Wednesday, January 5, 2022

Voluminous and Incoherent

With Senator Joe Manchin apparently putting the kibosh on President Biden’s “Build Back Better” legislation, it’s time to take a serious look at how Congress goes about the business of lawmaking. Either Alexander Hamilton or James Madison (it is undetermined who) famously wrote in Federalist No. 62, “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood….” [1]

The House version of the Build Back Better Act is 2466 pages long. [2] Your humble servant would like every member of the House of Representatives who voted on the bill (yea or nay) to swear under penalty of perjury that they read and understood the whole thing, including this part: 

“Section 1860D-2(b)(2) of the Social Security Act (42 U.S.C. 1395w-102(b)(2)), as amended by section 139201, is further amended–

“(1) in subparagraph (A), by striking ‘Subject to subparagraphs (C) and (D)’ and inserting ‘Subject to subparagraphs (C), (D), and (E)’; and           

“(2) by adding at the end the following new subparagraph:                   

“’(E) Enrollee option regarding spreading cost-sharing.–The Secretary shall establish by regulation a process under which, with respect to plan year 2024 and subsequent plan years, a prescription drug plan or an MA-PD plan shall, in the case of a part D eligible individual enrolled with such plan for such plan year who is not a subsidy eligible individual (as defined in section 1860D-14(a)(3)) and with respect to whom the plan projects that the dispensing of the first fill of a covered part D drug to such individual will result in the individual incurring costs that are equal to or above the annual out-of-pocket threshold specified in paragraph (4)(B) for such plan year, provide such individual with the option to make the coinsurance payment required under subparagraph (A) (for the portion of such costs that are not above such annual out-of-pocket threshold) in the form of periodic installments over the remainder of such plan year.’.” [3]

But I wouldn’t dream of being so strict with you, dear reader. Instead, I will provide the bill summary prepared by the Congressional Research Service:

“This bill provides funding, establishes programs, and otherwise modifies provisions relating to a broad array of areas, including education, labor, childcare, health care, taxes, immigration, and the environment. (The bill is commonly referred to as the Build Back Better Act.)

“For example, the bill provides funding for

    management of the National Forest System;

    job placement and career services;

    safe drinking water, energy-efficiency, and weatherization projects;

    electric vehicles and zero-emission, heavy-duty vehicles;

    public health infrastructure and supply chain resiliency;

    housing, rental, and homeowner assistance programs;

    cybersecurity programs;

    tribal infrastructure, housing, environmental, and health programs;

    wildfire prevention, drought relief, conservation efforts, and climate change research;

    small business assistance and development;

    transit services and clean energy projects in low-income communities; and

    infrastructure and administration of the Department of Veterans Affairs.

“Additionally, the bill establishes programs to provide

    up to six semesters of free community college,

    free child care for children under the age of six,

    free universal preschool services, and

    health benefits for eligible individuals who reside in states that have not expanded Medicaid.

“The bill also includes provisions that

    establish a methane fee for certain petroleum and natural gas facilities;

    expand Medicare to cover dental, hearing, and vision care;

    provide certain aliens with a path to permanent resident status (e.g., those who entered the United States as minors);

    provide up to 12 weeks of paid family and medical leave;

    restructure and increase the tax rates for certain corporations and high-income individuals (e.g., individuals with income over $400,000); and

require the Department of Health and Human Services to negotiate maximum prices for certain brand-name drugs under Medicare.” [4]

Those who have any objection to the program outlined here should imagine that they believe that a nation cannot actually run out of its own fiat currency, that CO2 really is a greenhouse gas produced by burning fossil fuels, and that it is possible for there to be social and political goals more worthy than minimizing the tax burden on the wealthy. What I will say hereafter, therefore, will not be born out of a disdain for what appears to be the intent of the legislation.

But I have much disdain of the violation of the principle enunciated by Hamilton and/or Madison in Federalist No. 62 that is to be found in the proposed Build Back Better Act. Politicians have been holding forth on the Act on television, and, given the well-known propensity of the political class for truth-telling, it is difficult for the non-predisposed citizen to know who to believe. Probably neither side is a likely and sensible conclusion.

