Arthur Applbaum, who literally wrote the book on ethics in adversarial situations, warns against the liberal tendency to bend over backwards to be upright:
Barney Frank reacted to the election of Scott Brown to the Senate by saying that the Democratic Partyâ€™s approach to health care was â€œno longer appropriate,â€ and that â€œour respect for democratic procedures must rule out any effort to pass a healthcare bill as if the Massachusetts election had not happened.â€
Barney is one of our great legislators, and perhaps this comment is prelude to a clever political stratagem. But as a proposition in democratic theory and political ethics, it is mistaken.
When democratic procedures are legitimate, the respect that they are owed begin and end with strict and good faith adherence to them. There is no will of Congress independent of its proper votes. Legislation passed by a lame-duck Congress is not lacking in legitimacy. A sitting president who vetoes a bill the day after losing an election has no less legitimate authority than had he vetoed it the day before the election. A bill passed unanimously is no more authoritative than a bill passed by one vote. A properly enacted measure that has low approval ratings in the polls is no less law than a measure that has widespread popular support.
So there is nothing at all inappropriate or disrespectful of democratic procedure for the House to pass the Senate bill as is. This would be so even if Scott Brown would have been the 51st Republican vote to defeat the bill itself, not the 41st to prolong debate, and this would be so even if a 60-vote supermajority were a Constitutional requirement, rather than a Senate rule that, as employed, arguably undermines the actual Constitutional requirement of a simple majority. On what plausible account of respect for democratic procedures is a newly-seated Senator owed a redo of a floor debate that has gone on for months?
The Senate bill, despite its flaws, is the most important contribution to social justice since the Voting Rights Act and Medicare. House Democrats would be acting entirely appropriately, and with proper respect for democratic procedures, if they pushed ahead and enacted the Senate bill. There may be considerations of strategy that counsel against, but not ethical considerations.