|Sen. Maj. Leader, Mitch McConnell/The Hill|
This crafting of legislation behind closed doors, effective though it may be, is dangerous for our democracy. The idea that Senators would approve bills crafted in secret, without adequate public hearings, and without either the public or their elected representatives having an opportunity to absorb, understand, and evaluate proposed legislation should set off alarm bells. It runs counter to any plausible notion of representative government.
Styles of representation differ among members of Congress, says Eric Petersen in a report by the Congressional Research Service (Roles and Duties of a Member of Congress, 2010). Some members see themselves as responding to instructions from their constituents back home (a "delegate" model of representation). Others prefer to act on their own initiative and exercise their own judgment (a "trustee" model of representation). But both the delegate model of representation and the trustee model of representation requires members of Congress to act in the best interest of their constituents, and this requires that major pieces of legislation be open, transparent, and understood by the elected representatives and/or the public before a vote takes place.
In order for a senator to follow the instructions of constituents back home (the delegate model), a major piece of legislation like the American Health Care Act must be presented, reported on by the press, scored by the Congressional Budget Office, discussed, and sufficiently absorbed by constituents so Senators and members of the House can get a sense of what the "instructions" of their constituents might be. In order for any member of Congress to act on his or her own initiative and exercise his or her own judgment (the trustee model), an important piece of legislation like the American Health Care Act, or the tax reform bill to come, must be presented, discussed and sufficiently absorbed in order for each member of Congress to be able to exercise his or her own judgment.
The American Health Care Act bill passed by the House last month is politically unpopular. This bill proposes to substantially dismantle Obamacare's modest improvements to our dysfunctional health care system: the House bill provides a large tax cut (nearly $600 billion over ten years), and a substantial reduction in health insurance premium subsidies for those unable to afford health insurance. The Congressional Budget Office estimates that 24 million Americans would lose health insurance as a result of the House bill.
As a result, McConnell has sought to duck the political heat that would come from further exposing the GOP ideas to daylight. The GOP leadership in the Senate has opted to craft their version of the health care bill in secret. Mitch McConnell has convened thirteen senators behind closed doors, and he hopes to force a vote and pass a bill with 50 GOP Senators plus the Vice President, essentially without debate.
"There will be plenty of opportunity to read and amend the bill," McConnell promises. Apparently a "discussion draft" will be made available this Thursday. It remains to be seen what "discussion draft" means, and how much opportunity for study and amendment of the actual bill will be afforded.
The thirteen senators that make up McConnell's health care cabal are all Republicans, all white, all male, and mostly from red states. Here's the list:
- Mitch McConnell (Majority leader, Kentucky)
- John Cornyn (Majority whip, Texas)
- Ted Cruz (Texas)
- John Thune (GOP Senate conference chair, South Dakota)
- John Barasso (GOP policy committee chair, Wyoming)
- Orin Hatch (Utah)
- Mike Lee (Utah)
- Lamar Alexander (Senate health committee chair, Tennessee)
- Michael Enzi (Budget committee chair, Wyoming)
- Tom Cotton (Arkansas)
- Cory Gardener (Colorado)
- Rob Portman (Ohio)
- Patrick Toomey (Pennsylvania)
These white men represent 20 percent of states and 24 percent of the population of the country. It's hard to square this with a delegate model of representation. And since there is no word yet on when the actual bill will be released, and McConnell has vowed to bring it up for a vote next week, it's impossible to square this process with a trustee model of representation.
So we ask: what is the duty of the 87 Senators who have been shut out of this process, who don't know what's in the bill, whose first glimpse will be a "discussion draft" to be released on Thursday? Do they have a duty to study and to understand this bill before they vote for it? To get feedback from their constituents before they vote for it? And how much time does this take for a complicated piece of legislation?
When Senators enter Congress they take an oath of office: they swear to uphold the constitution of the United States and to faithfully discharge their duties of office. What are those duties of office? Do they include taking responsibility for individual votes? Do our elected representatives have a duty to make best efforts to act as our delegates and/or our trustees? Would our representatives be discharging their duties of office if they absented themselves from Congress while their colleagues study and debate a measure, flying in at the last moment to cast a vote for something they do not understand and have paid no attention to? Perhaps they might do so on a purely partisan basis?
A partisanship model of representation, however, suggests that the duty of a Congress person is to vote the party line, irrespective of the merit or wisdom of legislation. The merit or wisdom of legislation has nothing to do with it. There is no duty to act as our delegate and/or our trustee; our elected representative's duty is simply to vote the party line, holding their nose if need be. That and to show us around when we visit Washington DC, and to raise money to get re-elected. The partisanship model denies that there is a duty to make efforts to sense our "instructions" as constituents on a major piece of legislation; all that matters is to vote the party line. It matters not that 70 percent of constituents are opposed to a piece of legislation like the GOP American Health Care Act. All that matters is that our representative vote the party line.
But this partisanship model of representation is a disaster. The moment we are prepared to let our representatives outsource policy on a major piece of legislation to 13 white males from 10 states, representing 24 percent of the population, and blindly follow whatever is put before them without understanding or discussion, then we have truly severed any tie between us and our representatives: it's no longer the delegated will of the people on this piece of legislation that matters, it's no longer the independent initiative and judgment of our representative (exercised in our best interest) that matters; it's the will of these 13 white men from 10 states acting behind closed doors that matters.
Whatever we call that, it is not democracy. . .
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