Why Bills Are Long
Staged antics on the Capitol steps by Rep. Pete Hoekstra (R-MI). Via OpenCongress.
Conservatives have been grousing about the length of the health-reform bills for months. As I see it, there are only two charitable ways of interpreting this critique.1 Either (A) you could think the bill is so long that there must be something nefarious hidden in there somewhere, or (B) you could think that more legislative language equals more government (and more government is always bad). There’s not much to say about (A), except that the GOP has had months to read the bills and find secret Bolshevik plots, and that GOP legislators sat on all five of the congressional committees that contributed to the legislation. And (B) is, I think, misguided—even if you buy into its ideological premises. That is, even if you are a small-government conservative, the length of legislation is simply irrelevant to any conclusion about its merit.
It is true that both the Democratic health bills are long. According to numbers from Donny Shaw at OpenCongress, both bills are about 100 times longer than average. But several bills from the last decade were of comparable length, and five of the ten longest were written by Republicans.
Christopher Beam provides some historical perspective:
Over the last several decades, the number of bills passed by Congress has declined: In 1948, Congress passed 906 bills. In 2006, it passed only 482. At the same time, the total number of pages of legislation has gone up from slightly more than 2,000 pages in 1948 to more than 7,000 pages in 2006. (The average bill length increased over the same period from 2.5 pages to 15.2 pages.)
Bills are getting longer because they’re getting harder to pass. Increased partisanship over the years has meant that the minority party is willing to do anything it can to block legislation—adding amendments, filibustering, or otherwise stalling the lawmaking process. As a result, the majority party feels the need to pack as much meat into a bill as it can—otherwise, the provisions might never get through. Another factor is that the federal government keeps expanding. Federal spending was about $2.7 trillion in 2007. That’s up from $92 billion 50 years ago. And as new legislation is introduced, past laws need to be updated. The result: more pages.
So why is legislation so long? Ezra Klein writes, “Legislation is written for lawyers, not for people.” (Ouch!) I wouldn’t put it quite that way, but I agree that it is the technical style of legislative language (and page formatting) that makes bills so long. There are the huge margins; triple-spaced lines; nested, block-indented subsections, paragraphs, subparagraphs. There’s inoperative language: titles, subtitles. And there’s the dense Legalese, cross-referencing, and instructions for codification.
But I would add a few thoughts to Ezra’s observations. One thing that makes legislative language so cumbersome is that it must be (or attempt to be) exhaustively explicit. You can’t “just say” what you want to say in a statute as you would in ordinary circumstances. You have to define the operative concepts and terms. And you have to hedge—in a refined, structural sort of way. A lot. Think how much harder it is to say what you want to say if you are constantly trying to head off potential arguments against your point. And not just the arguments of the person you’re talking to—but any possible argument that anyone could conceivably raise against you based on any semantic nuance, syntactic ambiguity, or substantive inconsistency with anything you’ve ever said at any time in your life. Sound hopeless? It is. But that’s what drafting statutes is all about.
- There are of course less charitable ways to interpret this line of critique from the GOP. As anti-intellectual demagoguery, for example. [↩]
Phases of Reform, Part 2
Peter Jacobson, for Georgetown Law’s O’Neill Institute Health Reform blog, writes:
We face both a moral crisis and a cost crisis and we can’t seem to navigate both simultaneously. As between the two, Congress should expand coverage and worry about costs later. If the absence of cost controls, which do not appear to be adequate in any of the pending bills, results in no legislation being enacted, it will be a tragedy. If the legislation expands coverage without adequate cost controls, it will be a policy problem to be rectified in subsequent legislation, but hardly a tragedy.
* * *
For those individuals and families without adequate health insurance, there is no brutal choice between costs and access; there is only the brutal reality of what happens when they need medical care and can’t afford it. * * * I’m sick of the distraction that bending the cost curve has become. To paraphrase Keyshawn Johnson, just pass the damn bill.
Photo by stephanebenito.
That captures the moral force of the argument for providing health security before cost reform. (Although, as I mentioned before, I think the current legislation is actually quite ambitious with respect to payment and delivery-system reforms.) There’s also a strong pragmatic consideration.
