- The Washington Times - Monday, March 15, 2010

A few weeks ago, when the talk in Washington was whether our government was bro-

ken, I offered the Civics 101 assessment regarding the unpopular health care legislation: “Our government is working just fine - blocking the enactment of unpopular laws by a government that is out of step with the people.”

I added, though, that if the November election reflects a broad public consensus, the deficit and public debt are a huge threat to us: “2011 will be the year that will test whether our government is broken, because a pretty good definition of a broken government (or more accurately, a broken polity - a government and its electorate) is one that agrees on a great threat to society, agrees broadly on what needs to be done - and cannot do it.”

Yet a different test may be coming sooner. Now an intriguing variation on the broken-government question has come up: Is our government broken if it permits to pass a historically significant bill against the overwhelming opposition of an aroused public?

Consider that this week - expected to be the climactic House vote-casting week for health care - President Obama and the Democratic congressional leadership are fighting furiously to pass, with no Republican votes, the ever-less-popular bill. An Associated Press poll last week showed that four in five Americans don’t want the Democrats to pass a health care bill without bipartisan support, while almost all polls are showing support for the current bill to be at only 25 percent to 35 percent. And all polls show high negative intensity.

I respect willfulness as a character trait in a president - even if I disagree with his intentions. But neither I nor any of several longtime veteran Washington hands with whom I have talked can recall any president and congressional majority leadership persisting this hard, against the public will, on so significant a piece of legislation as health care. (The closest I could think of was the August 1941 act to extend the term of duty for draftees beyond 12 months, which passed the House of Representatives by a single vote. But the original draft vote was overwhelming the year before, and by August 1941, the country was not clearly opposed to the draft. So it is a poor comparison.)

The resistance of our governing system to passing so unpopular a bill is so powerful that it has driven Democratic Speaker of the House Nancy Pelosi and Democratic Rules Committee Chairman Louise M. Slaughter - at least for the moment - to publicly consider violating the constitutional process for enacting laws.

The conventional constitutional voting process would be follows: (1) The House first votes for the despised Senate bill; (2) it is signed into law by the president; (3) the Senate passes the popular amendments that the House wants; (4) the House votes for that second Senate bill of amendments; and (5) the president then signs them into law.

Under the proposed scheme, the Senate bill would be “deemed” to have passed the House and would become law without a presidential signature. Then the Senate would pass the House-demanded amendments, and the House members would then cast only one vote - for the amendments they like, rather than the underlying Senate bill they hate. Thus (Mrs. Pelosi’s theory holds) House members would be protected politically and could say they never actually voted for the publicly despised Senate bill.

But, as has been pointed out in several venues in the past few days, Article 1 Section 7 of the U.S. Constitution requires that before a bill becomes law, (1) “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it”; (2)“… in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively.”

It is those two provisions of the Constitution that would be evaded: (1) The House vote with the names and votes of the individual members publicly published and (2) the president’s signature. That is James Madison’s precise, 18th-century version of transparency and accountability.

It speaks to the sturdiness of the system our Founders installed that it is, as intended, so resistant to passing major legal and cultural changes against the overwhelming will of the public. It is so resistant that in frustration, the Democratic speaker of the House has been driven to consider breaking her oath of office and violating the Constitution in order to get her way. Presumably, when she is better counseled, she will dismiss this wayward idea.

Should she follow through on her threat, however, the product would not be a law, but a nullity - an aborted, inert thing.

It would be, in essence, an attempted congressional putsch against the Constitution.

But still our governing system would not be broken as long as the president did his constitutional duty - as assuredly he would - and neither signed nor vetoed it - but rather, publicly declared it a nullity, tore it up and burned it, as one would a piece of trash.

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