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A Project of The Annenberg Public Policy Center

Measuring Merkley’s Record

An ad from a Koch-backed group labels Oregon Sen. Jeff Merkley an ineffective leader because he “wrote only one bill that became law” in six years. This kind of claim is an attack ad staple, but it betrays a fundamental misunderstanding of the ways of Congress.

First-term senators, like Merkley, typically get their names on very few bills that stand a chance of becoming law, and even then, the bills usually are relatively minor.

By the ad’s measuring stick, virtually every senator who came into office at the same time as Merkley has been a slacker. Two senators have had two sponsored bills each that became law. Merkley was one of four who had one. Four of the senators — including the only two Republicans who took office that year — have had none.

The claim also ignores proposed bills that Merkley sponsored that didn’t pass as stand-alone legislation but were incorporated into larger bills. And it overlooks a number of amendments that Merkley proposed that ended up being part of bills that ultimately passed.

Freedom Partners, a conservative group that has current and former Koch Industries officials on its board, has invested heavily in the Oregon Senate race, which pits the incumbent, Merkley, against the Republican challenger, pediatric neurosurgeon Monica Wehby. The ad is part of a reported $3.6 million ad campaign from Freedom Partners in Oregon. The election is on Nov. 4.

 ‘Just One’

“We work hard,” the narrator in the Freedom Partners ad begins. “We deserve leaders who work just as hard for us. But Sen. Jeff Merkley? In six years, Merkley wrote only one bill that became law. Just one.”

That one bill was the relatively obscure S. 1448. Introduced by Merkley in July 2009, it sought to authorize a handful of Oregon Indian tribes to obtain a 99-year lease for trust land. The bill was described by tribal attorney Brett Kenney as a noncontroversial proposal that didn’t appear to have any legislative detractors. It passed the House and Senate unanimously and was signed into law by President Obama in late 2010.

American Enterprise Institute scholar Norman J. Ornstein warned, however, that measuring a first-term senator’s record based solely on a count of sponsored legislation that became law is fundamentally flawed.

Most bills that pass are sponsored by committee chairs or the committee’s ranking member of the minority party, Ornstein explained, or sometimes subcommittee chairs. Those positions are largely based on seniority. Merkley currently chairs two subcommittees, the Senate Banking Committee’s Subcommittee on Economic Policy and the Senate Environment and Public Works Committee’s Green Jobs and the New Economy Subcommittee. But he wasn’t appointed to either position until February 2013.

Unless you are a committee chairman or the committee’s ranking member of the minority party (currently Republicans in the Senate), Ornstein told us, you are unlikely to have your name attached to a bill, unless it is a minor bill. The statistics back him up. Of the 37 Senate bills that have been signed into law in 2013 and 2014, 23 were sponsored by either a committee chair or ranking member of the committee. The rest were sponsored by subcommittee chairs or ranking members of subcommittees, or by the Senate majority or minority leaders.

In the backup material Freedom Partners supplied to us for the ad, the group noted that when Merkley came into office, Democrats controlled the White House and both chambers of Congress, and had a supermajority in the Senate. They also noted that Oregon’s senior senator, Democrat Ron Wyden, authored and passed six bills during Merkley’s tenure. That’s true, but it only serves to reinforce Ornstein’s point. Wyden has been in the Senate since 1996 and has much more seniority than Merkley. Wyden currently chairs the Senate Committee on Finance.

We looked at the legislative record of all 10 senators who, like Merkley, came into office in January 2009. Two of them, Democratic Sens. Tom Udall of New Mexico and Mark Warner of Virginia, have had two sponsored bills become law. Four, including Merkley, had one. And four others — including the only two Republicans to take office at that time — have had none.

Since taking office, Merkley has sponsored 227 bills, amendments and resolutions. That ranks him fourth among the 10 senators who took office in January 2009, based on our analysis. Merkley ranks in the middle of the pack with regard to the number of pieces of sponsored legislation that got committee consideration, floor consideration or passed one chamber of government.

But Ornstein warns that those types of quantitative measures can be misleading.

“This is in no way an effective way to measure the effectiveness of a senator,” Ornstein said. Having only a small number of laws with your name on them “doesn’t mean you are not having an impact on legislation or the legislative process.”

For example, he said, Sen. Al Franken’s name isn’t on the Affordable Care Act, but Franken introduced an important amendment on medical loss ratios, requiring insurers to spend 80 percent to 85 percent of premiums on medical care (rather than administrative costs). When former President Bill Clinton touted the Affordable Care Act in his speech at the Democratic Convention in 2012, he highlighted the fact that “individuals and businesses have already gotten more than a billion dollars in refunds from insurance companies because the new law requires 80 to 85 percent of your premium to go to your health care, not profits or promotion.”

Franken, who came into office six months after Merkley in 2009, hasn’t written any stand-alone bills that have become law.

