Process Matters

I agree with Jonah Goldberg’s sentiment that the Senate will function better once we “have more partisanship about ideas and less about process.” His point is that Democrats under Harry Reid’s stewardship have been so eager to protect vulnerable members from taking tough votes that they have argued entirely over process rather than ideas.

This is undeniably true, as the Wall Street Journal chronicles today in its lead editorial:

“[Democratic Senators] have also been handmaidens to Harry Reid , the Majority Leader who has devoted the last four years to protecting Mr. Obama while turning the Senate into the world’s least deliberative body. Next Tuesday’s vote is above all a referendum on whether the Senate will spend two more years in this Obama-Reid dead zone.”

[…]

“In the media’s telling, gridlock in Washington is due to tea party pressure on House Republicans to resist Mr. Obama’s agenda. There is some of that, reflecting different views of government. But at least the House debates and votes in plain sight. Mr. Reid won’t allow the normal give and take of democratic voting and accountability that is the reason to have a legislature.

The Reid shutdown runs even to the core legislative function of funding the government. The House has passed seven of 12 annual appropriations bills, most with big bipartisan majorities. Chairman Barbara Mikulski has passed eight of the 12 out of her Senate Appropriations Committee, and Republicans wanted to debate. Mr. Reid blocked a floor vote on every one.”

[…]

“Wyoming Republican John Barrasso kept a running tally of Mr. Reid’s amendment blockade through July. In the previous 12 months Senators introduced 1,952 amendments—1,105 from Republicans and 847 from Democrats. Mr. Reid blocked all but 19.

Legislation? Mr. Reid has blocked at least 10 bills sent to him by the House that passed with notable bipartisan support. Some 35 House Democrats voted with Republicans to delay ObamaCare’s employer mandate; 46 Democrats voted to expedite the approval of liquefied natural gas exports; 130 Democrats voted for patent-reform legislation; 158 Democrats voted to expand access to charter schools; and 183 Democrats voted (in a bill that passed 406-1) to exempt certain veterans from the ObamaCare employer mandate. Mr. Reid’s response: No debate, no vote.”

Progressives have largely made peace with the fact that they are now an “ends justify the means” party and as a result have formally abandoned any respect for process. And yet process is their great weapon of the moment, used to protect Democrats from an unpopular agenda by freeing them from accountability and blaming gridlock on Republicans for “obstruction” (yes, Huffington Post created its very own “Senate Obstruction” tag). It is a grand illusion of activity meant to hide the fact that substantive debate is not happening. And so I agree with Goldberg that escaping the procedural bog in order to emphasize meaningful policy debate is the way forward out of the wretched Reid Senate.

The problem is that, in our system of government, process is still extremely important. The fact that Harry Reid and Democrats (and especially the national media which has been criminally silent on this for the most part) have decided to openly ignore process and not allow debate or roll call votes is a national scandal. Or at least it should be. Instead, the progressive bubble has convinced itself that the shutdown was the great sin against good government, not Reid’s blatant destruction of Senate tradition. The shutdown was a non-event of course. Federal workers got paid throughout (because of course they did) and the government actually went out of its way to make the shutdown feel worse than it was by closing off public viewpoints to Mt. Rushmore, harassing tourists at Yellowstone and ringing the WWII memorial with barricades on the national mall.

The worst in a string of many abuses of process by Democrats occurred last year when the “nuclear option” suddenly became the left’s cri de coeur. Upset over the president’s cascading failures and in a panic over the looming fortunes of both Obamacare and their upper chamber majority, Senate Democrats concluded that their best course was to nuke the filibuster for judicial nominees in order to pack the D.C. Circuit Court, a move that proved prescient when the Halbig ruling was granted an en banc hearing with the full appeals court, including the hastily confirmed additional Democratic appointees. Despite warnings about setting dangerous precedents from some principled liberals, most progressives supported invoking the nuclear option, and with fervor. Whatever future headaches would emerge as a result of the radical maneuver were worth the short term satisfaction of inserting partisan judges on the D.C. Circuit. The ends justify the means. 

Republicans threatened but never actually went through with nuclear option in 2005. Every prominent Democratic senator that year (Harry Reid, Joe Biden, Barack Obama, Hillary Clinton, Dick Durbin, Chuck Schumer) took to the floor to rail against the unprecedented assault on the most precious feature of our republic: the protection of minority interests.

That argument carried the day and Republicans backed off the threat.

