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Plain English in Congress

There's an interesting -- well, sort of interesting -- debate going on at the Finance Committee's mark-up right now. Sen. Jim Bunning (R-Ky.) has an amendment forcing the Senate Finance Committee to delay its vote until a final CBO score of the final legislative language is available. This would essentially delay a vote for three weeks: First the so-called "conceptual language" has to be converted into legislative language. Then the legislative language has to undergo a two- to three-week final scoring process.

This has never been demanded in the history of the Finance Committee.

I imagine this amendment will fail, and I'll update the post when I know for sure. But I was struck by Kent Conrad's rejoinder to the argument that the "conceptual language" is insufficient.

What is conceptual language? It's plain English. Plain English. I'm not a lawyer. We write our bills in plain English so the members can understand them, and so the public can understand them. Conceptual language is much more transparent. To most people, legislative language is gobbledy-gook.

That's absolutely correct. It's to the Finance Committee's credit that they begin by writing their bills in plain English. Other committees should follow suit. It not only allows the public to follow along, but it allows the members to follow along.

People like to demand that congressmen should read the full text of bills. But congressmen don't do that because it's an absurd request: The bills are incomprehensible. It wouldn't enhance their understanding at all. Conceptual language, however, does, and if it became standard practice for bills to begin in that format, I imagine many more members would read them. To get a sense of the difference, scan H.R. 3200, the House bill, and then click over to Baucus's Mark.

By Ezra Klein  |  September 23, 2009; 11:08 AM ET
 
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Comments

The fact that legislators don't understand the effect of final bills -- believing that they implement the conceptual text -- has been an issue for about 30 years. ERISA (1974) is the classic example, where the concept has been fully and completely lost in the added legalities, many of which came from special interests. Why repeat the mistake??

Posted by: rmgregory | September 23, 2009 11:21 AM | Report abuse

I think it's a reasonable request, because with this bill in particular seemingly minor changes have the potential to radically accelerate the loss of employer benefits. The budgetary impact could be quite unexpected.

Posted by: bmull | September 23, 2009 11:25 AM | Report abuse

Senator Roberts is literally arguing that the legislative language is necessary so that lobbyists will know exactly what is in the bill before it passes.

Seriously.

Posted by: mayorm | September 23, 2009 11:26 AM | Report abuse

Why then, don't we simply dump the legislative language entirely, and simply go with the plain English?

I'm actually interested in the answer to this... in plain English please.

Posted by: jmcco | September 23, 2009 11:44 AM | Report abuse

rmgregory: Ezra does remember ERISA -----he is too young---

He does not know or comprehend, yet, that DEMS can pass terrible health care bills that last for 35 years with few changes.

ERISA legislation is the reason for the majority of the health care horror stories regarding HMO's.
http://en.wikipedia.org/wiki/Employee_Retirement_Income_Security_Act

ERISA may have injured or killed more US citizens than any other legislation other than a declaration of war.

DEMS passed ERISA in 1974.

Posted by: johnowl | September 23, 2009 11:45 AM | Report abuse

Then why is it helpful to encode our laws in a protocol that is functionally illegible even to those who are supposed to be designing them?

Posted by: adamiani | September 23, 2009 11:48 AM | Report abuse

ERISA was passed because of the horribly underfunded Studebaker pension plan which, when that company went into bankruptcy, stiffed its beneficiaries.

The health portions of ERISA essentially allow a multistate employer operating a self-insured plan to bypass individual state insurance mandates and offer a consistent benefit plan and eligibility across all state lines.

Inasmuch as HMOs are insured products offered at a state or regional level, they are subject to state insurance laws, so I am not sure where ERISA created the horror stories of HMOs.

Posted by: scott1959 | September 23, 2009 12:01 PM | Report abuse

scott1959: Under ERISA-------IF YOUR HMO DENIES YOU TREATMENT, YOU MUST GO TO FEDERAL COURT, FROM WIKIPEDIA:

"If a person dies before the case can be heard, however, the claim dies with him or her--------since ERISA provides no remedy for injury or wrongful death caused by the withholding of care."

"Even if benefits are improperly denied-----the insurance company cannot be sued for any resulting injury or wrongful death."

About 177 million people—or 62% of those under age 65—get insurance today through ERISA REGULATED employer based health plans, which are exempt from state insurance protections.

Most people are ignorant of ERISA'S detrimental impact on health care coverage. ERISA also encourages insurance companies to deny disability claims with impunity, not just health care claims.

See LA Times investigation: http://articles.latimes.com/2005/aug/21/nation/na-disability21?pg=1

------------------------------------------------------------------------------------

Again from Wikipedia:

Many persons included among the some 47 million people---- presently without health care coverage in the United States are former ERISA "subscribers"-----insurance terminology for Plan beneficiaries------ who have been denied benefits-------usually on the ground that the prescribed care is not medically necessary or is "experimental"-------or dropped from coverage, often because they have lost their jobs due to the very illness for which care was denied."

-------------------------------------------------------------

Posted by: johnowl | September 23, 2009 12:37 PM | Report abuse

http://en.wikipedia.org/wiki/Employee_Retirement_Income_Security_Act

"ERISA Section 514 preempts all state laws that relate to any employee benefit plan, with certain, enumerated exceptions. The most important exceptions — i.e. state laws that survive despite the fact that they may relate to an employee benefit plan — are state insurance, banking, or securities laws, generally applicable criminal laws, and domestic relations orders that meet ERISA's qualification requirements.

A major limitation is placed on the insurance exception, known as the "deemer clause", which essentially provides that state insurance law cannot operate on employer self-funded benefit plans. The Supreme Court has created another limitation on the insurance exception, in which even a law regulating insurance will be pre-empted if it purports to add a remedy to a participant or beneficiary in an employee benefit plan that ERISA did not explicitly provide.[1]

The result is that the only remedy available to a covered person who has been denied benefits or dropped from coverage altogether is to seek an order from a federal judge (no jury trial is permitted) directing the Plan (in actuality the insurance company that underwrites and administers it) to pay for "medically necessary" care. If a person dies before the case can be heard, however, the claim dies with him or her, since ERISA provides no remedy for injury or wrongful death caused by the withholding of care.

Even if benefits are improperly denied, the insurance company cannot be sued for any resulting injury or wrongful death. Many persons included among the some 47 million people presently without health care coverage in the United States are former ERISA "subscribers", insurance terminology for Plan beneficiaries. who have been denied benefits-usually on the ground that the prescribed care is not medically necessary or is "experimental"-or dropped from coverage, often because they have lost their jobs due to the very illness for which care was denied.

Many consumer and health care advocates have called for a "restoration of the freedom of contract enforcement," to the 75% of Americans insured under these work place group plans-in effect, a repeal of the ERISA pre-emption. Permitting these insured persons access to customary state remedies (98% of all civil disputes are resolved in state courts) would, they contend, result in a substantial reduction in arbitrary denial of care benefits,"

Posted by: johnowl | September 23, 2009 12:38 PM | Report abuse

As like White House, we need more 'sunshine' policy; meaning these bills must be in 'plain English' and must remain in 'plain English' without any translation to 'lawyer language'.

Posted by: umesh409 | September 23, 2009 12:39 PM | Report abuse

johnowl...I think we are on the same page. Your first post was the one that confused me since you were mixing up HMOs (by definition insured and subject to state insurance regulations) and self-insured plans (subject to ERISA). A self-insured plan may have something that looks like an HMO, but it is technically not one (it would be a PPO or an EPO). If it is an HMO it is insured and regulated by the states.

Posted by: scott1959 | September 23, 2009 4:17 PM | Report abuse

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