Some bills don’t pass as stand-alone legislation, but later get folded into larger bills. For example, in July 2009 Merkley proposed the Small Business Jump Start Act of 2009, a bill that sought to increase a tax deduction for start-up businesses. As a stand-alone bill, it was referred to a committee and died. But Merkley later added it as an amendment to the Small Business Jobs Act of 2010, which was sponsored by former House Financial Services Committee chairman Barney Frank and became law.

Similarly, Merkley’s bill, the Bank On Our Communities Act of 2009  — which sought to create a $30 billion fund to provide capital to community banks for small-business loans — also stalled as stand-alone legislation. But it was folded into the Small Business Jobs Act as an amendment.

Other examples include Merkley’s Crowdfund Act — a bill that sought to limit how much small investors could put into crowd-funding sites — which was added as an amendment to the JOBS Act in 2012, and Merkley’s Water Infrastructure Finance and Innovation Act of 2013 — a bill that sought to provide loans for communities to repair their water systems — which was added to the Water Resources Development Act of 2013.

Merkley’s campaign provided a number of other examples, but you get the idea.

Merkley also authored the so-called Volcker rule, a key provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act — a bill that President Obama called “the toughest financial reform” since the Great Depression. Named after Paul Volcker, a former Fed chairman and Obama economic adviser who proposed it, the rule places restrictions on certain banks and financial firms on proprietary trading — that is, it limits the ability of financial institutions to invest their own money in stocks, bonds and other products for their own profit. Politico called Sens. Carl Levin and Merkley “the two top advocates of strengthening the ‘Volcker rule’ throughout the Wall Street reform debate.” And while the Volcker rule amendment didn’t pass, a compromise was forged in conference committee that Merkley and Levin called “a victory.” Merkley touted the controversial rule as one of his top achievements in Congress in an interview with the Huffington Post in January.

Merkley was also part of a small group of Democratic senators who spearheaded important changes to the filibuster rule, to help expedite executive- and judicial-branch nominations.

Ornstein said that if you talked to committee and subcommittee leaders, “they’d tell you that Merkley is a very effective lawmaker.” We at FactCheck.org take no position on that, of course, but we caution readers not to put much stock into a claim about the effectiveness of a first-term lawmaker based on the number of sponsored stand-alone bills that have become law.

Obamacare and Higher Premiums

The narrator in the Freedom Partners ad also attacks Merkley for his support of the Affordable Care Act, which it refers to as Obamacare.

“He promised to fix Obamacare,” the narrator says, “but last year, our premium increases were the highest on the West Coast. This year, they’re going even higher.”

On screen, the ad shows a graphic claiming rates have gone up 55 percent for people aged 27, 24 percent for people aged 40, and 31 percent for people aged 64. The ad cites a Forbes article about a study of insurance premiums by the conservative Manhattan Institute.

Although the ad, without qualifiers, seems to suggest that rates have gone up by these amounts for all Oregonians, the Manhattan Institute study looked at the changes in insurance rates in the individual market after passage of the Affordable Care Act. The individual market is for those who buy insurance on their own as opposed to through an employer. About 267,000 Oregonians, 7 percent of the state’s population, purchased their own insurance in 2012, according to the nonpartisan Kaiser Family Foundation.

We have written previously about other qualifiers people ought to consider when weighing the Manhattan Institute analysis. For example, the analysis looked at the five least expensive plans before and after enactment of the ACA, but did not adjust for the fact that the ACA requires certain minimum benefits, which many individual market plans didn’t meet. By and large, the post-ACA plans are more robust (whether purchasers like or want that or not).

The Manhattan Institute analysis also didn’t include premiums for catastrophic plans, which could offer a cheaper option to those 27-year-olds. Nor did it account for subsidies, which the Manhattan Institute estimates will be available to 45 percent of uninsured Oregonians, or 303,690 people.

As for the claim that “this year” insurance premiums are “going even higher,” Freedom Partners points to an Associated Press story that reported that Moda, the insurance company with the largest share of the individual market in Oregon, will increase rates by 10.6 percent on average in 2015. That’s accurate, according to an Aug. 1 report from the state’s Department of Consumer and Business Services, but the report also noted that a number of other companies will be reducing rates in 2015.

Although the rate changes vary by insurer, as well as age, location, number of family members and plan choice,  Oregon’s Insurance Commissioner Laura Cali stated in a press release that “the approved rates are lower on average than in 2014, reflecting the effect of competition and Oregonians’ expanded access to health coverage.” We caution, however, that that’s not a weighted average, meaning the rates of smaller insurers were counted equally with those of larger insurers. A spokesman for the department said a weighted average was not calculated because people can select any plan they wish in the market exchange.

A table showing sample rate changes in 2015 by company and plan can be viewed here.

 — Robert Farley