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115th Congress }                                               { Report
                        HOUSE OF REPRESENTATIVES
 1st Session   }                                               { 115-54

======================================================================
 
RESOLUTION OF INQUIRY REQUESTING THE PRESIDENT OF THE UNITED STATES AND 
   DIRECTING THE SECRETARY OF HEALTH AND HUMAN SERVICES TO TRANSMIT 
 CERTAIN INFORMATION TO THE HOUSE OF REPRESENTATIVES RELATING TO PLANS 
TO REPEAL OR REPLACE THE PATIENT PROTECTION AND AFFORDABLE CARE ACT AND 
     THE HEALTH-RELATED MEASURES OF THE HEALTH CARE AND EDUCATION 
                       RECONCILIATION ACT OF 2010

                                _______
                                

   March 21, 2017.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

 Mr. Walden, from the Committee on Energy and Commerce, submitted the 
                               following

                             ADVERSE REPORT

                       [To accompany H. Res. 154]

    The Committee on Energy and Commerce, to whom was referred 
the resolution (H. Res. 154) of inquiry requesting the 
President of the United States and directing the Secretary of 
Health and Human Services to transmit certain information to 
the House of Representatives relating to plans to repeal or 
replace the Patient Protection and Affordable Care Act and the 
health-related measures of the Health Care and Education 
Reconciliation Act of 2010, having considered the same, report 
unfavorably thereon without amendment and recommend that the 
resolution not be agreed to.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     1
Background and Need for Legislation..............................     2
Committee Action.................................................     7
Committee Votes..................................................     7
Oversight Findings and Recommendations...........................     9
New Budget Authority, Entitlement Authority, and Tax Expenditures     9
Congressional Budget Office Estimate.............................     9
Federal Mandates Statement.......................................     9
Statement of General Performance Goals and Objectives............     9
Advisory Committee Statement.....................................     9
Applicability to Legislative Branch..............................     9
Section-by-Section Analysis of the Legislation...................     9

                          PURPOSE AND SUMMARY

    H. Res. 154 requests the President, and directs the 
Secretary of Health and Human Services, to transmit to the 
House of Representatives, not later than 14 days after the date 
of the adoption of the resolution, records relating to plans to 
repeal or replace the Patient Protection and Affordable Care 
Act (Public Law 111-148) and the health-related measures of the 
Health Care and Education Reconciliation Act of 2010 (Public 
Law 111-152).

                  BACKGROUND AND NEED FOR LEGISLATION

    The minority seeks to obtain ``correspondence between the 
White House transition officials and this Committee . . . about 
the rollback of . . . the Affordable Care Act.''\1\ H. Res. 154 
is a vehicle in this effort. However, broadly drafted and 
drafted less than two weeks after Inauguration Day, H. Res. 154 
falls short of the standard for resolutions of inquiry set by 
the Committee in prior Congresses. In addition, an 
investigation into the communications of members regarding 
exclusively legislative or policy matters is highly unusual and 
would be detrimental to both the legislative process and 
relations among members and between parties. For these reasons, 
the Committee ordered H. Res. 154 reported to the House 
unfavorably.
---------------------------------------------------------------------------
    \1\Committee Print, Budget Reconciliation Legislative 
Recommendations Relating to Repeal and Replace of the Patient 
Protection and Affordable Care Act; and H. Res. 154, Of Requesting the 
President of the United States and directing the Secretary of Health 
and Human Services to transmit certain information to the House of 
Representatives relating to plans to repeal or replace the Patient 
Protection and Affordable Care Act and the health-related measures of 
the Health Care and Education Reconciliation Act of 2010: Markup Before 
the H. Comm. on Energy & Commerce, 115th Cong. 1138 (2017) [hereinafter 
H. Res. 154 Markup] (statement of Rep. Kennedy, Member, H. Comm. on 
Energy & Commerce).
---------------------------------------------------------------------------

The Minority's efforts to obtain ``correspondence between the White 
        House transition officials and this Committee . . . about the 
        rollback of . . . the Affordable Care Act.''

