Health Care & Legislative Tactics

In the aftermath of a congressional session that featured screams from the House floor of “you lie” at the President and “baby killer” at a militantly pro-life congressman, as well as a multitude of thuggish threats against Democratic House members, it's easy to romanticize the past, to suggest that things used to be better. In congressional history, of course, that past included such ugly episodes as Strom Thurmond’s marathon speech against the 1957 Civil Rights Act, or Members of Congress bringing firearms to the floor in the pre-Civil War years.

That said, it's hard to watch Congress' recent performance without being struck by a sense of institutional decline. Much attention in this regard has been focused, appropriately, on the explosion of the filibuster. This de facto constitutional amendment by procedure has transformed the Senate into a supermajoritarian body on virtually all legislation, giving increased power to smaller states and disproportionately benefiting the GOP, as the more ideologically unified party.

But the health care debate also culminated a two decades'-long process, initiated by Newt Gingrich, of reversing the traditional relationship between politics and policy in legislation, elevating political goals to the primary purpose of legislative initiatives.

Ever since the advent of modern congressional campaigns in the 1970s, opponents have used the votes of Members of Congress against them in television attacks. An early, and especially effective, example came in the 1978 and 1980 NCPAC ads portraying Senate liberals as soft on national defense. These ads were brutally negative. Yet the votes highlighted in the ads—on issues such as the Panama Canal Treaty, arms control, or various weapons programs—involved legitimate legislative matters. Senators took their positions on public policy issues; having done so, their political opponents pounced. Opposition senators didn’t demand a roll call on the Panama Canal Treaty to score political points.

In the late 1980s, however, Gingrich (and to a lesser extent in the Senate, Jesse Helms) recognized the value in forcing votes on bills or amendments that served no legislative purpose but could provide fodder for negative ads in forthcoming campaigns. Politics, not public policy, became the prime rationale for such legislative tactics. Once they were in the minority, Democrats too embraced the strategy, although with somewhat less gusto and considerably less effectiveness.

Yesterday’s GOP amendments on the Senate reconciliation package brought the Gingrich strategy to its logical, if absurd, conclusion. Senate Republicans offered amendment after amendment that served no conceivable public policy purpose, and whose sole rationale was political ("Senator Lincoln favors Viagra for sex addicts!""Senator Bennet refused to cut off federal funding for ACORN!" “Senator Boxer refused to require senators to read entire bills before voting on them!”).

That so many of these amendments came from Tom Coburn and David Vitter provided yet another reminder of the effect that this duo (along with South Carolina’s Jim DeMint) have had on the Senate since their arrival after the 2004 elections. Senate procedure and custom gives extraordinary power to individual senators, but with the assumption that such rights won’t regularly be abused. That hasn’t been the case with Coburn, Vitter, and DeMint, who have demonstrated just how easy it is for senators determined to do so to poison the culture of the institution.

If the primary purpose of the legislative process becomes scoring political points, without any relationship to public policy, the only loser is the institution of Congress.

By the way: one of the political amendments yielded an interesting, if unintended, (political) outcome. Bob Bennett introduced an amendment to require a referendum on D.C.’s marriage equality law, despite the District’s law prohibiting referenda on issues that would yield discrimination. (Given the demographics of the District and African-Americans’ hostility to marriage equality, adoption of the Bennett amendment almost certainly would have led to the D.C. measure’s repeal.) This issue had nothing to do with health care, and everything to do with Bennett’s facing primary challenges from the right in Mormon-dominated Utah.

The amendment failed; every Democrat voted against it, but two Republicans—Olympia Snowe and Susan Collins—also cast no votes. Those were the same two Maine senators who refused to take a public position on the 2009 ballot question in their home state to strip from Maine’s gay and lesbian citizens the right to marry. Willing to stand up for marriage equality for D.C., unwilling to do so for their own state’s citizens—not exactly profiles in courage.