Concessions to the pharmaceutical industry were added to the reconciliation bill after the industry agreed to provide additional savings requested by President Barack Obama. According to the Associated Press, Senator Max Baucus stated in an interview that the pharmaceutical industry agreed to provide an additional $10 billion to cover the coverage gap in Medicare Part D known as the "donut hole" in exchange for eliminating the expansion of drug discounts at certain health facilities initially included in the Senate health care bill.

The Senate health care bill would have expanded drug discounts under a Medicaid program that serves over 14,000 covered facilities. The Medicaid 340B program provides outpatient discounts on brand name drugs to a variety of health facilities that serve low-income communities. The provision removed in the reconciliation bill would have expanded access to the discount program to cover inpatient drug purchases. While the inpatient expansion was eliminated in reconciliation, an increase in the kinds of covered health facilities remained.

Last year, the pharmaceutical industry negotiated a behind-the-scenes deal with the White House and Sen. Baucus to limit the savings sought from the industry in the health reform bill to $80 billion. The deal involved the White House and Baucus to not pursue long-sought-after Democratic policies including allowing the government to negotiate for lower drug prices in the Medicare drug program and the reimportation of drugs from first world countries. The pharmaceutical industry would, in return, support the legislation through advertising and grassroots means. The industry ultimately spent upwards of $100 million on advertising to support passage of the legislation.

The extra money to fill the "donut hole"--a coverage gap in the Medicare prescription drug program--was proposed by the White House in the run-up to the Blair House Summit. The Washington Post reported at the time that industry lobbyists were not enamored with this new proposal, "PhRMA, which agreed to $80 billion in cuts in exchange for protection from other steps, has concerns about Obama’s proposal to add another $10 billion to that amount."

The industry had already beaten back the expansion of the 340B drug discount in earlier negotiations with the House of Representatives. The initial Tri-Committee House health care reform bill contained the same expansion that was included in the Senate bill, but was removed in November when the final version of the legislation was introduced and voted on. At the time, other industry leaders voiced their concerns over the exclusion of the expansion of coverage. The American Hospital Association (AHA) stated that the discount should be added to the bill later on: "Lawmakers also should restore a provision that would expand the outpatient 340B drug discount program to inpatient services for all eligible hospitals."

The Congressional Budget Office (CBO) projected that the expansion of 340B drug discounts to inpatient services would save hospitals $1 billion annually and Medicaid $1.7 billion over ten years.

From the 1990 election cycle to the 2008 election cycle the health sector contributed over $829 million to candidates for federal office and political parties. Over the course of those 19 years Congress debated comprehensive reform of the health sector, passed a Medicare drug benefit, made various changes to Medicare and Medicaid and established and expanded access to the Children's Health Insurance Plan. A review of campaign contributions made available by the Center for Responsive Politics indicates that control of Congress, and the power exerted by that control, has been a key determinative factor in the party distribution of contributions by the health sector over the years.

Beginning in the 1990 election cycle, Democrats received a slightly larger share of health sector contributions than Republicans, despite the Republican Party's pro-business positions. This spread stays the same through the 1992 election, which included the election of the Democratic President Bill Clinton. Clinton's push for comprehensive reform of the health sector in 1993-94 and the industry's opposition to such reforms began to push their campaign contributions towards the Republicans. In 1994, Republicans surpassed Democrats in health sector contributions and retook both chambers of Congress.

The health sector didn't look back after 1994 giving overwhelmingly to the Republicans in Congress and their presidential nominees. While the previous three election cycles (1990, 1992, 1994) were all very close in the health sector contribution distribution between the parties, the 1996 election saw a full 60% of health sector contributions go to Republicans seeking office. This wide divide only increased over the years.

(Click the play button on the graphic below to see a visualization of the change in health sector contributions to the parties from 1990-2008. I'd advise selecting unique colors under the Color tab.)

