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BLANKLEY: Bypassing consent of the governed
Deciding the fate of the nation behind closed doors stifles the Constitution
Question of the Day
How have we arrived at this place where the fate of our federal budget, our economy - indeed, our capacity to have a functioning federal government - seems to depend on what two men, Speaker of the HouseJohn A. Boehner and President Obama, may or may not be secretly talking about in an interior room in the White House?
Meanwhile, elected representatives and senators, kept ignorant of those life-and-death discussions, are forced to wait. When the two men are finished - doubtlessly mere hours before “the world will end” - our elected representatives and senators will be stampeded to vote yes for a deal about which no one knows the details. Cattle may need to be stampeded but elected representatives of the American people should never be so compelled.
The country will learn from a compliant Washington press corps that to vote no would be an irresponsible act, verging on treason to the people. The reporters won’t know what’s in the deal any more than the congressmen, the president or the speaker but they will smugly mug any noncompliant elected representative.
Government by the elected representatives of the people is becoming government by two, three or four men in a secret room pronouncing the new law that will be rubber stamped - or else.
Accepting such a process as normal is a new phenomenon but it is becoming in Washington an acceptable procedure. Consider the following from last Sunday’s edition of The Washington Post:
“The nation’s leaders tried again Saturday to return to regular order after an extraordinary spectacle Friday night, when negotiations over debt and deficits gave way to acrimony and recriminations between President Obama and House Speaker John A. Boehner (R-Ohio). They have little time to repair the damage.”
Consider that phrase, “regular order,” which was used to describe the process of the speaker and the president engaging in private negotiations.
Regular order is a Washington term of art that means the exact opposite of writing a bill in secret by a few congressional leaders and the president. It means letting each house of Congress introduce bills, hold open committee hearings, mark up the legislation in public, vote for it and send it to the floors of the House and Senate where it is openly discussed. Then it is passed by majority vote and is sent to the president for signature.
As Mr. Boehner said a few years ago, “We need to stop writing bills in the speaker’s office and let members of Congress be legislators again. Too often in the House right now we don’t have legislators; we just have voters. … The institutions of the House that have grown up over 200 years of trial and error are the best way to test those ideas and policies. We don’t need five members sitting behind a closed door writing a bill, like they did with the ‘stimulus’ or ‘Obamacare.’ It’s nuts.”
Twenty years ago, that would have been a commonplace observation. But in these last two decades, both Republican and Democratic presidents and Congresses have increasingly resorted to secret meetings and forced deals: President George H.W. Bush in a 1990 Andrews Air Force Base budget summit with a Democratic Congress; in 1995-1996, President Bill Clinton and congressional Republicans over budget deals; in 2009, Mr. Obama and the stimulus and Obamacare legislations; in 2011, Mr. Obama and Mr. Boehner with a continuing budget resolution. Now we watch the debt ceiling and deficit negotiations as the Aug. 2 deadline looms.
This is not merely procedural quibbling - it goes to both the quality of the legislation and the nature of representative government.
I have been in some of those secret meetings in the past. Even the smartest, best-informed presidents and speakers (e.g., Mr. Clinton and Newt Gingrich) cannot possibly know the fuller implications of all the agreements they are making. Neither can the handful of top staffers in such rooms.
That is why, with the woeful experience of the past 20 years, members of Congress - and the public - are increasingly and correctly distrustful of what the “deal” really is.
That is why Mrs. Pelosi’s words were technically correct - if appalling - when she said regarding Obamacare, “You have to vote for it to find out what is in it.” The top leaders are incapable of drafting a big, technical bill. The details will get written by staffers and regulators after the bill is enacted in to law. That is why, for example, a year after Dodd-Frank financial regulation law has passed into law, more than 200 regulations - all the teeth of the bill - have yet to be even drafted by regulators.
That is why when regular order is followed and laws are enacted as they have been for 200 years - both in Congress and the executive branch - hundreds of highly specialized staffers have to be called upon to explain what broad-brush numbers will mean in real life. What does cutting $100 billion from hospital reimbursement under Medicare mean, precisely, regarding how treatment will be provided or not provided? What does a $700 billion reduction in defense spending over the next decade mean, precisely, about our Navy’s ability to protect the South China Sea from Chinese efforts to dominate it?
Each time we have one of these secret deal negotiations instead of regular order, the magnitude of the proposed change in our way of life gets bigger and the process gets more exclusive and more sloppy. This is not only bad legislating, it is dangerous to our constitutional process.
The Roman Republic eventually gave way to imperial dictatorship during the 1st century B.C., as the Senate yielded to generals and strong men more frequently to fix the various financial and land distribution problems that the senators lost the will and capacity to fix themselves.
If we don’t use our congressional representative rights, we will eventually lose them. A warning.
Tony Blankley is the author of “American Grit: What It Will Take to Survive and Win in the 21st Century” (Regnery, 2009) and vice president of the Edelman public relations firm in Washington.
© Copyright 2014 The Washington Times, LLC. Click here for reprint permission.
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