and a half to consider the legislation, a timeline that is roughly similar to that Democrats followed when passing the Affordable Care Act in 2009.
Where it differs significantly is in the number of public hearings held to debate and amend the legislation.
The Senate has yet to hold a public hearing on its version the American Health Care Act, which the House passed on May 4, and Republicans have said they do not plan on holding one.
While holding the floor Monday night, Sen. Bernie Sanders of Vermont called for public hearings before the Senate votes on its version of the bill, which Republican leadership has insisted will happen by early July.
“What are you afraid of,” Sanders said during the talkathon. “Bring that bill out.”
During the fight over the Affordable Care Act, Sanders said, the Senate Finance Committee alone held 53 public health care hearings before, during and after the bill was drafted and passed.
Back then, the House passed its version of the Affordable Care Act on Nov. 7, 2009, while the Senate released its own on Nov. 19. In total, it took 34 days for the Senate to debate the bill, which it passed on Christmas Eve of that year.
But the Obamacare legislation spent 25 days on the Senate floor, which Sanders said Monday night was the second longest Senate session in history.
Senate Republicans now, however, aim to use a more condensed process to wind down the health care law.
According to Reynolds with the Brookings Institution, the lack of committee hearings is unusual for such a sweeping piece of legislation, especially considering that the reconciliation process Republicans are using carves out a specific role for them. Under reconciliation, Senate committees receive a set of instructions that recommend changes to the budget resolution and then draft legislation that implements those changes.
“My point is that the process is designed to make use of the committees and so the fact that it’s not in this case is somewhat a-typical for the use of the reconciliation process over the life of the procedure,” Reynolds said. “It’s not the only time that they haven’t gone through committees, but usually they’ve used committees, which the process is designed to do.”
Senate Majority Leader Mitch McConnell has pushed back against this idea, saying at his weekly press conferences that the party is debating the bill in a “committee of the whole” at regular party lunches.
Republicans have also argued that the debate over health care policy has been raging since Obamacare first became law, giving plenty of time for each side to make their positions known.
“We’ve been dealing with this issue for seven years,” McConnell told reporters at a press conference last week. “It’s not a new thing. We’ve spent a lot of time on it, both sides, over the last seven years. We know a lot about the subject. We know how complicated it is,” he said.
“Nobody’s hiding the ball here, you’re free to ask anybody anything. There have been gazillions of hearings on this subject,” McConnell continued. “When they were in the majority, when we were in the majority. We understand this issue pretty well and we’re now working on coming up with a solution.”
Republicans have also noted that the bill will be debated when it comes to the floor, as required by the reconciliation process, and that Democrats will be able to offer amendments to the bill.
However, Monday night McConnell refused to say when asked by Senate minority leader Chuck Schumer of New York if the Senate would have more than 10 hours to review the bill before they vote on it.
“I think we’ll have ample opportunity to read and amend the bill,” McConnell said.
But Republicans will need to wait for a score from the Congressional Budget Office because of restrictions on the reconciliation process that prevent bills from raising the deficit.
Reynolds, however, said these explanations do not make up for the departure from the way the Senate typically functions with such sweeping overhauls.
“Just because we’ve been talking about health care a lot for seven years doesn’t mean we shouldn’t also be treating this bill the way we expect major pieces of legislation, which is to consider it openly and have committee input on it,” Reynolds said.
Schumer said Monday night that Republicans are functioning in secret because they don’t want Americans to know what’s in the bill.
“They don’t want you to see that it cuts health care for millions. They don’t want you to see that it will reduce opioid treatment,” Schumer said. “They don’t want you to see that it will hurt people in nursing homes – they don’t want you to see that millions will lose coverage and many more will get such minimal coverage that it won’t help them, unless God forbid they get the most serious of illnesses,” Schumer said.
If the Senate bill mostly aligns with the House bill, Medicaid could take a big hit. The CBO estimated that the House bill would leave 24 million Americans uninsured by 2026, including 14 million who get squeezed out of Medicaid.
Though the details of the Senate bill remain publicly unknown, Eliot Fishman, with the non-partisan health care advocacy group Families USA, called the secrecy of the bill drafting process “dangerous” and said he is concerned about what the outcome could mean for the more than 70 million Medicaid beneficiaries.
“For something this large, it is unprecedented in my experience,” Fishman said of the secret deliberations in a phone interview, adding that it will likely have unintended consequences.
Fishman, who leads Families USA strategy policy and closely tracks health care developments, said that what he’s heard unofficially about the Senate bill indicates that cuts to Medicaid could be even worse than those contained in the House bill, which switches Medicaid to a per capita cap system and phases out the state Medicaid expansion.
Rather than matching state Medicaid spending as the Affordable Care Act does, the federal government would instead give states a fixed amount for each Medicaid enrollee, fundamentally changing the structure of the program.
The House bill based the per capita amount on the medical consumer price index.
According to the CBO score of that bill, that in combination with the phasing out of the state Medicaid expansion, would lead to a 25 percent cut to Medicaid by 2026.
“Any structure that involves this baseline and artificially low inflation rate per capita cap structure, or that phases out the Medicaid expansion – that just covered millions and millions of people – is inherently, deeply problematic and is going to either take away health insurance or hollow out health insurance for more than 70 million people,” Fishman said.
However, Fishman said what he’s heard about the Senate bill indicates it could use the broader consumer price index. If that’s the case, cuts to Medicaid could be even larger, he said.
When states have to decide how to cut costs, they will likely first turn to high-cost services like long term and specialized care for seniors and people with disabilities.
According to Fishman, the per capita cap system contains a structural flaw because it does not account for the aging baby boomer population.
“That’s a really good example of why a per capita structure, a capping structure, is very dangerous for states,” he said. “That’s why what the Senate decides on this is incredibly critical.”
As for the Republican plan to phase out Medicaid expansion, Fishman said he believes it could be completely phased out within three years and that up to 90 percent of beneficiaries under the expansion could lose their coverage.
“Our experience from before passing the Affordable Care Act is that there will be very limited coverage for the adult population that’s currently covered under the Medicaid expansion if those expansion funds are phased out.”
That means more people will die and suffer from untreated illnesses.
“In the same way that Medicaid has saved thousands of lives, pulling Medicaid expansion away will endanger thousands of lives,” Fishman said. “And ultimately when that insurance goes away, I mean, it is a statistical fact that it will affect mortality rates.”