Would that things have played out the same way last year, but alas. Reid went through with it and changed the Senate for the worse, perhaps irrevocably. McConnell should restore the 60 vote filibuster for nominees when Republicans win the Senate, even though the precedent set by Reid opening Pandora’s Box says that Republicans could use it to their advantage. I hope they don’t. Because if we don’t put the genie back in the bottle, very soon we will have legislation passing in the Senate on bare majorities, making the upper chamber unmistakable from the lower one, giving us true democracy (aka “mob rule”) which is not the system we’re supposed to have. It is the preferred system of progressives, because they imagine it is their destiny to be the permanent majority and need not worry about quaint notions like minority protections. But in such a system, 51% of the population can always dictate how the other 49% lives, and rights transform from being innate, inherent and inviolable to being merely transient and defined by the majority.

In a republic with a healthy respect for minority concerns, no majority can vote away the 1st amendment (though Reid and the Democrats even tried to do that this year!) on a whim. The Reid Senate legacy has put that at risk.

A return to regular order, appropriations bills passed out of committees, and a free and open invitation for all to introduce amendments and allow for transparent dialogue and voting on policy will signal to the American people that the “world’s greatest deliberative body” is working to restore its reputation. By returning to process, the important debates over ideas may reconvene.

A Republican Senate will seem a veritable fount of creativity and ideas compared to that which we have suffered through since 2006. Pick your issue, Republican Senators will have an idea; from healthcare to tax reform, energy to deregulation, the upper chamber will be a cacophony of conservative arguments and proposals, and it will be interesting to see progressive reaction to it all. Already, in anticipation of being routed, leftists like Michael Tomasky are crying crocodile tears and asking “How Can Dems Be Losing to These Idiots?” As he tells it, it’s not Reid and the Democrats who have forsaken ideas for a trivial and pathetic process approach designed to conceal their true motives, but Republicans who can’t muster anything new:

“I mean it is truly admirable, in its perverse way, how anti-idea this party is. It has no economic plans. Did you see this Times article last week called “Economists See Limited Gains in G.O.P. Plan”? I trust that you understand the world of newspaper euphemism enough to know that “limited gains” basically means “jack shit.” It’s all tax cuts and fracking and the wildly overhyped (in jobs terms (PDF)) Keystone pipeline.

Republicans know the truth about these proposals deep down, or I think most do (I suppose some actually are that dumb). But they keep peddling them like a costermonger selling rotten fruit. Why? At least in part because they also know deep down that things like an infrastructure bank are what will really create jobs. I mean, it’s the very definition of creating jobs. But they can’t be for that, because it would be a vote for Obama, and Party Chairman Limbaugh would call them mean names.”

I encourage Tomasky to look up the word “projection.” Progressives of his ilk are so contemptuous of “the other team” that they are incapable of self-analysis. The mind-numbing banality of his assertion that an infrastructure bank is necessary to create jobs is of a piece with Hillary Clinton’s recent rhetorical majesty, where she claimed almost matter-of-factly that “corporations and businesses don’t create jobs.” Progressive principles, such as they are, exist as reactions to actual grounded principle on the right. And it’s the left’s allergy to capitalism that leads it to make such asinine statements as “you didn’t build that” and “you built a factory out there – good for you. But I want to be clear. You moved your goods to market on roads the rest of us paid for,” which in turn explains progressive insistence that the right lacks an economic agenda: when you’re utterly incompetent and ignorant of economics and how the market works, it makes sense that you’d view deregulatory and free market-informed proposals with suspicion and confusion. And that’s how you get Michael Tomasky calling the GOP an “anti-idea party.”

We desperately need an honest conversation about ideas, but just as Warren Harding promised a “return to normalcy” after the disastrous Wilson presidency, Republicans need to promise a return to proper process following the apocalyptic fail of the Reid Senate, which will allow the more pressing arguments over ideas to commence again.

Halbig

The only way to describe the conservative state of mind vis a vis modern liberalism is exasperation. It is just plain exasperating to observe the conduct of the American left in today’s political, economic and cultural landscapes. Nary a day goes by without some segment of the left issuing grave warnings to its special-interest, identity-obsessed base about all the looming threats to things the government has granted them. Yet again, we see an example of the devious ways the left obscures the concept of liberty: instead of things the government cannot do to you (negative liberty), today it is all about what can the government do for you (positive liberty). But then this is mere semantics to your average millennial, union worker, feminist, bureaucrat or little green fascist. The “coalition of the ascendant” has been thoroughly indoctrinated – by culture, academe, default human understanding – to believe that government is the altruist amid the morass of greedy, for-profit, one-percenters. Worse, they don’t really care one iota about philosophical treatises on governing, the market, or…anything, really. All that this coalition cares about is culture and the need to wrench it away from the kulaks and wreckers, er, conservatives and libertarians on which they project their hunger for centralized power and control (who, it bears mentioning, want the opposite of concentrated power and control).

