Dear Legislation and Cheap Politics

By Robert Hockett

Father Rob Araujo, at Mirror of Justice, has offered some interesting queries concerning the legislative process, and whether 'Catholic Legal Theory' has anything to say about that process.  Post is here: http://mirrorofjustice.blogs.com/mirrorofjustice/2010/03/does-catholic-legal-theory-have-something-to-say-about-the-legislative-process.html .  In this connection he also suggests he is troubled by current goings-on in the Congress in connection with the now pending health insurance reform legislation, and that he also is troubled by the thought that legislators and general public alike might be unable to absorb the contents of bills that occupy multiple pages in their articulation.  For what little they may be worth, I've a few tentative thoughts on these subjects. 

The first is that I doubt that Catholic legal, political, or moral theory has much to say that is fundamentally different from what more garden variety democratic theory says on the matter of legislative processes.  But I would be happy to be set straight if I'm wrong about this.  Anybody? 

The second is that I would be surprised if the Catholic tradition, like democratic political theory more generally, did not exercise a presumptive  'preferential option' in favor of majoritarian legislative decision-making, with any departure from that default position requiring justification by reference to some extraordinary circumstance.  (A textbook case in point would of course be that circumstance in which certain fundamental individual rights are at stake, which even a supermajority of everyone-save-the-affected party cannot legitimately disregard.)  Personally, I am increasingly inclining to think that most of the anti-majoritarian rules of the Senate are outmoded, rooted in earlier times when the Senate was truly deliberative, collegial, and significantly more insulated from political hackery than the House.  Those days appear to be gone, and we seem as a polity to have evolved into something much more like a parliamentary democracy than we used to be.  There accordingly seems to be significantly less 'benefit' purchased with those 'costs' to democratic governance which are the antiquarian Senate rules.   

The third is that Father Araujo is surely correct that legislators and public alike ought to know what they are voting on and arguing about, and that a bill that occupies thousands of pages in its articulation is apt to be difficult to read carefully in a short span of time.  Regrettably, however, just about all Congressional legislation for many decades now seems to sprawl over thousands of pages.  I don't know that there's any way round this any more than there seems to be any plausible way to comport in the old fashioned (pre-20th century) way with the pre-modern understanding of the 'Non-Delegation Doctrine.'  I suspect that we're stuck, for better or worse, with simply working to keep such changes within reasonable bounds, more or less as we've done in the delegation context through the APA.

My fourth observation segues immediately from the third:  Over the past couple of decades, it seems to me to have become common for a side of the Congressional aisle that is poised to lose a battle over charged legislation to adopt a troublingly disingenuous tactic.  This is (a) to seize upon some quirk of the legislative process that is quite familiar to all members of Congress but not so well known to the general public,  (b) observe that the winning side has made use of this quirk, and then (c) suggest that in doing so the winning side has done something highly irregular or even extra-constitutional.  Both major political parties, alas, have resorted to this tactic -- the Dems, unsurprisingly, when Republicans have held Congress and perhaps White House, and the Republicans, unsurprisingly, when Democrats have held Congress and perhaps White House.  And I think it deplorable, amounting to the willing sacrifice of longterm confidence in, and even acceptance of, constitutional government in order to reap cheap short term public opinion games.  (A political analogue to much Wall Street trading activity.)

Here are three cases in point that seem to me to have been salient of late:

First, highlighting the 'bigness' of 'big' bills and suggesting that 'bigness' of this sort is both unusual and tantamount to 'socialist' 'takeover' of something:  During the President's 'health care summit' a few weeks back, Rep. Cantor ostentatiously stacked the pages of the many-thousand page legislation up on a table, as if to suggest that there is something unprecedented about the size of this complex piece of legislation.  Unstated here was that similarly sized stacks could have been piled up in connection with countless 'big' pieces of Democratic and Republican and Bipartisan legislation alike over the past 70 years or so.

