Otto von Bismarck famously noted that both law-making and sausage-making are affairs that one really oughtn’t watch.1 This is perhaps the most famous quote about the legislative process of all time to point of being a cliché. It is also one that we have all no doubt heard a rather remarkable number of times in regards to the health care reform debate.
Now, I am bring it up yet again to point out the following: Otto von Bismarck lived from 1815-1898. He was first Prime Minister in the 1860s. As such, the observation that legislating is a messy process is an old one. And Bismarck said it in a context that lacked centuries of rules and traditions and one that lacked mature political parties versed in said rules, traditions, etc.2
Further, anyone who thinks that the legislative process was ever even remotely like the a three minute PSA aimed at elementary school kids3 needs to go read some books on the subject (and there are plenty of ‘em). The problem is, a lot of people do think that that is how the process works: somebody has an idea, writes it up and it goes to committee, then it gets voted on in one chamber and if passed goes to the other chamber. Then, there’s a conference, they vote, both chambers vote again and the president signs the bill and it becomes a law. Heck, that all sounds complex enough, right? However, as we are seeing in this process, the flow chart is a tad more complicated than that. Indeed, most flow-charts in American government texts have a box for the “Rules Committee” on the House side of the process that looks small and insignificant (almost innocent!), but is actually a lynchpin of the process, especially in terms of major legislation, and is one of the key reasons it is good to be in he majority in the House.
The Rules Committee in the House and all of the various types of rules that they can deploy, including the self-executing rules under discussion are not new and it is very important to understand this fact. Now that fact doesn’t make them good things or likeable things (or even easy to understand things). However, it is frustrating to watch people to pretend like this is some unusual (or even unconstitutional) process. To deploy and paraphrase another cliché: What? Complex and obscure rules of legislating? In Washington, D.C.? I’m shocked!
Look, I understand the political gamesmanship of opponents using the complexity of as the process as a means of trying to make the whole process appear shady and therefore to raise legitimacy issues about the the bill in question. However, anyone who acts like the procedures under discussion are radical or new is either a) being disingenuous (to be kind) because they know better, or b) they never really paid attention to the process in any detail before, and therefore it seems new to them and therefore make the mistake of assuming that what is new to them must, in fact, be actually new.
In simpler terms: it is not really an honest debate to pretend like things like the self-executing rule are new and dastardly (or, for that matter, the arguments over reconciliation a few weeks back).
As Norm Ornstein wrote the other day (and an aptly names post: Hypocrisy: A Parliamentary Procedure):
Any veteran observer of Congress is used to the rampant hypocrisy over the use of parliamentary procedures that shifts totally from one side to the other as a majority moves to minority status, and vice versa. But I can’t recall a level of feigned indignation nearly as great as what we are seeing now from congressional Republicans and their acolytes at the Wall Street Journal, and on blogs, talk radio, and cable news. It reached a ridiculous level of misinformation and disinformation over the use of reconciliation, and now threatens to top that level over the projected use of a self-executing rule by House Speaker Nancy Pelosi. In the last Congress that Republicans controlled, from 2024 to 2024, Rules Committee Chairman David Dreier used the self-executing rule more than 35 times, and was no stranger to the concept of “deem and pass.” That strategy, then decried by the House Democrats who are now using it, and now being called unconstitutional by WSJ editorialists, was defended by House Republicans in court (and upheld). Dreier used it for a $40 billion deficit reduction package so that his fellow GOPers could avoid an embarrassing vote on immigration. I don’t like self-executing rules by either party—I prefer the “regular order”—so I am not going to say this is a great idea by the Democrats. But even so—is there no shame anymore?
This is quite correct.
The latest round in this debate as of today:
Michael McConnell in the WSJ: The Health Vote and the Constitution—II.
Jack Balkin replies: Michael McConnell and the metaphysics of bills.
Now, I will say that the above is actually bit more high-minded than some of the discussion. McConnell makes a fundamental mistake in his argument that Balkin corrects—specifically the question of the important difference between consolidating bills v. consolidating votes within the rule.
- If one only knew what was in there and how it got there, one wouldn’t want to have anything to do with end product. To a more modern example: most people wouldn’t eat a good ol’ American hot dog if they really knew what was in there. [↩]
- Not to make light of the complexities of the era, mind you, just to note some contextual issues. [↩]
- BTW, as fun as the cartoon is, and as much as I fondly remember it from my childhood, it isn’t even a good example of the kind of thing that Congress does. The notion that if what one needs is a stop sign at a railroad crossing should result in calling your Representative and then to have Congress pass a law to fix it is rather problematic. [↩]
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