During the Obamacare debate, he denounced the parliamentary maneuver as “an assault to the democratic process.”
Senate Republicans are gearing up for a vote on their bid to repeal and replace Obamacare next week, though the bill itself — crafted in just a few months — is still being hidden behind closed doors. Republicans have refused to reveal the bill to Senate Democrats, the public, or even some members of their own party.
Because the bill is still secret, it’s not clear yet what its impact will be for the nation’s health care system, but reports indicate that it will be largely similar to the House version, which is estimated to result in 23 million losing their health insurance.
In addition to the secrecy, Republicans are ramming the bill through using a process called reconciliation, allowing them to avoid the threat of a filibuster.
Under reconciliation, they can pass the bill with a simple majority of votes, which they can reach by getting nearly all the Senate Republicans on board, with a possibly tie-breaking vote from Vice President Mike Pence.
The process also allows them to drastically restrict debate and amendments on the bill, effectively taking away any time for lawmakers to listen and respond to criticism of the bill before it gets enacted into law.
In short, in less than a week, Senate Republicans are considering ramming through a major piece of legislation that the public has not seen and will not be able to respond to, and they’re using a method specifically designed to circumvent any mechanism the Constitution allows the Senate’s minority party to stop it.
But don’t take it from me: Take it from Republican Senator Orrin Hatch (R-UT), who agitated fiercely against the Senate Democrats’ rumored plan to pass Obamacare through reconciliation in 2010.
“This use of reconciliation to jam through this legislation, against the will of the American people, would be unprecedented in scope,” Hatch wrote in a 2010 Washington Post op-ed titled “Reconciliation on health care would be an assault to the democratic process.” “And the havoc wrought would threaten our system of checks and balances, corrode the legislative process, degrade our system of government and damage the prospects of bipartisanship,”
In the op-ed, Hatch details exactly how reconciliation allows a majority party to abuse parliamentary power, and why it’s inappropriate for health care. “It sharply limits debate and amendments to a mere 20 hours and would allow passage with only 51 votes (as opposed to the 60 needed to overcome a procedural hurdle),” he wrote. “But the Constitution intends the opposite process, especially for a bill that would affect one-sixth of the American economy.”
But now, when it’s Republicans considering “[corroding] the legislative process,” Hatch is mum on the dangers of the process — even defending the bill’s secrecy.
“The Constitution intends the opposite process, especially for a bill that would affect one-sixth of the American economy.”
According to Hatch, holding public hearings on Senate Republicans’ Obamacare replacement plan would be useless, because those hearings would only give Democrats opportunity for criticism.
“We have zero cooperation from the Democrats,” he told reporters. “So getting it in public gives them a chance to get up and scream.”
When it was Obamacare on the table, Hatch was a staunch proponent of bipartisanship, arguing in an open letter to Obama that “our nation expects us to solve this challenge in an open, honest and bipartisan manner.” He added that “the American people deserve an open and vigorous dialogue on this critical legislation and the use of this process would be a clear signal that Washington continues to ignore their voices.”
Obamacare did not pass through reconciliation. The major parts of the bill, including the individual mandate, the Medicaid expansion, the ban on discrimination against pre-existing conditions, the subsidies, and the taxes, passed in 2009 through regular order.
Later, the bill was adjusted via reconciliation, allowing Democrats to make changes to subsidy levels and taxes after they lost the supermajority that allowed them to pass the major legislation via the normal process.
But that doesn’t mean that the two processes are at all similar. Obamacare came together over two years, during which Congress held open, bipartisan hearings and consultations with experts in the health care industry, and President Obama and leading Democrats stumped across the country for the law.
When Obamacare was passed, the bill had been debated for 160 hours on the Senate floor, had been the subject of many committee meetings and markups (more than 50 of which were held in the Senate Finance Committee, with Hatch himself now chairs), and had incorporated 171 Republican amendments — although, granted, many of them were technical in nature.
Even still, while Obamacare was being debated, Congressional Republicans were extremely critical of the process, accusing Democrats of being secretive and rushing the bill through. And in 2010, it was the use of reconciliation on even parts of the bill that Hatch objected to — which was far less than using it to pass an entire bill, as his party aims to do now.
“If the only way to pass this $2.5 trillion bill is through reconciliation, then this continues to be an abuse that stifles dissent and badly undermines our constitutional checks and balances,” Hatch wrote in 2010. “Poll after poll tells us that is what Americans want. To do that we must start by taking the reconciliation procedure off the table. Let’s move forward instead with bipartisan legislation that doesn’t abuse the Senate’s rules but that does address the challenges our country faces.”
Hatch was against passing health care through reconciliation before he was for it was originally published in ThinkProgress on Medium, where people are continuing the conversation by highlighting and responding to this story.