By Max Bloom
Tuesday, August 01, 2017
Process isn’t particularly cool. Impenetrable from a distance and disappointing up close, fastidiously impartial but implacably conservative in the old and out-of-fashion notion of the word, it is seen at best as an irrelevance, more frequently as an impediment, worst of all as an obsolescence. It seems some days that our republic has grown tired of process altogether: The Left abhors it, the Right ignores it, the courts circumvent it, the president doesn’t pretend to know what it is or to care. As for Congress — well, just consider the shambolic attempt at health-care reform this summer, the bizarre slapdash procession of bills designed to skirt or exploit every procedure in the books.
But, as it turns out, process still matters. As it should.
For the sake of this piece, take “process” to mean something like an adherence in both letter and spirit to the rules of an institution, both formal and informal. It’s a violation of process when Trump announces policies on his Twitter account rather than through carefully vetted memoranda and statements; it’s a violation of process when lower courts issue sweeping injunctions without a compelling reason; it’s a violation of process when the federal government tries to bully states into complying with Washington’s policies.
In the Senate, the original process violation — the one that in many senses kicked off all of this — was the passage of Obamacare in 2010. It was a violation of process for Democrats to circumvent the loss of their supermajority by passing a poorly drafted Senate bill through the House without amendment and then trying to patch it up through reconciliation, and it was a violation of process to implement a sweeping new welfare program on a party-line vote. Of course, you could view this as the culmination of decades of breakdown in the Senate: the increasingly reckless use of the filibuster, the demise of bipartisanship. But be that as it may, the passage of Obamacare dramatically changed the tenor in the upper chamber.
Given the nature of American politics, it was perhaps inevitable that the Democrats’ disdain for process would be repaid by Republicans many times over when their turn came around. Some of this was only natural: Given that Obamacare was passed without any Republican votes, it would be senseless for the GOP to solicit Democratic votes in their attempt at repealing the law. Such votes would be probably not have been forthcoming even if the Republicans had mooted a relatively centrist plan. Likewise, the fact that the Democrats cynically employed the reconciliation process to skirt the 60-vote filibuster-proof threshold for legislation in the Senate ensured that Republicans would employ the same process in their quest to repeal Obamacare. This is unfortunate, although possibly necessary, given the breakdown of process around the filibuster, which is used far too much, but it isn’t sinister: If one party uses certain tactics to pass major pieces of legislature, there is no practicable norm that denies the other party the chance to use those same tactics to repeal that legislation, even if the tactics themselves are morally suspect.
But things were worse than just that. Republicans complained in 2009 that Obamacare was rushed through committee. Paul Ryan noted in the Milwaukee Journal Sentinel that the draft text behind Obamacare had “cleared two major House committees” and was “set to be fast-tracked through Congress” before committee members had even read the enormous bill. They complained that the bill had been drafted without sufficient input. “Look at how this bill was written,” said John Boehner. “Can you say it was done openly? With transparency and accountability? Without backroom deals struck behind closed doors, hidden from the people?”
The Republican health-care effort was a farcical mockery of “transparency and accountability,” far more so than Obamacare. Both the House and the Senate bills had been drafted almost entirely behind closed doors, hastily revised when congressional leadership realized they lacked the votes, and rushed to a vote with little floor debate and no opportunity for amendment. It’s almost embarrassing to review the timeline: The first House bill was introduced into committee on March 8 and would have been voted upon on March 23 if the House leadership hadn’t realized that they lacked the votes. Fifteen days. The amended bill was made public on April 25 and voted through on May 4. Nine days. The Senate bill, secretly drafted by only 13 legislators, was released on June 22. Despite delays occasioned by John McCain’s surgery and, again, implacable opposition from a sufficient body of senators, the bill was voted upon on July 26. Thirty-four days. For comparison, Obamacare spent three months in the Senate Finance Committee alone. And then there was the ludicrous last-ditch effort on the part of the Senate, featuring a number of senators agreeing to vote for a bill — provided that the House would under no condition vote for the thing too, a deviation from the traditional process whereby politicians vote for laws so that the laws will pass.
