Directed by Senate Majority Leader Mitch McConnell (R-Ky.), a dozen or so Republican senators have spent weeks behind closed doors crafting a bill to repeal and replace the Affordable Care Act. Republicans have not held any committee hearings or legislative drafting sessions for the bill, and Democrats are shut out. Even some Republicans complain they’re in the dark about their own party’s bill.
Dealmaking behind closed doors is common in the contemporary Congress. Still, the GOP’s extreme secrecy in hammering out a health-care deal strikes me as different in both degree and kind from past practice. Is this a legitimate approach, and can it succeed?
Why party leaders like secrecy
A generation ago, even before Watergate, Congress and the president enacted a number of “sunshine” reforms so citizens could follow the legislative process far more easily. In particular, Congress in 1970 put in new rules that made it harder for committee chairs to close hearings to the public, put individual lawmakers’ votes on the record immediately for public review and generally adopted more transparent procedures.
But since then, rising ideological and partisan conflict has pushed congressional leaders back toward opacity. Especially in the House, as political scientist James Curry shows in “Legislating in the Dark,” majority party leaders often limit lawmakers’ access to information on the majority’s high-priority measures, such as the economic stimulus bill adopted in 2009 in the immediate wake of the financial crisis. More and more, House leaders have been releasing bills right before they’re called up on the floor to defang opponents and limit defections from their own party. Limiting transparency with procedural sleight of hand, Curry shows, increases the party’s chances of success.
Even on bipartisan measures, House and Senate leaders prefer to manage all the bargaining behind closed doors. With no ideological sweet spot linking the parties, successful deals — such as the bipartisan budget deals in 2013 and 2015 — require “win-win” bargains: Each party gets its top priority and, in exchange, allows the other party to get its top priority. But negotiating win-win deals requires secrecy. If information leaks out about the less popular parts of a deal before the various constituencies hear about the parts they want, the entire negotiation can blow up. Closing the doors lets negotiators knit together an entire agreement before shaking hands. As the negotiators’ adage goes, “Nothing is agreed to until everything is agreed to.”
So what’s different about McConnell’s ploy?
Still, McConnell’s tactics on health care stand out from other secret dealmaking.
First, most closed-door bargaining in the Senate is bipartisan. True, Republicans are trying to repeal the ACA under special budget rules that eliminate the need for Democratic votes. Even so, it is highly unusual for the majority party’s senators to be kept in the dark on a top party priority. Even if House leaders often limit information on pending measures, McConnell’s tactics are far out of the norm for the upper chamber.