The elections of 2002, 2004 and 2006 provided for the biggest health sector contribution disparities between the parties. In each of these elections Republicans pulled in over 60% of the health sector contributions to federal candidates and parties. The highest percentage came in the 2002 election cycle as Congress began to debate the inclusion of a prescription drug benefit within Medicare. In this election Republicans received 65% of health sector contributions. The resulting legislation, passed in 2003, wound up very friendly to the pharmaceutical industry. So friendly, in fact, that the chief author of the legislation, Rep. Billy Tauzin, left Congress and quickly signed on as the President and CEO of the industry's Washington lobby shop, the Pharmaceutical Research and Manufacturers of America (PhRMA).

Over the next two election cycles the industry faced a Republican Party that was largely supportive of their interests--and had recently enacted legislation that they widely supported--and a Democratic Party that sought to enact sweeping reforms of the industry and seek further cost savings from the pharmaceutical industry in the new Medicare prescription drug plan. Facing this decision, the industry stayed with the party that controlled both the Congress and the Executive Branch--the Republicans. The industry gave 62% of their campaign contributions to Republicans in the 2006 election cycle despite the overwhelming evidence of imminent Democratic victory. Majority control and the nature of the Democrats' campaign proposals kept the industry alongside the Republicans.

The 2006 election swung control of Congress to the Democrats for the first time in 12 years and with that came a major swing in campaign contributions from the health sector. Contributions shifted rapidly away from Republicans as Democrats stepped up to head the committees that would oversee and write legislation related to the health sector. The health sector had to also account for the unpopularity of the Republican Party and President George W. Bush. With almost every political prognosticator predicting another sweep for the Democrats, including the White House, the health sector had to prepare for the coming attempt to pass comprehensive health care reform, the holy grail of Democratic policy goals.

The health sector dramatically shifted their contributions from Republicans to Democrats in the 2008 election cycle. Democrats received 54% of all health sector contributions, the highest percentage they have received since the Center for Responsive Politics began tracking campaign contributions. Leading the way was presidential candidate Barack Obama. Obama, perhaps the largest recipient of health sector contributions in history, brought in over $19 million from the sector in the 2008 election cycle.

While the above graphics do not show 2010 health sector contributions the disparity between the parties has only grown. Democrats have received 58% of all health sector contributions. Republicans have fallen to their lowest percentage in recorded history. And the contributions did not come without benefits. The health sector was brought close into the discussion on comprehensive health care reform. The pharmaceutical industry, the hospital industry and doctors all signed onto legislation and helped to ultimately pass comprehensive reform. The final product included many concessions to these and other industries and cut out many long-standing Democratic policy priorities that the industries feared.

Earlier this week, Sen. Tom Coburn and a group of Republican senators sent a letter to Majority Leader Harry Reid stating that certain provisions in the health care reform bill violated disclosure requirements created in the Honest Leadership and Open Government Act of 2007. Here's a snippet of the letter (Full letter):

"It is clear that the Manager’s Amendment, in addition to the underlying bill, includes specific provisions which benefit some states and not others. We therefore ask you, as the sponsor of the Manager’s Amendment and underlying bill, to provide a list of all earmarks and congressional directed spending as required by The Honest Leadership and Open Government Act of 2007.”

This is a bit perplexing for a couple of reasons. First, the letter does not provide a list of the provisions that may be in violation of disclosure requirements. In the past, Coburn has been excellent at naming and providing lists of earmarks and other questionable provisions in bills, so this strikes me as a bit odd. Second, and most important, the provisions that I can only assume that Coburn is referring to would not fall under the disclosure requirements laid out in the 2007 ethics law. The provisions most likely being referred to are the Louisiana Medicaid deal made by Sen. Mary Landrieu and the Nebraska Medicaid deal made by Sen. Ben Nelson. Increases or changes in Medicaid or Medicare spending are not "directed spending items" as defined by the Honest Leadership and Open Government Act and would not be subject to disclosure requirements. Here's the relevant legislative language:

5 "(a) the term 'congressionally directed spending item' means a provision or report language included primarily at the request of a Senator providing, authorizing, or recommending a specific amount of discretionary budget authority, credit authority, or other spending authority for a contract, loan, loan guarantee, grant, loan authority, or other expenditure with or to an entity, or targeted to a specific State, locality or Congressional district, other than through a statutory or administrative formula-driven or competitive process"

Emphasis added. Medicaid and Medicare funding are statutory and administrative formula-driven processes and thus the disclosure requirement does not apply.

