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Tuesday, March 16, 2010

Why Process Matters

Update: Realizing that it was undermining the credibility of the vote, Democratic leaders in the House have announced that they will not use the "deeming" procedure to pass health reform. This means that no one can question the process by which the Senate bill becomes law (if it is passed). Though the changes being made via reconciliation still represent a violation of process, the decision to abandon deeming goes a long way toward respecting the process of lawmaking.

With all of the talk about "deeming," "self-executing rules," and reconciliation proponents of health care reform have dismissed everyone who engages in a discussion of "process" as being opposed to reform and trying to avoid a real discussion of "the issues." As a proud advocate of health reform I reject such accusations and further contend that my obsession with "process" is a direct result of my support for health reform. In short, health reform is too important to passed in any manner other than one which embraces a clean, open, and honest debate. That means no parlimentary tricks, no rule making sleight of hand - no action which could ultimately undermine reform.

As a professor of public policy my students are introduced early to what is called the Policy Process Model - a six stage description of the process through which policy is created: problems are defined, policies considered, implemented, evaluated, and changed (if need be).  The third step in the process is one that is all too often overlooked - Policy Legitimation. According to public policy scholars Michael Kraft and Scott Furlong:
"Legitimation as a step in the policy process is at once both simple and complex. It is simple when it merely means that a recognized authority considered and approved a policy proposal. A bill becomes a law at the national level if both houses of Congress approve it and the president signs it, but does that process necessarily imply that the measure was legitimated?"
That's the simple, School House Rock, process of legitimation - but the authors continue:
"The complex view is that legitimation requires more than a majority vote... Policy legitimacy... flows from several conditions..." such as "demonstrable public support... and a full and open airing of the issues and controversies."
Kraft and Furlong conclude that without a sense of legitimacy:
"Policies... face serious hurdles. They may well fail to command public support, affected interest groups may... challenge them in court, and their implementation could be adversely affected."
I dwell quite a bit on the issue of legitimation in my classes and cite the examples of the Nuclear Waste Policy Act of 1982 and the Medicare Catastrophic Coverage Act of 1988 to illustrate why the simple process of legitimation is insufficient. If the public doubts the legitimacy of a legislative act, if there is any reason to question the decision-making process, a legally enacted bill (even two very good pieces of legislation) can ultimately fail.

Health care reform is one of the most important issues of our time. Health care spending is bankrupting our nation, our citizens, and 45 million Americans lack even basic coverage. The legislation pending before the House of Representatives marks the most substantial social reform since the creation of Medicare and Medicaid in 1965 and is equally as import. But if Democrats opt to use parlimentary trickery to pass health reform they risk everything they hope to accomplish. Relying on reconciliation to bypass the Senate's filibuster rules and now talk of "deeming" the Senate bill to have passed in the House without a true up or down vote only serve to further undermine already abysmal public support for the legislation. Members of the public may rightly ask 'If this legislation is so good, why are all of the normal rules of process being cast aside?'.

Aside from the public's reaction the "deeming" process would put the entire legislation in question as it would certainly face a court challenge. As reported by Politico, Alan Morrison, a professor at the George Washington University Law School who has litigated similar issues before the Supreme Court warned “If I were advising somebody," on whether deem and pass would run into constitutional trouble, "I would say to them, ‘Don’t do it.’” Michael McConnell, a former federal judge on the U.S. Court of Appeals, argues that the use of deeming to pass the Senate bill and simultaneously pass the reconciliation bii likely violates Article 1, Section 7 of the Constitution. Said McConnell:
"Most of the time a self-executing rule is used to incorporate amendments into a pending bill without actual votes on the amendments, where the bill is then subject to a final vote by the House and Senate. That usage may be a dodge around House rules, but it does not violate the Constitution. I am not aware of any instance where a self-executing rule has been used to send one bill to the president for signature and another to the Senate for consideration by means of a single vote. Self-executing rules have also been used to increase the debt ceiling by virtue of adopting a budget resolution. That procedure is questionable, but because budget resolutions are not laws, this usage does not have the feature of using one vote to send a bill to the president and at the same time to send a different bill to the Senate."
So contrary to the claims that deeming and self-executing rules are common, or that they have been sanctioned by the courts, the simple fact is that they have not. So the use in this instance, a bill so substantial, represents poor judgement and certainly will raise questions of legitimacy.

House Majority Leader Steny Hoyer defended the use of the "deeming" approach by dismissing any need to worry about the rules of process. Said Hoyer, "We talk a lot about process in this town... 'So what?’ says the American public. What they’re interested in [is] ‘What result? What did you do for me and my family..." Congressman Hoyer is right and wrong - in most cases Americans do not care about process. In the past, the House of Representatives has used the deeming procedure on matters pertaining to House rules, it has been used to consider amendments to bills, there is a standing rule in the House to use deeming to raise the debt ceiling - but deeming has rarely been used to effect final passage of legislation. It has never been used to pass something as significant, and controversial, as comprehensive health reform. Americans do care about process - when they believe that it is being abused.

And the deeming approach is simply one more example of such abuse - it began with the decision to use reconciliation. The Constitution makes clear that the House and Senate must each approve a bill before it goes to the President. When they pass different versions of a bill they must reconcile those differences and if changes are made the new bill must be passed again by both chambers. The House and Senate passed different health reform bills last year, House and Senate negotiators were working on compromise legislation when Democrats lost their 60 seat filibuster-proof majority in the Senate following the special election to fill the late Ted Kennedy's seat in Massachusetts. Faced with the threat of a GOP filibuster in the Senate and a House that was unwilling to accept the legislation passed in the Senate, Democratic leaders decided that rather than abide by the rules of process they would instead have the House approve the Senate bill, but then use the budget reconciliation process to resolve key differences between the House and Senate bills. They essentialy decided to use reconciliation - a Senate budget process with limited debate that cannot be filibustered - to do an end run around the House/Senate conference process.

When party leaders discovered that many in the House were still unwilling to accept the Senate version they decided to explore the deeming process whereby House members would be asked only to vote on the House/Senate reconciliation fixes and if those fixes passed, the original Senate bill would be "deemed" to have passed.

If health reform passes as a result of the one-two punch of deeming in the House and reconciliation in the Senate there is little hope that it will ever be accepted as legitimate. It will face years of legal challenges and likely deeply entrenched public opposition. Worse, the manner in which the bill is being pushed may allow for errors or inconsistencies in the law that could weaken or undermine it in unanticipated ways. The normal process may cause delays and be fraught with obstacles, but it exists to protect the public and to promote sound legislation. In the end, Democrats will have turned the most important domestic policy issue of our time into a bill more toxic than the Nuclear Waste Act - and they will have only themselves to blame.