    On January 20, 2017, Donald J. Trump became the 45th 
President of the United States of America. The same day, 
President Trump nominated then-Rep. Tom Price (GA-06) to serve 
as the Secretary of Health and Human Services. Secretary Price 
became the Secretary of Health and Human Services on February 
10, 2017, and continued to serve in the House until that time.
    On February 2, 2017, eight days before then-Rep. Price 
became Secretary, the Subcommittee on Health held a hearing 
entitled ``Patient Relief from Collapsing Health Markets.'' The 
subject of that hearing was to review several bills, including 
H.R. 706, Plan Verification and Fairness Act of 2017; H.R. 710, 
Health Coverage State Flexibility Act of 2017; H.R. 708, State 
Age Rating Flexibility Act of 2017; and a draft bill entitled 
``Pre-Existing Condition Protection and Continuous Coverage 
Incentive Act of 2017.''
    At the conclusion of opening statements, a minority member 
of the Subcommittee on Health raised the matter of ``various 
House staffers and the Administration and transition team and 
the signing of nondisclosure agreements.''\2\
---------------------------------------------------------------------------
    \2\Patient Relief from Collapsing Health Markets: Hearing Before 
the Subcomm. on Health of the H. Comm. on Energy and Commerce, 115th 
Cong. 28 (2017). (statement of Rep. Kennedy, Member, H. Comm. on Energy 
& Commerce).
---------------------------------------------------------------------------
    On February 3, 2017, members of the minority wrote Rep. 
Greg Walden, Chairman, Committee on Energy and Commerce, 
regarding ``whether any Committee staff assisted the Trump 
Administration or the transition team in drafting any executive 
orders within this Committee's jurisdiction, and in the course 
of doing so, whether they entered into any nondisclosure 
agreements with the Administration.''\3\
---------------------------------------------------------------------------
    \3\Letter from Rep. Pallone, Ranking Member, H. Comm. on Energy & 
Commerce et al. to Rep. Walden, Chairman, H. Comm. on Energy & Commerce 
(Mar. 3, 2017).
---------------------------------------------------------------------------
    On February 9, 2017, at 11:02 a.m., a draft resolution of 
inquiry was prepared by the Office of Legislative Counsel for 
introduction in the House. The introduced resolution of inquiry 
was almost identical to the February 9 draft.
    H. Res. 154 was introduced on February 27, 2017, and 
referred to the Committee. The text of the resolution provides:

          That the President of the United States is requested 
        and the Secretary of the Department of Health and Human 
        Services is directed to transmit to the House of 
        Representatives, not later than 14 days after the date 
        of the adoption of this resolution, all documents, 
        memoranda, and advisory legal opinions, including notes 
        from meetings, memos, and telephone and electronic mail 
        records, relating to plans to repeal or replace the 
        Patient Protection and Affordable Care Act (Public Law 
        111-148) and the health-related measures of the Health 
        Care and Education Reconciliation Act of 2010 (Public 
        Law 111-152).

Under clause 7 of rule XIII of the Rules of the House of 
Representatives, if a resolution of inquiry is not reported to 
the House within 14 legislative days after its introduction, a 
motion to discharge the Committee from its consideration shall 
be privileged.
    On March 8 and 9, 2017, the Committee met in open markup 
session to consider a Committee Print, Budget Reconciliation 
Legislative Recommendations Relating to Repeal and Replace of 
the Patient Protection and Affordable Care Act; and H. Res. 
154.
    During debate on H. Res. 154, a member of the minority 
stated:

