The Senate on Healthcare: Obstructionist, or Doing Its Job?

The Constitution's framers didn't create the Senate to get the President's agenda done.

Natchitoches, LA – The use of “budget reconciliation” to force through a healthcare reform bill is a serious political matter. The Republicans made use of the procedure when they controlled the Senate, so they aren’t in the best position to complain that it’s being used against them. On the other hand, if they were wrong to use it then as a tool to force their agenda through that chamber, the Democrats can’t be right to use it now. Most Democrats in the Senate probably know that, and they understand that someday they’ll be back in the minority and that this can come back to bite them, but their frustration over their inability to pass President Obama’s major initiatives may blind them to the seriousness of what they’re planning to do. The impression of many people who work for the news media, that Washington is broken and needs to be fixed, may blind them as well.

It’s not true that nothing has made it through Congress in the last year. Even bills with some partisan baggage attached, e.g., the change in the time limit in which women can bring a suit for gender discrimination, have made it into law. The first stimulus package was passed in very short order. The appointment of Judge Sotomayor to the Supreme Court went through without any undue delay. It’s bills like healthcare reform and “cap-and-trade” that have run into filibuster threats, but those bills have vast, far-reaching implications. It isn’t the job of the Senate to pass them with dispatch.

The initial insistence of the White House that those bills be passed quickly was due to the political needs of the executive. It didn’t recognize the unique role of the Senate in producing legislation or the fact that our system of governance is deliberately designed to create obstacles to the speedy passage of bills. The ponderous, slow movement of Congress to pass the President’s programs is annoying to the President and to people who like his programs, but that’s the way our system is supposed to work. Healthcare needs fixing, in my opinion, but the President’s initial insistence that a comprehensive package to dramatically transform one seventh of our economy be passed in a month or by Christmas was on the face of it absurd. The genius of our system is that it can move quickly when it has to (the stimulus, for instance), but also that when the emergency is not acute, neither is the Senate’s eagerness to act. It deliberates, and deliberates, and deliberates.

In Federalist 62 we read the following justification for creating “complicated checks” on legislation: “the facility and excess of law-making seem to be the diseases to which our governments are most liable…” Quite relevant to the 2,700-page health care monstrosity passed by the Senate last year, “The internal effects of a mutable policy are still more calamitous. It poisons the blessings of liberty itself. It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood (emphasis mine)…” The framers of the Constitution understood that the problem isn’t that legislatures tend to act too slowly and to create too few laws, but that they tend to act too quickly and to create too many laws. The “voluminous” and “incoherent” nature of the Senate healthcare bill is admitted by almost everyone. Isn’t it therefore the responsibility of senators to demand that we pause and rethink that legislation?

You might counter that we’ve been rethinking healthcare legislation since the last time we tried to reform the system 17 years ago. That’s admittedly quite a long pause. The remedy posed by James Madison (the probable author of Federalist 62) would most likely be to break this thing into smaller, more comprehensible and digestible bills. The arguments made against that in the Great Blair House Health Summit were based more on expediency than on ideas of sound legislation. The Senate should continue to do what it was designed to do: Deliberate, argue, and let minority “obstruction” be judged by the voters. That obstruction could be greatly reduced if the bills in question didn’t try to remake the largest single sector of our economy.

As an aside, I think that the filibuster should be reformed. Let’s go back to the days when debate meant debate and everyone could see who was “obstructing” a bill. Filibusters were more rare because they were more costly to the institution (they stopped everything, not just the bill in question) and to the people using them (your role in a filibuster was obvious because you were standing in front of the empty Senate chamber reading your mother’s recipe for chicken stew). Thus they were used only when the issue was very important. But that’s a column for another day.

James Picht teaches economics at the Louisiana Scholars’ College in Natchitoches, Louisiana. From the age of six he always knew what he wanted to be. Economist wasn’t it. But after accidentally falling in to it he found that he liked it. Now he also likes raising his two children, being a husband to Lisa, and making jewelry that he can’t bear to sell. He fell asleep while watching the Blair House health summit.

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Jim Picht

James Picht is the Senior Editor for Communities Politics and teaches economics and Russian at the Louisiana Scholars' College in Natchitoches, La. After earning his doctorate in economics, he spent several years working in Moscow and the new independent states of the former Soviet Union for the U.S. government, the Asian Development Bank, and as a private contractor. He returned to Ukraine recently to teach principles of constitutional law and criminal procedure at several Ukrainian law schools for a USAID legal development project. He has been writing at the Communities since 2009.

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