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Wednesday, June 27, 2012

Democrats must not Assail the Court in Health Reform Battle

In 1983, Newt Gingrich and conservative Republicans formed the Conservative Opportunity Society (COS). COS members were tired of being the happy minority party. They knew, however, that after 30 years in control of Congress the American people needed a real reason to dump the Democrats - a party that at the time was a still a centrist party that worked often with President Reagan. So the COS decided they needed to undermine confidence in the institution of Congress.

After 30 years Congress and Democrats were synonymous. Undermine confidence in Congress and you undermine confidence in Democrats. So the COS began an all out assault on Congress. They obstructed lawmaking, they used ethics reforms adopted in the 1970s to target Democratic leaders. In quick succession ethics inquiries and investigations led to the resignations of Democratic Speaker of the House Jim Wright and Majority Whip Tony Coelho in 1989 – that same year Gingrich gained election as Minority Whip, the second highest-ranking Republican leadership position in the House.

A scandal involving the House bank in 1991 and the House Post Office in 1993 followed the resignations of Wright and Coelho. Though Democrats and Republicans alike were found to have overdrawn their accounts in the House bank, the scandal contributed to a COS narrative of a corrupt Congress controlled by Democrats. Nearly 80 House members either retired or were defeated in 1992 because of the bank scandal. The election 47 freshman Republicans to the House accompanied the election of Democrat Bill Clinton as President in 1992.

The House Post Office scandal erupted in 1993 and effectively ended the career of Democratic Representative Dan Rostenkowski (D-IL) the very powerful Chair of the House Ways and Means Committee. The cumulative effect of the scandals and public dissatisfaction with President Clinton was the Republican sweep of the 1994-midterm elections. In the 1994, election Republicans realized a net gain of 54 seats in the House and 8 seats in the Senate and assumed full control of the U.S. Congress for the first time since 1954. Gingrich gained election as Speaker of the new Republican controlled House.

Other actions taken by the new Republican majority reduced congressional influence and power. They reduced committee staffs, the Congressional Research Service and the General Accounting Office endured budget cuts and dramatic staff reductions - the institutional memory and policy expertise of Congress shrank.

Make no mistake, Democrats were not blameless. The party had grown arrogant in its power and had for years increasingly excluded Republicans from the lawmaking process. The use of restrictive rules and limits on debate aided in undermining public confidence in Congress. But Republicans waged an all out assault on the institution. Public confidence in Congress collapsed and has never recovered. When Democrats found themselves in the majority they took from the GOP playbook and continued the attack on Congress - considered the claims of corruption in 2006 and Nancy Pelosi's battle cry that we "drain the swamp!"

Cumulatively, these attacks on Congress served to make it a less congenial place. They fed into growing partisan differences and undermined cooperation and compromise. A minority party now relies on Congress failing and on public disdain for Congress in order to win elections. Cooperation and compromise might actually cause public opinion of Congress to improve - this is something no minority party can risk. The end result is a Congress that becomes incompetent, inefficient, and ineffective. It's a self fulfilling prophecy that need not have been.
This brings us to the Supreme Court and tomorrow's likely decision on the constitutionality of the atient Protection and Affordable Care Act (PPACA). All indications are Democrats are planning an all out assault on the court if it overturns PPACA:

We'll find out this week if the Supreme Court is listening to the American people and following the U.S. Constitution," said Rep. Xavier Becerra (Calif.), vice chairman of the House Democratic Caucus, "or if it's becoming more and more what we've seen in the past: a partisan body no different from the Congress.
House Democratic leaders said Wednesday that a move to overturn the healthcare law would similarly call into question the court's impartiality.
Rep. John Larson (Conn.), chairman of the House Democratic Caucus, said it would be "illogical and blatantly political if the Supreme Court were to rule [against the law]."
Joining the Democratic leaders in the Capitol, AFL-CIO President Richard Trumka blasted the current court for its "activist" agenda."What we have is several justices on the Supreme Court that, while they were being confirmed, talked about how they would be activist, [and instead] have become the most radical activist judges we've seen," Trumka said.

The logic is of course ridiculous. The Democrats are arguing that a 5 to 4 ruling against PPACA would be evidence of a radical and activist court, but a 5 to 4 ruling upholding PPACA would show that all is well and good with the court.

Tomorrow the Supreme Court will do what it was designed to do - determine the meaning of the U.S. Constitution and its applicability to a law enacted by Congress. Regardless of what many scholars have suggested, there is every reason to question whether the commerce clause empowers Congress to compel citizens to purchase a private product. If the court determines the individual mandate to be unconstitutional then it may well toss the entirety of PPACA. But not out of some activist agenda - rather because Congress failed to include a severability clause in the legislation. Severability clauses protect legislation from being completely overturned should a court find individual aspects unconstitutional. Democrats chose to exclude a severability clause precisely because they needed the support of the health insurance industry and the industry would not support a bill that would allow the individual mandate to be severed by the courts.

If the Supreme Court overturns PPACA (and I believe that it will) Democrats must not make the Supreme Court and the court's legitimacy an issue. Fight the GOP. Fight for constitutional reforms. Accept that PPACA had a fatal flaw. But do not attack the court. about to do the same to the Supreme Court should it rule against the health reform law. Such a tactic might offer short term political gain, but the long term damage would be substantial. If the reputation of the Supreme Court is ruined by Democrats the way the Republicans destroyed Congress then the damage to our system of government may be beyond repair. The court is not elected. More than any other branch, its power and legitimacy rests upon a foundation of public confidence. Democrats should not undermine that all because of a single ruling on a very questionable issue of congressional power.

And let me be clear, I'm not saying Democrats should abstain from attacking the court just because it would harm the court's reputation. I'm saying they should abstain because a ruling to overturn PPACA would NOT be evidence of a radical or activist court - any more than the House Post Office and Bank scandals were evidence of a corrupt and incompetent Congress.