At The Incidental Economist we write about the consequences of health policy: how it affects health, spending, and the like. In this post, however, I want to reflect on the process whereby the 115th Congress has considered legislation to repeal and replace the Affordable Care Act. My view is that Congressional leaders have abused the legislative process during the consideration of these bills. This abuse has weakened Congress as a deliberative body and damaged American democracy.
What do I mean by deliberation and how have norms of deliberation been abused?
The requirement that laws should be deliberated is just the expectation that legislators will offer reasons for the laws they propose. In a democracy, we expect that such deliberation will be public and this, in turn, means that the laws must be accessible to other legislators and to citizens. You can’t reason about a law that you can’t see.
In its attempts to repeal the ACA, the Congressional leadership has consistently abused the norm that proposed laws should be accessible and deliberated in public. The House and the Senate have held no hearings on the bills to repeal and/or replace the ACA. The bills have been drafted in secret and hidden from scrutiny until the last possible moments, making it impossible to discuss their contents. When they could, sponsors have attempted to obtain votes before the bills were analyzed by the Congressional Budget Office. On July 25th, the motion to proceed on the Better Care Reconciliation Act was passed without any Senator or any citizen knowing the content of the bill that they were about to debate. Until July 26th, the bills have been considered without opportunities for legislators to introduce amendments. Here is Bill Kristol, no friend of liberal health care bills:
If GOP votes to proceed to a bill w/ no text, no hearings, no CBO score, no clarity on Byrd rule, they deserve the fiasco they’re inviting.
— Bill Kristol (@BillKristol) July 25, 2017
The deliberation of the ACA-repeal bills has been limited by design. These bills are strikingly unpopular, with public approval rates in the low twenties or teens. The sponsors have hidden the bills from scrutiny because they know that the more these bills are discussed the less chance they have of passing.
But why should anyone care about legislative process? Jaded realists say that what matters is what gets passed, not how, and that only losers care about process.
The jaded realists are dangerously wrong. Deliberative process matters for two reasons.
First, we’re less likely to make good policy decisions without public deliberation. Of course, democracies have often made terrible, tragic decisions. Nevertheless, if neither citizens nor legislators know the content of legislation, they’re less likely to make decisions that cohere with either facts about the world or the values of citizens.
Second, if our governing processes abuse even minimal requirements of rational deliberation, we do not have a democracy. Democracy is valuable for its own sake, not just because it promotes better decisions. Democracy means that we all participate as equals in making the decisions that concern us. This cannot happen if the proposed laws are inaccessible. Amy Guttman and Dennis Thompson argue that in a democracy,
Persons should be treated not merely as objects of legislation, as passive subjects to be ruled, but as autonomous agents who take part in the governance of their own society, directly or through their representatives. In deliberative democracy an important way these agents take part is by presenting and responding to reasons, or by demanding that their representatives do so, with the aim of justifying the laws under which they must live together. The reasons are meant both to produce a justifiable decision and to express the value of mutual respect. It is not enough that citizens assert their power through interest-group bargaining, or by voting in elections… Assertions of power and expressions of will, though obviously a key part of democratic politics, still need to be justified by reason. When a primary reason offered by the government for going to war turns out to be false, or worse still deceptive, then not only is the government’s justification for the war called into question, so also is its respect for citizens.
The abuse of legislative process undermines the moral core of democracy, which is the mutual respect of equal citizens.