          Mr. Chairman, after notice of nondisclosure 
        agreements between Committee staff and judiciary, and 
        White House personnel, we had requested information as 
        to whether documents, or notes, emails, correspondence 
        between the White House transition officials and this 
        Committee, if they exist, about the rollback of--
        potential rollback of the Affordable Care Act so that 
        we could have an idea as to what this process would 
        entail. We obviously have not gotten that yet and we 
        talked about it, I think you recall, several weeks ago, 
        in the Committee process.
          * * *
          So, I would respectfully request that the Committee 
        be able to divulge whatever correspondence exists 
        between the White House and this Committee so that we, 
        as members of this Committee can have an accurate 
        reflection, an accurate representation as to what is 
        coming next and what is the true ambition of the 
        healthcare policy rollout for this caucus.
          * * *
          And just to be clear, I did ask about correspondence 
        informally between Committee and Committee staff and 
        the White House before filing this resolution, hoping 
        that we wouldn't have to get there.
          * * *
          Again, just so that the Committee is clear, this was 
        done in a Committee hearing. It was then followed up in 
        writing. There was no response given. So this was as 
        you outline. I would love to work with you and your 
        Committee staff to try to advance this process, if we 
        could get a commitment from you or a clear idea as to 
        what steps are necessary so that we can get this.
          But we tried once verbally. We tried again on paper. 
        No response. No response. My nuclear option isn't so 
        nuclear, but I understand your position on that.
          This is something, obviously, I think is important to 
        members and I would like to figure out what we can 
        do.\4\
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    \4\H. Res. 154 Markup, supra, note 1, at 1138-44 (statement of Rep. 
Kennedy).

Following the markup and the Committee's vote to report H. Res. 
154 to the House unfavorably, members of the minority wrote 
---------------------------------------------------------------------------
Chairman Walden on March 15, 2017, requesting the Chairman:

          [O]btain from the President of the United States and 
        the Secretary of Health and Human Services: All 
        documents, notes, emails, memos, and legal opinions, 
        including notes from meetings, relating to plans to 
        repeal or replace the Patient Protection and Affordable 
        Care Act (Public Law 111-148) and the health-related 
        measures of the Health Care and Education 
        Reconciliation Act of 2010 (Public Law 111-152).\5\
---------------------------------------------------------------------------
    \5\Letter from Rep. Pallone, Ranking Member, H. Comm. on Energy & 
Commerce et al. to Rep. Walden, Chairman, H. Comm. on Energy & Commerce 
(Mar. 15, 2017).
---------------------------------------------------------------------------

H. Res. 154 is overbroad in scope and was premature

    It is important to compare H. Res. 154 to H. Res. 983 
introduced during the 111th Congress, the last resolution of 
inquiry considered by the Committee and also not favorably 
reported to the House.
    Unlike H. Res. 154, the introduction of H. Res. 983 
followed several attempts by Rep. Michael C. Burgess, member, 
Committee on Energy and Commerce, to obtain the requested 
information from the executive branch.
    Rep. Burgess introduced H. Res. 983 (111th Cong.) in 
December 2009. That resolution of inquiry sought:

          [C]opies of each portion of any document, record, or 
        communication (including telephone and electronic mail 
        records, logs and calendars, and records of internal 
        discussions) in the possession of the President or 
        Secretary, respectively, referring or relating to (1) 
        any written or verbal agreement that (A) relates to any 
        of the following bills in the 111th Congress (or any 
        proposed change thereto): H.R. 3200, H.R. 3590, H.R. 
        3961, H.R. 3962, S. 1679, or S. 1796; and (B) is 
        entered into on or after January 20, 2009, between an 
        individual serving in an office or position in the 
        White House or the Department of Health and Human 
        Services and any other person; (2) negotiations 
        relating to an agreement described in paragraph (1), 
        the name or title of any individual described in 
        paragraph (1)(B) who participated in decisionmaking 
        during such negotiations, the date of any meeting held 
        as part of such negotiations, or the identity of any 
        participant in any such meeting; (3) any such 
        negotiations with the Advanced Medical Technology 
        Association, the American Medical Association, 
        America's Health Insurance Plans, the Pharmaceutical 
        Research and Manufacturers of America, the American 
        Hospital Association, or the Service Employees 
        International Union regarding decreasing by 1.5 
        percentage points the annual health care spending 
        growth rate or policy proposals to accomplish this 
        goal; or (4) implementation of an agreement described 
        in paragraph (1).

