Process and Precedent: The Twin Pillars of Governance

Ariel Hill-Davis is a Republican from Pennsylvania who currently resides in Washington D.C. Ariel serves as Director of Industry Affairs for a trade association, working on legislative and regulatory issues that impact the mining industry.

Along with maintaining public trust in our democratic institutions, process and precedent are the most important components of a functioning government. In fact, we are witnessing this relationship as our national representatives debate the future of American healthcare. Process and precedent are intractably tied together, both creating and reinforcing each other. If process is the framework of rules guiding the drafting and passage of legislation and regulation, then precedent is the expectation that our government officials will follow these rules. Precedent, particularly non-legally binding precedent, creates a normalcy and consistency of working order, regardless of which party is currently running the show. The legislative process safeguards precedent and, when the government is functioning well, allows for open debate and intra/inter-party collaboration.

Of course, the problem with precedent is that new rules can be established depending on individuals’ or parties’ willingness to break with tradition and the standard process to consolidate or exploit a recent political windfall. One simple example of this problem is governance through Executive Order, which bypasses the legislative process in its entirety. Democrats and Republicans alike are on record praising their party’s President for utilizing Executive Orders while claiming the same actions from the opposing party’s President are tyrannical overreach of Executive Branch authority. This disregard for process and precedent, along with its inherent hypocrisy, is corrosive to professional and public trust in elected officials and Congress on the whole.

The Republican-led process to repeal and replace “Obamacare” is substantially more damaging to our institutions. The American public has had a front row seat to the breakdown of normal operating process and precedent by watching the drafting and passage of a Republican health care bill. In the name of repealing “Obamacare”, Republicans in both the House and the Senate are on record participating in legislative practices they railed against during the 2010 drafting and passage of “Obamacare”. Not only does this reinforce distrust of Congress, but it also is setting a precedent that Democrats could feel free (or pressured) to follow when they retake the majority at some point in the future.

Beginning with the Republican House American Healthcare Act of 2017 (H.R. 1628), the 2017 GOP has appeared to be motivated more by the goal of expedient bill passage than by crafting and passing good legislation. The initial votes in both the House and the Senate have been postponed because too few members of the GOP had read or even seen the bills to pass the legislation. While Senate Majority Leader Mitch McConnell drafted the Senate bill entirely behind closed doors, House Leader Paul Ryan forced a vote on the House version before the CBO released an updated score on the legislation. For a party that spent years decrying the Democrats for refusing to work with Republicans on legislation, it is shocking that current leadership is excluding not only Democrats, but also members of their own party from the legislative conversation. Quality legislation is not written in secret and passed without our Senators and Representatives having time to read, synthesize, and debate it. Concerns over the drafting and review process are merely compounded by the supposed “fiscally conservative” party proceeding without a CBO score or, as just happened with the Senate version, casting aspersions on the score the bill receives.

The GOP shouldn’t be looking to push through an ill-conceived or reviewed “fix” just to gain a political win. Healthcare in our country is a complex structure with myriad problems that need to be addressed through discourse and debate. Criticisms of the current system are warranted. However, excluding your own party members, not holding hearings on the drafts or allowing adequate time for review, and ignoring the outside input, ignores process and precedent in favor of politics. We should all ask ourselves what our governance will look like in the future if we do not ask our leaders to continue abiding by the established rules — especially when they stand to benefit by breaking with tried and true practices.

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