Washington Post: Senate's Secret Unusual Even in Washington

By Sarah Binder for The Washington Post

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.

Second, when leaders close the doors, it’s often because the legislative process has ground to a halt. For example, negotiations over federal discretionary spending often take place in secret — but only after the annual appropriations process falters. But on health care, Senate Republicans went straight to closed-door negotiations among their own factions, without even trying to move the House bill — or their own alternative — through the usual public drafting and amending sessions in committee.

Third, McConnell’s tactics are particularly unusual because Republicans are trying to legislate on one of the nation’s most complicated policy issues. Health care affects one-sixth of the economy and may have life-or-death consequences for many Americans on Obamacare. Usually, issues that demand secret negotiations are must-pass measures about to hit a nonnegotiable deadline, such as failing to raise the debt ceiling or to fund the government on time. When the stakes are high and the consequences of failure broadly considered unacceptable, hiding negotiations from the public is usually easier to justify.

Fourth, it’s true that senators have in the past often resorted to small, bipartisan groups (such as the Gang of Six that struggled over health care in 2009 and the Gang of Eight that struck an immigration deal in 2013) working in secret on controversial policy matters. Even so, bipartisan deals that emerge from these “gangs” are usually then defended in public in committee and on the floor — and McConnell has said he won’t do that in this case.

Will McConnell back down?

McConnell holds his cards very close to his vest. But at this stage, he seems unlikely to back down under public pressure to open up the legislative process.

First, given the extreme unpopularity of the bill that the House passed, sunshine can only hurt GOP efforts to deliver on their promise to their base to repeal and replace Obamacare. A Senate deal could have fewer rough edges than the House bill, but it is still likely to be deeply unpopular.

Second, no matter how intense public or Democratic pressure might be, McConnell doesn’t have to worry about objections from anyone other than fellow Senate Republicans. McConnell can pass any bill so long as he has 50 Republican votes — meaning he can afford to lose no more than two of 52 Republican senators. And so the only thing that can influence him are GOP threats to withhold votes.

Third, keeping a tight lid on negotiations limits interference from President Trump, who reportedly called the House health-care bill — which he himself celebrated in the Rose Garden — “mean.” Less interference gives McConnell a better shot at crafting a bill that’s likely to pass. And for Republicans, that’s what it’s all about.

Sarah Binder is a professor of political science at George Washington University and a senior fellow at the Brookings Institution. She has authored or co-authored four books on legislative politics, and she has a mild obsession with congressional rules, the history of Congress, and the Fed.