Conservatism and Originalism–Observations on a Legislative Fiasco

As I watched what we can only hope are the death throes of the GOP tax cut “healthcare” effort this week, I was struck once again by the resiliency of our always creaking system of government and by a striking contradiction between rhetoric and action that I have not seen noted elsewhere. I will refrain from opining on the merits of the Better Care Reconciliation Act of 2017–there are actual healthcare experts climbing over each other to do that–but as a student of history and an avid observer of politics the process by which the bill was constructed and moved to the brink of passage put the lie to decades of GOP posturing.

For the majority of my life, the mantra of conservative politicians has been “originalism.” They apply the theory primarily in the selection of judges, but it plays a significant role in their stated legislative priorities as well. Under this theory the founders envisioned a weak central government with minimal responsibilities and tightly constrained authorities. The judicial version of this theory is that courts should be quick to strike down federal actions, slow to limit the actions of states or private parties, deferential to legislatures, and scrupulously observant of legislative language as it was understood at the time it was enacted. It is one of those theories that is unassailable in the abstract and virtually unworkable in practice. It ignores the reality that vague legislative language generally flows from a lack of consensus within the legislature and an implicit desire for future executors to muddle through. Conservatives are also suspiciously flexible in their views of judicial activism–a sort of red/blue color blindness that sees only those “activist” rulings that impede their agenda while insensitive to those that advance it.

On the legislative side of the government, originalism takes the form of limiting tax revenues, regulations, and mandates. Conservative originalists are not fond of federal expenditures–you can tell the truer believers from the opportunists whenever a Defense appropriation comes to the floor. A generation of American conservatives tied themselves in knots promoting massive defense spending while arguing that all other spending was tyranny–a position Mssrs. Madison and Hamilton would have found inexplicable. The true believers eventually solved that problem by quietly turning against defense spending along with all other spending. The defense records of Speaker Ryan and OMB director Mulvaney will not bear much neocon scrutiny. Legislative originalists nearly always run aground on the realities of governing these United States in the twenty-first century–even most ruby red voters like Hayek in theory and Keynes in practice. There are enough old-style deal makers in Washington, or there have been, that the ideological purists could eat their cake and have it too–they could rail against spending and vote their absolutist positions safe in the knowledge that grownups like Boehner, Pelosi, Reid, McConnell, and Obama would pass the appropriations and the debt ceiling increases anyway. Those grownups might be cynical, but they were not suicidal.

What does all this have to do with the tax cut disguised as a health insurance bill that has been rotting in Senator McConnell’s back office for the past two months? Well, if we are to pay homage to the founders and grace their work with the halo of divine sanction, then we should show some actual respect for the institutions and norms that they established. The committee and hearing system that the Senate leadership sidestepped has been the foundation of our legislation for over 200 years. The American republic was at its core an argument for the wisdom of the collective, debated in the open and constrained by certain immutable principles. What’s more, the system has worked quite well despite its frustrations and shortcomings.

To the legislator determined to enact policy and convinced of his own righteousness, the compromises, log-rolling, delays, and inefficiencies of regular order are a maddening impediment to what seems an obvious course of action. It is certainly true that regular order can delay action and lard up bills with extraneous sweeteners. Often, the proponents of a policy must accept what they view as a sub-optimal solution because they cannot win the votes for what they know to be right–just ask Congressional Democrats how many would have preferred single-payer healthcare or a public option. But the legislative process serves several vital purposes, and legislators short-circuit it at their peril. Hearings provide not only the testimony of experts but also a chance to gauge public and legislative support for proposals. Expert witnesses can explain to legislators why a give proposal is unlikely to work as expected or to generate unintended and disastrous consequences. Public scrutiny can expose human error, such as the recent double counting of over $2 trillion in the White House budget. Adding in a multi-million dollar sweetener to secure the support of a key member may seem like an inefficiency to a bill’s sponsor, but it is nothing compared to the determined opposition and future sabotage attempts that may be the alternative.

It is here that the contrast between the ACA’s passage in 2010 and the troubled genesis of the BCRA in 2017 is instructive. During the debate over the ACA, The Senate held 44 hearings and public meetings on the plan and adopted 161 amendments. The media made great hay out of the group of 13 white men that Mitch McConnell convened to write the BCRA, but even that group was misleading. McConnell’s staff reportedly constructed the bill in his office with great secrecy and little input. It should come as no surprise then that the resultant legislation was an unholy mess. To put it quite simply, if this sort of lawmaking were effective, particularly for major bills that transform enormous sections of the economy and affect tens of millions of people, then we have been wasting our time and money for 228 years. The path of the BCRA indicates that the legislature has not been a waste. We may find fault with the laws enacted through regular order, but most prove infinitely superior to McConnell’s secretive bill that pleases no one and positions him in a zero-sum pickle between the competing wings of his caucus. McConnell and company will no doubt shout “originalism” the next time a vacancy appears on the Supreme Court, but they have shown nothing but contempt for the government that the founders enacted.

While the non-passage (so far) of BCRA appears to be one more embarrassment for the American system of government, it offers a ray of optimism. Despite a president devoted to passing any bill, no matter how awful, and a congressional majority that has backed itself into a policy cul-de-sac from which there is no apparent exit, the bill has so far failed. Yesterday’s parliamentarian ruling against the Planned Parenthood defunding and, more importantly, the six-month waiting period may be a gift to the majority leader and his caucus. Repealing the ACA mandate with no mechanism to prevent free-riding is just the sort of poison pill that will give them an exit strategy. Perhaps they should use their reprieve to contemplate the wisdom of their predecessors and the value of regular order. If you cannot pass a policy through electoral victory and regular order, it may be because the policy should not be passed. A legislative strategy more in line with the vision of Madison and Hamilton might not have been pleasing to key Republican constituencies, but it could have produced a bill with some hope of passage. Conservatives like to invoke the perfection of the founders’ vision. Perhaps they should act like they believe it.




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