Unorthodox Policy Making and Health Care Reform
This memorandum analyzes how unorthodox policy making procedures, or procedures that can be classified as deviating from the traditional view of how legislation is made, were used during the legislative process that culminated in the passage of the Patient Protection and Affordable Health Care Act of 2010. Specifically, using the argument that “the textbook model no longer describe[s] how most major legislation becomes—or fails to become—law,” (Sinclair 2000, 218) this paper asserts that unorthodox policy procedures—primarily reconciliation, a White House summit, and the fear of a filibuster—were instrumental in leading to the passage of a health care reform bill in a deeply partisan environment and to a legislative success for the Obama administration that has been described by many as “historic” (Reinhardt 2010).
Unorthodox Efficiency
Unorthodox lawmaking processes have by many accounts “become standard operating procedure in the U.S. Congress,” (Sinclair 2000, 218) especially in the highly partisan environments that have characterized more recent Congresses or in situations where the government is divided more broadly. With this in mind, it should come as no surprise that the American people have become increasingly frustrated with the partisan bickering and perceived inability of government institutions to pass legislation. In turn, congressional policy makers—facing unprecedentedly low favorability ratings—have increasingly turned toward unorthodox lawmaking, whether through innovative uses of budgetary processes, issue-bundling, or various other processes, as a tool to get things done. Interestingly enough, evidence points to the fact that this bet has generally paid off, at least if success is measured in terms of the quantity of passed legislation. In fact, “of measures subject to two or more special procedures and practices in both chambers, 80 percent were successful; at the other extreme, if subject to none in either chamber, only 61 percent were successful” (223). While “most bills do not become law” (221), the stark differences evident between the efficiency of orthodox and unorthodox legislative procedures seem to reaffirm the notion that “legislation is more likely to complete the legislative process successfully if that process includes these special procedures and practices” (223). The only evident exception to this trend of increased passage rates for measures using unorthodox processes remains the Senatorial filibuster or the mere threat of such a filibuster, with evidence suggesting that “of all measures that failed to complete the entire [legislative] process, 48 percent encountered a filibuster problem” (225). Moreover, legislation which faced even the mere threat of a filibuster exhibits a “high incidence of postcommittee adjustment” (226) and seems to generally be associated with substantive concessions.
The Path Less Traveled
Having established that unorthodox policy making generally seems to result in increased success for major pieces of legislation, it is not a surprise that the Patient Protection and Affordable Health Care Act of 2010 included a variety of such unorthodox procedures on its path to eventually becoming law. The health care reform bill made its first appearance in Congress in a rather traditional way, being introduced into the House of Representatives by Democrats on July14th, 2009 with the promise to “cover 95 percent of Americans” (Pear, House) and the resolve to “establish a new public health insurance plan to compete with private plans” (Pear, House). Continuing on this traditional, yet increasingly partisan, path, the health care reform bill was then “approved 13 to 10, by the Committee on Health, Education, Labor and Pensions” (Pear, Health). Though starting on this traditional legislative and committee path, the health reform bill was quickly exposed to various means of unorthodox lawmaking—no surprise given the effective track-record of such means and the controversial nature of major health care legislation. The partisan 13 to 10 vote in the Committee on Health, Education, Labor and Pensions featured an amendment marathon (or something quite similar to one) as evidenced by a Democrat’s statement that Republicans were given “hours of debate and opportunities to offer unlimited amendments,” (Pear, Health) of which over 160 were included. Although Republicans complained about the nature and significance of these amendments, it is nevertheless important to note that “amending marathons are associated with legislative success” (Sinclair 2000, 224) and that the health care reform bill may have significantly improved its chance of passage even in this early stage of the legislative process.
Roadblock Ahead
After numerous delays, rumors of the elimination of the public option, and increasingly heated exchanges, the health care reform bill overcame yet another major hurdle by passing in the Senate Finance Committee with a 14-9 vote (Pear, Republican’s) and eventually passing in the House of Representatives as wellwith a 220-215 vote (Hulse). Energized, Democrats continued to actively push the bill in the Senate until confronted with the unorthodox lawmaking procedure most likely prevent a bill from passing—the Senatorial filibuster. With a shift by Independent Joe Liebermann on December 12, 2009, Democrats faced the prospect of securing only 59 votes in the Senate and the mere threat of an expected Republican filibuster significantly changed the previously optimistic outlook for the health care reform package. Lieberman’s dissent and the prospect of a Republican filibuster had, within a day, led to a significant substantive concession on the part of Democrats—the elimination of any semblance of a public option (Herszenhorn).
Bypassing the Roadblock
In light of this substantive concession, and with Lieberman back on board and Senator Ben Nelson of Nebraska convinced as well, it appeared that the health care reform bill was once again well on its way to passage. However, a series of setbacks for Democrats—primarily the upset G.O.P victory of Scott Brown in Massachusetts after the death of Edward Kennedy—quickly slammed the brakes on one of the Obama administration’s top priorities and nearly killed the entire legislation in its tracks. Nevertheless, with continued pressure and the use of additional unorthodox lawmaking procedures, the health care reform bill recovered from these serious setbacks. By calling for a televised bipartisan summit on health care at the White House—an unorthodox legislative procedure—the Obama administration effectively reinvigorated Democratic efforts to continue the push for the health care reform bill. Moreover, the Democratic Party, lacking the 60 senate votes needed to pass the health care reform bill, chose to pursue the divisive—yet effective—procedure known as reconciliation. Reconciliation allowed the Democrats to avoid the need for a supermajority by bundling health care with budgetary legislation and, in effect, circumvented the Senate which had already passed an earlier version of the health care reform package.
The Final Stretch
While the health care reform bill had by this point arguably already passed through three layers of unorthodox lawmaking procedures—a good indicator that its percentage chance of enactment was somewhere in the 73-79 percent range (Sinclair 2000, 223)—a final layer would be necessary in order to finally garner enough votes to pass the legislation and send it to the desk of the President. Bart Stupak, a Democrat, became the “lightning rod in the debate over abortion provisions contained in the health care feud” (Pergram) and “the left accused Stupak of attempting to make abortion access more difficult,” (Pergram) nearly jeopardizing the coalition that had formed around the goal of passing health care reform. Concerns over abortion and the funding for abortion led to a last-minute promise by President Obama to sign an executive order that would ensure reluctant and conservative Democrats that funding for health care reform would not be used in cases of abortion. With this final step—an unorthodox Presidential promise to sign an executive order upon the passage of a bill—health care reform became a reality was signed into law on March 23, 2010 (Stolberg).
Diagnosis and Future Impact
Ultimately, it is clear that unorthodox lawmaking significantly impacted both the substantive content and legislative trajectory of the health care reform bill. The mere threat of a filibuster led to significant concessions on the part of Democrats and the Obama administration, while Republicans were powerless to prevent the eventual passage of the bill even after an upset Senatorial victory in Massachusetts made passage seem rather unlikely. On the theoretical front, this memorandum utilizes and confirms Sinclair’s framework and findings on the prevalence and effectiveness of unorthodox lawmaking; however, it is difficult to assert the impact of unorthodox policymaking on the actual content or implementation of legislation more broadly. Given that unorthodox policymaking—namely the Senatorial filibuster—altered health care reform proposals significantly, it would be interesting to pursue a study that would gauge whether unorthodox policymaking resulted in watered-down legislation or even if unorthodox policymaking, while surely increasing passage rates of legislation, adversely affected the reelection rates of candidates hiding behind confusing votes. Whether for good or bad, it is reasonable to predict that unorthodox lawmaking is here to stay.
Works Cited
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