Otto von Bismarck is supposed to have said: "Laws are like sausages. It is better not see them being made." But after watching the making of the recent law on Capitol Hill to avoid going over the so-called cliff, I think that our lawmaking gives sausage-making a bad name. Instead of being a nation ruled by majority votes of elected representatives on all legislation as intended by the Founding Fathers in the Constitution, we are ruled by a few such elected officials who decide what measures are to be voted on, who is to vote, and when and how such votes are to take place.
By law, Americans are supposed to be represented by a total of 535 elected officials in both branches of Congress. Yet only three such members -- Senate Majority Leader Harry Reid, Senate Minority Leader Mitch McConnell and House Speaker John Boehner -- played the key congressional roles in lawmaking to deal with the "falling off the cliff" issue. This kind of representation of all Americans by less than a handful of officials has become a fundamental problem with our representative form of government. Each elected official has an equal constitutional right to and equal duty to be involved in lawmaking. But this not how today’s lawmaking works because the members of Congress established rules to the contrary mainly to protect partisan, political interests.
On the morning of the day when the nation was at the very edge of going over the "fiscal cliff." U.S. Senator Tom Coburn (R-Okla.) was cuttingly asked by a TV political talk show host, who was obviously exasperated over the lack of congressional progress over the issue, what he and his Senate colleagues were doing over the last few days about this matter. An equally frustrated Coburn groused that he and most of his fellow senators were doing nothing but sitting around and "watching shows like yours" on television talking about the matter. He said that they were neither included at that point in the negotiations nor informed about what was going on. Instead this was a Reid, McConnell and Boehner congressional show.
Then, just before the economic fall over the cliff on midnight of that day, when a deal was reached on the Senate side, McConnell received kudos from some politicians and political commentators. The ironic thing is that he just about single-handedly set the stage for the problem in the first place. During the last congressional session, he followed through on his political vow to try to stop the reelection of President Obama by keeping his minority members in line to block just about all of the president’s economic stimulus and deficit reduction proposals by a record-setting number of Senate filibusters. The consequences of this non-action and procrastination -- the failure to deal with the Bush’s tax cuts, the problematic annual debt ceiling vote, and the extension of unemployment and tax benefits -- set up the end of the year fiscal cliff problem.
In an effort to ensure that there would be timely congressional action, all sides agreed to a proposal reportedly from the White House to add unacceptable end-of-the-year consequences if no such action was taken. In other words, the lawmakers and the president literally put a gun to their collective heads which would go off if they took no action. These consequences were automatic and severe defense and domestic spending cuts that neither Congress nor the president wanted to happen.
Both sides thought that this surely would force Congress and the president to take action and reach an agreement. A political talk show host called this what it was, a dumb way to make laws, and I think most Americans would agree. The Capitol Hill lawmakers created the entire problem for themselves and then almost did not resolve at least just enough of it to avoid some serious consequences, at least temporarily. But even this last minute deal between the Senate and the president almost failed because of the stonewalling by Boehner to bring the deal to the House floor for a vote. Many of the members of the House majority of Republicans opposed this deal and they were in the majority at the GOP House caucus.
Former House Speaker Dennis Hastert had instituted a rule that a matter should not be bought to the House floor for a vote by all of the members if a majority of the party in control of the House was against it. In other words, if a majority of the Republicans in the House opposed the Senate deal, Boehner was not to allow it to go to a vote by the remaining GOP dissenters and Democratic minority members. This is not the way it was intended that the representatives should conduct business. It is supposed to be a matter of deliberation, debate and a majority vote up or down by all of the members.
This time, with literally minutes to act, Boehner relented and a vote was taken by the full membership to pass the measure. This is the wrong way to make laws. But there does not seem to be anything wrong with sausage-making. I have been enjoying them with my breakfast for a long time without any ill effect.
Robert "Frank" Jakubowicz, a Pittsfield lawyer, is a regular Eagle contributor.