Legislative Incoherence: Is this any way to run a government?

| January 1, 2014

By Robert Frederickson

So what makes for a good law?
Well, first, a broad consensus of support is needed from both lawmakers (across party lines) and from the public at large to ensure policy success.

Few if any longstanding, ultimately beneficial legislative initiatives have resulted from efforts to pass measures supported by just one of the major political parties or a minority of voters. The public should ideally be involved in discussions and meetings at the beginning of the process so legislators can effectively gauge the will of the people before (not after) they cast their vote. A good example of this type of upfront consensus building has been on display as the City of Sarasota and Sarasota County have worked to involve the public and various service agencies, foundations and other stakeholders in a plan to address the area’s chronic problems related to homelessness. While it is still too early to tell if the recommendations the city and county are considering from consultant Robert Marbut will be effective, they have at the very least been well vetted and seem to have a significant measure of public support. This greatly increases the chances that whatever recommendations are finally adopted will be successful.

On the other side of the ledger, the aforementioned Affordable Care Act, passed with no bipartisan support and much mistrust from large segments of the population. It has gotten off to exactly the type of problem-plagued start one would expect given its tortured gestation in congress prior to passage in that now infamous party-line vote.

Also, and again as discussed above, the Biggert-Waters Act was supposed to have had an affordability study completed prior to its rollout. That study was never completed. Why didn’t the original measure include a clause preventing it from taking effect until that study was completed? As it played out, the story is a classic example of “Ready, Fire, Aim!” mentality.

Another important ingredient for successful legislation is that the intended benefits be clearly recognized by a majority of the population. Taxation for the Interstate Highway System, launched during the Eisenhower administration, was generally supported by most citizens because the benefits were clear and seen to be for the general good in terms of increased commerce and industry as goods would be able to move faster and services would be provided more efficiently.

NASA in general and the space program in particular were also examples of measures that received bipartisan support and were embraced by a plurality of Americans. Here again, the benefits were understood by most and they accrued equally to all.

It’s when lawmakers think they know best and divorce themselves from their constituents that the train jumps the track. Citizen involvement has always been key to making good public policy.

Just look at the related story on the front page describing how Sarasota County is drawing visitors from around the globe to Benderson Park for rowing and Pentathlon events and to The Celery Fields for the pursuit of world-class bird watching. The county didn’t accomplish this on its own. As the County’s Parks and Recreation Director Carolyn Brown acknowledged in a phone interview recently, both if these locations were rather run-of-the mill, less than extraordinary parks until citizens groups (local rowing clubs in the case of Benderson and The local Audubon Society for the Celery Fields) became involved and added their passion and knowledge to the mix.

There is a common sense wisdom to be found in the hearts and minds of ordinary citizens that is often lacking from the skill-set of many elected officials.

William F. Buckley once famously quipped: “I’d rather entrust the government of the United States to the first 400 people listed in the Boston phone book than to the faculty of Harvard.”

If he were alive today he might amend that quote to include the majority of politicians in Washington DC.

During the final run-up to passage of the Affordable Care Act (aka Obamacare) in December, 2011, then Speaker of the House Nancy Pelosi famously said: “We have to pass the bill in order to find out what’s in it…”

Two years later, her words have proven remarkably prescient: the news cycle has been filled recently with stories of citizens just now discovering what that legislation actually means to them and their families. And in many cases they’re learning that today’s reality doesn’t match the rosy picture painted by the bill’s supporters in the run-up to its passage in the waning hours of 2011’s legislative session…in the dead of night, without even a glimmer of bipartisan support.

Indeed, just last week, PolitiFacts named President Obama’s oft repeated claim that “if you like your current health care plan, you can keep it…Period” the biggest lie of 2013.

Pelosi’s unguarded comment on the state of the legislative process brings to mind the old saying about sausage making: you might love to eat them, but do you really want to know how they’re made?

But can we really afford to ignore the cavalier attitude with which laws that so deeply affect everyday Americans now seem to get considered and passed into law?

Indeed, we’re not talking about an isolated instance here. Pelosi’s comments could just as easily have been applied to several recent legislative misadventures.

Witness the recent fallout from the implementation of the Biggert/Waters Act, which has sent federally underwritten flood insurance premiums soaring both locally and across the nation. There was supposed to be an affordability study on issues related to the bill prior to its rollout, but that study was never undertaken. Now the same legislators who voted to pass the act are wringing their hands over the potentially devastating impact it may have on the economy. That includes Sarasota’s own congressman, Vern Buchanan representing the 16th district who – at a recent town hall meeting held at the Sarasota Bradenton Airport – lamented that “this could crash the economy…”

Then why did you vote for it? Was there any expectation it would help the local economy? That it wouldn’t raise insurance premiums? After all, the bill’s aim was to close a $23 billion gap in the Federal Flood Insurance Program’s operating budget and that certainly wouldn’t be accomplished by reducing premiums.

We wanted to ask the Congressman about that vote. He was unable to speak with us personally, but his communications director Max Goodman did return our call and did his best to answer our concerns. He rejected the idea that Buchanan and the other 400 legislators who voted for the act didn’t know what was in the bill when they voted for it, saying “we knew what was in it,” but pointing to the affordability study that wasn’t done he added “it (the law) wasn’t implemented by FEMA the way they were supposed to, by completing the affordability study.”

Why not?

“They claimed they didn’t have enough funding,” said Goodman.

So a federal bureaucracy with no direct, elected accountability to the electorate, ends up undermining the intent of a duly passed Federal law? It would seem so.

We asked why a requirement for the affordability study to be completed before the law could go into effect wasn’t written into the original measure. Otherwise, isn’t it a bit like hiring a contractor to paint your house and only getting an estimate after the job has been completed?

Goodman said that would have meant dealing with the study as a standalone measure, adding time and complexity to the process. It shouldn’t have been necessary, but perhaps will be considered in similar instances in the future, despite the inefficiency it introduces into the process. But given the alternative…

Once bitten twice shy.

It should be noted that the problem isn’t exclusive to the Federal government. It exists on the state and local level as well. Remember a few years back when the Florida legislature passed a law requiring non-US citizens to apply for special permits in order to drive in the state? The ensuing confusion in the minds of many potential foreign visitors as to whether or not they could legally drive here with their foreign issued licenses sent shockwaves through Florida’s critical tourism industry as many would-be visitors reconsidered travel plans. Couldn’t our lawmakers have foreseen that the measure might just be a problem in a state that draws over 70 million visitors a year, many of them from Canada, Europe and any number of other international locations? The law had to eventually be walked back in a special session in yet another example of lawmakers discovering what was really in a law only after passing it.

Not to be overly flip, but perhaps our legislators should be encouraged to play chess during breaks in proceeding so they can master the art of thinking three, four, five moves ahead.

Corporations often adopt mission statements to focus their workforce on the primary focus of their businesses.

Maybe the medical profession would be willing to let Congress borrow theirs, which would only be fitting seeing as it is the industry most affected by the Obamacare bill Pelosi was hoping to understand post facto.

That motto is of course the Hippocratic oath: “First, do no harm…”

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