The Process of Passing Health Care

By Megan McArdle

Libertarians are process people, something that our political opponents find impossible to believe can be real, rather than disingenuous.  So when I say that I think Lawrence v. Texas might be the right result morally but the wrong result legally, it must be that I secretly want sodomy to be illegal, or at the very least don't care.  Or when I am troubled by government intervening in the Chrysler bankruptcy process, it's because I hate unions.  And of course, when I am against post-hoc legal judgments against bankers or their bonuses, it's just because I'm an apologist for rich people.

But to a libertarian, process matters.  Having a good process is better than getting a good outcome, because a good process is one that maximizes your chances of getting good outcomes over time. 

Which is why the process for generating a health care bill has been so disturbing for me.

I'll say up front that I don't want this bill to pass, regardless of how it is passed.  This is not a complaint that those damned Democrats are insisting on trying to pass parts of their agenda.  But I really do think that in the process, they've discovered some troubling innovations that are going to make our political process substantially worse in the future.

Before you stop reading, no, this is not another in the long litany of free-market outrage against lobbying and log rolling.  These things are outrageous. They're also how business has been done in Washington for 200 years.  I would prefer that they not happen, but they are not so remarkable as to be worth complaining about.

My procedural complaints are somewhat more obscure.  The biggest one is that I am beginning to believe that in order to get this bill passed, the Democrats basically gutted the CBOl.  Not because they were working with the CBO to get estimates--that's the CBO's job, to provide Congress with a cost.  But rather, because this bill was something novel in the history of legislation.  Previous Congresses wrote bills, and then trimmed them to get a better CBO score:  witness the Bush tax cut sunsets.  But the Congressional Democrats started out with a CBO score they wanted, and worked backward to the bill.  They've been pretty explicit about the fact that no one wants this actual bill; rather, the plan is to pass basically anything, and then go and totally rewrite it when the budget spotlight is off.  I'm not aware of any other piece of legislation that was passed this way.

Essentially, the Democrats have finished the process of gaming the CBO scores.  They're now meaningless.  You don't pass a piece of legislation that bears any resemblance to what you intend to end up with; you pass a piece of legislation that gets a good CBO score, and then go and alter it piece by piece. 

This is obviously troubling because major bills will no longer have any meaningful deficit control--minor bills will presumably be done the old fashioned way, where congressmen have an actual passing interest in cost-benefit analysis. 

But it's also troubling because Democrats aren't going to go back and modify the bill into something good, the way that many of them are currently imagining.  The bill will be modified, piece by piece, according to the same crappy process that produced the current monstrosity:  horse trading, log rolling, and all. (Yes, even if you use the magic of budget reconciliation, which still offers lavish opportunities for pork and stupidity).  Some of the things you think you are going to get, you won't; they may very well be the crucial parts that make everything else work as you actually plan.  At every step, the bill is probably more likely to get worse than to get better.  At any rate, passing a bill based on either a meaningless CBO score, or the notion that it can be rewritten to spec at some later date, is not a process for generating good legislation.

Meanwhile, the Democrats are apparently attempting to prevent future Congresses from altering bits of the legislation that they do like:

Senator Jim DeMint (R-S.C.) pointed out some rather astounding language in the Senate health care bill during floor remarks tonight. First, he noted that there are a number of changes to Senate rules in the bill--and it's supposed to take a 2/3 vote to change the rules. And then he pointed out that the Reid bill declares on page 1020 that the Independent Medicare Advisory Board cannot be repealed by future Congresses:

there's one provision that i found particularly troubling and it's under section c, titled "limitations on changes to this subsection."

and i quote -- "it shall not be in order in the senate or the house of representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection."

this is not legislation. it's not law. this is a rule change. it's a pretty big deal. we will be passing a new law and at the same time creating a senate rule that makes it out of order to amend or even repeal the law.

i'm not even sure that it's constitutional, but if it is, it most certainly is a senate rule. i don't see why the majority party wouldn't put this in every bill. if you like your law, you most certainly would want it to have force for future senates.

i mean, we want to bind future congresses. this goes to the fundamental purpose of senate rules: to prevent a tyrannical majority from trampling the rights of the minority or of future co congresses.

All politicians attempt to make their pet projects as difficult to repeal as possible, but as far as I know, this is an unprecedented and troubling power grab.  If this sort of tactic became common in legislation--and actually worked--the country really would become, as the liberals have been complaining, "ungovernable". 

Before my readers start accusing me of hypocrisy--I just complained that the process of changing the bill will be messy and likely to make it worse, and now I'm complaining that Reid is trying to prevent the bill from being changed--let me explain.  These are two different problems.  Legislation does sometimes need to be changed.  Making it impossible to do so is not a good idea.  But passing crappy legislation that has to be changed in order to function as you desire it is not a good idea. 

Think of it as building a bespoke suit.  They usually do need to be altered after the first cut.  But if your wife wants to order a dress, while you want a new blazer, you don't order a dress on the assumption that you can later have it altered into a blazer.  This is a particularly stupid idea if the same wife has to approve each of the individual alterations.  You are not likely to end up with a serviceable blazer, or even a decent miniskirt.

I do actually understand Reid's intent:  they are trying to set up an institution that can make binding cuts to medical services, which is difficult to do if that institution is subject to political pressure.  I quite agree that without such a provision, the institution is unlikely to work.

But process matters.  What if your select commission runs amok?  Or what if 80-90% of Americans simply hate it and don't want it? It is neither practically nor ethically desirable to appoint a dictator.  Nor is any man so wise that he should be able to enshrine his preference into unchangeable law for all time.

Luckily, a friend who has covered senate procedure in other contexts assures me that this probably will not work: as a law, it's unconstitutional, and Senate rule changes require a 2/3rds majority that they are not going to get.  And the undermining of the CBO process is probably more useful to Democrats than Republicans, because tax cuts are hard to game, and no one cares what wars cost.  (Prospectively, I mean.  People start caring when we start losing.)

So we've only mostly, not totally undermined the CBO process.  But when we get these kinds of massive power shifts in the course of passing one bill, it's hard not to wonder what's next.

This article available online at:

http://www.theatlantic.com/business/archive/2009/12/the-process-of-passing-health-care/32462/