A Senate Committee Takes a Partisan Turn

Members of a Senate committee meeting to amend proposed legislation usually wouldn’t warrant much attention. But the Health, Education, Labor, and Pensions Committee’s markup of three bills on Wednesday was its first partisan markup since 2009, when Democrats had a filibuster-proof majority and were crafting what became the Affordable Care Act.

“This is a significant aberration,” David Cleary, a longtime former Republican staff director for the HELP Committee, tells The Dispatch.

It’s not the first time that partisanship has outpaced the committee’s precedent of pragmatism in recent months. Republicans argue that Chairman Bernie Sanders’ decision to hold the partisan markup—as well as his handling of committee business more generally—demonstrates a lack of interest in negotiating on bills that actually stand a chance of becoming law.

Sanders, who began chairing the committee in January, has also held multiple (non-markup) partisan hearings and proposed a 550 percent increase in funding for community health clinics—a move that has no chance of passing the Senate. It’s a sharp turn for a committee that has typically been able to forge bipartisan consensus on a wide range of issues. 

In any markup, members of both parties have the right to offer and vote on amendments. In a partisan markup, the majority party decides what legislation to consider without consulting the minority. But a bipartisan markup features “agreement between the chair and the ranking member on the underlying legislation that you’re working on,” the general counsel for the Republican HELP minority tells The Dispatch. That’s not an ironclad guarantee that both senators will vote for the legislation no matter what happens in the markup, but it indicates buy-in from both parties.

(A spokesperson for Sanders did not respond to The Dispatch’s question about why the chairman chose to hold a partisan markup now.) 

Wednesday’s partisan markup didn’t just exacerbate tension among members of the committee. It also sucked time and attention away from bipartisan legislation many see as must-pass. The HELP Committee has at least eight bills it needs to ensure are reauthorized by September 30, including the Pandemic and All-Hazards Preparedness Act (PAHPA) and funding for community health centers. Spending time amending Sanders’ partisan bills leaves members less time to hammer out those reauthorizations.

“If the committee hasn’t done its job, if it hasn’t marked up the bipartisan legislation, including expiring authorizations, then all that negotiating has to happen just amongst leadership because there’s no actual work product to point to,” says a Republican HELP Committee staffer.

And time is running out: The likelihood that agreements on all of the required reauthorizations come together before the August recess is “slim,” according to ranking member Sen. Bill Cassidy.

In the past, “we on both sides have set apart 20 percent of where we disagreed to focus on the 80 percent where we agree,” Cassidy said Wednesday during the hearing. “Nobody got everything they wanted all the time, but we got key legislative victories, and in so doing the HELP Committee made lasting change.”

But the three bills Sanders brought up on Wednesday—the Paycheck Fairness Act, the Healthy Families Act, and the Protecting the Right to Organize Act—have “zero chance” of becoming law, Cassidy said.

Sanders’ decision to break a nearly 14-year streak of bipartisan markups is particularly striking in light of the HELP Committee’s reputation for bipartisan productivity compared to other standing committees in the Senate. For example, the Banking Committee held a productive bipartisan markup on Wednesday, but that was its first markup of any kind since 2019, while the HELP Committee is already on its third markup session of the year. Meanwhile, the Budget Committee hasn’t marked up a bill since 2020.

Even the major exception that proves the bipartisan-markup rule took place under very different conditions than those Sanders faces today: When Democrats on the HELP Committee held a partisan markup while working on Obamacare in 2009, they did so knowing they already had a filibuster-proof majority in place for the final product.

That process was “contentious,” Cleary says, but “we all knew at the end of the day that they were going to get their bill, and so it was slightly less outrageous.”

In a 51-49 Senate, the calculus is different. Even though the three bills got through Wednesday’s markup with HELP Democrats’ votes, Majority Leader Chuck Schumer has virtually no incentive to waste time and political capital by bringing them to the floor.

The HELP Committee’s relative productivity may be due in part to its broad jurisdiction over a range of issues, some of which—including pandemic preparedness and community health centers—have tended not to attract partisan controversy. But the HELP umbrella also covers plenty of issues over which the parties disagree, and that’s where leadership from the chair and ranking member becomes important. Past chairs and ranking members—such as Democrats Patty Murray, Tom Harkin, and Ted Kennedy and Republicans Richard Burr, Lamar Alexander, and Mike Enzi—“were all serious, sober senators who wanted to get a result,” Cleary says, pointing to achievements on pandemic preparedness, mental health, opioids, K-12 education, and surprise medical billing.

“There is something unique to be protected about the HELP Committee in modern times and how productive it’s been on a bipartisan basis,” the Republican general counsel says.