Avoiding “unintended consequences”

The program, process and political chaos surrounding implementation of the Affordable Care Act (ACA) could be excused as the classic “unintended consequences” accompanying such sweeping, detailed legislation once it becomes law. However, in this case the history of the bill that spawned ACA reveals a whole lot of this pain could have been avoided.

This is not a blog about universal health care or Obamacare per se. I have my own opinions about both of these issues and I’ll not share them here. The current situation is, it’s hoped, one from which the powers-that-be can take a lesson. What I want to remind Capitol Hill and those who follow these musings is there are consequences to action and inaction. Whether you’re the avenging angel of federal universal health care or the biggest critic thereof, for a Washington, DC, lobbyist, ACA represents the classic case of an arguably good idea badly executed. Bottom line: ACA was a badly written piece of legislation.

There’s likely no other issue as complex and arcane as health care; I know because my wife was a health care administrator for 25 years. If you toss in federal Medicare/Medicaid, state health care programs, physician reimbursement, preexisting conditions and reinvention of this nation’s private health care insurance system, all members of Congress and Hill staff suffered significant brain pain throughout the legislative process.

Much of what’s currently emerging are the unintended consequences folks should have identified and worked to avoid when drafting the bill. However, speed trumped “regular order” in this case; that’s the politics of the issue. What emerged was thousands of pages of statutory language few read and fewer understood. This is what led then Speaker Nancy Pelosi (D, CA), speaking to a March, 2010 legislative conference for the National Association of Counties, to utter the now famous words: “We have to pass the bill so you can find out what’s in it, away from the fog of the controversy,” a call she said for Senate action. The Senate labored, the process stalled, procedural gambits used and ultimately a bill emerged.

However, here are a couple of examples of how equally controversial, complex issues can be handled following regular order and lead to solid legislation. The pending Farm Bill has had its share of problems, but both chambers’ bills evolved through regular order of hearings, amendments, negotiation and compromise.

Better still, take a look at the Senate’s immigration reform bill.   Again, my or your personal opinion of immigration reform isn’t the issue here.  It’s how we got to the end of the line on a fix to a system that badly needs fixing.

When the Democrat-controlled Senate decided immigration reform was ripe for action, a bipartisan group of Senators sat down and over several weeks hammered out a draft bill. They were smart enough tell stakeholders to negotiate their differences and bring back compromises. When that process was fulfilled – and trust me, there were more than a few folks who marveled at the middle ground found by on various issues – a bipartisan bill was introduced.

Extensive Judiciary Committee hearings were held, witnesses heard and changes suggested. The bill moved to markup in the judiciary panel – despite some who argued for greater speed – where scads of amendments were offered over several weeks, some accepted, others rejected, and what emerged was a bipartisan effort.

When the bill moved to the floor, there was all the political drama and posturing you’d expect. When a border security stalemate threatened the bill, it was negotiated away through bipartisan amendment. What emerged – and no one is saying the process wasn’t painful – was a bill that seeks to reform the federal immigration system, a bill that passed the Senate by a broad bipartisan majority.

They say a compromise is a deal where both sides walk away unhappy. They also say in Washington, politics is the art of the possible. Following the process generally makes compromise possible.


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