Legislative Sneakery: A Brief Review

2009 December 6

by Dan Wood

“Suppose you were an idiot and suppose you were a member of Congress.  But I repeat myself.”

Mark Twain

“The only difference between death and taxes is that death doesn’t get worse every time Congress meets.”

Will Rogers

The miracle of Congress is that a person will speak and speak and speak, while saying nothing, and to which no one listens, but with which everyone disagrees.  Bills become more about the process, the political grudge matches, than about anything resembling the public welfare.  Toward that end, legislators have quite a few sneaky tricks at their disposal.  Of course there are the usual, high-publicity stunts like filibuster or sitting on the Senate Finance Committee so you can block all attempts at compromise.  And one of my favorite examples from history is the Civil Rights Act of 1964.  Opponents who had no interest in either racial or gender equality added language prohibiting gender discrimination, because they thought it would kill the entire bill.  The punchline:  the bill passed anyway, and the bigots had to swallow their own bitter pill.

But the one that caught my eye this week was this occurrence.  To summarize, Senate Democrats launched an opening salvo by proposing that all amendments to the Senate health care bill be published online by the sponsoring Senator.  Predictably, Senate Republicans objected.  Obviously, the Democrats proposed the idea in order to shame Republicans into dropping some of their more ridiculous amendments, in the hopes that it would speed a trimmer health care bill’s passage through Congress.  And Republicans rejected the idea not because it would “limit the ability for the minority to offer amendments,” but because a vast majority of bill amendments and riders would appall the voting public.

To be clear, no Congressman, neither Democrat nor Republican, Senator nor Representative, ever really wants the public to see the riders that attach to bills.  This, friends, is the wellspring of pork barrel spending.  This is Sampson’s long hair; Superman’s yellow sun; Arthur’s Excalibur.  Especially when the rider attaches to a must-pass bill, like a defense appropriations bill.

An Example:  The Real ID Act of 2005

In 2005, with little debate and no significant committee hearings, Congress passed a much-needed appropriations bill titled Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005.[1]  The name should clue you in.  It began life as a defense appropriations bill, but grew by accretion, as Congressmen added Tsunami aid, and one of my personal favorite misbegotten pieces of legislation, the Real ID Act.  In turn, the Real ID Act began as a simple one-note bill, but attracted unrelated amendments.

Representative James Sensenbrenner (R) of Wisconsin sponsored the original Real ID Act, which had died in committee.  It sat as a solution in need of a problem until the War on Terror came around.  Seizing the opportunity, Sensenbrenner and company brought the Real ID Act up as a measure to prevent another 9/11 occurrence, by changing the requirements for government issued photo IDs (i.e. your driver license).  Never mind that none of the Act’s provisions, had they been in effect at the time, would have hampered the 9/11 hijackers.[2]  In the bill’s progression, certain anti-immigration politicians got in on the game and tacked on new asylum legislation.[3]  Despite some opposition,[4] due to the necessity of the defense appropriations contained in the bill, it passed.  The end result is a weird amalgamation of defense procurement, driver license requirements, new visa limits for nurses and Australian citizens, waiving of laws having to do with physical barriers at borders, new asylum laws, and relief funds for tsunami victims.

Why?

The driver license provisions of the Real ID Act are a good example of what Public Choice Theory calls Entrepreneurial Politics.  I’m going to oversimplify here, so if you’re interested, I can recommend further reading to get a fuller picture of these ideas.[5]  Briefly, when negative externalities (e.g. terrorism) threaten the general welfare, legislators will ideally move to produce a more socially optimal outcome (e.g. reduced chances of terrorist attacks).  The specifics of the costs and benefits of a proposed solution present us with a model that can often predict the political outcome.  When the proposed solution broadly distributes the benefits (here, everyone is safer from terrorist attacks), but places the costs on a relative few (here, mainly DMVs), we often see “entrepreneurial politics” that produce ambitious legislation lacking in specific details, which results in administrative capture,[6] and everyone claims victory.

In our example, the Real ID Act contains very generic language about strengthening the requirements to obtain a driver license or non-driver ID card, but leaves to the Department of Homeland Security all the specifics.  Now the legislators can go home to run for reelection by talking about how they supported these tough new anti-terrorist provisions.  Meanwhile, resistance from state DMVs kept forcing Homeland Security to backpeddle repeatedly, eventually rendering the Act fairly toothless.  Everybody won.