In the quest to understand the issue of whether it would be in the best interest of the country for the legislation to pass, most of us are at the mercy of our nation’s news media, which is no longer the non-profit, non-partisan enterprise it once was. There could be a work around if we could read the legislation for ourselves, but it’s, as I mentioned, 2466 pages long, and contains language such as is contained in the foregoing example. (Why, it’s almost like they were trying to obscure the contents of the proposal on purpose.)

It is likely that few, if any, news reporters have read the entire bill; and we should be dubious if any member of Congress claims to have read the whole thing.

How is representative democracy supposed to work if people don’t know what is being proposed by their legislature? It can’t, obviously. How can it work if we can’t really tell whether we are being represented? Well, we already knew we weren’t being represented. But now we understand a critical mechanism for making that work.

It doesn’t have to be this way. Each of those items listed in the legislative summary could be handled as separate bills. The effect this would have on members of Congress acting in the public interest would be enormous. Imagine the optics of a senator or representative voting against a bill requiring Medicare to negotiate drug prices; or expanding Medicare to cover dental, hearing, and vision care. But in a bill that covers many subjects, and that no one reads, a member of Congress can conceal his disdain for easing the financial burden on the elderly (which would be popular with that reliably voting segment of the population), and claim it is because he strongly opposes some less popular provision in the proposed legislation.

It is a systemic defect that assists politicians in a quest to conceal their motives from the voters. But there are remedies.

Forty-one “states currently have a single subject provision in their constitution which states that any legislation passed must deal with only one subject or it will be repealed. For example, the Florida Constitution reads: Art. III, Section 6 – Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title.” [5] And there is currently an effort to have that requirement imposed on Congress in the U.S. Constitution.

Such provisions also have benefits beyond preventing political chicanery. They also enhance the freedom of the more public servant minded among legislators from being presented “with the ‘Hobson’s choice’ of being ‘forced to assent to an unfavorable provision to secure passage of a favorable one, or conversely, forced to vote against a favorable provision to ensure that an unfavorable provision is not enacted.’” [6]

Other considerations are “improved legislative deliberation, greater transparency, and the resulting greater accountability to the public as purposes of the single-subject rule. As the Illinois

Supreme Court recently explained, one reason for the single-subject rule ‘is to promote an orderly legislative process. . .. “By limiting each bill to a single subject, the issues presented by each bill can be better grasped and more intelligently discussed.”’ The Missouri Supreme Court similarly asserted that by limiting each bill to a single subject, the rule enables bills to ‘be easily understood and intelligently discussed, both by legislators and the general public.’ So, too, the Pennsylvania Supreme Court has urged that the general aim of the rule is to ‘place restraints on the legislative process and encourage an open, deliberative, and accountable government.’”

With a single subject rule in place, legislators can more easily understand the effects of proposed legislation. Just as importantly, the rule makes it easier for voters to understand what their legislature is doing. That, in turn, enhances legislator accountability.

The problem, however, is that courts have found the idea of a single subject difficult to define, and court decisions across the country have been inconsistent. And it has been objected that the “single-subject rule’s view of relatively tidy, separate topic-by-topic deliberation and enactment is often in tension with the coalition-building and deal-making necessary for the legislative process to work in practice.”

But as for the coalition-building and deal making, this can be accomplished with more than one piece of legislation. True, a legislator might agree to vote for a subsequent bill in exchange for another legislator’s vote for a bill currently before the body, then renege. But his reputation among his fellows would be seriously damaged by such an act, and, because of that, it wouldn’t be a course of action often repeated.

As for the definitional problem, a more workable solution might be to require that any language in a bill that can logically be severed must be. This probably wouldn’t make the problem entirely disappear, but the rules of logic are both objective and knowable. Language like that should be included in a single subject amendment to the federal Constitution.