Procedural ethics and health care reform

Arthur Applbaum explains why democratic norms don’t argue against passing the Senate version of health care reform through the House in the wake of the election of Scott Brown.

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 Party’s approach to health care was “no longer appropriate,” and that “our respect for democratic procedures must rule out any effort to pass a healthcare bill as if the Massachusetts election had not happened.”

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.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

12 thoughts on “Procedural ethics and health care reform”

  1. Hey, does anyone know if a Medicare expansion/buy-in could be done by reconciliation? I would look it up but I have to go sit in the rain-related traffic right now.

    If it's possible, I say we should do it. It is simply, cost-effective, and it would most of all be voluntary. (I have some doubts about the mandate, frankly. I am not sure tax-and-spend authority is the same as you-must-pay-this-semicriminal-gang protection money is at all the same thing! I wish Prof. Amar had said more about that in his recent op-ed.)

    Lots of folks would cry foul, but they will do that no matter what. I say the President needs to throw a nice big elbow (finally).

  2. Exactly. Despite vast economic powers arrayed against the popular will of the people, voters have found a way to elect a Democratic president, House of Representatives, and Senate. If that power resides in the hands of the people's chosen representatives for only a day, those representatives should use that day to do good for the people.

  3. Even if there were something inappropriate about pushing the bill through before Brown can defeat it, "inappropriate" does not outweigh saving lives, and the bill will save lives. I don't know why the Democrats do not keep repeating that 45,000 people a year die from lack of adequate health insurance.

  4. "Procedure" may not be exactly what Frank wanted to say. The claim is slightly different if you read him to mean something like "the expressed will of Massachusetts voters." An action can be procedurally well formed but inadvisable on other grounds.

    Still, I'm thinking he can't possibly be right.

  5. Sounds like somebody is confusing procedural ethics with "What the procedure lets us get away with.". It's true that, lacking a federal recall mechanism, federal legislatures once elected are able to do whatever they damned well please, right up until their terms of office expire, with no recourse save the next election. That doesn't make cramming something the voters have already told you they don't want ethical.

  6. Little Sister- As I understand it any bill that can be narrowly construed to impact on the budget can be adopted by budget reconciliation. And I think you are right that a medicare option for all could and should be adoped in that way. The down side is that it would need to be renewed before it expires in, is it five years, four years? Of course once enough people are covered it doesn't seem too likely that any elected office holder would be dumb enough to vote against it. It would become the new third rail of politics in America.

    If the Democrats did it they could rest on their electoral laurels for the next half century. So of course they won't do it. Too simple. They would rather wander around in a maze of policy complexities to prove how intellectually superior they are until the people who elected them get bored and angry and let the GOP grind them to dust with their simplistic nonsense.

    They've wasted a year on that fools' gold of "bi-partisan support" when any idiot could see from the beginning that the GOPers were just playing them for suckers. They had a mandate and a nation behind them and they have frittered it away trying to play nice with thugs. Of course I never thought a black man could be elected so maybe they might just surprise us all and get tough and decide to win. They could still do it. It would be simple. It could save the nation and the party.

  7. Why should the House (and the rest of us) settle for that flawed Senate version of HCR when the option remains to start legislating in the Senate as it was originally configured: simple majority with VP casting tie-breaker vote as needed?

    Bush rammed through tax cuts for the rich and plenty of other bills (including Iraq war) without 60-Senator support, and plenty of Republican bills have passed in the last 90 years without 60-Senator support. All that's needed is a little political will, and less fantasizing about "bipartisan" support being required.

    Democrats need to resign themselves to the fact that behaving decorously will not win them any Republican support, and is likely to lose them the Democratic support that they have.

    They HAVE a majority in both houses, and they can CHOOSE not to use it, but they can't whine about not having 60 votes and claim that as the reason they can't do anything at all–it's simply nonsense. It's time for them to get to work, and pass meaningful reform, before we vote all of them out!

  8. There's nothing ethical about one party to a contest failing to exercise its legal power to the fullest, particularly if the opposing party doesn't act reciprocally. If a lawyer tried to do this while representing you, he or she would be guilty of malpractice.

    So we should ask ourselves: what would the Republicans do if the shoe were on the other foot. The question answers itself.

  9. "The Senate Bill is the most important contribution to social justice since Medicare?"

    Are you serious? I mean, really, are you serious?

    Do you really think mandating that people buy overpriced, crappy so-called health insurance (not health care itself, mind you, only so-called insurance) — and financing it on the backs of working class people who are lucky enough to have decent insurance coverage now — is an important contribution to social justice? I wonder how just it will seem to those forced to buy overpriced but high co-pay health insurance (even with subsidies from the government, for now at least) when they can't afford the co-pays anyway. I wonder how just it will seem to those who are forced from currently adequate (so-called Cadillac) coverage to crappy high co-pay plans. I wonder how just it will seem to those with preexisting conditions or chronic health issues when they have to pay the premiums (up to three times more) that they cannot afford. I wonder how just it will seems to people in hospital beds who find they have just been rescinded (for so-called fraud or misrepresentation as permitted by the Senate Bill) or that the insurance company has stopped paying for health care because the cost of their medical needs are no longer "reasonable" (also part of the Senate Bill).

    Social justice? Please!

  10. Re Demon's concerns: had not most of the Democrats tried to provide measures not open to these criticisms, and were forced back to them by the intransigence of the Republican opposition and a couple of uninspiring, if not outright bought, Democratic swing Senators? In other words, the Senate bill is definitely flawed, but it is the best that the present gang could come up with. The proposal here is to have that one enacted, and with the wind a bit in the reformers' sails, to try to amend some of the undesirable parts.

    Since about-to-be-Senator Scott did not run against the MA health care plan, it is hard to say that the MA voters have definitively rejected the federal legislation. There were lots of reasons to vote against Ms Coakley, maybe even a few to vote for Mr Scott – so as a matter of logic, the vote should not turn the tide.

    As a matter of politics, it appears to have done so, leaving the US as the only so-called civilized and developed country in the world without universal health care. Pity.

  11. To John G: The Senate Bill is not the best they could come up with, it is the least they could do. In other words, the Senate Bill is what they knew all along that the weak-willed progressives would swallow — and now even beg for, as demonstrated above and at numerous other Village blogs. Thus has it always been – when you are always willing to accept anything that is "better than nothing," you will pretty much always get something that is only barely better than nothing.

    BTW, the idea that you going to somehow fix the bad parts you passed when you had 60 in the Senate – sometime in the future when you have 59 or 55 or 51 – is wishful thinking.

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