Day two of the health care reform markup in the Senate Finance Committee began with a spirited two-and-a-half hour debate on a central question of the American system of government -- should lawmakers understand the letter of the law they're voting on?
It was a doozy of an amendment; spirited debate had gone all morning but it was defeated on a party line vote.
The amendment, offered by Kentucky Republican Sen. Jim Bunning, would have required that the bill they are considering be posted on line in it's full legislative language -- not the more traditional summary format -- at least 72 hours before a final committee vote.
In addition Bunning wanted the Congressional Budget Office to prepare a final cost analysis of the bill also within 72 hours of the final committee vote.
The 223-page bill that Senate Finance Committee Chairman Max Baucus, D-Mont., has offered is currently written in what is called conceptual language, a common practice at the finance committee to help lawmakers more easliy grasp the overly complicated nature of fiscal legislation.
Problem is, said the Democrats today, if the committee deliberated the bill in the long winded final form, nobody would understand it.
See the health care reform bill and its modifications and proposed amendments here.
As an example, instead of the arcane and confusing legalese that will call for the creation of high risk pools for people with pre-existing conditions, Baucus' bill simply says, "Within a year of enactment, any uninsured individual who has been denied health care coverage due to a pre-existing condition can enroll in a high-risk pool."
"What is conceptual language? It's plain English. I'm not a lawyer," said Sen. Kent Conrad, D-N.D., in defense of Baucus' bill.
But Republicans on the committee say conceptual language isn't good enough. They want the bill in the formal legislative language, which would swell Baucus' bill to "4 times, maybe 5 times the length," Sen Orrin Hatch, R-Utah, said, arguing that the full language should be written before a vote.
"The devil is in the details when you write the language," declared Bunning. "This bill is too big and too important for us to rely on conceptual language."
It may sound reasonable to have lawmakers consider the letter of the law they'll vote on, but in the Senate Finance Committee, it would break years of precedent in the committee, which writes tax law, and has such confusing language that members of the committee admitted today they don't understand it.
"We have one of the most talented staffs in the Senate, they understand legislative language, Hatch said. "Some of us do, too," said Hatch of his Senate colleagues. Then he paused, chuckled, and said maybe he had overspoken.
"Five percent of the American people would understand what it means. That is the fundamental reason this committee deals with plain English," said Conrad. "So the members can understand. So the American people can understand."
Conrad later read some Finance Committee legislative language which went something like this: "In general, 42 usc 95 us is amended a, by striking amounts, one in general for purposes ... and indemning..."
Sen. Pat Roberts, R-Kan., then tried to interpret, saying Conrad had read something having to do with CMS reimbursement rates. It wasn't clear if Roberts was literally interpreting the legislative language or if he was just trying to make a point about how confusing it is to deal with the Medicare administrator. In any event, he was wrong. It had to do with changes to the Medicare Advantage program. Take a look at some other Finance Committee legislative language here:
Sen. Mike Crapo, R-Idaho, said he relies on summaries of legislative language, but it's important to have the legislative language so that summaries can be written off the legislative language instead of vice versa. Summaries, Crapo said, are "somebody's attempt to make plain English out of legislative language."
Sen. Olympia Snowe, R-Maine, supported Bunning's amendment. She is the Democrats' best hope for a Republican to support a comprehensive health reform package. But today she said she wants to see some legislative language.
"Legislative language matters to the CBO. And if it matters to the CBO, it should matter to us," she said. "This is all about good government."
Snowe has long complained that Democrats are anxious to pass their health reform language this year. She wants to take more time to consider it and see the full legislative language.
Yesterday, Douglas Elmendorf, the head of the nonpartisan Congressional Budget Office frustrated Baucus and Democrats when he told them it would take up to two weeks after he received full legislative language to achieve a final, complete guess at what the health reform bill would cost. His most recent estimate has the bill at $774 billion, but with a net $49 billion reduction on the federal deficit after 10 years, when new fees and tax increases associated with the bill are realized.
Elmendorf said that the translation into legislative language would likely affect those numbers.
Baucus, who said the legislative language could be tweaked to come in line with the conceptual language, argued today that Bunning's request was just a delaying tactic, since whatever bill the Finance Committee passes -- be it in conceptual or legislative language -- will promptly be rewritten when it is woven together with a bill passed over the summer by the Senate health committee, and sent in tandem to the Senate floor.