For anyone who actually cares about the drafting history of Obamacare,
this from Robert Pear is a pretty good account:
They are only four words in a 900-page law: “established by the state.”
But it is in the ambiguity of those four words in the Affordable Care Act that opponents found a path to challenge the law, all the way to the
Supreme Court.
How those words became the most contentious part of President Obama’s signature domestic accomplishment has been a mystery. Who wrote them, and why? Were they really intended, as the plaintiffs in
King v. Burwell claim, to make the tax subsidies in the law available only in states that established their own
health insurance marketplaces, and not in the three dozen states with federal exchanges?
“I don’t ever recall any distinction between federal and state exchanges in terms of the availability of subsidies,” said Olympia J. Snowe, a former Republican senator from Maine who helped write the Finance Committee version of the bill.
“It was never part of our conversations at any point,” said Ms. Snowe, who voted against the final version of the Senate bill. “Why would we have wanted to deny people subsidies? It was not their fault if their state did not set up an exchange.” The four words, she said, were perhaps “inadvertent language,” adding, “I don’t know how else to explain it.”
Former Senator Jeff Bingaman, Democrat of New Mexico, said there may have been “some sloppiness in the drafting” of the bill. Mr. Bingaman, who was a member of both committees that developed the measure, said he was surprised that the lawsuit had reached the
Supreme Court because the words in dispute appeared to be a “drafting error.”
“As far as I know, it escaped everyone’s attention, or it would have been deleted, because it clearly contradicted the main purpose of the legislation,” Mr. Bingaman said. He added, “In all the discussion in the committees and on the floor, I didn’t ever hear anybody suggest that this kind of distinction between federal and state exchanges was in the bill.”
Read the whole thing if you want more detail, but the bottom line, which should surprise no one, is that legislating, like every other human activity, routinely produces imperfections, and this is particularly so when the process itself is undermined by the legislation's opponents. The problem isn't that legislators didn't read the bill.* The problem is that it was a messy process, and that mess affected the drafting.
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*The "didn't read the bill" critique reflects either ignorance of the legislative process or dishonesty about the legislative process, depending on the sophistication of the person making the argument. Except for extremely simple bills, legislators seldom read the bill's actual text. That's because reading the text of a bill is a difficult way to understand what a bill does.
Legislation -- the stuff that actually gets voted on -- isn't a readable helpful narrative. Instead it's much more like a set of excruciating instruction to a printing company that's going to produce a revised draft of a book. It's full of strikeouts (reflecting language to be deleted) and bolding (reflecting language to be added), and it proceeds not in narrative order but in numerical order through the legislative code. So to follow any particular substantive point, you have to wend your way through the bill, taking careful notes about each of the points at which the bill gets around to saying something about the point you're interested in. And having in the past been paid to review legislation for the Governor's office here in Indiana, none of that makes any sense unless you have all of the affected provisions of the existing code open in books around you, so you can see the broader context in which the essentially typographical commands are being issued.
Let me just run a highlighter over this: the Indiana Governor's office paid private legal counsel to review legislation prior to signature because reading legislation is an exacting task that requires intense legal scrutiny.
When legislators don't read legislation, it isn't because they're lazy. They do it because this would be an irrational way for them to spend their time. They have staff for that; the staff immerse themselves in the legislative minutiae and produce reports that legislators actually ought to read -- or at least they ought to have someone on staff who reads them and explains it to them.
Anyone who scoffs that those who enacted Obamacare didn't even read the bill demonstrates that he lacks the first clue about how legislators actually operate.
