Publius vs. Obamacare

Let the Senate be the Senate.

By Rich Lowry
Thursday, November 12, 2009

Supporters of Obamacare have their next target for obloquy and shame. It’s the United States Senate, an institution whose villainy will almost match that of the insurers and Fox News if the health-care bill sinks there.

The anti-senatorial campaign is already revving up. Liberal columnist Harold Meyerson stamped his feet in frustration yesterday in the Washington Post at the cussed balkiness of the Senate: “Dithering Heights.” “Proceeds glacially and produces next to nothing.”

This amounts to raging at the Senate for its very nature and purpose. It’s supposed to be slow-paced and unproductive. Everyone has their moments of frustration at the Senate (I’ve had plenty) because it is designed to be frustrating, especially when a majority in the House is electric with ideological excitement. Conservatives spent most of 1995 hurling epithets at the Senate.

So it’s not surprising that the Left is upset at it at a time when “Iron Nancy” is using her solid majority to muscle massive pieces of legislation through the House by a handful of votes. Why can’t the Senate do the same, goes the cry, entirely missing the point. It’s not just that the Senate is built differently from the House: It won’t truly be fulfilling its role in our constitutional scheme if doesn’t deep-six Obamacare.

The Senate exists to keep temporarily enlarged and inflamed majorities from rushing through far-reaching pieces of legislation that don’t command broad and deep public support. In its institutional DNA, the Senate should regard Obamacare the way a cheetah regards a gazelle — prey to be killed.

The Democrats enjoy such a large House majority thanks partly to an accident of timing. The election was held in uniquely disastrous circumstances for the Republicans, in the immediate wake of the collapse of Lehman and the ensuing financial panic. Piled on top of the other causes of Republican woe (some of them quite well-deserved), the crisis allowed Democrats to run up the score. But in a matter of months public opinion began snapping back to its center-right state. So we have a House majority that is caught in amber circa October 2008 when the nation’s mood has already moved on.

Hey, you might say, such is the dumb luck of timing in elections. True. But in their wisdom our Founders devised a check to keep a majority augmented by temporary circumstances from running amok. It’s called the Senate.

The House stands for election all at once, capturing public opinion at one moment in time. In contrast, only one-third of the Senate stands for election at once. Originally, its members were selected by state legislatures, further shielding it from public opinion (a feature done away with by the Seventeenth Amendment, of course). It was supposed to be more elite than the House. And the very fact of its existence, in a bicameral legislature, added complexity to the legislative process.

The Senate is protection against rashness. As the great historian Daniel Walker Howe writes of Publius — the collective author of the Federalist Papers — in his book Making the American Self: “The branches of government he wanted to strengthen were ones he associated with the most rationality: the judiciary, the executive, and the Senate; the elements he wanted to limit he associated with narrow self-interest and the passions: the state governments and all popular assemblies, including the House of Representatives.”

Howe continues, “Of course, factions could be majorities as well as minorities. Indeed, the factions Publius was chiefly worried about were the ones that commanded a majority; minority factions were easily limited. But ‘when a majority is included in a faction, the form of popular government . . . enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens.’”

The Senate — among other aspects of our complex government — helps protect us from such abuses by slowing things down, and simply stopping dubious legislation. Here’s Federalist No. 73 (it’s discussing the executive and the veto power, but it’s the sentiment that is important):

The oftener the measure is brought under examination, the greater the diversity in the situations of those who are to examine it, the less must be the danger of those errors which flow from want of due deliberation, or of those missteps which proceed from the contagion of some common passion or interest. It is far less probable, that culpable views of any kind should infect all the parts of the government at the same moment and in relation to the same object, than that they should by turns govern and mislead every one of them.

It may perhaps be said that the power of preventing bad laws includes that of preventing good ones; and may be used to the one purpose as well as to the other. But this objection will have little weight with those who can properly estimate the mischiefs of that inconstancy and mutability in the laws, which form the greatest blemish in the character and genius of our governments. They will consider every institution calculated to restrain the excess of law-making, and to keep things in the same state in which they happen to be at any given period, as much more likely to do good than harm; because it is favorable to greater stability in the system of legislation. The injury which may possibly be done by defeating a few good laws, will be amply compensated by the advantage of preventing a number of bad ones.

This essential wisdom of the Founders is now the Democrats’ enemy. They want to rush because they know their legislation won’t bear long, careful scrutiny; because they know the public will soon demand that they focus on things of more pressing concern (the economy); and because they know it would be folly to keep debating the bill in an election year. So they want to pass major social legislation on basically a party-line vote and forge ahead even though almost every poll shows more people opposing than supporting it. It’s hard to think of major, defining legislation that has ever passed this way.

Liberals recall how long they have talked about national health insurance: No rush here, it’s the work of decades. But this plan has, relatively speaking, been sprung on the American public. Barack Obama did not campaign on huge tax increases to pay for health-care reform, or large Medicare cuts, or premium increases, or even the individual mandate. He talked of health-care reform in the most anodyne way.

If Obamacare is so necessary and wise, there’s no true need to hurry. If it fails to pass the Senate, Democrats should campaign on it around the country. They should keep talking of its wonders, and build up public support for it, turning around the polls. They should enhance their majority in the House and the Senate, bringing new Obamacare Democrats to Washington. That’s how you build toward passing historic legislation in a system such as ours naturally resistant to large-scale change.

Democrats don’t want to do that because, in their heart of hearts, they know they can’t do that. They want to jam it through instead. Here’s hoping the Senate does its proper work and — slowly, frustratingly — assigns the health-care bill to the grave.