In a continuing program of concealing debate and compromises on the pending health care reform legislation from the public view, Democratic leaders in both houses of Congress have agreed to bypass the formal conference committee process for reconciliation of the differences between the House and Senate bills, and instead intent to draft compromise provisions behind closed doors before the House reconvenes later this month, have the House pass the agreed compromise provisions as an amendment to the House bill, and then send the amended House bill to the Senate for a final vote in which 60 affirmative Senate votes would result in passage of an identical version to sent to the Oval Office for signature before President Obama’s State of the Union address to a joint session of Congress.

By these measures, Congress would avoid public observation of the process through C-Span broadcasts of conference committee hearings and debates, and issuance of a published conference report before either house votes on the bill. This alternative to the customary procedures also insures that most Senators and Congressmen, like the rest of the citizenry, will be ignorant of the details of the 2,074 pages of the legislation they are voting on.

Senate Majority Leader Harry Reid’s secretive approach to the manager’s amendment, which became the final Senate version of this bill, illustrates the sort of provisions which can creep into legislation at the last minute, leaving the public and most legislators unaware of the details of bills passed in this secretive way. While the Senate bill does not require all employers to provide workers with health insurance, it does impose a $750 per employee annual penalty on every business with over 50 employees if the business does not provide health coverage, and any one of its employees receives a federal subsidy to pay his or her individual or family health insurance premium. At the last second urging of Oregon Senator Jeff Merkley, Reid secretly accepted an amendment to the Senate bill applicable only to the construction industry, reducing the size of penalty exempt employers from 50 employees to 5 employees.

Labor unions argue the Merkley amendment is needed to avoid giving non-union contractors an unfair competitive advantage in an industry where 90% of businesses have fewer than 20 employees, and union health care costs can represent 12.5% to 20% of payroll costs. Labor’s health insurance costs are expected to increase dramatically under this legislation, by as much as $1,000 per employee per year, due to the bill’s elimination of annual and lifetime benefit limitations, preexisting condition exclusions, and extension of family coverage to children of the employee until age 26.

On the other hand, smaller contractors argue that imposition of payroll cost increases amounting to as much as 25% will require layoffs at a minimum across the home building sector, or at worst, drive many of them out of business altogether. Whether the Merkley amendment stays in the final, secretly compiled bill, remains to be seen. The ongoing closed door drafting of this legislation, which will affect each and every American one way or another, acquiesced in by Speaker Pelosi and President Obama who campaigned on pledges of greater transparency and openness in government, leaves too much room for many similar last minute special interest provisions to creep into the bill, sight unseen.

James G. McConnell, Attorney at Law – Phone 708-923-9935