Now there could very well be other items in the Senate manager's amendment to the health care bill that would be subject to these disclosure requirements. I don't know. It would be useful to see Coburn's list of "over a half dozen" such provisions to gauge whether they should be subject to the relevant disclosure requirements. Furthermore, if Coburn believes that the requirements under the Honest Leadership and Open Government Act do not go far enough in requiring the disclosure of spending targeted towards the interests of particular members it would be interesting and useful to see statutory or rules changes that he thinks are appropriate. That's a conversation I'd like to have.

I am anxiously awaiting a bipartisan coterie of congressmen releasing identical statements objecting to President Obama's new policy targeting biologics firms.

Last week, Jake wrote that "it is utterly imperative that the final version of the bill be online for the public to view for at least 72 hours." The House Majority just announced that they will do just that (via #HealthReformNow):

Pelosi and Hoyer say final health reform bill will be online for 72 hours before House vote so Members and Americans can review #hcr

This is a great development and another big win for those who have called for the bill to be available to the public for 72 hours throughout this whole process. The Sunlight Foundation has called for the health care bill to be available to the public for 72 hours at each point that versions have come to the floor. In each of these instances the majority has acquiesced and posted each version, from the House bill to the Senate bill, for at least 72 hours prior to consideration. Those of you who have signed the Read the Bill petition and put the pressure on Congress to be this transparent have been vital in ensuring that we have access to this major bill before lawmakers consider, debate and vote on it.

Earlier this week, Ellen explained the importance of the 72 hour requirement:

Think of posting something on line for 3 days as a ‘safety valve’ – a final chance for citizens, media, lawmakers and lobbyists alike to look at the whole package giving everyone one last opportunity to raise questions and concerns about the bill. If readers are in an advocacy mode they have time to  mobilize others in support or opposition, and/or take action in whatever form they see fit. There is no measure more important to debate in the open than health care, and this is a moment when we all need to be champions for public, online disclosure and engage with our government. With 72 hours, the buck can actually stop with citizens the way our Founders intended. We know that Congress do it because congressional leadership has already done so at other critical points in this debate.

Of course, we still need to make sure that this promise is kept and that won't be done until the bill has been online for 72 hours and then brought to the floor. Let's keep it up.

Sen. Charles Grassley is diving into the Jonathan Gruber scandal by asking the Department of Health and Human Services (HHS) to "disclose federal contracts of individuals invited to testify before Congress on healthcare reform." I understand the political motivation behind this, but we could actually take this issue seriously. This proposal could, and should, go much further. So here's a thought experiment and a proposal:

With some serious caveats, all witnesses before congressional committees should be required to disclose contracts, grants and subsidies, both federal and state, that they or their business receive along with any connection, through business or finance, that they have with any sitting member of the committee. Witnesses should also have to disclose whether they are a registered lobbyist and what contributions they have made to committee members. These disclosures should be made in a simple form and then disclosed on the overseeing committee's Web site prior to the committee hearing.

Grassley's concern comes from the case of Jonathan Gruber, a well-respected MIT professor and voice on health care reform, who was revealed to have been given a nearly $400,000 from HHS to consult on the President's health care proposal. This, all the while, acting as a source to many journalists, appearing on television, writing in newspapers and having his research heavily cited in support of the Senate/White House health care bill. Gruber also appeared before the Senate Finance Committee on May 12, 2009 as a witness.

Gruber obviously isn't the only one who is guilty of this kind of non-disclosure. There are likely numerous cases of executives, employees, lobbyists and experts paraded before congressional committees with some kind of undisclosed conflict of interest or connection.