The reason I brought up all this political science is that traditionally health care reform fell into entrepreneurial politics.  It offers distributed benefits, (Free health care for all!  Woot!), with concentrated costs (only health insurers and certain few providers would have to suck it).  In the past we saw ambitious legislation, proposing sweeping changes, which ultimately contained few specific provisions, and which, had it passed, would have run a serious risk of administrative capture rendering it toothless.  Legislators could tell voters that they championed sweeping, bleeding heart health care reform, then turn around and tell the insurance lobby that the legislation contains no specifics that can hurt them.  The lobbies then focus on whichever agency will be setting the administrative rules, and conduct a little regulatory capture voodoo.  Yay, everyone wins!  (Except for, you know, us voters.)

But something has shifted.  Here, people (voters and Congressmen both) have been somehow convinced that the distributed benefits of health care reform would result in distributed costs; that is, that many would have to bear the burden.  And perhaps they are right.  I am certainly no expert on the current incarnation of the health care bill.  In any case, when a proposed legislative solution creates both distributed costs and benefits, we typically see Majoritarian Politics.  In such instances, broad public debates produce highly charged ideological rhetoric (sounding familiar), ultimately resulting in either complete inaction or largely symbolic, ineffective action.

So What’s My Point?

In traditional health care reform battles, under the Public Choice Theory model, we had entrepreneurial politics generating the legislation.  That isn’t typically the political environment in which I would expect a majority party to propose what here the Democrats proposed:  to make transparent the amendments so that the tricks of the obstructionist minority will be exposed to voters.  Such a political climate produces the warm moist environment in which legislative bacteria grows best.  We might see a host of riders and attachments that have nothing to do with health care; we might then see passage of a bloated law more noteworthy for its riders than for its primary provisions.  The primary provisions undergo the process described above, everyone claims victory, and the riders that snuck through unnoticed by the public now screw with all sorts of things we didn’t know were on the table.

However, we now have a political/legislative environment more resembling majoritarian politics. In such cases, we might encounter a giant, deceptively vague bill that, because of all the counter-provisions, actually accomplishes very little.  This IS the type of environment where a tactic like the one proposed by Senators Reid and Lincoln might occur.  As such, this news looks like a symptom of a political condition which I think might indicate that any meaningful reform is doomed.

First of all, with something as complex as health care reform, the various proposals encompass more than simply two opposing viewpoints.  Thanks to Condorcet’s Paradox (or Arrow’s Impossibility Theorem – the two are similar, I’m not a political scientist, I conflate them a little, sorry), we’re basically screwed then.  Because there are numerous considerations, and each person ranks those considerations differently in importance, we may never achieve any sort of consensus.[7]  Secondly, Public Choice Theory predicts that we will likely end up with a mostly useless law that allows legislators on both sides crow to their constituents.  Yay, everyone wins!  (Except for, you know, us voters.)

[1]  Pub. L. No. 109-13, 119 Stat. 231 (2005), available at http://www.govtrack.us/congress/billtext.xpd?bill=h109-1268

[2] 151 Cong. Rec. H458 (daily ed. Feb. 9, 2005) (statement of Rep. Jackson-Lee), available at http://bit.ly/63Apo7.

[3] Marisa Silenzi Cianciarulo, Terrorism and Asylum Seekers:  Why the Real ID Act is a False Promise, 43 Harv. J. on Legis. 101 (2006), downloadable at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896533

[4] Letter from Senators Brownback, Lieberman, McCain, Feinstein, Alexander, Leahy, Sununu, Durbin, Hagel, Kennedy, Lugar, and Salazar to Senator Bill Frist, Majority Leader (Apr. 11, 2005) available at http://www.humanrightsfirst.org/asylum/pdf/realid/realid-frist-041105.pdf; see also Press Release, U.S. Senate, Twelve Senators Urge Frist to Keep Real ID Act Off Supplemental Appropriations Bill (Apr. 12, 2005) available at http://www.senate.gov/~gov_affairs/index.cfm?FuseAction=PressReleases.Detail&Affiliation=R&PressRelease_id=953&Month=4&Year=2005.

[5] Here are a few good sources:  Michael E. Levine & Jennifer L. Forrence, Regulatory Capture, Public Interest, and the Public Agenda:  Toward a Synthesis, 6 J.L. Econ. & Org. 167, 167 (1990); Jean-Jacques Laffont & Jean Tirole, The Politics of Government Decision-Making:  A Theory of Regulatory Capture, 106 Q.J. Econ. 1089, 1089 (1991); John W. Kingdon, Agendas, Alternatives, and Public Policies (Longman, 2d ed. 2003) (1984).

[6] For an enlightening discussion of regulatory capture in particular, read the Laffont article, supra note 5.

[7] See also chapter 6 of Beyond Post-Communist Studies:  Political Science and the New Democracies of Europe, by Terry Dee Clark:  http://bit.ly/6uKXnF.  Majority cycling basically means that we’re probably spinning our wheels on this issue.

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