The invisible lawmakers

Want to know what’s causing a lot of people in Washington to work long hours right now? Here’s a hint — it’s not immigration reform or gun control or, for that matter, any other legislation coming down the pike. Instead, it’s a pair of three-year-old laws.

The Affordable Care Act known to most Americans as “Obamacare” and the Wall Street reform act known as “Dodd-Frank” both became law in 2010. Most people consider these major pieces of legislation old news, but that’s because their civics teachers misled them back in junior high school. In the How-A-Bill-Becomes-A-Law version of Congress that many of us were taught, the story ends when the bill is signed by the President. It doesn’t. In fact, the President’s signature is more like a starter’s pistol.

Because after a bill becomes law is when legislative language — which is often deliberately vague and imprecise, in order to wrangle as many votes as possible — gets interpreted and turned into regulatory language. In other words, Congress drafts a rough blueprint; only then does the federal government decide how the machinery will actually work.

And that’s where money — lots of money — stands to be won or lost. A few years ago, a group of academics studying tax disclosures related to a single 2004 piece of financial legislation found that firms lobbying for a particular provision made $220 for every $1 they spent on lobbying. Which may help explain why, as the Center for Responsive Government recently reported, the health care industry has spent more than $700 million on lobbying Congress and executive agencies since health care reform passed.

 Indeed, the political fight that began with the drafting of legislation continues long after a bill is enacted into law — not for days or weeks or even months, but sometimes for years. Unlike the legislative process, which for all its faults is generally visible and accessible to the public, these battles tend to be invisible and inscrutable.

 The first arena in which they take place is within the agency or agencies charged with drafting and enforcing the rules that give teeth to legislation. This process can be lengthy — according to one corporate law firm that has been tracking the rulemaking process for Dodd-Frank, only 38 percent of the rules required by the legislation had been finalized by the beginning of May this year.

Special interests trying to have an impact pursue a broad range of tactics, from directly lobbying regulators to getting friendly members of Congress to weaken the agency’s appropriation, cut funding for regulatory enforcers, or even block presidential appointments to an agency they dislike. They might also take the opposite tack, lobbying to bulk up a rule and make it so complicated that very few people can understand it, or to add little-noticed — but highly profitable — exemptions.

If that approach doesn’t work, there are always the courts, which have final judgment over how to construe congressional language. Lawsuits of these types are intensely fought and can go on for years, sometime blocking or restricting implementation until they’re settled.

And then, of course, there’s Congress. Opponents of a law are rarely shy about re-legislating it even after it’s been enacted. They can try to get it repealed, or to cut its funding, or to enact exemptions, or, as medical device makers, insurers and others are doing right now with the health-care law, to overturn pieces of it they especially dislike without taking on the entire thing.

Huge amounts of money are at stake in these fights, which can involve an army of sophisticated players: high-powered lobbyists, former regulators and members of Congress, and the federal officials and current members they’re focused upon. As tough and sometimes mean-spirited as the reasonably transparent legislative process can get, these shadow battles, far out of the public eye, can be even more so.

Former Secretary of State George Shultz once famously said, “Nothing ever gets settled in this town,” and he was right. That is why, as you follow the course of health reform or financial industry reform or any other high-stakes law, it pays to remember that it can take years before it’s really possible to gauge the impact of legislation.

Lee Hamilton is director of the Center on Congress at Indiana University. He was a member of the U.S. House of Representatives for 34 years.