Baucus Watch, Part XV

What’s the senator hiding in his bill?

As chairman of the Senate Finance Committee, Senator Max Baucus holds the keys to health care reform; any health care legislation must pass through his committee. So what he says or doesn’t say is important to those following the twists and turns of the congressional effort to fix our health system. This is the fifteenth of an occasional series of posts on the senator’s pronouncements and how the media has covered them. The entire series is archived here.

This is the dawning of the Age of Transparency.

Or is it? The president did tell us that health care deliberations would be out in the open, and it would no longer be business-as-usual in Washington, with the special interests influencing legislation. We were led to believe that, indeed, a new age in governmental sunlight had arrived, and that, when it came to legislation that will affect our daily lives, we would at long last be privy to all the sausage-making. So I was really scratching my head when I saw what Senator Baucus and his groupies are currently up to.

During last week’s markup of the Baucus bill, Senator Jim Bunning, a Republican from Kentucky, offered a transparency amendment—which would have required the Senate Finance Committee to make public the legislative language and the final and complete cost analysis done by the God-like Congressional Budget Office (CBO) seventy-two hours before the committee votes on final passage of the bill. But Baucus and his Democratic groupies—acting, ironically, very undemocratically—said no. (One groupie, Arkansas senator Blanche Lincoln, sided with Republicans, and the vote was twelve to eleven in favor of NOT letting the sunshine in.)

The Washington Examiner reported that Baucus himself admitted: “This probably sounds a little crazy to some people that we are voting on something before we have seen legislative language.”

As a concession, Baucus and the groupies agreed that they would release “conceptual language” online before a vote. It seems that the Finance Committee, unlike other committees, works from conceptual language that describes policies in broad strokes—instead of from, you know, the actual language that will ultimately become law. Said Senator Bunning:

For a bill this big and important, I don’t think we should be relying on concepts and preliminary cost estimates when we vote on the bill in committee. Contrary to what the Democrats have argued, legislative language is important. We need to have all the facts before we rush to vote on this legislation.

In other words, the committee expects to vote for a pig in a poke, hoping that the public will go along with whatever emerges when Baucus et al fill in the blanks. A representative of a prominent health plan told me last week he had been visiting with members of Congress over the summer recess and was astonished to learn that members did not know what was in the bills they will be asked to vote on. Massachusetts senator John Kerry explained it this way: “Let’s be honest about it, most people don’t read the legislative language.”

How is this any way for Congress to conduct the peoples’ business? It isn’t, but it’s a good way for lobbyists to conduct their business. Gosh! A ‘conceptual’ bill will give them almost carte blanch to insert words that move the legislation in ways that please the organizations they represent. From their perspective, how much better can it get?

As for not reading the legislative language—suppose some news organization wants to hire an expert to parse the bill so it can explain to its audience what lies buried in all the verbiage. (Hey, that’s not a bad idea!) Or maybe members of the AARP want to know whether they will be charged four times the rate a younger person will have to pay for health coverage, or only twice as much. Or maybe all those people who will now have to dig into their budgets to pay for coverage—or face a tax penalty—will want to know what happens if they don’t pay the fine. Can they go to jail?

On Friday, the ABC News blog The Note reported that a letter sent to Nevada senator John Ensign from the chief of staff of the Joint Committee on Taxation (a nonpartisan arm of Congress) discussed what the tax code says about a willful failure to file, pay, and maintain appropriate tax records. In the (handwritten) missive—obtained by ABC, and viewable here (PDF)—Thomas Barthold told Ensign that “the taxpayer may be charged with a misdemeanor with a penalty of up to $25,000 and not more than one year in jail.” Certainly seeing the actual legislative language about the tax penalties would clarify the issue before “going to jail” replaces “death panels” as the new bogeyman.

Are the Dems in a hurry to spit a bill out before the public finds out what’s in it? They argued that they could not wait the two weeks it would take for the committee staff to post a bill online and for the CBO to evaluate it, accusing Republicans of engaging in a stalling tactic. Maybe so. But there’s a larger issue here: the public’s right to know about legislation that requires them to buy health insurance—with, no less, the U.S. Congress having the final say over what they can afford to pay and how much of their income will have to go to coverage before they can apply for public subsidies.

Are the Democrats tone-deaf? Our CJR Town Halls show that people are confused and not very knowledgeable about what the legislation—being rushed to the finish line—means for them. Many want to know more. Last week, two polls seconded what we are finding anecdotally. In a New York Times/CBS News poll, about 60 percent of those polled said they found the health reforms under discussion confusing. A survey conducted by Rasmussen Reports shows widespread dissatisfaction with leaders of both major political parties. “People feel they’re not being listened to,” said Scott Rasmussen, president of the polling organization. He explained that it adds up to a lot of frustration for voters who would like to “get involved in the decision-making process in a meaningful way,” and concluded: “I think there’s a group of people that are reaching the point that they don’t know what to do.”

To rectify that, the press needs to push the Senate Finance Committee and the rest of Congress to keep their constituents involved in the decision-making process. Really, it’s the least they can do.

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Trudy Lieberman is a longtime contributing editor to the Columbia Journalism Review. She is the lead writer for The Second Opinion, CJR's healthcare desk, which is part of our United States Project on the coverage of politics and policy. She also blogs for Health News Review. Follow her on Twitter @Trudy_Lieberman.