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Don’t Sacrifice Deliberation for Expediency

Congress returns to a robust agenda. At the top of the list, of course, is a prescription drug benefit for senior citizens. The bill will move to conference after each house, on the eve of the July Fourth recess, voted out a separate version — with the House vote a real nail-biter, passing 216-215 on a near-party line basis after House Republican leaders kept the vote open for more than 35 minutes beyond the 15-minute allotment. [IMGCAP(1)]

In a scene reminiscent of the 1993 Clinton budget when then-Rep. Marjorie Margolies-Mezvinsky (D-Pa.) cast the tie-breaking vote, a sobbing Rep. Jo Ann Emerson (R-Mo.), according to Roll Call, returned to the chamber to reverse her negative vote and give GOP leaders their victory.

The Senate, in contrast, voted 76-21 for its version of prescription drugs, masking some intra- and interparty tensions in the chamber. The Senate floor did have its moment of drama when Sen. Edward Kennedy (D-Mass.) threatened to filibuster the bill if a means- testing provision providing higher costs for wealthy seniors was added to the bill via a Nickles/Feinstein amendment. Despite clear bipartisan support for the amendment, the filibuster threat swayed leaders to cave and drop the provision — for now.

Moving from these two very different versions to a final product will not be easy, despite the clear signals from President Bush that he will sign any bill that hits his desk and that he wants a law, and a signing ceremony, before the August recess. Although there are some surface similarities — both bills have small deductibles, followed by subsidies up to a fixed level of prescription expenses, followed by no subsidies for a larger dollar amount, followed by a “catastrophic” benefit covering either 90 percent or 100 percent of drug costs after a threshold is met — the two bills are profoundly different in their philosophical bases.

The House bill tries mightily to tilt toward more private plan involvement and to turn the benefit in 2010 into a fundamental alteration of the Medicare program, pitting traditional Medicare and private plans against each other via a competitive bidding process.

The highly partisan vote in the House and the large bipartisan vote in the Senate themselves mask some of the serious misgivings lots of lawmakers in both parties have about both bills. Many conservatives are beside themselves, believing both bills are deeply flawed and represent a huge expansion of Medicare without any serious reform — an unworkable set of formulas that will inevitably lead to more benefits for all seniors, causing both spending and the size and role of the federal government to explode ever more. Many liberals believe that they are selling out on one of their key issues, giving Bush and the Republicans a huge policy victory that removes the issue from debate in 2004 and that provides a diluted benefit that could easily result in the transformation of Medicare into a largely private program.

Who is right? Probably both sides. But let us put aside, at least for the moment, analysis of the many flaws in both bills and look at the bigger picture. After the tax cuts, prescription drugs for seniors is the biggest piece of legislation to be considered, and probably enacted, in the 108th Congress. These two policy areas have one important element in common: Both have lacked even the basics of a deliberative process.

If there is one word at the core of Congress’ essence, it is deliberation. The Framers wanted a legislative body that would deliberate — in every sense of the word.

The system of checks and balances and the legislative process as it evolved in the House and the Senate were built around deliberation. Two houses, each with considerable independent power. Multiple committees and subcommittees, creating multiple hurdles for legislation, major or minor. A process in each house requiring hearings, with argument and debate, hashing out the pros and cons of proposals, followed, if successful, by open markup sessions to put the pieces of a bill together line by line, followed by vigorous debate on the floors of both houses.

Except in moments or periods of deep national crisis (like the Great Depression) or in the immediate aftermath of a massive election landslide (the Great Society legislation passed in early 1965, after the 1964 elections, or the Reagan tax and budget plans after 1980), major legislative efforts typically take months or years and are picked apart, poked and prodded — and either changed or jettisoned — before they get sent on to the president for signature.

So how have we handled major tax cuts that represent serious change in the structure of the tax code and the nature of the tax base? And legislation that would represent the largest expansion in a domestic program in decades? By having a handful of lawmakers on the Ways and Means Committee (and on prescription drugs, the Energy and Commerce Committee) meet behind closed doors to put the House bills together, while a handful of lawmakers on the Finance Committee (along with Kennedy on prescription drugs) meet behind closed doors to cobble together a Senate version. By bypassing lengthy hearings (or for the most part, hearings at all). By invoking party discipline to make markup sessions mere window dressing. By using closed rules on the House floor to avoid any embarrassing amendments. By adding a few amendments not on their substantive merits but as bargaining chips to secure the last marginal votes for passage. By delegating Ways and Means Chairman Bill Thomas (R-Calif.) and Finance Chairman Chuck Grassley (R-Iowa) to try mano a mano to iron out differences between the chambers. (If they made a movie of the latter process, they would cast Walter Matthau and Jack Lemmon to reprise their roles in “The Odd Couple.”) None of this passes a basic deliberation test.

I recognize the immense difficulties of governing with small majorities, and I take off my hat to GOP leaders for finding ways to pass major controversial bills with little cushion to fall back on, even if they have tried to erase from their memory banks every legitimate complaint they made about majority tactics when they were in the minority.

I recognize that the practices of using closed rules, of trading legislative promises for marginal votes, of having chairmen negotiate behind closed doors, and so on, are nothing new. Democrats used them readily when they were in the majority. No tax bill of any consequence has ever been passed without dozens or hundreds of narrow, special-interest provisions designed to build passable majorities.

The change is the increasingly common use of all these anti-deliberative tactics combined for sweeping legislation of immense consequence. And it is more than the process that is taking a beating.

Deliberation makes better laws. The give and take of debate, the need to build broad-based coalitions, the involvement of varied interests forcefully pushing their viewpoints and bringing their resources to bear to challenge proposals they don’t like improves the products that emerge.

Bad ideas have less chance of surviving a deliberative process. Compromises, including bipartisan ones, tend to be better than ones that are accomplished by two old bulls behind closed doors, which can often be the worst of both worlds, not the best. The crazy-quilt tax legislation and the jerry-rigged prescription drug plans show what happens when Congress sacrifices deliberation for partisan efficiency.