Sunday, November 19, 2017

Evolving Changes In "Regular Order" Need Fixing

At a press briefing on November 17, Kevin Hassett, the Chairman of the Council of Economic Advisers explained what the President and Administration believe are the many benefits of either the House or Senate tax “reform” bill.  He made several special points to note the President’s strong support for “regular order”:

 “. . . the President has supported, from the beginning, regular order because he doesn’t think that we have to wait until the thing becomes law to learn what's in it; that the right thing to do is to expose the bills to scrutiny and debate. . .

“The President supports regular order because that's really how deals get made and how bills become law. . . And we encourage them to pursue regular order because they need to listen to everybody and get the votes they need to make this law. . .

“The fact is that they're finding the coalitions that they need to pass the bills in the House and the Senate. And we support that process. We support regular order. We support the transparency that leading debate about issues like this.”(WH press statement, Nov. 17)


On November 13, Speaker of the House Paul Ryan, discussing the Tax Cuts and Jobs Act (H.R. 1), said he had learned from the health care fiasco and said this time Republicans were utilizing “regular order.”

“We’re doing this the right way. We’re doing this the regular order way,” Ryan said Thursday at his weekly news conference. “It takes time, but trust me, we’re going to get this over the finish line.” (Roll Call, Nov. 13)

On November 13, Senate Finance Committee Chairman Orrin Hatch (R-UT), announced the Senate markup bill for the Tax Cuts and Jobs Act. A product produced in a backroom, suddenly launched onto the public stage. Like Paul Ryan, Hatch claims that the bill is the result of a long process of political compromise.

“Today’s markup is the culmination of a years-long tax reform effort.  On this committee, both parties have been engaged in this endeavor, which has included the work of multiple chairmen – from both sides of the dais – and almost every member.”(Hatch news release, Nov 13)

So the President, the House and the Senate are all claiming that they are using the “regular order” process to develop and pass their major tax reform proposal. Let’s examine that premise.

Remember back on July 26, 2017, at the height of the Health Care debate, following months of angst by Republicans and their failed attempts to fulfill their promise to “repeal and replace” Obamacare? At that point, Sen. John McCain (R-AZ), returned to the Senate after brain cancer surgery and delivered a lengthy and emotional statement scolding the Senate and leaders on the process that had lead to the health care debacle and the embarrassment of not being able to pass meaningful legislation. He said the Party needed to go back to the days of "regular order."

“Our responsibilities are important, vitally important, to the continued success of our Republic. And our arcane rules and customs are deliberately intended to require broad cooperation to function well at all. The most revered members of this institution accepted the necessity of compromise in order to make incremental progress on solving America’s problems and to defend her from her adversaries.
“That principled mindset, and the service of our predecessors who possessed it, come to mind when I hear the Senate referred to as the world’s greatest deliberative body. I’m not sure we can claim that distinction with a straight face today. . .
“I hope we can again rely on humility, on our need to cooperate, on our dependence on each other to learn how to trust each other again and by so doing better serve the people who elected us. Stop listening to the bombastic loudmouths on the radio and television and the Internet. To hell with them. They don’t want anything done for the public good. Our incapacity is their livelihood.
“Let’s trust each other. Let’s return to regular order. We’ve been spinning our wheels on too many important issues because we keep trying to find a way to win without help from across the aisle. That’s an approach that’s been employed by both sides, mandating legislation from the top down, without any support from the other side, with all the parliamentary maneuvers that requires.
We’re getting nothing done. . .
“Why don’t we try the old way of legislating in the Senate, the way our rules and customs encourage us to act. If this process ends in failure, which seem likely, then let’s return to regular order
“Let the Health, Education, Labor, and Pensions Committee under Chairman Alexander and Ranking Member Murray hold hearings, try to report a bill out of committee with contributions from both sides. Then bring it to the floor for amendment and debate, and see if we can pass something that will be imperfect, full of compromises, and not very pleasing to implacable partisans on either side, but that might provide workable solutions to problems Americans are struggling with today.
What have we to lose by trying to work together to find those solutions? We’re not getting much done apart.(The Hill, Jul. 25, emphasis added)
Senator McCain’s request was noble and reflects on a past period where politics were robust but maintained at least a modicum of decency. His comments also reflected the will of most Americans.

Most people and businesses long for more stable, balanced legislative process that results in laws that will last with periodic updates over time. They want laws that they can count on and plan on for the future.

A March 2017, CNN/ORC poll found that 72% (+/- 3%) would like to see Donald Trump attempt to reach a bipartisan compromise on bills that he tries to get through Congress. 25% indicated it was okay to pass laws without Democratic support. In the same poll, 69% said Democrats in Congress should attempt to reach bipartisan compromise on bills that Donald Trump tries to get through Congress. (CNN/ORC poll)

Likewise, a No Labels/Hudson Pacific poll in January 2017 found that on the issue of Healthcare; 73% of Republicans and 87% of Democrats want a bipartisan approach to reform. The poll also found that 83% of the American public thinks laws are more effective when parties compromise and arrive at a bipartisan solution.(No Labels/Hudson Pacific poll)

A Reuters/Ipsos opinion poll conducted October 14-23, 2017 found that 62 percent of Americans want former President Barack Obama’s healthcare law to be maintained, and about half – including 51 percent of Democrats and 56 percent of Republicans – want “a bipartisan group” rather than just members of their own parties to improve the healthcare system. (Reuters/Ipsos poll)

Despite these overwhelming indicators of public desires (and there are many), Washington politics have devolved into a tribalistic, deviant political system that is so distorted that politicians frequently act contrary to their own sense of right and wrong or their political principles, simply to win a point or gain a "victory."

