The Mischief of Congress: An Analysis

Less than three weeks after being introduced, the American Health Care Act of 2017 — Congress’ alternative to the Patient Protection and Affordable Care Act of 2010 — was,  for all intents and purposes, dead. This is a major legislative defeat for President Trump and the Republican Congress, to say the least. This measure failed because Congress as an institution was specifically designed to kill bad or dangerous policy ideas. If executive and congressional leadership continues to handle issues such as tax policy or entitlement policy like they have healthcare—rushed and void of any serious attempt to build bipartisan consensus—they will find themselves similarly frustrated.

Congress was created in the aftermath of the American War for Independence and the failures of the weak Articles of Confederation. As Alan Taylor explains in his work American Revolutions: A Continental History 1750-1804, arguments for American independence varied, but a huge contributing factor was the British parliament’s insistence on exercising greater control and influence over the American colonies without representation of or input from the (wealthy, white, male) residents of those colonies. During the War for Independence, the inability of the Continental Congress to do basic things like raise armies or ensure provisions for the war effort led both Federalists like Alexander Hamilton (who, as General Washington’s secretary, witnessed the unnecessary horrors of Valley Forge caused by federal refusal to properly equip the army) and some Democratic-Republicans like Thomas Jefferson (who, as Governor of Virginia, was unable to repel the British invasion of Virginia due to weak support from the federal government) and James Madison to recognize that the new country needed a stronger central government — even if they bitterly disagreed on many other issues.

The result of these competing desires — one for a government that was representative of the country and another for a stronger government that could hold the new United States together — was a new constitution filled with contradictions and compromises that gave the power to create laws to a congress with a House of Representatives and a Senate.

In Federalist 10, James Madison explains that congress is purposefully set up to deal with the competing interests (what he called “factions”) that always threaten to tear a republic apart. The idea is that competing interest groups will force congress to look at public policy issues deliberatively and make attempts to satisfy those interests (this is a political theory known as “pluralism”). While it is certainly true that, as Elmer Eric Schattschneider put it, “the flaw in pluralist heaven is that the heavenly choir sings with a strong upper-class accent,” this is basically how Congress works. It is slow, it is deliberative, and it attempts to create policies that satisfy at least some of the interest groups competing with one another.

As Robert Caro points out in The Years of Lyndon Johnson: Master of the Senate, congress empowers the views of political minorities. This fact helped the South maintain slavery and Jim Crow long after the consensus view of the country had turned against the sort of institutional racism that had worked to undermine the efforts of African Americans for generations. But it also resulted in compromises that moved the country forward in fits and starts on issues such as conservation, women’s rights, education, social welfare, and race relations.

Congress, for ill and good, was designed to pass legislation that enjoyed not just majority support, but consensus support. Any legislation that becomes law must reckon with interests that oppose the policy goals of said legislation. Legislation that quickly becomes law is often filled with the sort of policy that enjoys widespread consensus and a lack of opposition. Legislation that slowly becomes law is generally filled with policy that may enjoy majority support but almost always must overcome minority opposition (for example, the Civil Rights Act and the Voting Rights Act).

 

This brings me to the American Health Care Act. The president and leadership in both chambers of congress wanted to quickly pass legislation that would drastically affect large swaths of the national economy. There are many competing interests in healthcare policy; doctors, nurses, hospitals, insurers, prescription drug manufacturers, pharmacists, and patients — to name a few — all have legitimate policy interests in the realm of healthcare. It took President Barack Obama and congressional Democratic leadership thirteen months of consensus building and compromise to pass the Affordable Care Act, which is incredibly fast for congress to move on such important legislation. The American Health Care Act died after less than three weeks, a timeframe that is simply inadequate for the purposes of building consensus.

There are just as many, if not more, competing interests in the worlds of  tax policy and social welfare policy. If President Trump, Senate Majority Leader McConnell, and Speaker Ryan believe that they can build a coalition that would be willing to stomach the changes they wish to change in weeks instead of months or even years, they will be sorely mistaken. The wise move would be to learn from this experience — to govern with restraint and even handedness.

In January, I pointed out that President Trump was elected with a minority of the popular vote, that the Republican majority in the House of Representatives is padded by gerrymandering, and that the Republican majority in the Senate is notably slim. As such, Republicans do not have a mandate to govern as they please and doing so may provoke backlash. As it turns out, we have now learned that if they attempt to govern as though they have a mandate, they will find that they cannot govern at all.

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