Back­room deals for Amer­ica’s fu­ture

The Washington Times Weekly - - Commentary - Tony Blank­ley

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 short cuts around the reg­u­lar law­mak­ing process. While the Democrats have a ma­jor­ity of 20 seats in the Se­nate and 79 seats in the House, 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 ef­fect 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, then in­sert into it the en­tire fi­nal health bill (called a Se­nate “man­ager’s amend­ment”) ne­go­ti­ated largely be­tween Se­nate Ma­jor­ity Leader Harry Reid and House Speaker Nancy Pelosi and such other party leaders as are nec­es­sary to as­sure that the bill would pass both houses.

Then, with only min­utes’ no­tice, they could pass it in the Se­nate, hours later in the House, and it would be on the pres­i­dent’s desk within a few more hours for his sig­na­ture.

The pro­vi­sions would never have been seen and com­pre­hended by most of even the Demo­cratic Party mem­bers of ei­ther the House or Se­nate. Cer­tainly the pub­lic would have no chance even to hear about the de­tails — let alone a chance to con­tact their mem­bers of Congress to ex­press an opin­ion.

(By con­trast, the orig­i­nal Medi­care bills were des­ig­nated as H.R. 1 and S. 1 in Jan­uary 1965. First 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 on July 9 by a vote of 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 John­son signed the Medi­care bill into law on July 30, 1965.)

On the pub­lic debt and deficit cri­sis, the White House, Se­nate Bud­get Com­mit­tee Chair­man Kent Con­rad, rank­ing Repub­li­can Judd Gregg and other leaders (but not Mrs. Pelosi, yet) want Congress to cre­ate a bi­par­ti­san com­mis­sion that would have au­thor­ity to re­write all the tax codes, add new taxes, re­write 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, far­reach­ing 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 of a fam­ily farm would trig­ger fed­eral reg­u­la­tion — po­ten­tially more than a 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 leg- isla­tive pas­sage of a pork-laden spending bill.

How­ever, the pro­pos­als be­fore us now are of such mag­ni­tude as to trans­form Amer­i­can life and work as we have known it. To have such mo­men­tous de­ci­sions made in the back room be­tween a half-dozen leaders (without the pub­lic hav­ing a chance to com­ment) — and then to have it rub­ber-stamped by obe­di­ent back-bench House mem­bers 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 lack­ey­filled 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 rankand-file mem­bers of Congress to in­sist on reg­u­lar leg­isla­tive or­der. Their ca­reers — to say noth­ing of the Repub­lic — may re­quire that in­sis­tence.

Tony Blank­ley is the au­thor of “Amer­i­can Grit: What It Will Take to Sur­vive and Win in the 21st Cen­tury” (Reg­n­ery, 2009) and vice pres­i­dent of the Edel­man pub­lic-re­la­tions firm in Wash­ing­ton.

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