Republicans, who now control the power in Washington have not heeded Senator McCain’s advice. They have not attempted to alter the futile process that led to a complete failure to deal with the issue of health care. Instead, they have doubled down on their hopeless and arrogant process by side-stepping a successful bipartisan effort by Senators Alexander (R-TN) & Murray (D-OR) to provide a fix (at least temporary) for the Affordable Care Act (ACA, Obamacare).

And now they are attempting to emphasize that they are utilizing the “regular order” process. Ryan's claim that the Tax Cuts and Jobs Act (H.R. 1) was developed by "regular order" is a farce. The bill was "fast tracked" through the Ways & Means Committee where Republicans out number Democrats 24-16. There were no Subcommittee or Committee hearings to discuss or debate the bill. There were no expert witnesses called or public hearings held.

The 447 page bill was drafted in secret, introduced November 2, marked up and reported out November 9, and passed the House on  November 16 (227-205, with all Republican votes (13 Republicans joined 192 Democrats voting against). (H.R. 1)

In 16 days, from introduction to passage, House Republicans cheered and applauded themselves for passing their one-sided solution to tax reform. Democrats called the bill a “canard.” The President called Democrats “obstructionists” and congratulated Republicans on a “GREAT tax bill.”

From the start it was designed to be passed with strictly Republican votes. At the one mark-up meeting of the Committee, Democrats offered numerous amendments, "to make this legislation less disastrous for middle-class families,” and more acceptable to their Party". However, every one was voted down on strict Party lines.

THIS IS NOT REGULAR ORDER. This is not what Senator McCain was talking about. Far from it, it's another attempt to force one-sided solutions to complex problems on the American public which is destined to failure either now or the next time the political power changes in Washington, DC. So don't count on any long term effects from this charade.

While you might want to think that the U.S. Senate, “the world’s greatest deliberative body,” would be more sophisticated in its approach and exercise more decorum; forget it! They have chosen the similar dead-end process – only worse!

Senator Hatch’s statement, like Ryan’s, is totally deceptive. The Republicans have no intention of working with Democrats to achieve passage of “their” tax bill. And that is no secret because they have chosen up front to utilize the reconciliation process, which is widely known as the most partisan process in Washington and requires only a majority (51 votes) to pass and would not require any Democratic votes.

Additionally, this major and incredibly important bill will be subject to no public hearings or expert witness testimony. And, like the House bill, it is expected to be considered on the Senate Floor in about 2 weeks (the week after Thanksgiving).

And when you thought the process could not be more distorted, on November 14, the Senate leadership indicated it had authorized adding to the bill a repeal of the individual mandate in the Affordable Care Act.

First of all, this is one of Congress’s worst tricks of gridlock and deception – i.e. tacking on “unrelated bills and riders” to important legislation. Secondly, the proposal will “save” or “hijack” (depending on your perspective) $338 billion in revenue that would have been used to lower insurance premiums for low and middle class individuals.

Senate Republicans said the measure had widespread support among their members. The Congressional Budget Office said the measure would increase the number of Americans without health insurance by 13 million by 2027 (4 million in 2019) and raise ACA insurance rates by 10% annually over the next decade. (Reuters, Nov. 14)

Following the announcement of this “modified Chairman’s mark” of the Tax Cuts and Jobs Act, Ranking Member of the Senate Finance Committee, Ron Wyden (D-OR) said:

“This does not resemble, no matter how much my colleagues on the other side say otherwise, the regular order in the Finance Committee. This is reckless haste.” (Wyden release, Nov. 14)

Senate Republican leader Mitch McConnell told reporters:

“We’re optimistic that inserting the individual mandate repeal would be helpful and that’s obviously the view of the Senate Finance Committee Republicans as well.” (Reuters, Nov. 14)

Similar to the consideration in the House, the Senate Finance Committee, which consists of 14 Republicans and 12 Democrats, held markup meetings. In all, some 355 amendments were considered with those proposed by Democrats being voted down along party lines or considered non-germane. Like the House, Democrats have no power on any Committees because they are outnumbered in the Committee membership.

So despite the fact that the House tax reform plan is widely unpopular and the Senate plan, now with the inclusion of the ACA amendment is unlikely to pass, we are left with another dead-end on tax reform. While the House bill passed with all Republican votes, the Senate bill will probably not gain the required 51 votes from Republicans (two have already announced their opposition).

While it’s possible that further modifications might achieve narrow passage in the Senate, we will be left with a bill that can only receive the narrowest of support from the Republicans in power and no support from the other half of the country that has different ideas.

