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Baucus Bill in Technicolor, Legalese

October 19, 2009 - by Donny Shaw

Last month, when the Senate Finance Committee was marking up their health care bill, they weren’t working from a document that read like a typical bill in Congress. They were working with a draft bill that was written in plain English. In other words, instead of a thousand-plus pages of arcane legalese with references to specific sections in the U.S. Code (i.e. “Section 1833(t)(1)(B)(iv) of the Social Security Act (42 U.S.C. 1395l(t)(1)(B)(iv)) is amended by…”) the Finance Committee’s draft described the changes to the law that it was proposing (i.e. “Authorizes $30 million and such sums as necessary after these dollars are expended) to establish a new competitive grant program…”).

One effect of the descriptive language that the Finance Committee used for their draft is that it made their bill significantly shorter than all the other health care bills in the other committees. Since the Finance Committee approved the draft bill on October 13, some poor Senate staffers have been faced with the ungodly task of converting the plain-English draft into the standard legalese we’re all accustomed to for bills in Congress. Shockingly, they have already completed the task in less than a week (they must have had a head start). With the conversion to legalese completed, the bill has ballooned in size from 223 pages to 1,502 pages. It has also been assigned a number — S. 1796 — and it now sits among all the other bills that have been filed in the Senate so far this session of Congress.

For an example of how the bill has changed, let’s look at, say, “Title I, Subtitle G, Part VII – Dual Eligibles.” In the draft version that the committee was working off, it reads in full:

The Chairmanā€˜s Mark would clarify that Medicaid demonstration authority for coordinating care for dual eligibles is as long as five years.

That same section in the newly revised version converted into legal language and introduced in the Senate reads, in part, like this:

(a) In General – Section 1915 (h) of the Social Security Act (42 U.S.C. 1396n(h)) is amended —

(1) by inserting “(1)” after “(h)”;
(2) by inserting “, or a waiver described in paragraph (2)” after “(e)”; and
(3) by adding at the end the following new paragraph:

“(2)(A) Notwithstanding subsections ©(3) and (d)(3), any waiver under subsection (b), ©, or (d), or a waiver under section 1115, that provides medical assistance for dual eligible individuals (including any such waivers under which non dual eligible individuals may be enrolled in addition to dual eligible individuals) may be conducted for a period of 5 years and, upon the request of the State, may be extended for additional 5-year periods unless the Secretary determines that for the previous waiver period the conditions for the waiver have not been met or it would no longer be cost-effective and efficient, or consistent with the purpose of this title, to extend the waiver.

I’m showing you the difference here for two reasons. First, as you can see, it’s actually really nice to have plan English versions of the bills that are going through Congress. I wouldn’t go so far as to say that they are easy to understand, but at least the plain English versions don’t require you to have a lawyer sitting by your side in order to actually get the basic gist of what’s going on. Some conservative commentators have been trying to argue that the Finance Committee’s mark-up was somehow less significant than the other committees’ mark-ups because they weren’t working off of an official bill in full legalese glory. It’s the same crowd that has been complaining that the bills are too long, so I suppose having the 1,502 pages of legalese available is just a trade-off of one problem for another. Anyways, I think the textual comparison above shows the advantage of the way the Finance Committees works.

Second, even if you think you know everything about the Finance Committee’s health care bill, it’s still important to read the new, official version of the text. There’s no real way to be sure that Chairman Sen. Max Baucus [D, MT] or anyone else working on the bill didn’t make important changes to the bill when it got translated from plain English to legalese unless people actually read the legalese version. Even then, it’s hard to imagine any changes will actually be noticed. Furthermore, the legalese version adds detail to the plain language version. In the excerpts above, for example, it’s pretty clear that the new version adds creates specific rules pertaining to extensions of the 5-year waivers. Some of these details could significant or even harmful, but we would never know unless we read the bill. We’ve already seen an example this year of bills being changed for the worst at this stage in the process when Sen. Chris Dodd [D, CT] slipped a loophole into the stimulus bill at the last minute that allowed A.I.G. to pay out gigantic bonuses to the very same people who were responsible for crashing the company.

The new version of the Senate Finance Committee health care bill is not the final version that will come to the Senate floor for debate. The final version is still being worked out behind-the-scenes by Senate Democrat negotiators. Politico reports that the Finance Committee’s bill “is expected to serve as the backbone for Democratic reform efforts going forward.” Since the Finance Committee is more conservative than the Senate and the whole and because Senate Majority Leader Sen. Harry Reid [D, NV] knows that it’s moderates, not liberals, who are ultimately going to be the gatekeepers for getting this bill through, that does in fact seem likely.

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