Dead on arrival?

Players on both sides of the health reform issue struggled this week to figure out the meaning of the new Democratic health care legislation.

Their task was complicated when U.S. Sen. Harry Reid declined to release copies of the legislation, generating wide suspicion.

“It is a consensus that includes a public option and will help ensure the American people win in two ways: one, insurance companies will face more competition, and two, the American people will have more choices,” Reid said in a prepared statement after the new legislation was announced.

But various analysts, reporters and lobbyists were skeptical of his statement in view of his refusal to release the legislation. Many questioned whether the public option—let alone the “robust” public option promised—was still alive.

The confusion was widespread. In televised discussions of the new measure, panelists said things like, “It has a lot of moving parts and a lot of details we don’t know yet,” (Jacob Hacker on the PBS News Hour) as they speculatively discussed leaked details that might or might not have been accurate. The Washington Post reported that “confusion reigned on Capitol Hill.”

Some even denied that there was a new bill. “There’s no specific compromise,” said Democratic Sen. Mary Landrieu of Louisiana.

Many figures were committing to support or oppose the legislation based on leaked information. Back in Nevada, one advocate of health care reform said she did not like what she was reading: “It sounds like they are putting the slow, inefficient and predatory insurance companies back in charge.

While losing liberal support, the new measure—whatever it exists—seems not to have picked up centrist or moderate votes. Democrats Ben Nelson and Blanche Lincoln, Republican Olympia Snowe, and independent Joseph Lieberman all spoke disparagingly of the new proposal. “The supposed health-care deal cut by Harry Reid is a non-starter,” Nelson said.

Even among Reid’s party colleagues, information was uncertain. The New York Times reported, “Senate Democrats said on Wednesday that they were not sure exactly what was in a deal that the majority leader said would surmount a disagreement over a proposed government-run health plan.” The Democrats’ own second in command, assistant Democratic floor leader Dick Durbin of Illinois, did not know what was in the legislation. When John McCain complained about the secrecy, Durbin responded, “I would say to the senator from Arizona that I’m in the dark almost as much as he is. And I’m in the leadership.” Durbin said the Democrats “want to basically see whether or not it works” before disclosing it to the public. Normally, public scrutiny is part of that process of seeing whether legislation works.

The legislation was developed in marathon secret meetings, in contravention of Democratic pledges of transparency, which also helped to cultivate suspicion. The new legislation reportedly replaces the public option with a Medicare “buy-in” option for those from 55 to 64 years old and a series of nonprofit healthcare policies modeled on the health benefits federal employees get. Later reports said it would also allow insurance companies to cap annual benefits, something Democrats had previously opposed.

On the other side of the capitol, House Speaker Nancy Pelosi cherry-picked the new legislation, saying she could live with the Medicare provision but avoided embracing the package as a whole.

M.S. Bellows in the Huffington Post wrote, “Reid is resorting to duplicity to keep people from looking too closely at its contents. … When reports first broke last night that Reid was abandoning the public option, Reid’s office insisted that the public option is still alive and well … But when [Talking Points Memo] obtained the deal’s main points from a knowledgeable staffer, it became clear that the only ‘public option’ still on the table is a very limited, expensive and still-uncertain Medicare buy-in and an insurance-industry-controlled “trigger”—stopgaps that no one following the [health-care reform] debate could confuse with an actual public option of the kind previously under discussion.”

Robert Reich, an economic populist and member of the Clinton cabinet, was scathing in an email sent out by MoveOn: “I’m here to tell you that this is no deal: It’s a gift to Big Insurance, plain and simple. The details are sketchy. The only thing that’s really clear is the deal would drop the public option from the bill. With no public option, there’s no guarantee of real competition. And without real competition, health-care costs will continue to be out of control. But the deal is far from done. If voters generate a massive outcry around this and progressive leaders in Congress fight back, we can fix it.”

The suspicion was exacerbated by apparent pleasure in the insurance industry over the new legislation. Immediately after the new measure was announced, an industry player wrote an emailed synopsis to a blogger: “We win, administered by private insurance companies, no government funding.”

Senior citizen lobbyists were lukewarm toward the measure, and critics of health-care reform exploited Reid’s secrecy.

Reid said he did not want to release the legislation until the Congressional Budget Office (CBO) analyzed it, which he called “long-standing practice.”

“As is long-standing practice, we do not disclose details of any proposal before the Congressional Budget Office has a chance to evaluate it,” the senator said. “We will wait for that to happen, but in the meantime, tonight we are confident.”

But Bellows said that Reid “rolled out his original HCR proposal on Nov. 18 without having a CBO score. … So: Reid discussed his original bill on national TV and deployed staffers to spend an hour talking to the media about its wonkish details before it received a CBO score. But Reid won’t share even the broad contours of the new deal, other than misrepresenting its abandonment of public option, because of ‘long-standing practice?’”

The way the secrecy generated confusion was seen when a report by the Centers for Medicare and Medicaid Services was released on Dec. 11. News reports failed to explain whether the report referred to the Democrats’ old or new legislation.

The nervous Democrats demanded a fast read on the new proposal from what the New York Times called the “overworked team of brainiac analysts” at the CBO, but it had not been released at press time. Reid’s previous health care measure had already been scrutinized by the CBO, which said that it would reduce the federal deficit by $130 billion in its first 10 years.

One Nevada freedom of information advocate noted that Reid was already under fire for the secrecy surrounding that previous bill, since it meant that lawmakers would not know what they were voting on.

“The bottom line is that Senators will be voting to proceed to a bill on Friday that they have yet to see and will have little time to read before the first critical vote,” wrote the Heritage Foundation’s Brian Darling on Nov. 18. “Sadly, the secretive procedure used to roll out this legislation has severely restricted the rights of Americans to participate in this process.”

Congress does not have the kind of public disclosure or open meeting laws that state legislatures have, and with people taking positions on a bill they had not yet been permitted to read, it was clear that the secrecy was costing Reid something.