Case Study 1: The Affordable Care Act, 2009–2010 — A Legislative Odyssey

The Affordable Care Act (ACA) is, by general agreement among congressional scholars, the best modern case study in U.S. legislative procedure. Almost every procedural feature discussed in Chapter 8 — committees, leadership coordination, the filibuster, cloture, conference committees and their alternatives, reconciliation, the Byrd Rule, manager's amendments, motions to proceed — appears in the ACA's path. The political stakes were unusually high; the procedural drama was unusually visible. What follows is a detailed account of the ACA's procedural odyssey from early 2009 to March 2010, with attention to what each step shows about how the modern Congress actually works.

The Setup

President Barack Obama took office in January 2009 with a Democratic House (a 257–178 majority) and a Senate Democratic caucus that, after Senator Arlen Specter's party switch in April 2009 and Senator Al Franken's seating after the recount of his 2008 Minnesota race in July 2009, reached 60 (58 Democrats plus 2 independents who caucused with the Democrats). For the first time since 1979, a single party held a 60-vote Senate supermajority. That was the threshold required to invoke cloture against a Republican filibuster, and on a sustained, party-line basis, it had not been available to either party for thirty years.

The administration chose, in early 2009, to pursue comprehensive health-insurance reform. The political case was straightforward: about 47 million Americans were uninsured; insurance markets in the individual and small-group segments were dysfunctional, with pre-existing condition exclusions and underwriting practices that priced out anyone with a serious medical history; health-care costs were rising faster than wages and faster than GDP; and the Democratic Party had campaigned on universal coverage in three consecutive presidential elections.

The procedural case was harder. Major social legislation — Medicare in 1965, the Civil Rights Acts in 1964 and 1965, Social Security in 1935 — had passed Congress, but each in different procedural circumstances. None had recently passed a Congress with anything like the modern filibuster, the modern partisan polarization, or the modern committee-leadership balance. The administration's strategists, including Chief of Staff Rahm Emanuel, Health and Human Services Secretary Kathleen Sebelius, and the White House legislative-affairs operation, knew the procedural challenge was immense.

A key strategic decision was made early. The Clinton administration's 1993–94 health-care effort had foundered, in part, because the White House had drafted a 1,400-page "Health Security Act" and presented it to Congress as a finished product. Members of Congress, including senior Democrats, had resented the approach. The Obama administration chose the opposite strategy: it would issue principles and let Congress draft. This was politically smart — it gave members ownership of the bill — but it also meant the legislative process would unfold through five committees in two chambers, each with its own pace, jurisdictional jealousies, and political dynamics.

The House Side

Three House committees claimed jurisdiction over different parts of comprehensive health reform. The Energy and Commerce Committee (chair: Henry Waxman, D-CA) had jurisdiction over public health, the insurance market, and Medicaid. The Ways and Means Committee (chair: Charles Rangel, D-NY, and after his ethics-related step-aside, Sander Levin, D-MI) had jurisdiction over Medicare and over the tax provisions necessary to finance the bill. The Education and Labor Committee (chair: George Miller, D-CA) had jurisdiction over employer-sponsored insurance, including the rules under the Employee Retirement Income Security Act (ERISA).

Speaker Nancy Pelosi (D-CA) coordinated the three chairs through a process that integrated all three committees' work into a single composite bill. Each committee held hearings, conducted markups, and reported its piece. Speaker Pelosi's staff, with input from each chair, then merged the three pieces into H.R. 3962, the Affordable Health Care for America Act. After further negotiation among House Democrats, the merged bill came to the floor under a structured rule from the Rules Committee. It passed the House on November 7, 2009, by a vote of 220–215. One Republican (Joseph Cao of Louisiana) voted yes; thirty-nine Democrats voted no.

The Senate Side

The Senate was the harder chamber. The two relevant committees were the Health, Education, Labor and Pensions Committee (HELP) — historically chaired by Senator Edward Kennedy (D-MA), but with Kennedy seriously ill and unable to run the markup, the work was led by Senator Christopher Dodd (D-CT) — and the Finance Committee, chaired by Senator Max Baucus (D-MT).

