Tags: republicans | tax reform | legislation | due process

GOP Shirks Due Process of Legislation With Backroom Tax Reform

GOP Shirks Due Process of Legislation With Backroom Tax Reform
U.S. President Donald Trump speaks about tax reform during a bicameral meeting on December 13, 2017, at the White House in Washington, D.C. (Chris Kleponis - Pool/Getty Images)

By Monday, 18 December 2017 03:00 PM Current | Bio | Archive

Grover Norquist persuaded most Republicans striving for national office to pledge to vote against all tax increases. Wouldn't it be wonderful if candidates from all parties would pledge to support only legislation written in an open and orderly way, with public circulation of final wording well before the vote?

The legislation currently slithering its way through Congress suggests that Republicans don't mind violating Norquist's Pledge if they can work in back rooms, concealing increases by embedding them in an overall decrease and by their bill's horrible complexity — raise a little here, cut a little there, who knows how it will add up? Many will notice increases only when filing their 2018 taxes in 2019, conveniently after the 2018 elections.

Norquist's success in manipulating politicians into painting themselves into a fiscal corner is a fascinating example of political entrepreneurship, albeit in a bad cause. His approach should be emulated by those of us seeking to promote orderly legislative procedures.

The currently impending tax "reform" conspicuously lacks any systematic procedure in its design and enactment. Many observers, including even a few Republicans, have complained that Republicans have not held committee hearings, called in experts to testify about the consequences of doing this or doing that, examined alternative possibilities, or allowed public observation of deliberations. Evaluations by the Congressional Budget Office and other non-partisan experts have been ignored or dismissed as incorrect. There has been no due process of legislation.

We are familiar with due process of law which the Constitution requires before anybody can be convicted and deprived of "life, liberty, or property." It is important not to inflict sanctions on anybody arbitrarily. There is no analogous constitutional requirement to observe due process of legislation, but an orderly legislative process is even more crucial than due process of law. Failure to observe due process of law injures only particular individuals. Failure to observe due process of legislation can injure large numbers of people.

Congress itself has recognized that shooting from the hip is a terrible way to enact rules affecting the public. Rule-making by administrative agencies became more important after many new boards and commissions were created during the Depression, so shortly after World War II Congress enacted the Administrative Procedure Act of 1946. The Act requires administrative agencies to publish proposed rules in the Federal Register, collect criticisms and suggestions for a considerable period, and consider this feedback before finalizing the rules. Appropriately, this important Act drew on ten years of Congressional deliberations before it was enacted, and only part of this delay was caused by the higher priority of wartime legislation.

Although the Constitution does not mandate due process of legislation, the fact that Congress imposed strict procedural requirements on administrative rule making suggests that Congress should hold itself to a similar same high standard. After all, administrative rules only fill in the details on laws enacted by Congress, whereas acts of Congress can have far wider consequences.

Americans need to recognize that the current behavior by our representatives in Congress is a grave threat to the political integrity and effectiveness of our government. And just replacing current Republican majorities with Democratic majorities might not solve this problem. If Democrats retook Congress they might suddenly find the current Republican tactics less reprehensible and more of an opportunity for themselves. As we have seen when Republicans abruptly abandoned their erstwhile sacred opposition to deficit financing, in politics people often invoke principles in a highly unprincipled way, and Democrats are only human.

What is needed is a bipartisan solution, and here is where a Norquist-like pledge could play a major role. If two leading senators from the two parties were to jointly promote a pledge to observe due process of legislation and urge voters to oppose candidates who do not take that pledge, it might just do the trick. I am unsure who would be the best senators for these roles, but one possibility would be Elizabeth Warren and John McCain, representing both parties, east and west, and men and women.

Candidates would pledge to vote on legislation only after:

  • It has undergone protracted public examination by committees
  • Expert witness testimony and public comments have been considered, and
  • The final version of the legislation has been published and made available to all members of the Congress and the public for a period of 60 days.

Exceptions for national emergencies could be allowed by a vote of 2/3 of both houses.

The late Harold J. Berman was a Harvard Law School professor who ran the Liberal Arts Fellows program that I participated in during a 1970-1971 sabbatical. He used to say that procedure is the heart of law. It is time for our public and our politicians to recognize that procedure is also the heart of legislation.

Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. He received his Ph.D. from Johns Hopkins University in 1966, and has been a National Merit Scholar, an NDEA Fellow, a Woodrow Wilson Fellow, and a Fellow in Law and Political Science at the Harvard Law School. His college textbook, "Thinking About Politics: American Government in Associational Perspective," was published 1981 and his most recent book is "The Case of the Racist Choir Conductor: Struggling With America's Original Sin." His columns have appeared in newspapers in Michigan, Oregon, and a number of other states. To read more of his reports — Click Here Now.

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Failure to observe due process of legislation can injure large numbers of people.
republicans, tax reform, legislation, due process
Monday, 18 December 2017 03:00 PM
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