During the Committee's January 27, 2010 markup of H. Res. 983, 
Rep. Burgess outlined the steps he had taken to gather this 
information:

          I wrote to the White House in September on this issue 
        . . . My staff reached out to the White House. Mr. 
        Chairman, you reached out to the White House on my 
        behalf, and we got nothing. Finally, I was compelled to 
        introduce the resolution of inquiry. Then yesterday at 
        2:20 p.m., 119 days after my letter, we did hear from 
        the White House. What did we get? We got logs that the 
        press had had a month ago, we got a series of public 
        statements and press releases, all printed off the 
        White House website; not one document that was not 
        available to everyone.\6\

    \6\H. Res. 983, Requesting the President, and directing the 
Secretary of Health and Human Services, to transmit to the House of 
Representatives copies of documents, records, and communications in 
their possession relating to certain agreements regarding health care 
reform: Markup Before the H. Comm. on Energy & Commerce, 111th Cong. 
16-17 (2010) (hereinafter H. Res. 983 Markup) (statement of Rep. 
Burgess, Member, H. Comm. on Energy & Commerce).

Even after efforts to narrow the scope and to obtain the 
information through other means, Rep. Henry Waxman, then-
Chairman, Committee on Energy and Commerce, found H. Res. 983 
---------------------------------------------------------------------------
to be overbroad and premature:

          First, the resolution is over-broad. It encompasses 
        any document, e-mail, or records of internal 
        discussions that relate to written or verbal agreements 
        on healthcare reform. This could include notes of 
        conversations between the President and his Chief of 
        Staff and other top advisors, presidential e-mails, and 
        other records of deliberations at the highest levels of 
        the White House that raises core privilege concerns. 
        There has been no showing or even an allegation of 
        wrongdoing that would justify this kind of request.
          Second, it is premature to move forward with a 
        resolution of inquiry. The White House has provided 
        Representative Burgess with records showing the 
        identities of hundreds of participants in White House 
        healthcare meetings among other documents. It has also 
        offered to assist Representative Burgess with any 
        questions about individuals allegedly denied meetings 
        at the White House.
          There is a significant contrast between how the Obama 
        Administration has responded to Representative 
        Burgess's request for information and how the Bush 
        Administration handled efforts by Chairman Emeritus 
        Dingell and myself to seek information regarding Vice-
        President Cheney's energy task force.
          In 2001, Vice-President Cheney led a task force that 
        worked behind closed doors to develop the 
        Administration's comprehensive energy policy. Press 
        accounts identified a number of energy industry 
        campaign contributors that met with the task force and 
        reported that major contributors had private sessions 
        with the Vice-President. The energy plan that emerged 
        from the task force's work contained dozens of specific 
        recommendations from top energy campaign contributors 
        such as Enron.
          For 3 years Mr. Dingell and I pressed the White House 
        to disclose basic information such as the identities of 
        participants in the task force meetings. The White 
        House consistently rebuffed these requests.\7\
---------------------------------------------------------------------------
    \7\H. Res. 983 Markup, supra note 6, at 5-7 (statement of Rep. 
Waxman, Chairman, H. Comm. on Energy & Commerce).

    Similarly, H. Res. 154 encompasses any document, e-mail, or 
records of internal discussions that relate to written or 
verbal agreements on the repeal or replacement of the Patient 
Protection and Affordable Care Act and the health-related 
measures of the Health Care and Education Reconciliation Act of 
2010, which could include notes of conversations between the 
President and his Chief of Staff and other top advisors, 
presidential e-mails, and other records of deliberations at the 
highest levels of the White House that raise core privilege 
concerns.
    With respect to timeliness, H. Res. 154 was drafted within 
two weeks of Inauguration Day and just one week after this 
matter was first raised, which was done publicly during a 
hearing. As the minority notes, ``we tried once verbally. We 
tried again on paper. No response. No response.''\8\ The time 
and effort to obtain the requested information before H. Res. 
154 was drafted and introduced are far different from the time 
and effort that preceded the introduction of H. Res. 983.
---------------------------------------------------------------------------
    \8\H. Res. 154 Markup, supra, note 1, at 1143-44 (statement of Rep. 
Kennedy).
---------------------------------------------------------------------------

