The Political Sausage: American Healthcare Legislation

Two weeks ago, the House of Representatives passed a bill, The American Healthcare Act, to repeal and replace Obamacare. A bill to achieve the same result, The Better Care Reconciliation Act, has been introduced to the Senate. The Republicans have a 52-48 majority in the Senate and their whipping abilities is strong, thus you might assume the Obama healthcare laws are dead in the water. That would be a huge mistake.

Debate was due to place in the Senate next week but Mitch McConnell, the Republican Majority Leader, has a mutiny on his hands. At least five senators have voiced their objections to the new law so McConnell delayed a vote until after the 4^th July recess, by which time sufficient inducements to rebellious senators will have been made, as well as changes to the bill, which President Trump has described as “mean” and “lacking heart.” Currently, McConnell is revising his Act, once again in closed session. The vast majority of Senators have no idea of the likely changes. So much for democracy.

Why are there two separate bills in Congress to cover the same legislative aspiration? For those who are familiar with the British system of government, the American process will indeed seem odd, as there are multiple differences. For example, in Britain once a Bill has been approved by the House of Commons and the House of Lords, it goes to the Queen for “the royal assent.” The last monarch to refuse consent was Queen Anne who showed ‘thumbs down’ in 1707. In America, once Congress has approved a Bill, the President has a right of veto. The veto rules are complex. In short, the President has 10 days to decide to approve the legislation or get out his veto stamp. In the latter case, Congress has the right to overrule the veto with a two thirds majority in both the House of Representatives and the Senate.

In Britain, a bill can be introduced in either the House of Commons or the House of Lords. For the purposes of this blog, let’s accept a Bill starts in the Commons. The Introduction and First Reading is purely formal. The Second Reading is the big debate about the principles of the Bill, after which it goes to Committee, where the Bill is considered line by line. Then the Bill is returned to the Commons, effectively for the same exercise to be repeated, so all Members of Parliament have an opportunity to propose amendments. Once approved by the Commons, the Bill is given a Third Reading, usually a short debate to decide if the Bill passes. If it does, the Bill goes to the Lords, our second chamber.

The approval process in the Lords is the same, except that in the Lords the Committee Stage takes place on the floor of the House and any peer can take part. Also peers may move amendments on Third Reading. If the Lords approve, the Bill goes for Royal Assent. However, if amendments are made by the Lords, the amended Bill goes back to the Commons for consideration where Lords’ amendments may be accepted, rejected or re-amended. The Bill is then returned to the Lords for consideration of any amendments not accepted. This "ping pong" can continue forever, or at least until the end of the Parliamentary session when the Bill is deemed lost. There is no tie breaker, so if the two Houses cannot agree, the Bill will not be forwarded for Royal Assent. That said, in practice, the ping pong game is usually resolved swiftly through political channels. Either an acceptable compromise amendment is negotiated and agreed or the Lords backs down, having twisted the Commons' tail. The Commons is an elected body, the Lords is not.

The American process bears little resemblance to the British process. More than 20,000 Bills are proposed in Congress each year but few survive. The process might seem straightforward but, like ours, it has great complexity and it is both very fragmented and slow. Bills can be introduced in either the House of Representatives or the Senate or both at the same time. However, the Bill introduced in the House can be quite different to that introduced in the Senate and vice versa. In each House of Congress, the Bill is sent to a Standing Committee and then farmed out to any given numbers of sub-committees. The Bill may be amended or rejected outright by the Committee and, additionally, the Committee can fail to “report it out” i.e. do nothing, in which event it is lost. The vast majority of Bills die in Committee.

If the Bill survives Committee in both the House and Senate, it is reported to each House’s Rules Committee which sets a time table for progress. It then goes to the floor of each House. In the House of Representatives, a Bill needs a simple majority to pass. The rules in the Senate are similar but the opposition has a right of filibuster, i.e. talking the Bill out of time. A cloture motion to defeat a filibuster require a 60% majority vote.

Assuming the Bill is approved on both floors, it passes to a Conference Committee, which contains members of both House and Senate. There is a new Conference Committee for every Bill and its members are appointed by the Chairs of the relevant Standing Committees. Its role is to make the two versions of the Bill into one. Assuming this is achieved, the Bill then goes back to the floors of each House for the final vote. No amendments or additions are allowed. If the Bill is defeated, it dies. If not, it goes to the President for signature, when his veto powers and the override rights of Congress apply as mentioned above.

There is room for the multitude of American Interest Groups to intervene at each stage of the process. The Interest group’s role is crucial. The National Riflemen’s Association is heard loud and clear if any legislation is proposed limiting rights of gun owners. The usual threat is to fund a challenge to a sitting legislator at the next election. In 1986, Congress debated changes to social security benefits. Senior citizens did not like the proposed new laws eroding benefits and groups including the Grey Panthers protested vociferously. The Congress switchboard was jammed for weeks, there was a deluge of mail, and it was made clear to Congressmen and Senators that they would lose votes by the bucket-load if they went ahead. Social security benefits were left untouched.

The prime motivation of a Congressman, who has to stand for election every two years, is to survive. In an election year, he is more likely to do what his voters want, rather than his Party. A President can lose support from members of his own party if the stakes are high enough.  Party ties are much weaker than in the British Parliament. This is another reason why the President does not get what he asks for all the time. Although a Senator has a six-year tenure, he or she will know what his voters want on every major issue.

I have not analysed the differences between the House and Senate healthcare bills. I do not have the intestinal fortitude to wade through the dense legislative Americanese. Also, the final bill, if it reaches that stage, will be different. What is important now is the scoring of The Congressional Budget Office, an independent body. In each case, they estimate that by 2026, more than 22 million Americans will lose healthcare insurance. It may well be a much bigger number. Legislators will be thinking about the possible effect on next year’s mid-term elections.

Republicans supporters and legislators are divided. Some believe the new laws go much too far to deprive ordinary Americans of benefits and put America’s health back to the pre-2010 dark ages. Others say the new laws don’t go far enough. These are the ones who believe it is right to make tax savings for the rich and super-rich, at the expense of the middle classes who will find healthcare insurance unaffordable. This is wealth-care, not healthcare.

Yesterday, the President announced to White House reporters, “Healthcare is working along very well. . . . We're going to have a big surprise. We have a great health-care package.” He offered no details, only reiterating, “We're going to have a great, great surprise.” Why must this President conduct the affairs of state as if it were a TV show? Healthcare is serious business, not a guessing game.

If Congress passes healthcare legislation, you may be assured of two things. First, President Trump will be front and centre, declaring he kept his election campaign promise to repeal and reform Obamacare but he will stand mute on the other limb of his promise “to replace it with something less expensive and better.” So, I say thank heavens for the British National Health Service. Second, I am reminded of the saying: “there are two things you never want to see made, a political deal and a sausage.”