Friday, 4 October 2013

How NOT to make Law ...

I have been watching the 'shut down' of the US Federal government with something akin to astonishment. I confess, that based on the Huff Post reports and the BBC it seemed, at the very least, as if there was some deliberate 'self-destruct' intention at work in their Congress. Why would any party refuse to pass a budget to keep government services running? What really does lie behind this impassioned response to funding the "Obamacare" plan? Digging around, and asking some direct questions of a few of my US contacts has turned up some answers that leave me wondering if the US legislators actually understand democracy at all!

Let's start with the Act at the centre of this row. Obamacare, the proper title is The Patient Care and Affordable Care Act, is an astonishingly hefty tome, I'm told over a thousand pages in length. It was presented to Congress, unread and unseen, and Congress was given precisely 24 hours to pass it. Pardon? Pass a complex Bill of a thousand pages in one 24 hour sitting? That is precisely what was done. Immediately before the 2011 election and while the Democrats had small majorities in the Congress. The then Speaker, Democrat Nancy Pelosi, told those who objected, I quote, "You have to pass this Bill to be able to read what's in it."

I'm sorry, but had I been an elected member I would have refused to vote. Or I would have voted "No". It is just plain irresponsible to move, accept and adopt something as far reaching and as politically important as this without knowing precisely what is and what is not provided for by it. There is no way such an Bill can be read in just 24 hours! Yet this is exactly how the Congress was railroaded into passing the Bill. And now they are reaping the result.

Having learned this, and I have learned that such tactics are by no means unique, I find myself appalled by it. The US is always held up as the 'model' of western democracy, yet, in passing legislation in this manner, it is employing tactics used in the Soviet Union and in Communist China under Stalin and Mao. This is not western democratic process, this isn't good practice and it makes for appalling laws. If this is the 'model' of democracy they are following, I am not at all surprised the US has got itself into the mess it has. Nowhere in the world (apart from certain already mentioned dictatorships) can complex Bills be tabled, unread, unopposed, and adopted in 24 hours. In Britain, it would take up to three years to get legislation like this through the Houses of Parliament, because part of the democratic process is to allow public consultation, multiple reviews, revision of the text, judicial reviews, scrutiny by both Houses and finally it emerges as an Act. You cannot claim to be making good laws when you throw a thousand page document at the House, tell them to pass it, and then read it. That is a travesty. It is NOT democracy at work, that is playing ideological games.

Interestingly, I am also told that the reason Congress has at last bared its teeth is that many of its members face re-election next year. The President doesn't. He no longer, in the words of Ret Butler in Gone with the Wind, "gives a damn." He's now in the happy position of not having to bother about what the electorate will say or do come election day. The Members of Congress do - and, from what I am told, the impact of the Bill on the voters is starting to bite and to produce some very angry voters. I expect I would be too, if I was being told that my existing Health Care Plan was going to cost me 2 to 3 times what it used to cost, or that I must now pay the first $5,000 of any major treatment. Yet that is what is happening. Obama has also 'rewarded' Congress by exempting them from the provisions of the Bill and around 1,200 other institutions and large donor concerns, but the small businesses are being crippled by it. If you employ fifty or more people you must provide a Health Care Scheme. The cost to employers has been hiked by the Insurance providers, so, again as I suspect I would be forced to do, businesses on that threshold, are cutting staff.

Contrary to what a lot of the commentators outside the US seem to think, Obamacare is NOT about providing a National Health Service. It is about compelling people to buy Health Insurance. Those in work, in employers schemes or in private schemes are being made to pay more in order to fund those not in work. It is now illegal to NOT take out Health insurance according to my source, and that is hurting a lot of folk on low wages.

I remain astonished and appalled by the manner in which the US is dealing with the 'Debt Freeze' (although it isn't unique either I discovered, there have been 17 of these in the last few decades, at least 15 caused by the Democrats refusing to pass budgets under Republican Administrations). I am even more appalled by the manner in which the nation that purports to be the leader of the democratic world makes its laws. I accept that the Bill was not drafted in total secrecy, there must be some mechanism of consultation involved, but there does seem to be no mechanism for agreement on amendments or changes during the process. One thousand page documents are not written overnight, and Congress should never be allowed to pass one without the members having read it carefully. Twenty-four hours to read, consider, discuss, amend and then adopt one? No way.

I can only hope that this cavalier approach to creating legislation will now be revisited and revised. Europe, the UK and several other states could probably provide the US with much more workable, democratic and reasonable models. Would someone please persuade them to adopt one!


