Scoring a Bill that Does Not Exist

The papers are filled with stories (like this one) about the Congressional Budget Office’s conclusion that the Baucus health care reform bill will cost some $829 billion but not increase the federal deficit over the next ten years due to a combination of taxes, fees, and medicare cuts. Only there’s a catch. As the CBO analysis notes on the first page: “CBO and JCT’s analysis is preliminary in large part because the Chairman’s mark, as amended, has not yet been embodied in legislative language.” And again, on pages 8-9 for those who missed it the first time, the analysis notes:

The Chairman’s mark, as amended, has not yet been converted into legislative language. The review of such language could lead to significant changes in the estimates of the proposal’s effects on the federal budget and insurance coverage.

The CBO further notes that some provisions are not included in the analysis costs to be funded by future appropriations, including some implementation costs, are not included, and these could cost several billion dollars. There is also little discussion of the bill’s likely effect on state budgets, which could be quite significant.

The key point here is not the particulars of CBO’s scoring or the merits of the proposed reforms, but the fact that the Senate Finance Committee is poised to consider — and likely vote on — a bill that does not exist.  William Jacobson screams this point from the rooftops: “There is no Baucus Bill!”   I repeat, there is no bill, and yet the Washington Post reports there could be a committee vote on it as early as tomorrow.

Set aside my naive belief that legislators should actually read legislation before they vote on it and that reading is necessary (if not always sufficient) for understanding. Here Senators are preparing to vote on a bill that does not even exist. I am sure someone will say this is okay, because the Senators have been briefed by their expert staff, read summaries, and thus understand the legislation they have not read.  But the expert staff won’t have read the bill, and the summaries are based on some ideas, not actual legislative language.In this case, no one has read the bill.  Not the sponsor, not his staff, not the CBO — no one.  Their votes on whether to advance legislation to overhaul a substantial portion of the American economy will be based upon nothing more than expert assurances that as-yet-unwritten legislative language will achieve everything as planned.

A bill that has not been written cannot be understood. Until the conceptual outline of the Baucus bill is actually reduced to legislative language, it is impossible to determine what the bill will actually do, let alone what it will cost.  Even if legislators don’t need to read legislation in order to understand it, someone does.  But no one has read this bill as it is not written, so no one can say, with any assurances, they understand all that it is likely to do or what it will actually cost.  And yet we pretend.  This is how representative democracy ends — not with a bang, but a whimper.

[An aside: For my academic colleagues who believe reading a bill is unnecessary to understand it, do you feel this way about legal documents? Can your students really understand the cases and other materials assigned for class if they haven’t read them, but instead relied upon the expert analyses found in outlines, headnotes, and the like? And, if not, are we really at the point where we expect less of our elected representatives than our students?]

UPDATE: Is the above a bit overheated?  Perhaps.  And my concerns about this particular legislation may be a bit premature.  As one of the commentators notes, one could view what the Senate Finance Committee is doing as nothing more than delegating to committee staff the drafting of legislation and a committee report along certain lines.  That’s a fair point.  There is nothing sacrosanct about a particular committee structure, and no reason to insist upon specific committees handling their responsibilities in particular ways, so long as the actual legislative language is published and available before the Senate as a whole considers the bill.  My concerns are twofold.  First, many people are treating this CBO analysis as if it anything more than a preliminary assessment of what the bill would actually cost (a highly questionable assumption for these reasons, among others).  Second, and more importantly, I believe the bill will be fast-tracked (much as Waxman-Markey was in the House) such that neither legislators nor the public will have a clear understanding of what it will do when it comes up for a vote.  If this is not what occurs, and the bill text is published and available before the final vote, I will be satisfied this aspect of the process worked as it should, and I will post something accordingly.