HELP completed its bill (the Affordable Health Choices Act) in July 2009. The Finance Committee, under Senator Baucus, was attempting something more ambitious: a bipartisan negotiation. Baucus convened the "Gang of Six" — three Democrats (Baucus himself, Jeff Bingaman of New Mexico, and Kent Conrad of North Dakota) and three Republicans (Charles Grassley of Iowa, Mike Enzi of Wyoming, and Olympia Snowe of Maine). The Gang of Six met for months, attempting to produce a bipartisan health-reform framework.

The Gang of Six failed. By August 2009, with the town-hall protests that summer growing intense and Republican senators facing pressure from their conservative base, the Republican members of the Gang withdrew from substantive engagement. Senator Snowe alone remained somewhat engaged through the fall. When the Finance Committee finally marked up the chairman's bill in October 2009, Senator Snowe voted yes in committee but signaled she would not necessarily support final passage. No other Republican voted with her.

Majority Leader Harry Reid (D-NV) merged the HELP and Finance bills into a single Senate text. He brought the merged bill — H.R. 3590, with a Senate substitute — to the floor in November. To get to 60 votes for cloture, Reid had to satisfy senators who were reluctant. Senator Joseph Lieberman (I-CT, who caucused with Democrats) refused to support a public option, so the public option was dropped. Senator Ben Nelson (D-NE) demanded a special Medicaid arrangement for Nebraska — what came to be known as the "Cornhusker Kickback" — and got it. Senators Mary Landrieu (D-LA), Blanche Lincoln (D-AR), and others extracted similar concessions.

Cloture was invoked on December 23, 2009. The Senate passed the bill on December 24, 2009 — Christmas Eve — by a vote of 60–39. Every Democratic and independent senator voted yes; every Republican voted no.

The Massachusetts Special Election

On August 25, 2009, Senator Edward Kennedy died after a long battle with brain cancer. Massachusetts law required a special election to fill the seat. The election was held on January 19, 2010. State Senator Scott Brown, a Republican, defeated Massachusetts Attorney General Martha Coakley by a 52–47 margin. Brown's campaign had centered on opposition to the ACA; his victory speech the night of the election emphasized that he would be the "41st vote" against the bill.

This was a procedural catastrophe for the bill. Under the standard process, the House and Senate each pass their version of a bill, conferees from each chamber meet to produce a single text (the "conference report"), and that conference report is voted on by both chambers. The Senate vote on a conference report would, like any final vote on a bill, require cloture (60 votes) to overcome a filibuster. With only 59 Democratic-caucus senators after Brown's seating, no conference report could pass the Senate.

Three options were available.

The first was to abandon the bill. This was politically catastrophic — a year of work, the Obama administration's signature initiative, a Democratic congressional majority's central project. But it was being seriously discussed in the days after Brown's election.

The second was to negotiate with Senator Snowe (R-ME) or Senator Susan Collins (R-ME) for a conference-report-supporting vote. Both made clear they would not support final passage of the bill in its current form, and the changes that might have brought either of them on board were unacceptable to House Democrats.

The third was to find a procedural workaround. Speaker Pelosi, House Majority Leader Steny Hoyer (D-MD), Senate Majority Leader Reid, and the Obama White House converged on the workaround over the next ten weeks.

The Reconciliation Sidecar

The workaround had two components.

First, the House would pass the Senate-passed bill (H.R. 3590) without amendment. Because the Senate had already passed it, no further Senate action was needed; it could go directly to the President for signature. The bill was the Senate version, with all the concessions Reid had extracted to get to 60 — including provisions House Democrats disliked.

Second, both chambers would pass a separate "reconciliation" bill — the Health Care and Education Reconciliation Act — containing the changes that House Democrats wanted to make to the Senate version. Because reconciliation bills are not subject to filibuster, this second bill could pass the Senate with only 51 votes.

The maneuver was procedurally complex. House Democrats had to pass a bill they had not drafted and that contained provisions they disliked, on the assumption (faith) that the reconciliation sidecar would actually pass and fix the problems. Some House Democrats refused. Representative Bart Stupak (D-MI), leading a small bloc of pro-life Democrats, threatened to vote no over abortion-funding provisions. He was eventually mollified by a White House commitment to issue an executive order clarifying that no federal funding under the ACA would go to abortion services. The Stupak bloc came around. House liberals, who hated the loss of the public option and other concessions, also came around — they wanted health-insurance reform, even imperfect health-insurance reform, more than they wanted to die on the hill of perfection.