We have to settle some big questions about the structure of the healthcare system before we can know how best to allocate our resources within it, and before we can know what tools we have are at our disposal. It wouldn’t make sense to invest a lot in fine-tuning the preferences or settings on your computer just before you switch to a new operating system. Or—because every policy debate should at some point be reduced to a hypothetical about pizza toppings: it wouldn’t be prudent to order 10 double meat-eor pizzas with carnivore crust for your party before you even know basic facts like how many people are coming, if any are vegetarians, and whether someone can bring extra lipitor and defibrillators.
Reform of the payment and delivery systems is a complicated and largely experimental endeavor, but providing for health security is comparatively simple. Until we get everyone in “the system,” our efforts to fix it are likely to be inefficient and the benefit of those efforts maldistributed.
How Would the IMAB Work?
Tim Jost gives a nice précis of the Senate bill’s IMAB provisions here:
A signature feature of the Senate bill is the creation of a new 15-member independent Medicare Advisory Board composed of health care, health policy, and health economics experts as well as representatives of employers, third-party payors, consumers, and the elderly appointed by the President that is responsible for presenting Congress with proposals for reducing excess Medicare cost growth. In years when Medicare costs are projected to exceed a target rate, the Board will be required to make a proposal to reduce cost growth, which will go into effect unless Congress, following expedited procedures develops an alternative proposal. The Board’s proposals cannot ration care; raise taxes or Part B premiums; change Medicare benefit, eligibility, or cost-sharing standards; or reduce payments for providers whose payments have already been reduced by the market-basket adjustments, which will limit the Board largely to reducing Part C or Part D expenditures. The CBO scored the Board as saving $23.4 billion over 10 years.
There has been some confusion, as Slate’s Mickey Kaus illustrates, about the significance of the fast-track mechanism under which Congress would consider revisions to the IMAB’s cost-cutting proposals. Kaus quarrels with the notion that the procedural mechanism will place any real limits on the ability of future Congresses to reject the IMAB proposals:
Congress could reject its proposals without substituting equivalent savings anytime it wanted to ([as long as it] could obtain the President’s approval or override his veto). The Reid bill simply says Congress would have to substitute equivalent savings if it wanted to use a ‘fast track’ filibuster proof legislative pathway it sets up (a pathway that still allows a presidential veto). Future Congress’ [sic] don’t have to use that fast-track and no law Congress passes this year can make them, as far as I can see . . . .
Actually, that’s not quite right. In fact Reid’s bill says that any future bill to repeal or modify IMAB recommendations is “not in order” unless it achieves the targeted savings. (See the Act, p. 1019-20.)
That means that any bill, fast track or slow, that fails to meet the savings target will be subject to an objection, or point of order. (Note that we’re really just talking about the Senate here. House rules permit sweeping waivers of such procedural niceties.) If the point of order is sustained by the Chair, the bill is dead—unless there are 60 votes to waive the requirement or appeal the Chair’s ruling. No doubt some parliamentary chicanery will be available in some circumstances to evade the requirements, but similar procedural mechanisms are effective in other contexts (notably, the budget process) and are by no means an empty gesture.
But couldn’t a future law simply change the rules and axe the IMAB recommendations? Not without 60 votes in the Senate. Any bill proposing to repeal or modify the IMAB procedures would be out of order under Reid’s bill—and thus would have to overcome the 60-vote waiver threshhold.
Kaus also misreads the bill’s (admittedly odd) provision giving Congress an opportunity in 2017 to discontinue the IMAB by joint resolution. Kaus writes that Congress could kill the IMAB “by joint resolution, without the President’s approval.” In fact, joint resolutions do require presidential approval; concurrent resolutions do not. And this joint resolution will require three-fifths majorities—not exactly a sure thing.
The real innovation here—and what makes the IMAB different from MedPAC (that’s the Medicare Payment Advisory Commission that Congress so loves to ignore today)—is the bill’s “default” mechanism: if Congress fails to enact substitute legislation within 7 months1, then the IMAB proposals will take effect automatically, without need of congressional or presidential approval.
- The IMAB would be required to submit its proposals by January 15 of the year prior to implementation. If superseding legislation were not enacted by August 15, the Secretary of HHS would implement the proposals . See the bill, the Patient Protection and Affordable Care Act, pages 1000-53 of the pdf. [↩]
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