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2009-10-02

Senate takes a major step in a long, hard slog on health reform

At this stage, I was hoping to be able to have analyzed some health reform legislation (namely, the “American’s Healthy Future Act of 2009”), but given the dozens (or hundreds, according to another source*) of amendments on which the Committee completed voting only hours ago (and me not having a direct link to the Committee), I haven’t gotten a chance to see the whole thing yet.

Furthermore, at this stage, a bill may not even be publicly available in legislative language anytime soon. The most recent information posted on the Committee’s website is a 223-page outline explaining the current law and what the Committee wanted the bill to do as of September 22.

The next step is getting the Office of the Legislative Counsel to draft a bill. (They may have already done so, but I cannot find any publicly available legislative language). If the House’s bill is any guide (the version of that bill as amended more than two months ago is still not available, but you can try cobble together your own version from the House Committee on Energy and Commerce’s health reform page), we may be looking at something that can be measured in kilopages and that no single person could fully understand.

Now, back to the Office of the Legislative Counsel to the U.S. Senate. This Office has an extremely daunting task before it. The Office regularly excels at quickly converting legislative intent into legislation that, if enacted, would modify the law in accordance with that intent. However, there is some risk that with a bill of this size and complexity, the outline may not correspond to legislators’ intent; alternatively, if legislation has actually been drafted, there is no guarantee that the Committee’s summary accurately reflects what the legislation actually does.

To be sure, legislation always includes some intentional “wiggle room” for a variety of reasons—e.g., political expediency, delegation to regulatory authorities, or (for the cynical among us) keeping judges and lawyers employed—but as the size and complexity of legislation increases, so does the likelihood of unintentional wiggle room, i.e., gaps, oversights, or human error. I have met with Senate staff to discuss complex legislation only to find them shocked at what the legislative language would actually do as compared to what they intended it to do. To be fair, it was an amendment to the notoriously inscrutable Internal Revenue Code, but look at what they’re up against this time:

As metioned in a previous post, the Finance Committee’s bill outline proposes to amend not only the Internal Revenue Code, but also to amend (or incorporate) the equally-inscrutable (albeit somewhat less famously so) following laws/systems:

  • CHIP
  • ERISA
  • Medicare
  • Medicaid

Also remember that statutes are just the beginning of the story: This legislation would require the enactment or amendment of multiple regulations that are based upon or authorized by those systems, not to mention various official policies, bulletins, newsletters, advisories, and necessary modifications to State laws.

How do you plan to keep track of it all? Please comment below. I’ll explain my strategy in a future installment.

*One would think that the Washington Post has a copy editor on hand to review things before publishing them, but apparently not for that article (at least the version I read), e.g., “the fifth and final to contribute to the legislation” and “the committee’s work of churning through 564 amendment”. I understand that it was published at 2:36 a.m., but reporters and editors are paid to work through the night on a regular basis. What major crisis could have prevented a front-page article from being proofread and published at 2:37 (or even 2:38) instead of 2:36?

© 2009 Alex M. Hendler. All Rights Reserved.