An investigation into the communications of members regarding 
        exclusively legislative or policy matters is highly unusual and 
        would be detrimental to both the legislative process and 
        relations among members and between parties

    The resolution of inquiry is a seldom used investigative 
tool of the House to obtain information from the executive 
branch. H. Res. 154 is unusual because, as comments from the 
minority make clear, its purpose is to obtain the 
communications of House members (and their employees). With 
respect to exclusively legislative and policy matters, there is 
no obvious precedent for such an investigation.
    The Committee believes the circumstances of H. Res. 154 do 
not warrant establishing such a precedent. To the contrary, 
adopting a resolution of inquiry such as H. Res. 154, whose 
purpose is to obtain the communications of members, would 
undermine the legislative process and fray the relationships 
among members, particularly members of opposing parties.
    With respect to the legislative process, members would be 
discouraged from contacting the executive branch for technical 
assistance on legislation or for information related to 
oversight matters. This could result in missed opportunities to 
improve legislation or to improve existing programs.
    In addition, collegiality among members is essential to the 
conduct of the House's business. However, investigations into 
member communications over mere legislative or policy 
disagreements would unduly damage the operations of this 
Committee.
    The minority's effort to investigate the communications of 
members is unwise. The vehicle for this investigation, H. Res. 
154, is both overly broad and premature, and, more troubling, 
such an investigation would chill member relations and mark an 
end to collegiality on the Committee. A majority of the members 
on the Committee on Energy and Commerce decline to take such a 
step.

                            COMMITTEE ACTION

    The Committee on Energy and Commerce has not held hearings 
on the legislation.
    On March 8 and 9, 2017, the Committee met in open markup 
session and ordered H. Res. 154, without amendment, unfavorably 
reported to the House by a record vote of 31 yeas and 22 nays.

                            COMMITTEE VOTES

    Clause 3(b) of rule XIII requires the Committee to list the 
record votes on the motion to report legislation and amendments 
thereto. The following reflects the record votes taken during 
the Committee consideration:


                 OVERSIGHT FINDINGS AND RECOMMENDATIONS

    Pursuant to clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII, the findings and recommendations of the Committee 
are reflected in this report.

   NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX EXPENDITURES

    Pursuant to clause 3(c)(2) of rule XIII, the Committee 
finds that H. Res. 154 would result in no new or increased 
budget authority, entitlement authority, or tax expenditures or 
revenues.

                  CONGRESSIONAL BUDGET OFFICE ESTIMATE

    Pursuant to clause 3(c)(3) of rule XIII, at the time this 
report was filed, the cost estimate prepared by the Director of 
the Congressional Budget Office pursuant to section 402 of the 
Congressional Budget Act of 1974 was not available.

                       FEDERAL MANDATES STATEMENT

    The Committee adopts as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

         STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

    Pursuant to clause 3(c)(4) of rule XIII, the general 
performance goal or objective of this legislation is to request 
the President and direct the Secretary of Health and Human 
Services to furnish certain documents relating to plans to 
repeal or replace the Patient Protection and Affordable Care 
Act and the health-related measures of the Health Care and 
Education Reconciliation Act of 2010.

                      ADVISORY COMMITTEE STATEMENT

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                  APPLICABILITY TO LEGISLATIVE BRANCH

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

             SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION

    H. Res. 154 requests the President, and directs the 
Secretary of Health and Human Services, to transmit to the 
House of Representatives, not later than 14 days after the date 
of the adoption of the resolution, records relating to plans to 
repeal or replace the Patient Protection and Affordable Care 
Act and the health-related measures of the Health Care and 
Education Reconciliation Act of 2010.

                                  [all]