“Twenty-five days of consecutive session on a bill that was partisan in the sense that Republicans were angry with it, but we still had the courage of our convictions to have a debate on the floor.”
— Senate Minority Leader Charles E. Schumer (D-N.Y.), remarks on the Senate floor, June 19, 2017
To highlight the secrecy of the GOP health-care deliberations, many Senate Democrats have pointed out that the debate over the Affordable Care Act was the second-longest consecutive session in Senate history. Schumer even sought a parliamentary inquiry on the claim, and it was confirmed by the presiding officer, Sen. Joni Ernst (R-Iowa.)
“The Secretary of the Senate’s office notes that H.R. 3590 was considered on each of 25 consecutive days of session, and the Senate Library estimates approximately 169 hours in total consideration,” she said.
The longest session, Feb. 12-March 9, 1917, concerned whether to arm merchant ships during World War I, shortly before the United States entered the conflict. That lasted 26 days.
But this statistic obscures a reality: The key work on creating the Senate version of the ACA was done in secret. Let’s take a trip down memory lane.
To reconstruct this history, as we did in a previous fact check, we reviewed news coverage of the period and transcripts, and also relied on a detailed account of the legislative maneuvering compiled by John Cannan, research and instructional services librarian at Drexel University’s Thomas R. Kline School of Law. His report, published in the Law Library Journal, made the case that the “ad hoc” process that led to the ACA is “an illustrative example of modern lawmaking, especially for major initiatives.”
The biggest difference between the Democratic effort to reshape health care in 2009-2010 and the Republican effort to undermine that achievement is that the Democrats made full use of the committee process. Republicans have skipped the days of hearings and lengthy markups that were a feature of the crafting of Obamacare.
In the Senate, for instance, the drafting of a health-care bill in the Health, Education, Labor and Pension Committee took from June 17 to July 14, during which 500 amendments were made. In the Finance Committee, which drafted its version between Sept. 22 and Oct. 2, there were 564 proposed amendments. Sen. Olympia J. Snowe (R-Maine) even voted for the Senate Finance version.
That effort — and a companion effort in the House — allowed for the broad outline of the Democratic plan to be apparent to the American public.
But here is where it gets complicated — and more opaque. Working secretly in his office, much like Majority Leader Mitch McConnell (R-Ky.), Senate Majority Leader Harry M. Reid (D-Nev.) merged the two committee bills and unveiled his own version of a health-care bill on Nov. 18 that was scored by the Congressional Budget Office.
In a bit of legislative maneuvering, Reid offered his text as an amendment to a completely different House bill — the Service Members Home Ownership Tax Act of 2009. That’s because this bill had been sitting on the Senate Calendar of Business, avoiding the need for Reid to obtain unanimous consent to bring it up. This bill was also already obsolete — the issue had been taken care of in another bill — and so it was an ideal vehicle to start debate on the Senate floor. Reid inserted the text into the shell of the old bill.
On Nov. 21, a party-line vote allowed debate to begin on the health-care bill. But Reid still did not have the support of all Democrats. As Cannan put it:
“Democrats unhappy with the legislation’s initial form were unwilling to block its path to consideration, but they threatened to filibuster if changes were not made. Reid had to have…