Second, suggesting that resort to budget reconciliation as a means around frivolous use of the anti-majoritarian Senate filibuster is somehow nefarious.  This suggestion was, of course, all the rage just a few weeks ago.  But a look at all past uses of budget reconciliation since this procedure was introduced about thirty years ago quickly reveals that (a) Republican Congresses have employed this procedure twice as often (ten times) as have Democrats (five times), (b) Republican Congresses have employed the procedure in three of their ten resorts to it to increase the size of the federal budget enormously -- ironic, of course, in view of current Republican piety about budget balancing -- while Democratic Congresses have employed it in all five of their resorts solely to decrease -- in two or three of those cases, enormously -- the federal deficit, and (c) all past Republican and Democratic resorts to reconciliation have been just as 'social issue' involving as is the currently contemplated Democratic resort to this process.  If you find this surprising, you might find even more astonishing the fact that the data I report here comes from Norman Ornstein of the American Enterprise Institute, writing in conjunction with a couple of others.  Here is the fuller story, still summarized: http://www.dorfonlaw.org/2010/03/republican-deficits-and-budget.html .

Third, suggesting that resort to 'deem and pass' is somehow unconstitutional or uniquely 'Democrat' in character.  This canard is the new 'reconciliation.'  And while I have no particular attachment to this procedure -- I think reconciliation is going to be necessary henceforth, now that we have in effect transitioned to being a parliamentary democracy, but I think deem and pass likely always to be less common -- it is definitely an error to associate it uniquely with one party.  Of five resorts to this process in the past 20 years, two have been by Democratic Congresses, three by Republican Congresses.  The first two of those uses -- in 1989 and 1993 -- were by Democrat-controlled Congresses to pass smoking bans on domestic airline flights and the Family and Medical Leave Act, respectively.  The next three of those uses -- in 1996, 1997, and 2005 -- were by Republican-controlled Congresses to confer an ultimately-deemed-unconstitutional line-item-veto power on the President, to prohibit use of modern statistical sampling techniques in the census, and to trim Medicaid, welfare, and student loan program growth, respectively. 

I emphasize once more that neither major political party appears to have a lock on resort to the unfortunate tactic I describe here, but it is common for the losing side to be that which employs it.  Currently that is the Republicans.  When one day in future the Democrats do the same, it will be just as deplorable.  It would be lovely were the general public sufficiently knowledgable about the legislative process as to render the tactic less politically useful to losing sides.  But I won't now indulge that Quixotic hope.

Thanks as ever,

Bob  

Comments

[Robert Hockett]

Thanks a million, Patrick! It's certainly gratifying to see how quickly the truth-telling responses to these dishonest tactically prompted claims are coming these days!

All best,
Bob

[Patrick S. O'Donnell]

I've been simply a cheerleader of late, but once more Bob I find your analysis spot-on. As it says in today's (LA) Times on the front page:

'In the face of Republican attacks Tuesday, leading Democrats defended a controversial endgame maneuver that would allow them to pass the Senate version of a healthcare overhaul without taking a direct vote on the legislation's most divisive provisions.

The stratagem, known in the arcane language of Congress as a "self-executing" rule or "deem and pass," would allow House Speaker Nancy Pelosi (D-San Francisco) to skirt a roll-call vote, speeding passage of the bill and helping limit attacks on Democrats facing tough competition in an election year.

Republicans used the same parliamentary shortcut to avoid difficult votes when they controlled Congress, but on Tuesday they accused Democrats of being high-handed and unseemly. [....]

The controversy over an arcane point of procedure is the latest example of how Republicans, though virtually powerless to change the content of the healthcare overhaul, have tried to hobble Democrats by discrediting the legislative process. [....]

At a news conference Tuesday, Pelosi said she had not decided on her legislative strategy for bringing the bill to a vote, but she did not rule out the controversial shortcut. "We will do what is necessary," she said.

Republicans said that amounted to parliamentary trickery, but such "deeming resolutions" have been used dozens of times in the past -- including by Republicans when they controlled the House from 1994 to 2006 -- to speed action on legislation or to sidestep difficult votes.

In 1996, for example, the House used the process to enact a bill giving the president a line-item veto. The approach has been used by both parties to enact increases in the national debt ceiling -- an essential vote that politicians of both parties do not like to cast because it is seen as an endorsement of deficit spending.' [....]

Full article here: http://www.latimes.com/features/health/la-na-obama-health17-2010mar17,0,957916,full.story