As the Democrats in Congress approach the end of a frustrating first year’s legislative effort, their leaders and the White House are being tempted by three possible shortcuts around the regular lawmaking process. Though the Democrats have a majority of 20 seats in the Senate and 79 seats in the House, now, just a week before Christmas, the speaker of the House, the Senate majority leader and the White House have failed — so far — to pass into law their desired legislation in the matters of 1) health care provision and financing, 2) public debt and deficit reduction, and 3) carbon regulation and taxation.
Given the extraordinary effects such policy changes would have on the American economy and the American way of life, to enact such changes without benefit of informed majority votes in the House and Senate would be in violation of the constitutional process — certainly in spirit, perhaps in form.
The schemes, I suppose, are thought to be clever. On health care, because the Constitution requires revenue bills to originate in the House, the plan would take the shell of a minor House revenue bill, and then inserted in it would be the entire final health bill (called a Senate "manager’s amendment"), negotiated largely among Senate Majority Leader Harry Reid, House Speaker Nancy Pelosi and such other party leaders as are necessary to ensure that the bill would pass both houses.
Then, with only minutes’ notice, they could pass it in the Senate and hours later in the House, and it would be on the president’s desk within a few more hours for his signature.
The provisions never would be seen or comprehended by most of even the Democratic Party members of the House and Senate. Certainly the public would have no chance to hear about the details, let alone a chance to contact their congressmen to express opinions.
(By contrast, the original Medicare bills were designated as H.R. 1 and S. 1 in January 1965. The House bill moved forward to markup in the Ways and Means Committee and then to passage on the floor of the House on April 8, by a vote of 313-115. The Senate approved its version July 9, 68-21. A conference committee worked for more than a week in mid-July to reconcile 513 differences between the two versions of the bill. President Lyndon Johnson then signed the Medicare bill into law, July 30, 1965.)
On the public debt and deficit crisis, the White House, Senate Budget Committee Chairman Kent Conrad, Judd Gregg (the ranking Republican on the Senate Budget Committee) and other leaders (but not Speaker Pelosi, yet) want Congress to create a bipartisan commission that would have authority to add new taxes and rewrite all the tax codes, all the entitlement laws and any other laws affecting revenues or expenses in order to reduce the deficit to no more than 3 percent of gross domestic product. In other words, the commission could transmogrify the entire body of U.S. law, and then — reporting back to Congress after the election — each house of Congress would have one unamendable up-or-down vote.
What a shocking abrogation of representative government. This is not a matter of policy; it is a matter of constitutional process. Even our friends at the left-wing Daily Kos condemned this as "particularly galling" and favorably quoted the "strong opposition" statement of the progressive Campaign for America’s Future, as do I:
"Those supporting this circumvention of the normal process have stated openly the desire to avoid political accountability. Americans — seniors, women, working families, people with disabilities, young adults, children, people of color, veterans, communities of faith and others — expect their elected representatives to be responsible and accountable for shaping such significant, far-reaching legislation."
Amen, my brothers and sisters of the left. The day that either of us loves our constitutional process less than we would love to see some particular policy enacted — that’s the day democracy dies in America.
Finally, as the White House does not expect to be able to pass a cap-and-trade bill in the Senate, it has announced that it intends — without benefit of legislation — to have the Environmental Protection Agency regulate (i.e., tax, restrict or prohibit) any source that emits as little as 250 tons of carbon dioxide a year (or, in some cases, 100 tons). At 250 tons a year, the kitchen in a restaurant, the heating system in an apartment or office building, or the running a family farm would trigger federal regulation; potentially, more than 1 million buildings, 200,000 manufacturing operations and 20,000 farms would fall under the arbitrary power of the state.
Of course, all these methods have been used before — commissions to decide base closings or Social Security changes, sharply interpreted expansion of regulatory authority over some small new category of creature or process, middle-of-the-night legislative passage of a pork-laden spending bill.
But the proposals before us now are of such a magnitude as to transform American life and work as we have known it. To have such momentous decisions made in the backroom by a half-dozen leaders (without the public’s having a chance to comment) and then to have it rubber-stamped by obedient backbench representatives and senators who have not even asserted their prerogative to read the bills they are told to vote for — if that were to happen, then our people’s Congress would become like the lackey-filled old Soviet Parliament.
To paraphrase Hannah Arendt: For the leaders to "speak in the form of commanding" and for the rank and file to "hear in the form of obeying" is not a transaction between free people.
Whatever the motives of their leaders, it is within the power — and it is the duty — of the rank-and-file members of Congress to insist on regular legislative order. Their careers — to say nothing of the republic — may require that insistence.
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