The left is a pathetic joke in today’s America, which is why anyone not affiliated can only be exasperated as witness to their folly. From climate to taxes, guns to bureaucracy, welfare to Harry Reid, the left have created a perpetual motion machine of stupid and cynical policies and attitudes that serve only to grow the size and influence of both the Democratic Party and their fourth branch allies in the administrative state.

The latest bit of theater comes courtesy of two opposing rulings (Halbig v. Burwell) in circuit courts on the technical wording of the Affordable Care Act. See, in their infinite wisdom the Democrats wrote Obamacare in haste for political reasons in 2009 (Scott Brown’s surprise win for Dead Ted Kennedy’s seat in Massachusetts sent Dems into panic mode) and, being the legal scholars and overall geniuses that they are, worded the language of the exchanges in such a way as to make void any Obamacare subsidies going out to customers in states with non-state exchanges, never in their wildest imaginations entertaining the possibility that a host of red states might not be thrilled about being coerced into setting up disruptive exchanges while also adding millions to their own medicaid roles. But that is exactly what happened, which opened a crucial window for libertarians like Michael Cannon of Cato to get to work on a lawsuit challenging the legality of federal exchanges allowed to offer subsidies, which the plain language of the law prohibits.

In spite of the Fourth Circuit’s ruling that nothing is amiss because we all know what Democrats “intended” and the further complication that the Halbig case will likely face an en banc DC Circuit hearing in front of the full 11 member panel (four of which are newly minted Democratic-appointed judges only at their posts thanks to Harry Reid’s use of the nuclear option to annul the filibuster of judicial nominees), this case is still going to the Supreme Court, where it is likely (fingers-crossed) we will win. After the en banc panel does as expected and overturns today’s DC Circuit ruling holding the law up as written (and by extension damning it) and tries to mount some lame legal rationale or precedent for doing so, SCOTUS is gonna issue cert and hear the case. And then it’s on.

But oh, the exasperation! How does one deal with the left when today they are actually arguing that the intention of Congress is what matters, not the plain letter of the law. The law only matters when it serves the left’s interests like, say, this 2008 Child Trafficking law we hear so much about that supposedly prohibits full stop the deportation of any of the minors currently languishing in holding pens and military barracks in Texas and Arizona. Democrats have proved that they don’t really care about the law in the Obama era, whether it’s the Executive branch writing and ignoring laws on a whim, the President ignoring a Senate pro-tem session and making recess appointments anyway (SCOTUS slapped him down 9-0 on that one), Harry Reid’s shameful and unprecedented stewardship of the Senate, or Nancy “we have to pass it to find out what’s in it!” Pelosi just being Nancy. That 2008 law by the way? They only cite it ad nauseum because they desperately want these kids to stay in country. Not for any empathetic reason, mind you. Just politics.

Even worse than the desperate attempts to make chicken salad out of it are the progressives who admit that this is a blow, but then confidently and arrogantly insist that it won’t matter because Harry Reid already took care of that with the nuclear option. Now they can just sit back and relax as the full panel of the DC Circuit overturns themselves and orders all Americans to kindly STFU and stop complaining about government. That’s how many of them are acting anyway, and it’s sort of hard to know if it’s a deflection tactic or if they are really so confident that the Supreme Court won’t find just four judges needed to certify an appeal that they’re truly not worried. But they should be worried. Not just about the fate of the ACA, but of their entire mission, to say nothing of their credibility. People are waking up to the awfulness of big government. As yet this feeling is nowhere near reaching critical mass, partly because dissatisfaction with government leads to all kinds of heterodox attitudes and prescriptions (see: Tea Party vs Occupy Wall St: similar grievances against cronyism; wildly different solutions), and partly because no leader or party has been able to crystallize for the public in digestible terms the urgent need to genuinely dismantle much of the federal bureaucracy, and explain why such a subtraction would actually serve as an addition; to the economy, the budget and the dynamism of the American people. Addition-by-subtraction applies to the welfare state as well. Though we wish to see it shrunk drastically, a case is there to be made that a smaller welfare state with fewer agencies and social workers aiming to “serve” you could actually lead to a more efficient dispersal of benefits. People need to be reminded of Reagan’s famous axiom about the nine most dangerous words in the English language: “I’m from the government, and I’m here to help.”

We’re a long way from turning this ship around. Hopefully Halbig is a small victory for the team standing athwart shouting stop.