In one case that went before the Ethics Committee, only to be rejected, Rep. Sam Graves invited his wife's business associate to testify before a congressional hearing. While Graves ran this invitation by the Ethics Committee beforehand and the Ethics Committee dismissed the charges, this association and potential conflict of interest was not disclosed to the public.

It is likely that some committees already require witnesses to fill out similar forms to the ones I am proposing. These are, however, not made available to the public. Sunlight supports the online posting of all documents submitted to committees as they relate to hearings.

Now, as to the caveats for any policy resembling the one I just described. First, there would obviously be certain whistleblower protections. Second, if a conflict undermined national security, in nearly all cases, this could remain undisclosed. Third, all personal identify information -- address, etc... -- would not be made publicly available.

Please tell me in the comments how this could be better or rip me apart for proposing this policy.

To require Congress to negotiate in public is to ban certain communications among Members of Congress.

There's a growing sense that real legislative negotiations should be public.

C-SPAN made such a call last week, and the Society of Professional Journalists has now called for public access to health care negotiations.

These two efforts follow Representative Vern Buchanan's bill introduced in October, H.Res. 847, a sense of the House resolution calling for open health care deliberations.

While each of these requests has slightly different wording, their goal is similar -- taking aim at the real sausage-making -- the trading, haggling, prodding, and arguing, the consensus-making, elbow-throwing, backstabbing stuff of legislative power. Were that aspect of Congress to be public, the institution would be change significantly, to say the least. How, though, can it be required to be public?

As we have examined before, requiring formal conference committee proceedings wouldn't get us there. We've also noted that moving away from a publicly deliberative processes (like Conference Committees) is what's to be expected of a Congress where parties and leadership enjoy concentrated power, and that this transformation will have complex effects on transparency.

How, then, can we require Congress to truly negotiate in public?

Each of these calls has a similar request -- Rep. Buchanan's that "any conference committee or other meetings [regarding healthcare] ...be held in full public view and not behind closed doors," SPJ's that Congress "reconcile differences between health care bills" by "televis[ing] the negotiations live," and C-SPAN's that Congress "open all important negotiations, including any conference committee meetings, to electronic media coverage."

These each sound good in theory. Imagine, though, that you were responsible for implementing these suggestions. How could they be fulfilled?

If you were the Speaker, or the Chair of a committee, how could you implement this requirement? You could easily set up an event, invite the media, and discuss healthcare. You could even set up an agenda pertaining to reconciling the health care bill. This doesn't guarantee though, that the real negotiations get broadcast -- it doesn't get us to "all important negotiations," to use C-SPAN's formulation. It doesn't keep Members from reading prepared statements while their staffers negotiate in private, and it doesn't compel Members not to email or call each other after the meeting ends. It doesn't keep Members from plotting their own new approaches to health care, or, for that matter, it doesn't keep Members from plotting in secret to kill the health care bill.

What requirement could?

The only way I can think of to require that the real health care negotiations be public would be to put a ban on certain communications between Members of Congress. You could try to say, for example, that no Member of Congress can communicate with any other about health care, with the exception of a room wired for video. Then, if they wanted to negotiate, Members would have to do so in public. Somewhat similar provisions exist for the FCC, for example, as well as some other legislatures.

Would they be appropriate for Congress?

Any requirement that Members of Congress be forbidden to communicate with each other, under any circumstances, isn't likely to get far.

Would the ban apply to staffers? Only to verbal communications, or to email and phone calls too?

How would constituents respond to seeing their Member's speech being restricted?

Wouldn't allowing speech restrictions on Members possibly empower the Majority party, and weaken the Minority, or at least alter power in an unpredictable, possibly harmful way? In other words, wouldn't a requirement for public deliberations also apply to private conversations among Minority party Members?

What about the Speech or Debate Clause of the Constitution?

You can only require something to be public if it's defined. Bills, laws, executive orders, financial disclosure, earmarks -- part of making each of these things public has been to define them. Speech from Members of Congress is among the very hardest of things to define narrowly and well. Inhibiting Congress's ability to act is dangerous, and inhibiting Congress's ability to speak freely shouldn't be undertaken lightly.