Process tends to force centrist compromises and force bipartisan buy-in, soothing tensions. Process puts the brakes on ill-conceived pieces of legislation or executive decisions, and it helps reinforce traditional checks and balances. It is a robust defense from America’s worst majoritarian impulses and helps ensure that both parties feel they are given a fair shake in the political system. It encourages reciprocity and builds traditions of cooperation that help our political institutions deal expediently with urgent crises. It makes American legislation and executive policymaking more stable, since it makes it harder both to pass and to repeal laws. But ignore all those familiar arguments: It’s clear that they aren’t convincing many people anymore.
Consider instead: The Republican health-care effort failed. For all their manic efforts to force some sort of legislation through, they have managed to do little more than increase Obamacare’s popularity and decrease their own. Some of this may have been inevitable: Robert VerBrueggen makes a convincing case that the obstacles to a successful GOP health-care effort were fundamentally insuperable with a majority of only 52 senators. But the Republicans certainly were not helped by their inattention to process.
For starters, it’s not entirely true that the public doesn’t care about process. The public probably isn’t attuned to process in a positive sense — few Americans would have noticed if Congress had fastidiously followed “regular order” for health care — and it’s hard to believe that most senators, let alone most voters, thoroughly understand congressional procedure. But the public is sensitive to process in a negative sense: Backroom deals, rushed votes, and obscure parliamentary maneuvers smack of sneakiness and dishonesty, which are traits that Americans abhor. Republican health-care plans were extraordinarily unpopular by almost any standard. It’s not trivial to figure out what the sources of this dissatisfaction were: Trump’s failure to advocate for the bill and fears that people would face higher premiums or lose their plans probably both played a role. But one of the most consistent critiques throughout the raucous town halls this summer has been that Republicans are fundamentally untrustworthy — just as allegations that Democrats could not be trusted on Obamacare flooded the notorious town halls of 2009. This makes sense: Particularly with a contentious reform of something as emotional as health care, there is an enormous premium on politicians to seem transparent and honest. The Democrats did not meet that bar in 2009; the Republicans certainly did not meet it eight years later.
But process is about more than just messaging. The health-care bills failed in large part because they were built on McConnell and Ryan’s sense of what would pass the Senate, which turned out to be miscalibrated. The initial House bill was too stingy with its age-based subsidies, which offended moderates, and failed to offer enough latitude for state experimentation, offending conservatives. The Senate bill struck a similar misbalance, losing moderates Susan Collins and Lisa Murkowski with its Medicaid cuts and conservatives Mike Lee and Jerry Moran by preserving too much of Obamacare’s taxes. It’s not obvious that any bill could have appeased enough of both factions to pass, but congressional leaders needlessly hampered the effort to build a satisfactory bill by drafting the legislation in secret, and by rushing to a vote before the various Senate factions could influence and come to an agreement on the final text.
One of the underrated advantages of conservative adherence to process is that it saves politicians from themselves. An open process that works on building consensus also diffuses responsibility and forces broader buy-in for a piece of legislation. By shunning this openness, McConnell and Ryan needlessly made it harder to secure support for the bill within their own party. At the same time, an open process would have presented at least the appearance of Democratic involvement, and if Democrats walked away from the final bill, as probably would have happened, Republicans could have claimed that they had made a good-faith attempt to include Democrats in the process. As it was, Republicans managed to steer all the responsibility for the failure to address Obamacare’s serious deficiencies onto their own shoulders. For the near future, they will own the American health-care system.
I’m not claiming here that Republicans should hobble themselves totally on health care. It is, again, highly improbable that they could have passed a suitable bill with Democratic votes, and working within the exigencies of the reconciliation process may have been the only plausible way to repeal a bill without a Republican supermajority in the Senate. But the process they chose was irresponsible, dysfunctional, and ultimately unsuccessful. There are compelling reasons, both principled and pragmatic, why process matters. We should take them seriously.