Representation within the Senate is breaking down. Excluding the minority from the debate over the AHCA accelerates that breakdown.
Republicans in the U. S. Senate are drafting their version of the American Health Care Act in secret. That fact has generated considerable criticism, but it is not the most disturbing feature of the process. Transparency is not always a good thing. Closed doors sometimes make honest deliberation and compromise possible.
That the majority is legislating without the minority in the room does far greater violence to parliamentary principles. The participation of members in the legislative process is as important as voter participation in the electoral process. It confers legitimacy on the outcome. It is what commits us to agree to what we do not agree with. In the parlance of British politics, it makes the minority party the “loyal opposition.” Exclude the minority from the process and there is nothing loyal about it. There is no accountability to those charged with holding the government accountable.
The erosion of democratic norms in Congress is both ugly symptom and deep cause of the partisan warfare that is crippling it. If the process is not legitimate, any attack, any tactic is justifiable. Even longstanding rules and procedures give way to partisan ends. Members of the minority do not simply disagree with the policy that comes out of the process. They do not accept it. They become angry about it. Justifiably so.
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It is tempting to believe that this is just the way Congressional politics works. In response to Democrats’ protests, Mitch McConnell simply smirks. After all, weren’ t the Democrats hyper-partisan when they passed the ACA in the first place? Turnabout is fair play.
The final vote in the Senate was perfectly partisan. But it is not true that the process was partisan. In the drafting of the ACA in 2009, Senate Finance Committee Chair Max Baucus formed the “ Gang of Six ” – a group of three Democrats and three Republicans who met in secret dozens of times and long hours to hammer out a bill at least tolerable to the minority. In the end no Republicans signed on, but that is no fault of the process. Baucus and his staff welcomed Republican participation and by all accounts did so in good faith. In the subsequent committee markups, Republicans offered dozens of amendments.
This year’s process is very different. In effect, the Republicans have created a special committee to mark up the AHCA but assigned no minority members to it. This is nothing like the regular committee markup process. In a standing committee, the parties are represented in rough proportion to their numbers in the chamber. When bills go through committee markup, any member, regardless of seniority or party, can offer amendments, participate in the debate, raise points of order, and cast votes. The minority can even place its own bill on the agenda, as an “amendment in the nature of a substitute” to the majority proposal.
Of course, the Democrats are not innocent in the procedural warfare on Capitol Hill, especially in the House. In this respect, McConnell has reason to smirk. But there is much more at stake than the Democrats’ comeuppance. Representation within the Senate is breaking down. Excluding the minority from the debate over the AHCA accelerates that breakdown, and it will last long after the fight over the AHCA recedes into legislative history.
The Senate cannot itself undo its own polarization; the sources of members’ policy preferences lie outside Washington, D. C. But it does control its own internal procedures. Minority rights have already eroded in the House. Historically, the Senate has shown greater respect for those rights, but exceptional measures are needed to arrest the rapid decay there too.
In the midst of a highly visible, bloody fight over the AHCA, we cannot expect the majority to act as if they are disinterested in matters of procedure. Reversing the breakdown in democratic norms will require some imaginary detachment. The Senate should empower a special committee, composed of an equal number of majority and minority members, and charge them to develop internal reforms under what the philosopher John Rawls calls “a veil of ignorance.” That is, the committee members must pretend not to know whether or when they will be in the majority. In this way both sides confront the same problem from the same perspective.
Under this veil, how should they trade off the rights they want when in the minority against the ability to enact their agenda when in the majority?
Should the exercise work, it will still be difficult to institutionalize whatever reforms come out of it. Procedural agreements are never very sticky. Nuclear options are always available. But some reform process, independent of momentary politics, is needed. The greatest deliberative body is descending into a system where the majority’s policy ends justify any undemocratic means. The minority might as well take a seat in the gallery.
Richard L. Hall is professor of political science and public policy at the University of Michigan. He is the author of ” Participation in Congress.”
