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
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
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.