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A Dysfunctional Congress
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A Dysfunctional Congress

Gilbert N. Kahn is a professor of Political Science at Kean University.

The collapse of the McConnell/Trump/ Republican healthcare reform package exposes at least two fundamental problems as to how Washington is or is not functioning today. One is institutional behavior and the second is partisanship. The matter of what has happened to the functioning of Congress will be discussed here and the question of how politics has destroyed collegiality and comradery–which was part of the legislative process in the past–will be deferred to a subsequent post.

When Congress first convened in April 1789, the respective chambers created rules and actual standing Rules Committees to establish the proper method of procedure and to insure that it was followed.  Initially both chambers had temporary or select committees but by early in the 19th century standing committees were established such as the House Ways and Means Committee and the Senate Finance, Foreign Relations, and Judiciary Committees. Over the years the number of Committees have been expanded and reduced.  Most Committees created sub-Committees to expedite and improve their functioning ability. The last major committee revision, except in the area of budget reform, was part of the Legislative Reorganization Act of 1946.

Functionally, it is in the Committees and especially since the 1970’s within the sub-Committees that the locus of legislative power resided both in the House and Senate. This is where Administration proposals or drafted bills were discussed, reviewed, rewritten, rejected, amended and, eventually, reported out. It was in this environment that most of the seriously contentious issues on a subject were debated and, mostly, reconciled. The remaining problems were fought out during Floor debate; especially in the Senate. While there were always exceptions to this system these were the historical operating norms.

This is not to suggest that there were not numerous legislative disagreements and fights, but at the end most legislative battles were resolved through a process of conflict resolution and compromise. When neither side walked away completely satisfied that was usually a sign that the legislative process had worked.

What was extremely important, however, was when major, complex legislation passed both chambers, a House-Senate Conference Committee, and was signed into law that the really hard work began.  It was during the following session or next Congress that the Members and the Administration would evaluate how the bill was functioning and being administrated. They would then work together to fix and improve the law. This was the most crucial part for any major legislation as the laws’ proper implementation depended on it; precisely what was never done with the Affordable Care Act.

After an extremely bitter struggle over the creation of Obamacare, Congress never undertook a proper review of the problems with the legislation. The Republicans, who controlled Congress, spent more than six years dedicated to trying to repeal the ACA. There never were any proposals recommending how to fix it. 

At the root of the current stand-off in Congress is the fact that Republicans now recognize that they cannot take the benefits of the ACA—with all of its difficulties—away from the American people. The flaws in the law need to be fixed but repealing it will not accomplish that goal.  As has been suggested now by a few Republican Members of both the House and the Senate, it is time to return the law to Committees and let them do their work to fix the ACA.  Having the Speaker of the House and the Senate Majority Leader present a bill under a reconciliation procedure—take it or leave it—never will improve the healthcare for the American people.

At the same time, the Democratic leaders need to swallow hard and admit publically that Obamacare has problems. They must be ready to sit down, trade, and compromise in Committees and on the Floor to fix the legislation; even if they must accept public criticism of President Obama’s signature achievement. This is legislating and why Members were elected to Congress. If everyone gets some egg on their face in the process it is likely that more Americans will receive better healthcare. 

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