Just when you thought the debate about health care reform couldn’t get more obscure—is a co-op a public option? Will the CBO rescore the chairman’s mark?—the Senate finance committee turned Wednesday morning to an even more arcane subject. It spent more than an hour arguing about whether to use “conceptual” or “legislative” language in the bill they will, one day, perhaps even in the year 2009, vote on.
This may sound unimportant. Or, like discussions about fonts, it might seem deeply important to a fevered few. It’s not. The debate touches on a familiar complaint that members of Congress don’t read the legislation they vote on. Just because it’s familiar, however, doesn’t mean the complaint has merit.
By custom, the finance committee uses “conceptual language”—also known as plain English—for a couple of reasons. One, at least in this case, the legislative language doesn’t yet exist: There are 500-plus amendments to the bill, and they aren’t yet in final form. Two, it uses plain English because the issues it is talking about are complicated and technical. (See an example here.)
So using “conceptual language” (found here) actually makes it more likely that members (and the public) can understand what’s being debated. After everyone agrees, the concepts are sent to the Legislative Counsel’s office and put into legislative language, which is debated and voted on.
This process has been followed regardless of whether Republicans or Democrats are in the majority. But on the health care bill, Republicans on the committee wanted the final bill to be written in legislative language before they voted.
Democrats called this demand a delaying tactic that would stall the bill for three weeks. The longer a bill sits dormant, the greater chance it will die (which is the whole reason the White House has been hurrying along health care legislation as much as it can). The concepts being discussed, they point out, have been under debate for more than a year, in great specificity. Sen. Olympia Snowe, R-Maine, has been in intense discussion—more than 60 meetings lasting more than 100 hours. Nothing will be further illuminated by putting the bill into more complicated language.
Republicans claimed it was a matter of simple common sense. “I truly do not understand the skepticism about this request, the reluctance and the reticence. This is about doing our job,” said Snowe. “If it takes two more weeks, it takes two more weeks. We’re talking about trillions of dollars in the final analysis. What is the rush? Is there’s something happening in two weeks?”
Republicans argue the delay is necessary because there can be a slip between the agreement and the way it gets interpreted by the lawyers. After you’ve met with the architect, you still want to make sure the builder is faithful to your exciting idea for a pool table in the Jacuzzi.
Politically, having Snowe make the go-slow case is a problem for Democrats. Until now, she’s been portrayed as the reasonable Republican, and she may be the only Republican to sign onto health care reform in the end. Why is she suddenly so unreasonable? Partisans would prefer the idea be associated with Sen. Jim Bunning, R-Ky. He’s eccentric and occasionally offensive. (They can also make cracks about him wanting more time so he can get in more shut-eye.)
Republicans have been bringing up the reading problem outside the committee room, too, when talking about the broader push for health care reform. “The era of the 1,000-page bill is over,” said Lamar Alexander of Tennessee recently. “We’ve proven we don’t do comprehensive legislation well in these 1,000-page bills that nobody reads.”
The remedial-reader charge is a winner as a political tool because it has both highbrow and lowbrow appeal. The working man wonders why the lazy senator can’t meet his minimum job requirements. The elite woman with a graduate degree not only thinks it’s lazy—after all, everyone in her grad-school seminar was expected to do the reading—but it also confirms her dim view about congressional curiosity. To independent voters, being unable to read the legislation suggests an unnecessary rush that leads to sloppy work. To everyone, it’s as galling as the blowhard uncle at Thanksgiving who talks and talks without knowing what he’s talking about.
It’s a bipartisan complaint usually made by the party in the minority. Sen. Obama complained about it during the Bush presidency. It works doubly well for Republicans, though. The lengthy bills are all the proof they need that government has grown too large. (The adherence to careful consideration does not apply when issuing press releases, however. When Sen. Max Baucus, D-Mont., put out the 200-plus pages of his chairman’s “mark” last week, Republicans were denouncing it within minutes.)
Though the politics of the complaint are irresistible, it doesn’t make much sense. Just because lawmakers read legislation doesn’t mean they understand it. The reverse is also true: Just because they understand it doesn’t mean they’ve read it. Drafting and reading legislative language is an art form. Staffers who know how to read it and write it are hired to translate the language. They get down in the weeds so the legislators can stay focused on the big principles.
Plus, members of Congress have a hard enough time knowing where they stand on the big things. That’s why they’re always accusing one another of flip-flopping. Let’s not confuse them by making them puzzle over something like this: “For purposes of extension of an agreement with a qualifying ACO under subsection (g)(2), the Secretary shall treat receipt of an incentive payment for a year by an organization under the physician group practice demonstration pursuant to section 1866A as a year for which an incentive payment is made under such subsection, as long as such practice group practice organization meets the criteria under subsection (b)(2).”
Think of it like buying a house: I want to buy this house at this price. I make an agreement with the seller. A month later I sit down in a lawyer’s office and go through page after page of legal jargon with someone I trust—not just to have the expertise to explain it to me but to protect me from anything I don’t want in there. I could study real estate law, read the contract, and make my own determination—but I have a job and a family. If there’s a problem with the final language of the contract, my lawyer alerts me and modifications are made (or I back out).
That’s what finance committee Democrats say Republicans will be able to do when the health care language is crafted into final language that will come up for a vote on the Senate floor.
Whether members of Congress are able to read the legislation is a separate issue from whether they are given enough time to consider it. When Obama aides crafted the stimulus bill, it was being pasted together so quickly even members who were on the committees authorized to write the legislation didn’t know what was in it. That kind of rush to completion is likely to happen this time with health care. That should embarrass President Obama, who talked about transparency so much during the campaign, but every indication suggests the White House will be untroubled by this inconsistency.
I am also not making an argument for stupidity or laziness. Just because a member of Congress hasn’t read a bill doesn’t mean he is excused from knowing what’s in the bill. A good senator follows the principles of good management, learning how to delegate and then demanding results from those he’s tasked with sifting through the legislative language. Walking out of a meeting with a senator last night, I encountered half a dozen policy aides headed in to brief him. I had no doubt from the previous off-the-record conversation that the senator knew the details of policy proposals, not because he’d read all the legislative language but because he quizzed his staff. His questions were informed by other kinds of reading—expert testimony, academic journals, and even news articles, which, one hopes, dear reader, are worth sticking with all the way to the end.