Donald Trump will likely sign any bill that makes it to his desk and claim that it will be the BEST, MOST MASSIVE, GREATEST tax reform in history because of his leadership.

However, the new law would only be in place until the next Party power change in Washington. So small businesses, major corporations and individuals would be ill-advised to make any long term plans based on whatever may be approved.

So what is this regular order process that Senator McCain remembers? -- the “old way” where members “accepted the necessity of compromise.” Where there was “humility” and a “need to cooperate.” Where they “trust each other” and work “together to find solutions.” As we can see from above, there are some different views on what constitutes regular order.

Well, not too long ago there was a better “regular order” process that had been used for years; it was founded in the committee review process. Subcommittee and committee reviews that included extensive expert testimony, public hearings, input and review, public comment periods, fair and reasoned deliberation and debate of ideas and amendments before final approvals.

However, there was a fundamental flaw even in the old regular order process that Senator McCain remembers. In past times, when political polarization was not as intense and tribalistic as it is today, this flaw was often worked around with now foreign concepts of civility, cooperation, fairness and professional courtesy.

The flaw is based on the erroneous concept that if one Party wins a majority in the House or Senate, or the Presidency for that matter (even by the narrowest of margins), that they then have a mandate to carry out their agenda and can ignore the views of the other half of the country and develop and approve legislation that reflects only their views. 

The flaw is the Party representation ratio within individual committees and subcommittees. As indicated above, the House Ways & Means Committee contains 24 Republicans and 16 Democrats. Similarly, the Senate Finance Committee consists of 14 Republicans and 12 Democrats.

With this Party power control, Republicans were able to completely control the committee review process, ignoring any alternative bills, shutting down subcommittee review, debate, public hearings, expert testimony and voting down or procedurally disapproving any Democratic amendments.

In older times when there was greater respect for the process and more statesmanship among members, there was greater cooperation among committee and subcommittee members and thus the unequal representation had a diminished impact. Even with the lopsided majority Party representation, the commitment to follow the regular order process through subcommittee, committee, public hearings, expert testimony, reduced the impact of the majority Party control. Expert testimony, public hearings and related media coverage, as well as the length of the process, would often expose political shenanigans, deception or fake claims before final considerations.

However, in today’s highly charged political environment the Parties have seized on this advantage to exercise absolute control of the process in pursuit of their perceived “mandate” and their ideological agenda. The result is reckless, short-sighted legislative solutions to complex issues and problems jammed into a politically charged, drama-filled two or three week process. Political leaders of the party in power emerge from their dark backroom with their divinely inspired solution, which is then frantically hustled with little review and last minute deals to the Floor for final approval.

The transition from the old, systematic regular order where legislation evolved from a methodical, bottom up process (i.e. subcommittee to Floor vote) to the new altered top down process (i.e. leadership proposal to Floor vote) has occurred subtly over the last couple of decades.

Senator Wyden recently commented on the Committee’s markup meeting indicating:

“This is not a real, honest-to-God attempt to have a full bipartisan debate on tax reform that gives everybody a chance to get ahead. . . Colleagues, this is nothing like the thoughtful, measured bipartisan approach that defines Reagan-style tax reform. This is not a process that brings together the best ideas from both sides. This is an exercise in legislating with reckless haste. . .” (Wyden release, Nov. 16)

A couple of major reforms could vastly improve the legislative development process and go a long way toward achieving more bipartisan proposals and lasting solutions to the complex problems and issues in the country.

1.) A simple agreement between the two Parties to utilize the full and complete committee process of old. Perhaps there would need to be a clear definition of the process but it would definitely include: Subcommittee and committee reviews that included public meetings with extensive alternative expert testimony, public hearings, input and review, public comment periods and fair and reasoned deliberation and debate with respect and consideration of competing points of view before final approvals.

2.) As long as the country remains narrowly divided between Republican and Democratic ideologies Congress must learn to respect this difference and understand that one-sided solutions are not the answer and will not provide long term solutions to the nation's problems. Until there is a recognition of this fact Congressional approval ratings will remain in the range of 10-20%.

In some way the power dominance of the controlling Party must be overcome or at least reckoned with. I have written extensively on the concept of “shared legislative power” and “shared committee power” as the solution to this linchpin issue that has led to the current gridlock and dysfunction in Congress. I am not going to repeat that discussion here and refer readers to my many previous blog posts.

I have also presented examples and extensive testimony of where shared legislative and committee power has been utilized with amazing results. Again, I refer readers to previous blog posts; however, because the testimony is so powerful (26 statements) I am including one statement here from both a Democrat and a Republican.

  • (Democrat): “The best part of shared power, for me as well as many others, was the fact that relationships from both sides of the aisle improved on a personal as well as on the professional level. . . Having been in the majority and the minority, the people of the state of Michigan would be best served if each party was equally represented.”

  • (Republican): “Shared power works because it encourages each party to act like a responsible majority. . . Seize the moment. Have the vision. Change what it means to be a member of a legislative body. Make history.” [Note: this Representative presented a proposal to the co-Speakers to perpetuate the agreement into the future as an historic opportunity to move “politics not just in Michigan but nationally past sheer partisanship. . .”
 #BetterGovmt