As long as: (1) each Chamber of Congress can set (and waive) its own Rules, and (2) as long as a bill becomes law if it's passed identically in both Chambers, and (3) as long as political parties have a strong electoral interest in moving a legislative agenda, then we can expect legislative wrangling to continue behind closed doors, unless a Congressional speech restriction is enacted.

Calls for legislative transparency aren't misplaced, and are certainly a rational response as we watch critical and enormous issues being reconciled away from the gaze of public accountability. We should also, however, have a realistic understanding of what it would take to force the real deal-making of Congress into the public eye.

As Jake wrote last week, the final version of the health care bill must be made publicly available for 72 hours prior to floor consideration. For us here at Sunlight figuring out what that exactly means has been a moderately arduous task over the past week. The legislative process to be used, “ping-pong,” is fairly confusing and, due to that, pin-pointing the final version is difficult. I'm going to try and unpack this in the best way possible here.

How exactly does this “ping-pong” process work? “Ping-pong,” like the game, envisions the two chambers sending amendments to the bill back and forth with multiple votes on amendments. Ultimately, the chambers will reach agreement and the bill will finally be considered passed.

Below is a quick summation of what that entails (for the full version please read this CRS Report):

1. Choose a legislative vehicle to amend. This could be the House bill or the Senate bill.
2. One chamber – let's say the House – proposes an amendment or a series of amendments to alter the language of the bill. In the case of the health care bill it is highly likely that this amendment will come in the form of a single amendment in the form of a substitute.
3. The second chamber – the Senate in this example – is then offered three options: agree to the House amendment, agree to the House amendment with further amendment or reject (if there are multiple House amendments the Senate may agree with some and disagree with others).
4. If the Senate agrees to the House amendment to the bill then the bill is considered passed and heads to the President for his signature. If the Senate, however, decides to further amend the House amendments then they can report the bill back to the House with a Senate amendment to the House amendment to the bill. (More on rejection later.)
5. If this happens, the bill and it's amendments can go to each chamber only once more before the process ends with either a passed, amended bill or the rejection of the process, which doesn't necessarily mean the bill has been defeated.
6. If rejection happens anywhere along the way, it can come with a motion from the rejecting chamber to do a number of things. These could hypothetically be a motion from the Senate for the House to recede on parts of their amendment(s); a motion to form a conference committee; or a motion to begin the process again.

(There are many more possibilities that can occur along the way. Please read the aforementioned CRS report for those details.)

So... where in this lies the FINAL bill. First and foremost, we consider the first amendment to the bill to be the final version of the bill. This amendment must be made available for at least 72 hours prior to a vote. This means that if the amendment is made available on Monday both chambers could, conceivably, consider and vote in the affirmative on this amendment on Thursday. But, you say, the second considering chamber can offer their own amendment to the first amendment offered. If the amendment offered by the second considering chamber contain major changes to the legislation or the original amendment(s) in the “ping-pong” process it needs to be available for 72 hours before the second considering chamber can consider them. If the amendment offered by the second considering chamber consist solely of minor technical edits, it need not be available.

There is a little bit of Calvinball involved here, but I think that is totally reasonable considering the unpredictability of the process. All that we, the public, need to do is remain vigilant in ensuring that this complicated process remains as transparent as it can be until it reaches an endpoint.

A couple of days ago I wrote about some of the potential transparency issues related to the decision by House and Senate Democrats to skip conference for the health care reform bill (see here for background on what conference is). After thinking more and more about the issue I'm inclined to believe that the issues raised with skipping conference relates more directly to a structural shift in Congress that far too many are ready to ignore. (For more on the conference committee controversy see this post by John Wonderlich.)

