One point that I often stress when discussing King v. Burwell, and the ACA as a whole, is that we are stuck with a preliminary draft of the bill, that never went through conference. Due to the sudden election of Scott Brown, the Democrats lost their 60-seat filibuster-proof majority in the House. As a result, the House was forced to pass the Senate bill–an incomplete version–through the arcane reconciliation process. This approach only allowed minimal modifications. Many items that would normally have been fixed during the conferences process, simply were not.
The retirement of former-Senate Majority Leader Harry Reid has occasioned a sharp piece from the National Journal about his role in passing the ACA–how it “saved the ACA, but at a price that could kill it.”
It took two bills, shuttled back and forth between the chambers in the last half of March, and Reid’s thinned majority withstanding 30-plus amendments from Republicans. On March 30, 2010, Obama signed the Health Care and Education Reconciliation Act of 2010, which put the finishing touches on the ACA and turned it into law.
“I think it was the example, the prime example, of several things about Reid that many of the stereotypes miss,” Ornstein said. “It’s not just his mastery of the process. It’s also that, this public image of Reid as this bombastic guy who often exhibits thuggish behavior, masked that trust, and the affection, virtually all the members of his conference have for him.”
Democrats celebrated, but with the victory came a caveat. Amending the legislation that passed before Brown’s victory, and then reconciling it with the House’s bill, was difficult under the convoluted procedure that Reid and Pelosi took. There was never a conference committee, and so there was never a chance to make the type of minor fixes and technical corrections that most legislation receives in the final stretch.
“We meant to clean it up in conference, but we never got to conference,” one staffer said in early 2014. “It’s definitely inartfully drafted.”
And the lack of one of those minor fixes has opened a window for a conservative legal challenge that strikes at the heart of the law. In King v. Burwell, the plaintiffs argue that the letter of the law doesn’t allow Obamacare’s crucial tax credits on HealthCare.gov, which 30-plus states and millions of ACA enrollees use.
I trace much of the intractable gridlock in Washington, D.C. to this very moment in 2009 when the ACA was passed on a 60-line vote. In much the same way that Kim Kardashian “broke the internet,” I think Harry Reid ramming the ACA through “broke the Senate.” This is to say nothing of his later decision to trigger the nuclear option, and eliminate the filibuster altogether for judicial nominees other than the Supreme Court. The intransigent Republicans take virtually all of the blame for the gridlock over the last few years, but much of it should fall at the feet of Reid.
I discuss this origin of the law at length in Unprecedented. Steven Brill adds some new insights in his new book, Bitter Pill:
On December 19, 2009, Reid introduced a “manager’s amendment” to the final bill that incorporated all of the deals he had made, meaning that all fifty-nine Democrats and Sanders would vote for it because even if they thought something like the Cornhusker Kickback or the reduction in the device tax was wrong, there was another nugget in there especially for them. Reid would later be hailed by healthcare reformers as a hero for keeping the Senate in session day and night through the week leading up to Christmas as he carefully introduced the amendments that were in the package of the deals he had negotiated but blocked all others. But Snowe was disgusted, she told me, that the most important piece of domestic legislation in decades was being rammed through that way. Nonetheless, expanding health insurance had been an issue she had worked on since serving in the Maine state senate. So she was still on the fence for the final vote.
On December 23, Snowe traveled through a morning blizzard in Washington to meet with the president. It was the eighth time they had met one-on-one about healthcare reform. Snowe sat down and quickly told the president she couldn’t vote yes— yet. “I urged him to take a breather, and let us have a hiatus over the holidays and then have a full, open debate— not the closed process that Harry [Reid] was running,” Snowe recalled. “I told him the opposition was only going to grow if he passed a bill this way by ramming it through with no Republicans. But he told me that the heat would subside. He compared it to how the opposition to his surge in Afghanistan had subsided once it started.” On Christmas Eve morning, in a moment of high drama, the Senate passed the bill with no Republican votes.
Brill has this to say about what he calls the “drafting error” in King v. Burwell:
WHETHER RYAN WAS RIGHT about the new law being a “fiscal Frankenstein,” it certainly was a drafting Frankenstein. One had to read the 55-page sidecar bill full of the agreed-upon amendments alongside the original 906-page Senate bill to understand what was really in it. Worse, the rush to finish off the deal had produced some sloppy drafting from the Senate Office of Legislative Counsel, an obscure group of career lawyers who put the Senate staff’s long legal drafts into actual legislative language. Beyond the usual typos there were some significant inconsistencies.
The most important drafting mistake seemed to say that insurance bought on the exchanges run by the federal government and not by the states (if a state decided not to set up its own exchange) would not qualify for subsidies at all, although elsewhere the language did, as was clearly intended, include the exchanges run from Washington.
That error— which would become the subject of litigation in the federal courts in 2014— was the result of a last-minute change as the Senate bill was being passed early in the morning on Christmas Eve. Fowler and her staff had always intended that the federal exchange would be a backup in states that could not or would not mount their own exchanges so that people in those states could get the full benefit of Obamacare. The CBO had scored the bill based on this unambiguous intention. However, someone had mistakenly cut and pasted language from a provision in an earlier draft that referred only to state exchanges and used it in one place, though not elsewhere, as a boilerplate reference to the exchanges in one of the clauses describing how the subsidies would work.
Normally, these and other slipups, once discovered, would be corrected in a routine “fix” that would get a unanimous vote. However, with Republicans already talking about repeal, no unanimous vote on anything related to Obamacare was likely.
I’ll stick with my quote to the Times about this case:
Opponents of the subsidies say it is the text of the law that matters, not what individual lawmakers knew or believed.
“It is extremely doubtful that any senators read the entire bill at the time, and even more doubtful that all but a few senators were even aware of how the exchanges were structured,” said Josh Blackman, a law professor at South Texas College of Law who has filed a brief supporting the plaintiffs.
“When you have such a large bill, that changes so many aspects of our society, that no one bothered to read, discerning a single legislative intent is elusive,” he continued. “To this, the challengers reply that the text provides the best indication of what Congress meant — the majority voted on it.”