On March 21, 2010, the House passed H.R. 3590 (the Senate-passed bill) by a vote of 219–212. Thirty-four Democrats joined every Republican in voting no. President Obama signed the bill on March 23, 2010, in a White House ceremony that was both triumphant and procedurally awkward — he was signing a bill that almost everyone in the room knew was incomplete.

The reconciliation bill, H.R. 4872, was taken up by the Senate the same week. Republican senators offered numerous Byrd Rule challenges. Senate Parliamentarian Alan Frumin issued rulings; some provisions were stripped (notably some Pell Grant provisions had to be modified). On March 25, 2010, the Senate passed the modified reconciliation bill 56–43. The House accepted the Senate's modifications later the same day. On March 30, 2010, President Obama signed the reconciliation bill into law.

The ACA was law.

What This Case Shows

Several features of the ACA's procedural odyssey are worth marking explicitly.

The Schoolhouse Rock! version is unrecognizable. Five committees touched the legislation; no conference committee reconciled the bicameral differences; the final passage required a procedural workaround using budget reconciliation rules that most Americans had never heard of. The path looked nothing like the cartoon.

Leadership ran the process. The five committee chairs did substantial work, but the bill's contours, the management of skeptical senators, the timeline, and the eventual reconciliation maneuver were all coordinated by Speaker Pelosi, Majority Leader Reid, and the Obama White House. The committee process was important but not dispositive; the leadership process was dispositive.

The filibuster was the binding constraint. The entire procedural drama after Scott Brown's election was driven by the 60-vote threshold. Without the filibuster, the Senate could have voted up the conference report by simple majority and the ACA would have passed in March 2010 with no reconciliation drama.

The bill that became law was not the bill anyone wanted. It contained provisions like the Cornhusker Kickback that had been added in the rush to 60 votes; it lacked a public option that House Democrats had wanted; it had complex tax and Medicare structures designed to satisfy individual senators rather than to optimize policy. The reconciliation sidecar removed some of the most embarrassing provisions, but the bill remained the bill 60-vote-threshold legislation produces.

Reconciliation became the channel. The use of reconciliation to pass the final piece of the ACA was, at the time, extraordinary; it has since become routine. The 2017 Tax Cuts and Jobs Act, the 2021 American Rescue Plan, and the 2022 Inflation Reduction Act all followed similar paths. Major modern partisan legislation passes through reconciliation because the alternative — 60 votes for cloture — is rarely available.

The political consequences were substantial. The ACA's procedural messiness was used effectively by Republicans in the 2010 midterm elections; Democrats lost 63 House seats and 6 Senate seats, the largest midterm swing since 1938. Whether the procedural mess caused the political loss or whether the political loss simply followed the unpopularity of the underlying bill is debated; both elements were probably present. What is not debated is that the procedural odyssey itself, watched on cable news for months, contributed to public perception that something had gone wrong.

The ACA case is, in this sense, the modern Congress in microscope. The institution still works — the bill became law. But the institution works differently than the cartoon suggests, and differently than its formal rules suggest. Process is power. The procedural rules shaped what the bill could be, who could shape it, and whether it could pass at all.

A Note on the Counterfactual

It is worth ending with a counterfactual. If Senator Kennedy had not died in August 2009, or if Massachusetts had not held the special election, or if Coakley had won, the ACA would still have faced procedural difficulties — the Senate's 60-seat margin was always thin, and individual senators (Lieberman, Nelson, others) had veto power throughout. But the reconciliation maneuver, in that counterfactual, would not have been necessary. The bill would have passed as a conventional conference report. Subsequent legislative activity would not have so heavily depended on reconciliation as a vehicle. The political fallout of the procedural mess would have been smaller.

The ACA's final form, and the procedural template that the ACA established for modern partisan legislation, was substantially shaped by an off-cycle special election in a single state. That is itself worth thinking about. American policy outcomes are produced by procedural rules interacting with electoral contingencies, and the contingencies sometimes drive the rules in ways that the rules' designers did not anticipate.