AIG's Lesson for Health Reform: Words Matter
However one views the controversial bonuses paid AIG executives, we can perhaps all agree that rarely has a single legislative clause so inflamed the nation’s political discourse. For it took only 48 words, tucked into page 404 of a 407-page economic stimulus bill, to make possible TARP bonuses if “paid pursuant to a written employment contract executed on or before February 11, 2009.”
The ambient conditions – huge bill, little time, immense complexity, even more controversy – are the very ones likely to obtain if Senate and House leaders make good on their pledge to move comprehensive health care reform legislation to within sight of enactment by August. If the scenario holds, what policy essence awaits us once the President has signed the bill, the bloggers have touted the moment, the law firms have written the summaries, and the CMS officials have drafted the regulations?
A lesson of AIG is that it’s the words on the legislative page that ultimately matter. Hearings, white papers, reports, Twitter blasts, TV ads, etc., are all indispensible for refining discussion and building consensus. But as with any major national issue, the concept of “comprehensive health reform” must ultimately be reduced to legislative words – not just any legislative words, but the ones that exert the precise policy effects intended. Such is no mean feat, no mere Tweet.
The lawyer’s adage – “know your opponent’s best argument” – should perhaps be flipped to say: “Know how your opponent will interpret your legislative provision.” For CMS and stakeholders will be squinting hard, looking for that little slip that spoils your clause on risk pools, bundled payments, sustainable growth rates, P4P, prior authorization, or whatever other issue you’re trying to push or defend.
As a former (and sometimes still) drafter of legislation, I’ve observed the unfolding of the AIG episode with no small amount of interest. The other AIG lesson: Watch those effective dates; they’ll get you every time.
The media has made much of the fact that many in Congress did not fully read the stimulus bill before it came to a vote, or the amendment relating to AIG bonus compensation. Republicans are claiming that a similar outcome is likely for health care reform legislation. Yesterday Judd Gregg criticized the democrats for attempting to rush health care reform through the senate without sufficient debate or vetting.
When a bill is hundreds or thousands of pages long and subject to last minute amendments, how often do members of Congress cast a vote without having a clear understanding of the bill's substance? How many "surprises" should we expect to find in any health care reform legislation after it becomes law?