The One Time Congress Let the Public Comment on an Upcoming Bill Was the Last Time It Passed a Major Health Law With Bipartisan Support

Sometimes public comments are actually productive.
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Sometimes public comments are actually productive.
Surrounded by advocates and lawmakers, President Barack Obama applauds after signing the 21st Century Cures Act into law on December 13th, 2016, in Washington, D.C.

Surrounded by advocates and lawmakers, President Barack Obama applauds after signing the 21st Century Cures Act into law on December 13th, 2016, in Washington, D.C.

The 21st Century Cures Act ranked as one of the most expansive health-care bills when it was passed in 2016. At a cost of $6.3 billion, it upped spending on biomedical research, offered cash to states for anti-addiction programs, and opened the door to new standards for Food and Drug Administration-approved drugs. These are big changes that affect many Americans, and, in a rare move, Americans were actively encouraged to voice their opinions about them before the act was finalized.

Congress doesn't typically ask for public comments on the bills it's considering. But, in January of 2015, the House Energy and Commerce Committee did just that, for a first draft of the 21st Century Cures Act. In a month, the committee received nearly 1,000 pages' worth of comments. And those comments seem to have made their mark, according to a new study: Lawmakers changed several portions of the act that garnered the most feedback.

"In most cases, the law was changed in a way that tracked the comments," says Rachel Sachs, a law professor at Washington University in St. Louis who worked on the study, reading comments and sorting them by hand. This pattern is all the more remarkable because there's always plenty of lobbying—from pharmaceutical and health-insurance companies, for example—that goes on behind the scenes when representatives are writing a bill. Yet most of the changes to the 21st Century Cures Act were correlated with its public comments, suggesting backstage lobbying didn't have too much of an effect beyond what was publicly visible.

What did the comments help accomplish? Eleven of the sections in the first draft of the act drew as many or more critical comments as they did supportive ones, Sachs and her colleagues found. Six of those sections later disappeared from the legislation. The first draft also didn't offer any additional funding for the National Institutes of Health. Groups such as the Leukemia and Lymphoma Society and the National Multiple Sclerosis Society wrote in, asking for money for the NIH. The second draft offered $10 billion over five years to the NIH. (The final act authorized $4.8 billion.)

Backstage lobbying didn't have too much of an effect beyond what was publicly visible.

Another example demonstrates the limits of public comments. The first draft included five programs that would help pharmaceutical companies sell brand-name drugs for a longer period of time, during which they'd face no generic competition. Supportive comments outnumbered opposing ones for most of those programs, which were intended to encourage companies to develop innovative medicines. Yet four of the five programs got cut from the act. Sachs thinks the programs were slashed because of negative reactions outside of the public comments. Lots of research and opinion articles, for example, argued the programs would make drugs more expensive for Americans. In other words, representatives listened to other influences outside of the public comments, and sometimes they outweighed them.

Still, Sachs says, she'd like to see more bills open for public comment, especially those having to do with health care. "It's so extremely complicated and there are so many ways that groups you can't even think of will be affected by a particular policy," she says. Public-comment periods can help unearth unexpected consequences.

Does that mean a public-comment period could have helped Congress' recent failed Obamacare repeal-and-replace efforts? Obamacare is much bigger, more expensive, and more complicated than the 21st Century Cures Act, so it's not surprising that its implementation would be more difficult and contentious. Yet Sachs thinks public comment would have helped, by making lawmakers aware earlier of people's worries about the bill. "There was expert consensus that all of the bills advanced, in both houses of Congress, didn't solve a particular policy problem. You heard a lot that there was this idea of lowering premiums or lowering deductibles or improving choice," she says. "Yet none of the proposals, actually advanced, would have done that."

"I think it made it easier to pretend for a while that that wasn't true because there was no public airing, even of the text of the bills, for a long time," she says.

Every new draft of the 21st Century Cures Act passed through House committees, then the full House and Senate, with overwhelming support: 31 to zero, 51 to zero, 392 to 26. President Barack Obama signed it into law in December of 2016. Neither Obamacare nor its would-be replacements saw anything like it.

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