Ezra Klein, who has been focusing on congressional malfunctions for the past few months, points out the major shift in congressional relations and partisan behavior in recent years:

...understanding the United States Congress as an institution gripped by ideological competition is simply wrong. It's an institution gripped by electoral competition. The political scientist Frances Lee puts this particularly clearly in her new book, “Beyond Ideology.” "Parties," she writes, "are institutions with members who have common political interests in winning elections and wielding power, not just coalitions of individuals with similar ideological preferences." According to her data, senators in 2004 are 63 percent more divided along party lines than senators in 1981. It's no coincidence that the rise in party-line voting has coincided with the ideological realignment of the parties. Now that the parties agree internally, they can focus their efforts on winning power.

The dynamic that this electorally centered process creates is one in which the minority has no incentive to help the majority pass legislation. Rather than working to include conservative ideas in the health care bill there is total opposition from the Republican side. In this era, the key for the minority party, especially one that has suffered successive losses, is to kick the majority out and regain power. It's like a football team who throws in the towel in the middle of a losing season to acquire a high draft pick. Might as well aim to regain power in the future than play the game in the present. It worked for Republicans in 1994 and Democrats in 2006.

This new era (the past twenty-some-odd years) of Congress poses numerous problems for transparency in the legislative process. This largely stems from the fact that what has been viewed as the normal legislative process in the past no longer applies.

The majority rushes bills through Congress with little time for lawmakers or the public to review them. Omnibus bills obscure hidden provisions in the crammed, rushed appropriations process. Earmarks are used to fund the districts of endangered incumbents. Speeches on the floor and in committee hearings are akin to Javanese shadow puppetry so as to avoid the all-powerful gaffe patrol. The Rules Committee holds late night sessions – more so in the past than currently, but other problems still persist – prior to a bill's consideration leaving little time for lawmakers to review a bill's rule.

In many ways, there are moves to address some of these changes in legislative behavior. The passage of a rule requiring legislation be publicly available for at least 72 hours before consideration would reduce the ability of the majority to rush legislation. There have already been some reforms to the Rules Committee, while others continue this discussion. Earmarking is reduced and vastly more transparent. These are not fixes to get back to some “normal” legislative process that no longer exists, but ways to adapt to the way the legislature works in a partisan and electorally focused era.

There are countless debates circulating regarding how best to adapt to this new legislative era. Transparency advocates should be aware of the way Congress has changed and focus on adapting the transparency agenda to reflect this changing dynamic rather than seeking to return to a “normal” procedure that has long since become irrelevant.

Earlier today, Jonathan Cohn broke the news that House and Senate Democrats are "almost certainly" going to bypass the official conference committee process to pass the health care reform bill. The reasoning given by Democrats is that going to conference allows Republicans with multiple opportunities to block or delay the bill's ultimate passage. David Waldman gives a great run-down of the rules that would allow for further delay. The move to conference would require multiple Senate votes on moving to conference and appointing conferees, all processes that are subject to cloture votes (60 votes) and require 30 hours of debate. Skipping conference eliminates these cloture votes and requires lawmakers to only cast votes on the final passage of the bill. While providing the speedier passage of the bill, skipping conference presents some transparency-related problems.

Recently adopted and long standing House and Senate rules require conference committees to be generally open to the public. Both House and Senate rules require that all conference committee meetings be open to the public unless a majority of conferees votes in open session to close the meetings. Senate rules require all conference committee reports be publicly available for at least 48 hours prior to a final vote. Without conference, there is no mechanism to provide for openness in the final discussions regarding the health care bill.

Other conference rules provide for openness within the conference committee rather than public openness. These provisions require that conference committees not exclude conferees from decisions or refuse them the ability to see documents or participate in meetings. It will be much easier to exclude potentially difficult members (coming from both the left and right) without a formal conference.

The forgoing of formal conference isn't entirely uncommon -- and, in the end, everyone will still have to go on the record as for or against the final bill. At the same time, the process may speed up the bill's passage while potentially limiting both the public's and many of their elected official's ability to consider the changes to the bill. As with every other major moment of consideration during this bill's journey, both chambers should make the final version (conference report, amendment, substitute) available for at least 72 hours prior to consideration.