  1. As I understand it, and this is only from reading it as comparative legal studies not from personal experience, there are thousands of bills introduced in every session of Congress and it would be impossible for the house to consider each element of each of them in the way that the UK parliament does. My understanding is that there are a series of “little legislatures” named committees, but not the same as UK parliamentary committees. They however large or small, oversee the drafting of the bill and then, when it is presented to Congress advise their fellow members to vote for or against informed by their work on the drafting. I fear the Monk is looking through the eyes of one legislature while passing comment on another.

    To my understanding, again, not first hand, all small businesses in the US have for many years maintained healthcare plans, so this is not a sea-change, not a massive imposition sprung from nowhere, but a logical extension of existing arrangements to take the lower elements of society out of the charity sector. The relatively, occasionally excessively, wealthy, mostly white, members of Congress do not find this comfortable and the Tea Party see it as stealing from their pockets to give (N-word deleted) care they do not deserve. While we have extremist right wing views such as are bandied about at the moment, there will never be consensus, but what the house needs to remember is that, even if every word the Monk has written is absolutely accurate, the time and place to debate, object, inform and analyse this matter was during the elections. Once those elections were complete and Obama was re-elected, then the Bill stands, end of story. Churchill did not repeal Beveridge's welfare state, disband the NHS, denationalise the railways or repeal the 1944 Education Act, these were matters put in place by a government acting legally and in good faith. Imagine the uproar of the House of Lords had tried to overturn such provisions, traditional hereditary peers would almost certainly have wished to do so given an open hand, but parliament does not work like that in the UK. Even more noticeable is their declining the opportunity to overturn the Parliament Act of 1949 which clipped their wings yet again.

    What we have here is a small, but powerful, faction of right wing members, some extreme, holding an entire country to ransom over a debate that has been had, after an election that they lost, like the school-yard bully, they flex their muscles because they can. Who is suffering? Not they, it is the small-time civil service staff, the public servants usually on low salaries compensated for by relative stability of employment. It is the ordinary Joe who cannot comply with the never-ending requirements of red-tape because the offices are closed. It is the poor and the elderly, the disadvantaged that exist in every society, they exist even in the evil dictatorships although they are often shovelled into mental hospital or labour camps and quietly buried when their time comes. What we are witnessing here is political petulance, nothing more, nothing less.

    We see it in the UK every time there is a change of government we get told “they didn't really win, they only had 23% of the vote”, I'm sorry you don't approve, but under the current rules, they did win, so like it or lump it, same in the US currently, if you really, really wanted to de-rail Obamacare, you should have made it the central issue in the run up to the last election.. Oh! No, wait, you did! And you then lost! Now suck it in and live with it and stop making the US even more of a fool in the eyes of the world than it already is.

    Josephus will now go and lie in a cool dark room with a lettuce leaf on his head until sanity returns.

  2. Jospephus is correct regarding the many small committees that prepare and wrestle their Bills through Congress, however, on Obamacare there is an element he has overlooked. There is usually (as in the UK) a 'freeze' on the passage of any 'contentious' Bill during the immediate run-up to an election. This one was rammed through by a narrow majority on the eve of the election - and the Democrats did it in the full knowledge that they might lose the control of the House - which they did. (New Labour did much the same thing with the Equalities Act, breaking the agreement that contentious Bills should not be rushed through in the run up to elections.)

    He is correct in saying that most small businesses already provided some Healthcare Plan for their employees, but my information is that this Bill now increases their costs of doing so beyond what most find reasonable or affordable. While the intention of this Bill may well be laudable, it is the manner in which it was railroaded through Congress on the eve of the election - not after it - that has caused most of the resistance. That has been further complicated by the granting - on what I am informed is a very selective basis - of 1200 "exemptions, mainly to Democrat supporting institutions.

    Certainly there are some serious questions here regarding the manner in which the politicians are holding the country to ransom on this issue, however, I am much inclined to feel that, on a Bill with the impact of this one, far more should have been done to obtain a wider concensus. The utterance of Ms Pelosis "Pass it so you can read it" is far from satisfactory.

    If one moves away from the row over the Obamacare Bill for a moment, the main contention between Republican and Democrat members at present is the National Debt. It was high under G W Bush, under this Administration it has doubled and stands now at almost US$17 trillion. The Repblicans want cuts to the speding plans of Mr Obama's Administration, the Administration refuse to make them and want to increase spending. In this debate Obamacare is something of a smokescreen in my view.